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- [00:01]
Adrian L. Smith
The following podcast contains advertising to access an ad free version of the Lawfare Podcast. Become a material supporter of lawfare@patreon.com lawfare that's patreon.com Lawfair also check out Lawfare's other podcast offerings, Rational Security, Chatter, Lawfare, no Bull and the Aftermath.
- [00:32]
Brittany Johnson
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- [01:56]
Caroline Cornett
I'm Caroline Cornett in Turnout Lawfair with an episode from the Law archive for May 10, 2025. On Tuesday, India carried out strikes on nine sites in Pakistan in response to a terrorist attack that killed 26 people, most of them tourists, in Indian administered Kashmir. India's government linked the attack to Pakistan, which denied involvement. Following the strikes, Pakistan's prime minister authorized armed forces to undertake, quote, corresponding action. For today's Archive episode, I selected an episode from August 27, 2019 in which Christine Fair joined Benjamin Wittes to discuss the situation between India and Pakistan after India announced that it was revoking special status for the states of Jammu and Kashmir, which Pakistan called ho a grave injustice. They talked about the special status enshrined in Article 370, the subsequent lockdown and troop presence in Kashmir, and more. I'm Mikayla Fogle and this is the Lawfare Podcast. August 27, 2019 On August 5, the Indian government announced that it was revoking the special status for the states of Jammu and Kashmir enshrined in Article 370 of its constitution. Since then, the government has instituted a lockdown in the Kashmir Valley. Hundreds of people have been detained, there have been mass protests, and tens of thousands of Indian troops deployed to the region. Professor Christine Fair of Georgetown University's Security Studies program sat down with Benjamin Wittes to discuss Article 370, its history, and the current state of play in the region. It's the Lawfare Podcast, episode 447. Christine Fair on developments in Kashmir.
- [03:49]
David S. Cohen
So walk us through the last couple of weeks in Kashmir. What precipitated this whole latest round of controversy and difficulty? And what steps has the Indian government taken in response to the controversies that it generated?
- [04:11]
Emily R. Thompson
So on August 5, Monday, the government announced that it was essentially revoking Article 370. In substance, Article 370 remains on the books because it used Article 370 to hollow out Article 370. And in advance of that, people were growing suspicious that something was like was going to happen of this nature, because over the course of several days preceding this, even weeks, they were airlifting a total of some 40,000 troops. They had on the night of Sunday, August 4th, they put mainstream politicians under house arrest and they declared a communications blackout. So by Monday morning, everyone knew something was coming, and that's what they did.
- [04:58]
David S. Cohen
At the highest level of altitude. What does gutting Article 370 do to government in Kashmir? Like, what's different after this action than before it?
- [05:10]
Emily R. Thompson
So it's not only gutting Article 370, it's also the way in which they did it that needs to be understood. Getting rid of Article 370 itself simply says that Kashmir is going to be subject to the Indian constitution, that there's not going to be separate parallel legal regimes. Right. So as of August 5th, and of course it'll be contested in the courts, Kashmir is going to be like any other territory in India. It's going to be subject to the. To the constitution, as opposed to its own state constitution that it had prior to August 5. But the additional things that the state did have a particular flavor that has caused some rancor among many in India. So the first thing that they did was instead of just letting Jammu Kashmir remain a state that has all the Indian laws applicable, they. They actually bifurcated the area. So Lay and Ladakh. Ladakh is gonna become a separate union territory. And I'm gonna explain that in a minute. And Jammu and Kashmir are gonna become a separate union territory. So this is actually the thing that's been, I think even more problematic for many people.
- [06:25]
David S. Cohen
So they didn't just revoke self governance, they actually broke up the territory.
