Current Affairs

Hot pursuit or breach of territorial integrity in Pakistan

Pakistan is, yet again, paying the price for flirting with the United States, who itself has not learned anything from the Russian invasion of Afghanistan. Now Pakistan finds itself between a rock and hard place, and is viewed by many as giving too much to the Americans, who in turn, want nothing but more and more from Pakistan, hence, the unilateral incursions into Pakistan’s sovereignty. Qasuri ex Foreign Minister confirmed some understanding on silently bearing with US predator attacks and possible limited Pakistani protest over it without physical action, but that policy does not have political and public backing. So voluntary surrender of territorial integrity is not on the table now.

These attacks, whether by way of missiles or land operations, are fatal to any principle of sovereignty because they not only establish the impractical notion that “might is right”, but also expose a deficit of truth amongst the operators of the war on terror in the international arena. Saudi Arabian King Abdullah rightly pointed out some intelligence failures and lack of cooperation in this arena and insisted on the need for international joint intelligence to combat this menace affecting us all.

The principles that guide this area, the UN Charter, were set up to avoid war, to reaffirm faith in human rights and to establish conditions under which justice and respect for the obligation of treaties can be maintained. Tolerance is the key to the UN Charter and makes evident the agreed prohibition of armed forces, save in the common interest. Article 2(4) of the UN charter says that “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purpose of the United Nations.”

When we see the US incursions and attacks at Bajaur and Dama Dola in 2007 and especially when we see the one ground operation at ‘Angoor Adda’ on the morning of 4 September 08 in the tribal areas of Pakistan, US guided special forces killed many civilians based upon faulty intelligence, and the high value target, as usual, was missed. These attacks mock international law and such forums of the people of less privileged countries. These unilateral attacks may support US policy internally in their drive to widen the net, but unilateral attacks are counterproductive and are failing to alienate AL-Qaeda from the mainstream. These attacks also gather the opposition of millions of Pakistanis at home and abroad who, as if mired in an addictive love-hate relationship, see the US as an unavoidable influence for Pakistan.

It is obvious from the record that such attacks are not rare. President Clinton authorised such action in 1993 against Iraqi intelligence facilities, and in 1998 against terror camps in Afghanistan and Sudan. President Ronald Reagan authorized such attacks in Libya. Now in July 2008, there is US presidential authorisation, in a further and refined extension of this US position, to attack the Tribal areas of Pakistan. It will be difficult for the US to gather support internationally if such behaviour persists. The US stepped up its cross border operations on the premises that Pakistan is either unwilling or unable to root out the terror network. In 1999, the General Counsel of the US Department of Defence assessed legal issues in “information operations states”, and has interpreted international law to authorise unilateral action under the following circumstances: If a neutral nation is unable or unwilling to halt the use of its territory by one of the belligerents in a manner that gives it a military advantage, the other belligerent may have a right to attack its enemy in the neutral’s territory. There is no sound legal backing by the community of nations on that legal assessment and such tendencies are disastrous in results. However, based on that analysis, US defence Secretary Robert Gates in September warned of hot pursuits to chase the Taliban into Pakistan as a guarantee for the safety and protection of his own soldiers from Pakistan, who itself is at the receiving end of US “civilian collateral damage” and also of those being hotly pursued.

There is no doubt that 9/11 was the most tragic incident in this decade which carried forth so much hatred and vengeance along with it, and brought the ancient civilisations into a clash where tolerance and forbearance became lost somewhere down the line. The Pakistan Army has lost over a thousand soldiers as a result of its active participation in the northern border areas of Afghanistan. According to present reports the lives of more than 400,000 civilians in the seven agencies of Fata — including South, East Waziristan, Orakzai, Kurram, Bajaur, Mohmand and Khyber agencies — are directly affected by this ongoing war on terror. The lives of 450,000 people in the four districts of the NWFP including Sawat, DI Khan, Hangu and Tank have also become worse due to the operations of the army. Sources say that 80,000 Frontier Corps and 40,000 infantry troops are manning 1100 check posts, which is the ordinary duty of the police. Sources claim that public favour and support of these operations can be achieved only if there are assurances that this war is being conducted solely for the security of the country. Thus, unilateral US incursions will prove fatal uniting even the disassociated ones as the US is seen more and more as the oppressor. In North and South Waziristan locals are taking up arms against their own military personnel. And this new US policy of unilateral attacks is igniting fires in the lower ranks of military officers whose philosophy of discipline is to die in protecting the integrity of Pakistan. Both sides are picking up dead bodies and there is debris everywhere but no one is willing to discuss and address the root causes of the arms struggle and the genuine absence of the political process in these war torn areas and no talk to replace this with aid package, land mines to stop infiltration at Durand line, man to man watch on the border and befitting financial assistance to allies in this task and victims . A way forward could be a joint Ariel cooperation to stop the insurgency, aid packages for the affected, a reviving of the Jarga system in tribal areas, a renegotiating of settlements to root out foreign elements who are pro Al-Qaeda, winning on perception, full joint progress on intelligence sharing and border security maintenance. This way forward could productively alienate Al-Qaeda from the mainstream Pashtun population whose hearts and minds the Taliban are trying to win.

