Hot pursuit or breach of territorial integrity in Pakistan  

Amjad Malik Writes specially on the issue of US incursions in Pakistan

As Pakistan is paying the price for flirting with United States yet again and Pakistan did not learn anything from Russian invasion and its post war results. The country being in the rock and hard place, is viewed by many that its giving too much to the Americans, but USA considering it not enough, hence unilateral incursions. 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 Post Army Chief's statement vowing to defend the country's borders. These attacks whether through missiles or land operations are fatal for the state sovereignty principle as it not only establishes might is right principle but exposes a trust deficit amongst operators of war on terror at international front.

King Abdullah rightly pointed out some intelligence failures and lack of cooperation at that front and insisted the need of joint Intelligence mechanism internationally to combat this menace which is affecting us all. When we look at UN and its charter, the forum which was set up to avoid war and to reaffirm faith in human rights and to establish conditions under which justice and respect for the obligation of treaties can be maintained, we read that the tolerance was the key and it was agreed to the prohibition of armed forces save in the common interest. Article 2(4) of the UN charter is obvious when it 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 US incursions & attacks at Bajaur & Dama Dola in 2007 and especially one ground operation on the morning of 4 September 08 at "˜Angoor Adda' in the tribal areas of Pakistan where special forces killed many civilians on the faulty intelligence, and High value target as usual was missed, it paints a gloomy picture on trust front. These attacks mock the position of international law and such forums for 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 in perception as it fail to alienating AL-Qaeda from the mainstream. It also gather opposition of millions of Pakistanis on ground & abroad who despite their reservations see US as an unavoidable influence for Pakistan. It will be difficult to gather support internationally if such approach persists.   It is obvious from the past 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 Regan allowed action in Libya and now July Presidential authorisation in Tribal areas of Pakistan seems a further refined extension of that US position.

US stepped up cross border operations on the premises that Pakistan is either unwilling or unable to root out the terror network. The US defence department's General Counsel has interpreted international law to authorise unilateral action under these circumstances. A 1999 General Counsel assessment of legal issues in "˜information operations states' says that 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. Though there is not a sound legal backing by community of nations on that legal assessment but such tendencies are disastrous in results. However based on that analysis US defence Secretary Robert Gates in September seeks guarantees of the safety and  protection of his soldiers from Pakistan who itself is at receiving end, and warns of hot pursuits to chase Taliban in Pakistani areas. There is no doubt, that 9/11 was the most tragic incident in this decade which brought so much hatred; vengeance along with it, as well as, it brought the ancient civilisations on to a clash of civilisation where tolerance and forbearance was lost somewhere down the line. Pakistani army has lost around a thousand soldiers as a result of their active participation in the north of their country bordering areas of Afghanistan. According to the reports at present lives of more than 400,000 civilians of 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 life of 450,000 people of the four districts of the NWFP including Sawat, DI Khan, Hangu and Tank have also become worst due to the operations of the army. Sources said that 80,000 Frontier Corps and 40,000 infantry troops are manning 1100 check posts, which is ordinary duty of the police. The sources claim that the public favour and support to these operations can be achieved only in this way that they are assured that this war is solely being conducted for the security of the country, and unilateral incursions will prove fatal and will unite even the disassociated one's as USA will be seen as an oppressor. In North and South Waziristan locals are taking up arms against its own military personnel and new US Policy will ignite the fire in the lower ranking military officers whose philosophy of discipline is to die in protecting the integrity of the State. Both sides are picking up dead bodies and there is debris everywhere  but no one is willing to discuss and address the root cause of the arms struggle and genuine absence of the political process in war torn areas with aid package, land mines to stop infiltration at Durand line, man to man watch on the border. Way forward could be a joint Ariel cooperation to stop insurgency, aid package for the affected, reviving the Jarga system in tribal areas, renegotiating settlements, full joint progress on intelligence share and border security maintenance, and above all  alienation of Al-Qaeda from the mainstream Pakhtun and Taliban thus try to win the hearts and minds of the locals on that ground.

The law on the other hand on "˜hot pursuit' is a dubious one. Hot Pursuit principle was basically set to counter insurgents in water territory and for country A's naval forces to chase criminals who run for shelter in Country B's waters after committing a crime in country A's seas and this right was established under Article 111 of 1982  UN convention, which is mirrored originally in Article 23 of 1958 UN convention both of which establish rights of nations on sea. Though later this was used as a weapon by ground and air forces but the right is limited with very tight conditions. Countries have in the past used cross border attacks such as Turkey against Kurds in North Iraq last year and Columbia targeted "˜Farak' rebels who were seeking refuge in Equadore and Israel took refuge under the same principle when it attacked "˜Hizb Ullah' spots in Lebanon.

Though analysts internationally have reservations about the usage of such law in the past and are adamant that hot pursuit principle may only be used when an enemy is physically being chased and it enters in an other territory however when US forces attacked Pakistan last month it was not chasing the enemy on ground and it did not have a clear mandate by Security Council for such pursuits. NATO showed restraint at that time and disassociate themselves from such actions which shows a clear drift when it comes to the application of international law.  Article 51 of the UN Charter entails defence of nations which has many pre requisites and it can only be used where there is real and present danger to a state and it has no other option but to use the right of a self defence. As Pakistan is a Non NATO ally a front line state in the war on terror so there seems no reason of such retaliatory attacks when both are not at war with each other,  instead, are fighting for a common cause. Under International law post 9/11 UN under a resolution 1373 binds the states to control non state element that can endanger national security of others. Whether it is Michael Scarf of US Council of Foreign relations or Peter Denison 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 an effective control in their areas not to allow it to be used to flourish terrorism and they can face UN sanction, if in default. Winning the heart and minds of affected people is the key to stop them picking up arms against its own army and supporting Taliban and effective diplomacy to calm the super power to avoid experiments before their November US elections as they are determined to find high value target leaving dead bodies behind which will result in bloodshed afterwards which can be fatal for Pakistan as a state and dangerous for the world in general.

We must pay heed to the call of Nawaz Sharif , PPP sensibles, who call for a Parliamentary oversight of US Pakistan cooperation & call for a dialogue with tribal's and the world 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 moot of war on terror and the way it is fought. He challenged their strategy to operate this war which was counterproductive. Being Pakhtun himself,  he highlighted that Alexander the great, Mongols, Moguls, Britishers & Russians all came to conquer this land and all returned with empty hands with unfinished business. He called for a review of the strategy which is rather than alienating Al Qaeda, from the Taliban to Pashtuns, mixing it with them which is 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' avoiding National Security Council, but one will alienate oneself from international community and may attract many enemies in return and who knows where they hit back in retaliation. I finish with Prophet's companion Hazrat Ali's quote that hopeless nations consider an opportunity as a difficulty, where as hopeful one's translate that 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.

Amjad Malik, MA, LLM, is a Solicitor-Advocate Supreme Court of England, Life member of SCBA of Pakistan and currently a Vice chair of the Association of Pakistani Lawyers (UK)