- [06:29]
Emily R. Thompson
They broke up the territory and they downgraded the status from state to union territory. Now we don't have anything like this in the US system and the two have different kinds of union territory ness. So Ladakh is going to be like the vast majority of union territories in India and there's actually a large number of them. It is going to be directly governed from the center. It will have political representation in the lower house, the Lok Sabha, but for every other purpose it's going to be governed from the center. It will not have the equivalent of a state assembly. Jammu and Kashmir is still going to be a union territory. It's going to be governed from the center. But at some point with no timeline specified, it will be like Delhi or Pondicherry in that it will have an assembly. Right. So it's going to be, it'll look much more like Delhi in governance or Pondicherry. Jammu and Kashmir. This move is actually clever from a security point of view because of the corruption in the police forces and the corruption of the police forces that were tied to corrupt politicians. So overnight politics is completely redone. These parties are going to have to seriously rethink their strategy to remain viable. Also they were dynastic parties and BJP tends to dislike the dynastic parties. Also overnight. Now the police forces are now answerable to the center. And so the state hopes that this is going to give them a better handle on law and order issues. So the next question that naturally arises is why now and why did they do this? And this unfortunately is tied to geopolitics in the region. The Indians have been very worried that Trump is going to cut a deal in Afghanistan that puts the Taliban back in power in some way or another. This is very likely to happen. The Indians know from the 1990s that when the Taliban were in power, groups that attack India were co located with the Taliban. They trained, they were resourced and there were isi, which is Pakistani intelligence officers, co located with this cluster of militants. So the Indians know that what happens in Afghanistan doesn't stay in Afghanistan and that India, more so than other neighbors, has paid a direct price. So there was talk about doing this as early as February, but then the Puwama crisis happened, then the elections occurred and it got kicked so many people in India. And I think, as you know, I was in India when this was going down. Well, Placed Indians who are well connected to the government. What they felt was the immediate trigger was not only the peace negotiations and the looming certainty of a bad deal coming, but it was actually what happened with President Trump and Imran Khan here.
- [09:22]
David S. Cohen
In D.C. imran Khan being the Pakistani Prime Minister.
- [09:26]
Emily R. Thompson
Yes. Trump literally took the third rail of Indian politics and whacked India with it. When Trump offered, not only did he offer to intervene in Kashmir, he actually lied and said that Prime Minister Modi had asked him to intervene. And Prime Minister Imran Khan made a massive score when he tied the security in Kashmir to Afghanistan. Right. So the Indians were ballistic. And of course, Trump has continued along these lines even after Modi, the Indian Minister of External affairs, said this absolutely did not happen. So Indians think that this was the immediate trigger that said, no, no, no, we've got to do this. We gotta do this now.
- [10:09]
David S. Cohen
All right, we're gonna dive deep back in time in Kashmir. But before we do, what's the current state of play?
- [10:18]
Emily R. Thompson
So the current state of play is that they still have the mainstream politicians under house arrest. They've released some of the telecommunications shut down, and we are seeing quite a bit of protests in Kashmir. But you know what? I think the most disturbing part about this is how this move has been seen by Hindu nationalists or Hindu Vadi proponents. We're seeing some really disturbing things coming out of popular culture. There's always been this fetishization of Kashmiri women. They're always talked about as being very fair. They're talked about as being excessively beautiful and both culturally and geographically out of reach. So we are seeing pop music, we are seeing random obnoxious tweets from BJP supporters and BJP politicians saying that now is the time to go and marry a Kashmiri bride. It doesn't matter that she's a Muslim. So in some sense, this is like an inversion of some of the claims that Hindu nationalists have made about Muslims waging love jihad, whereby they claim that Muslim men are trying to seduce Hindu women as a part of a demographic jihad.
- [11:37]
David S. Cohen
This is the advocacy of that.
- [11:39]
Emily R. Thompson
This is the advocacy of. It's obverse. And so that's actually really quite appalling. And there have been rape jokes made about, I'm going to go and get myself a Kashmiri girl raper and put it on the Internet. So this kind of stuff is going to confirm some of the worst fears amongst liberals in India who are very concerned about the communalization of what could have been seen as a straightforward constitutional issue.
- [12:06]
David S. Cohen
So let's go from there. Back to the constitutional issue. How did this latest episode start?
- [12:15]
Emily R. Thompson
So it's probably useful to say what this thing is. Right. What I am very puzzled by as a liberal who tends to be very wary of nationalism in general, religious nationalism in particular, is how Article 370 came to be associated with Muslim Kashmiri nationalism in the first place. When the British divided up the subcontinent into India and Pakistan, Maharaj Hardy Singh, he was a Hindu sovereign over a largely Muslim area. It's also important to note that this territory that we're talking about never had an integral or organic geopolitical history. It's actually a combination of. Of Sikh rule, Dogra rule, which is a particular community of Hindus in this area, and the British, basically, through time, this area, largely for administrative reasons, got clubbed together. So this is why you have these very natural sub communities that are inscribed. So maharajahari Singh, he wanted to remain independent. Pakistan invaded despite a commitment not to do so. This resulted in Maharaj Hari Singh asking for India to. To help him out. And India says, I'll do it as long as you sign an instrument of accession.