The law, on the other hand, of ‘hot pursuit’ is a dubious one. The Hot Pursuit Principle was basically established to chase insurgents in territories of water and for country A’s naval forces, for example, to chase criminals who run for shelter in Country B’s waters after committing a crime in country A’s seas. This right was established under Article 111 of the 1982 UN convention, which is mirrored originally in Article 23 of 1958 UN convention both of which establish rights of nations on the sea. Yet this principle, this “right of hot pursuit”, limited with very tight conditions, is still being employed by ground and air forces. Countries have in the past used cross border attacks: Turkey against Kurds in North Iraq last year, Columbia against ‘Farak’ rebels seeking refuge in Equador and Israel taking refuge under the same principle when it attacked ‘Hizb Ullah’ locations in Lebanon. Analysts internationally have reservations about the usage of such law and are adamant that the Hot Pursuit Principle may only be used when an enemy is physically being chased while entering into another’s territory. When US forces attacked Pakistan last month it was not chasing the enemy on the ground. Moreover, the US did not have a clear mandate by the UN Security Council for such pursuits. NATO did show restraint at the time and disassociated itself from these US actions, showing a clear drift away from the US application of international law. Article 51 of the UN Charter addresses the defence of nations and has many prerequisites requiring “real and present danger” to a state and where there is no other option but to use the right of a self defence. Since Pakistan is a non-NATO ally, and a front line state in the war on terror, there seems no reason for such retaliatory attacks when both nations are not at war with each other, but instead, fighting for a common cause. Under International law, post 9/11, the UN, under Resolution 1373, binds states to control non-state elements that can endanger the national security of other states. Whether it is Michael Scarf at the Council on Foreign Relations or Peter Denison of the University of Maryland School of Law, they all have a clear understanding that hot pursuit establishes rules of engagement at sea. States bear a responsibility to have effective control of their own areas, not allowing terrorism to flourish. Such states face UN sanction, if in default.

Winning the heart and minds of affected people is the key to prevent them from picking up arms against their own army and supporting the Taliban. Effective diplomacy is needed to calm the super power to avoid experimental military actions before their November elections. The US seems determined to find a high value target leaving dead bodies behind. The resulting bloodshed could be fatal to Pakistan as a state and dangerous for the world in general. We must heed the call of Nawaz Sharif and PPP sensibles who call for a Parliamentary oversight of US-Pakistan cooperation, and call for a dialogue with the Pakistani Tribals who has a history of warfare. The world, and the US, should also listen to the voice of Imran Khan, a cricketing legend turned politician, who on 25 September whilst addressing US lawyers at Brussels, strongly criticised the USA’s unrealistic “war on terror” and the way this war is fought. He challenged US strategy that wages war in a counterproductive way. Being Pakhtun himself, he highlighted that Alexander the Great, the Mongols, the Moguls, the British and the Russians all came to conquer this land. All returned with empty hands and unfinished business. Mr. Kahn calls for a review of the current US strategy which is failing to alienate Pashtun Pakistani people to Al Qaeda and the Taliban and creating a catastrophe and an up roar in those areas where millions are homeless as victims. This war can only be won with unity of thought, collective effort, and joint cooperation of intelligence, with fast economic activity and packages. Single handedly, one may attack a few areas in any country using dubious legality under the guise of ‘hot pursuit’ and avoiding the UN National Security Council, but one will alienate oneself from the international community and may attract many enemies in return and who knows where they may hit back in retaliation. I finish with Prophet’s companion Hazrat Ali’s quote that hopeless nations consider an opportunity as a difficulty, whereas the hopeful one’s translate the same difficulty into an opportunity. This is the time for international community to consider this knock on their door as a difficulty or an opportunity to bring peace, justice and humanity in the world, as opposed to war, catastrophe and bloodshed.

About the author

Amjad Malik

Amjad Malik, Solicitor–Advocate of the Supreme Court of England and Wales, life member of SCBA of Pakistan, a specialist in immigration and Human Rights Law. He is a member of Law Society’s Immigration Law Committee’, he was awarded ‘Young Human Rights Lawyer Award’ for the year 2000. In the year 2001,Young Pro Bono Solicitor’s Group also named him for the national ‘Young Pro Bono Solicitor Award’. On 28 February 2007 he was awarded by (UICF) United International Community Forum (UK) in recognition to his outstanding professional contribution towards service of Asian and British community in role model capacity where Chief guest was Mrs. Cherrie Blair. He sits on ‘UK Foreign and Commonwealth Office’s Pro Bono Lawyer’s Panel.’ He is UK representative on young lawyer committee of the International Bar Association & UK Director of Human Rights Foundation (USA) and is a current Vice chair of ‘Association of Pakistani Lawyers (UK)’.

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  • Interesting post, Rubab. The tragedy of the entire issue between the USA and Pakistan is the Taliban, but the problem is that it was the USA that empowered the Taliban back in the 1980s against the Russians, who then tried to invade Afghanistan. So, here the USA now faces the Taliban with arms and now Pakistan is in the midst. All I can say is that I hope the USA and Pakistan can work together. In my opinion, it is Russia that has been the demon in the background, for many decades, provoking all of the conflicts in the Far East. Perhaps one day everyone will realize this and the fighting will end one day. That is my hope and prayer.