- [13:33]
David S. Cohen
And an instrument of accession means later become effectively part of India.
- [13:37]
Emily R. Thompson
Exactly. I mean, India's argument was, we're not going to airlift troops to defend territory that's not our own. So if you become our territory, we'll send troops and we'll naturally defend what is in effect, our sovereign territory.
- [13:48]
David S. Cohen
And just to be clear about that, when most people think of the partition of British India into India and Pakistan, they think of a division into two pieces.
- [14:02]
Emily R. Thompson
But it was hundreds.
- [14:04]
David S. Cohen
But, yeah, it's actually a lot more than that. And so Kashmir is the one whose status was kind of never entirely resolved. But there are actually a bunch of places that aren't obviously part of either India or Pakistan in 1947, is that right?
- [14:25]
Emily R. Thompson
In fact, there were over 500. Right. And so on. The last Viceroy, Lord Mountbatten, was actually able to get some 520 princes to agree to join one of the dominions. All but three held out. And the three holdouts were Hyderabad. It was a largely Hindu population ruled by a Muslim sovereign. He wanted to remain independent. India actually staged a very aggressive military campaign to seize that territory. The other was Junigar. It too had a Muslim sovereign over Hindu population. That sovereign signed an instrument of accession to join Pakistan. India said, no way, because that territory was also well within India. Of the three, Kashmir was the only one that had territory and lines of control and rivers abutting both. So when Hari Singh signed this in smooth session, this is the curious thing that as a liberal, I find so puzzling. Remember, Hardy Singh was a Hindu. And as soon as he signs his instrument of accession within a few years and by the time India signs its constitution, so Article 370 is the constitutional version of the text or the instrument of accession. The whole point of Article 370 was to protect the interests of Hindu dogras who were very angry that their sovereign Maharaja Hari Singh had actually been displaced and politics were essentially taken over by Abdullah Abdullah of the National Congress, who was a Muslim. So here's the irony, historically, right, Article 370 was actually intended to protect the equities of Hindu dogris. And today it's become this signifier of trampled Muslim Kashmiri autonomy. And I think the reason for this is that Indians, like Americans, don't know history. To me, it's someone who traffics in history. I find it quite ironic.
- [16:33]
David S. Cohen
How is Article 370 understood today? Why do the Hindu nationalists hate it? And why is it seen as protective of Muslim rights in Kashmir?
- [16:46]
Emily R. Thompson
So part of it goes back to Abdullah Abdullah. He was a Muslim leader of Kashmir, but he was also a freedom fighter. And at one point he was a close ally of Nehru. From Abdullah Abdullah's point of view, he paid a high cost for allying with Nehru and stating his preferences to join India. And so by the time we get to the 1950s, we already see Kashmiri independence being a sina qua non for Kashmiri Muslim politics. So it's very quick, but that the forgetting of the origins of 370 actually happens. And so he views retaining this independentness which Article 370 allowed, it included Kashmir having its own constitution, having its own flag. So in other words, it's like a state within a state. This for him was an important way in which he sold his support for joining India. And Abdullah's support for joining India was important. India will take that. As you see, Abdullah agreed to this. So we don't. This whole issue is said and done. So that's how I think it became a sine qua non of Muslim Kashmiri independence, because that's how it was sold by Abdullah Abdullah. But over time, the center did have ways of imposing some aspects of Indian law on. But on the main people didn't understand how much Article 370 had evolved. And from my point of view, I think it's really ironic that liberals like myself, in fact I find myself being pilloried by other liberals who are arguing that it is genuinely liberal that people have a right to live under what was essentially the legal regime of a despot that was enabled through colonialism. Right. This is where when a thing becomes an object, divorce of its politics, it becomes easy to be bandied around in this way.
- [18:47]
David S. Cohen
So when Modi contends that Article 370 has genuinely limited development in Kashmir and it has enshrined poverty and it has kind of created kind of a backwards legal culture, corruption, very corrupt. How true is it?
- [19:08]
Emily R. Thompson
So he's not wrong. I mean, these would be things that I would make as a criticism of Article 370. Now here's the question. So to put this in like an American context, American Republicans and Democrats would agree that we need to have immigration reform, right? Probably the laws they would put forward maybe have 75% or 80% in common. But Democrats will look at a Republican bill and they'll be wary of it because it's ethnic cleansing. Republicans will look at the Democrat bill and they will say, oh, they're trying to change demography. Right. It's the politics of the action that is the problem more than the action itself. So he's right. So ever since 1947, money has flowed in from Indian intelligence agencies, Pakistani intelligence agencies. These politicians are very much on the take. Police officials have complained that when they want to do a raid, politicians that are sympathetic to militants will actually tell them about the raid. When you go to the valley, you'll see these wealthy homes that are discordant with legitimate political income. So he's not wrong. And there is another problem with investment that's called 35A. It did not allow people from the outside to buy land. So if you're a business person and you wanted to do a large green fielding project, you've got two problems. One, you can't buy that land if you're from the outside because you have. There's no legal mechanism that allows you to do so. And let's pretend that you did. Why would you want to invest in a state whose legal relationship to the Indian state is completely liminal, Right. Money goes where money feels safe. I mean, I wouldn't want to invest in Kashmir if I had money to invest under that regime. So all of those things are not untrue. The problem that I think liberals have, and Muslims in particular because they do feel under threat by this government, is. Was that his actual intention? Right. And I have to agree with him there. This has been a long standing manifesto item. It is right next to the imposition of what's called the Uniform Civil Code, which intends to get rid of Muslim personal law. And the third item is rebuilding the Ram temple at Ayodhya on the site of a mosque that was torn down in 1992, December of 1992, precipitating massive communal riots. So if you're a Muslim, all of those things that he said could very well be true. But you don't necessarily think that's his motive.
- [21:40]
David S. Cohen
All right, so you've described a genuinely flawed underlying policy in which there would be decent reasons to want to revisit the governance arrangement in Kashmir. But the BJP doing it for all the wrong reasons, or at least many of the wrong reasons. And of course doing it in a way that's quite oppressive in the sense that they put a bunch of politicians under house arrest, they shut down the Internet for a long period of time.
- [22:13]
Emily R. Thompson
And they've arrested thousands of youth and.
- [22:16]
David S. Cohen
You have a protest erupting as a result, which they clearly tried to suppress. So what we know about the actual desires of people living in Kashmir, about what governance arrangement they should have, I mean, how many of them could be expected to be how hostile or how sympathetic to some revisitation of the arrangement or this revisitation of the arrangement?
- [22:46]
Emily R. Thompson
So let's break it down by territory. Ladakh very, very happy with this. For a very long time they were really, it was frustrating for them to be yoked to the politics of the Valley of Kashmir, Jammu. The vast majority of people are going to be very happy with this. There are a few pockets of Jammu which are Muslim dominated. There might be objections. So what we're really talking about is people who live in the Valley of Jammu which is Muslim dominant. And as I said, for Some reason Article 370 became this cause celebre of Kashmiri Muslim identity and independence. So I have always taken umbrage at this notion that the entire state is somehow anti India. And in fact we do have one poll, a very good survey that Chatham house did in 2010 and I wish that they would be in a position to redo it. They interviewed several thousand people across both sides of the Line of Control which divides Kashmir into the part administered by Pakistan and India. They did not interview those Kashmiris in the part that Pakistan ceded to China in 63, they're excluded. So of the results that pertain to the portion administered by India, most of Jammu and Ladakh and even Kargil, which is Muslim majority, but they're not Sunni majority, they tend to be Shia. They wanted to stay with India, overwhelmingly Kashmir, and specifically talking about the valley which is overwhelmingly Sunni Muslim, they wanted to be independent. There was no support, as Pakistan claims, for joining Pakistan. And of course, if we were to go back to the choice that was offered to Maharaj Singh at the time of accession, the choice wasn't to remain independent. So I try to find data that kind of dispel some of these claims that this is one homogenous region and their political aspirations are the same. There's anywhere between six and 12 districts out of 22 are where we're likely to see the strongest opposition. And this is where, look, the onus is upon this BJP government to prove that this wasn't just a communal stunt to appease the Hindu nationalist base. If they generally mean what they say, and I, and I tend to put the odds of that at being quite low, we're going to need to see some follow through on all of the things that they said this move would make possible, such as economic development. The other important thing that this enables is India has this very robust system of local governance, the Panchayat system. So this is actually going to allow a version of that to take place in Jammu Kashmir as well as Ladakh. And this is a way in which you can see the possibility of growing local politics that might be less tainted by the corruption that we've seen over the last many decades.
- [26:01]
Adrian L. Smith
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- [30:04]
Caroline Cornett
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- [31:04]
Emily R. Thompson
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- [31:25]
Brittany Johnson
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- [31:29]
Emily R. Thompson
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Brittany Johnson
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- [31:58]
David S. Cohen
So is it possible this is it? Before we get to some of the bad scenarios here, let me just throw out a good scenario which is the bjp, for all the wrong reasons, did something that a lot of people locally may benefit from, that may improve local governance and that may create an environment in which people outside can invest in Kashmir. And so you could have a situation where with all the wrong intentions and for all the worst nationalist reasons in the world, Modi actually comes up with a disruptive policy intervention that functions in a positive way. Intentionally Pollyannish. How unrealistic do you think that is?
- [32:49]
Emily R. Thompson
So here's the problem. The scenario that you laid out could only happen by getting rid of Article 370. That's the irony, right? So is it Pollyannish in the way that all Panglossian fantasies are? But the fact is you are never going to get a lot of investment in the state job creating investment as long as people could not buy land. Now here's the other thing about Article 370 and 35A. It was inherently sexist. So if you were a female and you married a non Kashmiri, you lost your right to your land. Your children lost their right to inherit your land. A man could marry whoever he wanted and his rights were not erased. If you were a Kashmiri pundit who was ethnically cleansed in circa 1990 and there were about the estimates widely vary, but at the time maybe 150,000 or more were driven out. And of course, they have since multiplied. Outside of the state, they couldn't sell their land, Right? So they've been sitting there for decades, unable to return because it's not safe. Everyone agrees it's not safe, nor could they sell it to anyone but someone who genocided them, Right, who would then take advantage of their economic precarity and give them a suboptimal price. So not only is that a Pollyanna scenario, the irony is, though, that the only way you could get there, there's no other way of getting there without getting rid of this archaic legal infrastructure.
- [34:22]
David S. Cohen
But that suggests that you're saying Modi may have ended up doing the right thing for all the wrong reasons.
- [34:29]
Emily R. Thompson
And that's exactly what I say. He did the right thing for the wrong reasons with dubious means to appease his base.
- [34:38]
David S. Cohen
All right, so let's talk about some of the downsides other than that the means suck and the motives. And the motives suck. One is that Kashmir is an international flashpoint. Pakistan is whatever claim it may have on the Indian side of the line of control. It's the nuclear power, and it's a hyper nationalist nuclear power. And China administers part of Kashmir as well. And so you have three nuclear powers, one of which is the second largest economy in the world, that actually care about this mountainous piece of land. So what is the worst case scenario? If I just described the best case scenario, which is Modi malevolently steps into a good policy and everybody's life improves, what's the worst case scenario here?
- [35:32]
Emily R. Thompson
The worst case scenario is this move actually precipitates the outcome that the move was meant to prevent in the first place. Right. Which is they were afraid that all hell is going to break loose after this deal with the Taliban. And it goes back to the violence that the area experienced in the 1990s, principally through Pakistani malfeasance. But there's a couple. Well, there's several things that make that less likely and there's some things that make it more likely. Let's talk about the things that mitigate that prospect. So there is no chance that the Indians are going to relax the security grid anytime soon. They've hardened the line of control. They have drones. So it's much more difficult to do the kinds of infiltration now relative to the 1990s, when it was a relatively soft border. So that makes it harder. But there are some things that make it easier. Namely, and I'm not going to even Imran Khan is not relevant. Pakistan's military, the army chief, they understand that they're the key to giving Trump what he wants by the 2020 election. So, speaking of manifesto promises, right, Trump wants out of Afghanistan in a significant way where at least he can say to his base, I've kept another promise. If the BJP fetishizes election promises, Trump is very much the same way. So the question is, if you are Pakistan's deep state, you are very tempted to take advantage of this situation and really just throw some kerosene on fires.
- [37:04]
David S. Cohen
And what does that look like? So if you can't send a lot of people over the border, I think it is true that Pakistanis have never actually won a significant military engagement with the Indian army.
- [37:17]
Emily R. Thompson
They've started every war, and they've lost each one or they failed to win, depending upon how you define loss and winning.
- [37:23]
David S. Cohen
And so if you're the Pakistani army, you have to be at least respectful of the Indian capacity to repel a conventional military attack. The nuclear side is, of course, unavailable for all the reasons that nuclear deterrence tends to make it unavailable everywhere. And so what are your options if you're Pakistan and you really want to make Modi pay a price for this, but the terrorism's getting harder. They kick your ass every time you have a conventional fight with them.
- [37:59]
Emily R. Thompson
Kick asses a little bit.
- [38:02]
David S. Cohen
Well, you don't prevail.
- [38:04]
Emily R. Thompson
They don't prevail.
- [38:05]
David S. Cohen
So what are your options?
- [38:07]
Emily R. Thompson
So until very recently, and by recently, I mean the last three years. So here's something really curious. So the Indians, and this is another change, by the way, is the hint that they're not gonna have a no first use, and then also change in the military command structure, which also signals some really important things on the Indian side. So until very recently, if you were Pakistan, you could bully India with your nuclear weapons. And it's funny, Indians never. Indians would always say, well, we can't do X, Y, Z because Pakistan has nuclear weapons. And all the decades I spent in Pakistan, which I can't. I can't return to anymore, I never heard a Pakistani say, we can't do A, B and C to India because they have nuclear weapons. And so this goes to issues of strategic culture. So Pakistan has a war it can't win. It has nuclear weapons it can't use. But what it can do is use the impunity afforded by its nuclear umbrella to send jihadis in. And they can calibrate violence in a number of ways. And you can see them do it over time. So one is geographically, Kashmir is the Most low salient because it's viewed as disputed and it's far away. Well, India's media has changed that. Right. For many years Indians in the south were like Kashmir, whatever. But in the Kargil war in 1999, the Indian government made a decision that they were going to send bodies back locally in the same way that Americans and perhaps the Vietnam War saw bodies return. And it was very emotive. The Indians decided to do that to nationalize the conflict. This had never happened before in the previous wars. They would be cremated on site and the families would be given sort of like, you know, general cremains. But this time bodies were sent home to be buried or cremated, depending upon the faith. So this really for the first time made Indians in Trivandrum care about what was happening in Kashmir. Right. So the idea that it's remote, I don't think that's true anymore with India's media. And India's media has become jingoistic, beating the drums of war. I mean, India's media has transformed the popular framing of these issues. So one is Kashmir, which is still low valence. If you're thinking about calibrating violence at the high end, we'd be attacking Bombay.
- [40:25]
David S. Cohen
Or Delhi, which they've done.
- [40:26]
Emily R. Thompson
Which they've done that right now with India vowing to punish, every subsequent attack would be a really dangerously escalating move. And it's not clear what pathways to de escalation would be available in these circumstances. So one thing that they have done so and the other option are like these third tier cities like Gurdaspur. Another way of calibrating the violence is your target. So you've got geography is one axis, the other is targets. Indians get more exercised over the loss of security forces than they do civilians. Right. So Indians were more upset about the loss of 22 members of the Central Reserve Police Force in Palwama than they were for example over the 1993 attack in Mumbai that killed even more than the 2008 attack. So that's another way of calibrating is who you're killing. And then the third thing is the way that you do the attack, is it going to be sabotage like blowing up a bridge? Or is it going to be a Fedayeen attack like Lashkara Tayeba does, which are really special operations missions or is it going to be like Pawama, a suicide bombing? Right. So what I anticipate Pakistan is going to do is try to use these different measures or these different dimensions of calibration to figure out what can it get away with? In other words, it's going to push India only so far to the point where it can actually manage how India responds. And the other thing that Pakistan, I think, is going to be banking on is that Trump is going to sit on the Indians to suck it up. Right. In other words, like we saw at Palwama, largely because Trump was golfing. He, and I'm not joking, he wasn't there to micromanage the dispute as previous presidents had. So actually, from a game theoretic point of view, it was actually kind of brilliant because the Pakistanis, I think they were anticipating the United States to play its traditional rule. Just tell the Indians to just calm down. You're the responsible adult in this dyad. Don't be provocative. So I think that will be the other thing that the Pakistanis are going to be thinking about, is what role will Trump play as long as Pakistan is necessary for Trump's 2020 agenda item, which is getting out of Afghanistan. It's a really fun game theoretic matrix, in other words.
- [42:44]
David S. Cohen
Right. So where does China fit into this?
- [42:47]
Emily R. Thompson
So China. China is really fascinating. So the Pakistanis have always said that the Americans use Pakistan as the condom to screw Afghanistan. But I would point out to the Pakistanis, and I frequently do, that you're also the condom that China uses to screw India in this sense, that the.
- [43:05]
David S. Cohen
Difference is willingly in that case.
- [43:08]
Emily R. Thompson
Exactly. Because, you know, it's willing.
- [43:12]
David S. Cohen
I think they don't perceive it that way because the conflict with India is so salient that they actually don't mind being used by the Chinese.
- [43:20]
Emily R. Thompson
Exactly. Absolutely. So when you point out the facts of the Pakistanis, they do get sobered up a little bit. It is a fact that China has never material aided Pakistan in any war. In the 1971 war, Nixon actually asked China to make just a few gratuitous movements along the McMahon line, which is there's disputed borders with China in Aksai Chin, but also along Arunachal Pradesh. So if you think about the map of India and you've got East Pakistan, then in sort of like the armpit, Arunachal Pradesh is in the shoulder. Right. So the idea was that if China could just look menacing, India would have been deterred from invading East Pakistan and bifurcating it. China couldn't even be bothered to even pretend. China even refused to even put psyops out that it might do this. Right. So China has been so supremely unwilling to help Pakistan in an actual state of war. But what China does like to do, China likes to Make Pakistan feel competent enough that it can challenge India and China will certainly when it can take Pakistan's positions to the United Nations Security Council. So it has been very reticent to designate Pakistan based terrorist groups that attack India. So that's what China wants. It wants to make Pakistan feel that it's militarily and politically and diplomatically capable of challenging India short of a war.
- [44:54]
David S. Cohen
But does China care whether the land on the Indian side of the line of control is a state, whether Article 370 is respected or whether it is a militarily administered territory? I mean, does the domestic configuration of the Indian politics matter to China at all? I mean it matters deeply to Pakistan. But do the Chinese give?
- [45:23]
Emily R. Thompson
Well, so on August 5th that question was unclear, right? Because the question on August 5th was is this revocation in the application of Indian law only envisioned to be pertinent to that part of the territory that India administers? Well, on August 6, Amit Shah clarifies this.
- [45:44]
David S. Cohen
Amit Shah says no and he's the Indian Foreign Minister.
- [45:47]
Emily R. Thompson
Exactly. He says no. It implies we have an instrument of accession. It applies to all of it because.
- [45:53]
David S. Cohen
India claims the parts of Kashmir that are administered by both China and Pakistan on the theory that this instrument of accession was for the whole territory.
- [46:06]
Emily R. Thompson
Right. And actually it's true. I mean legally India, that is Indian territory, they have an instrument of accession. Maharaj Singh, that was the entire territory that he governed. So legally India can say this. The other problem though, so when he made this declaration, there's no reason why China was like wait a minute, because the 1962 war, as I said, there's two areas of disputed territory. So one is in Aksai Chin and so there, which is called the line of actual control, China is in control of territory that India claims. Right? So, so when you ask your question, does China actually care? So China's annoyed, right? And China has, and remember they had a very significant, I'm not sure how to even try to proxy conflict over what happened in Bhutan at Doklam in 2016. So China, you know, 20 years ago China really thought India was a pipsqueak that was punching above its belt. But after this significant realignment of U. S Indian relations, the American commitment to help India really to be a first class world power capable of challenging China and being a partner in managing China's rise, they've had to really rethink what, what India is and what India is capable of. Particularly after the Indo US nuclear deal which was very bomb friendly. So on the one hand, so China issued a statement that was both derisive but also demonstrated its peak. So it said, look, India's making all of these domestic laws that have international implications and it's really irritating, but does it change the facts on the ground? That is to say that we are sitting in occupation of territory that India claims. So it cares, but it doesn't care. And the fact is, I'm going to paraphrase China, good luck, India, getting this land back.
- [47:58]
David S. Cohen
So as you look forward over the next few weeks and months here, what are the warning signs that we're headed toward? A bad outcome, A sort of eruption of violence or some other heightening of tensions? And what would be the indicators that were more in the first scenario where MODI has, for all the wrong reasons, done something that actually is maybe a good thing for a lot of people. How will you know over what time frame what we're looking at here?
- [48:34]
Emily R. Thompson
So this is like a nuclear reactor in the sense that when all the parts are taking a line from the Chernobyl miniseries, when all the parts are dancing nicely together, it is a beautiful thing. But when things become out of balance, it becomes very dangerous. So let's take for example, the security clampdown. So the reason why they're doing the security clampdown and the communications clampdown is that they want to make it very difficult for Pakistan to activate domestic cells. You know, basically local boys, as they call them, to engage in terrorist activities. Right. So on the upside, you're suppressing the ability of these groups to contain violence. The downside is you're punishing a whole lot of people in the expectation that you're preventing nefarious actions of a few. So this is very counterproductive.
- [49:26]
David S. Cohen
And you're probably also preventing a lot of people from complaining in a classic free speech kind of way.
- [49:34]
Emily R. Thompson
Absolutely. The other thing is, and I've lived under curfew in India, you cannot believe what is said about the curfew. I remember being in curfew in Mussoorie as a student and we were watching Indian News saying, the curfew in Mussoorie has been lifted so that people can buy groceries. A, that wasn't true. B, there were no groceries to buy because how were groceries getting into a curfew affected area? Right. So this is the other thing is that when you have these curfews, people are dislocated from their ability to earn. There is no produce coming in. I mean, we're moving into the winter rapidly and food shortage is going to begin to be an issue. If this situation persists, you know, into, by the time we get to October and November, we're getting into a situation where we're going to have snowfall. How is food going to get in? So this is going, I think the nuclear reactor analogy is actually quite apt and we're not going to be able to see because of this clampdown. So a couple of things that I think India could do and should do that would be immediately helpful. One, let the mainstream politicians leave house arrest. This was gratuitous. It didn't need to happen. It has just been needless, the curfew. I understand the need to restrict. I understand that they're concerned about peaceful protests, lawful protests being exploited by the Pakistanis. But this is the cost of democracy, right? The Indians are going to need to stop this oppression of lawful, legitimate and democratic protests. This is how you basically take the air out of a tire before it explodes, is by letting it leak legally. But the things that I am very worried about in the near term, and whether or not, here's the irony, whether or not India does those things, India could do all of those things. India could stop the jackboot thuggery and terrorism will still happen. And so it's sort of like the Israel paradox, right? When Israel says, you know, we can either give land for peace or don't give land for peace, we're still not going to get peace. And I don't want to make the parallel to India to Kashmir, because that's not what I meant to do. What I mean to say is you're damned if you do and you're damned if you don't, because whether or not they stop the jackboot thuggery terrorism, Pakistan has an incentive to do that anyway. It's just that Pakistan will use this situation as the hook to justify it. So whether India does or does not do that, I still fear that we're going to see Pakistan manipulating the various vectors of escalation. It's possible that we'll see an attack maybe against civilians in places like Jammu, where it's Hindu majority. Maybe we'll see attacks on a bus or the reason why I say civilians is that the Indians will tolerate civilian losses, as I said, more than security forces on third tier cities. So this is what I anticipate to see. And the Pakistanis are going to be balancing what they anticipate from Trump as well as this leverage that they have in terms of escalating the kinds of violence that they can perpetrate. And I'll tell you, if there is a terrorist attack, India will justify this to be even more oppressive in Kashmir and quite frankly, Pakistan benefits from that.
- [53:03]
David S. Cohen
On that cheerful note, Christine Fair, thanks so much for joining us.
- [53:07]
Emily R. Thompson
Thank you.
- [53:10]
Caroline Cornett
The Lawfare Podcast is produced in cooperation with the Brookings Institution. Thanks this week to Christine Fair for coming on the show. If you have a second, please share the Lawfare Podcast on social media and get Give us a five star rating and review wherever you found us. You can also purchase Lawfair Swag at our online store, www.thelawfairstore.com. the podcast is produced and edited by Jen Patia Howell. I was your audio engineer this week and our music is performed by Sophia Yan. As always, thanks for listening.
- [53:57]
Emily R. Thompson
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