Karzai’s threat or its actualisation offers a cure which is worse than the disease. All actors in this arena are facing difficult choices; it makes no sense to worsen the situation and face a standoff that redounds to everyone’s disadvantage
Should we be surprised that Afghan President Hamid Karzai has threatened to send his troops across the border to fight militants in Pakistan? No. If anything, the threat has been late in coming. Consider.
There are three levels at which the issue can be analysed: legal, operational and political.
Legally, the international community’s effort to purge Afghanistan of Taliban-Al Qaeda elements and return it to the fold of normalcy is underpinned by several resolutions. The first to come was UN Security Council Resolution 1267 (1999). It established a sanctions regime which covers individuals and entities associated with Al Qaeda, Osama bin Laden and/or the Taliban wherever located.
Next to come was 1333 (2000). It buttressed the original resolution. Resolution 1333 also had provisions against the cultivation of poppy and drug trafficking.
On July 30, 2001, the UNSC passed Resolution 1363 which established a Monitoring Group and a Sanctions Enforcement Support Team to monitor and assist implementation of the measures contained in the earlier resolutions. All these resolutions were passed under Chapter VII of the UN Charter and are therefore binding on all member states.
Specifically, after 9/11, the UNSC passed Resolution 1373. The resolution aims to curb the movement, organisation and fund-raising activities of terrorist groups. And states are encouraged to share their intelligence on terrorist groups to assist in combating international terrorism. It also calls on all states to adjust their national laws so that they can ratify all existing international conventions on terrorism. Under 1373, the UN also set up the Security Council’s Counter Terrorism Committee to monitor state compliance with its provisions.
This resolution too was begot under Chapter VII and sought to reaffirm UNSC Resolutions 1269 (1999) and 1368 of September 12, 2001, which dealt with terrorism and the threat it posed to member states.
But while 1373 could not define “terrorism”, Resolution 1566, passed on October 8, 2004, defined terrorism as “criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimidate a population or compel a government or an international organisation to do or to abstain from doing any act.”
Since the invasion of Afghanistan by the US-led forces, the Security Council has come up with at least half-dozen more resolutions dealing with the situation and supporting the earlier resolutions.
What does this legal regime mean?
Last year, while speaking to the participants of a workshop at the Research Society of International Law on the interactive dynamic between force and law, I had presented the following scenario:
If State X cannot control its citizens from crossing over into State Y and creating trouble in collaboration with insurgents in State Y, would the latter have a legal basis to enter the territory of X either in hot pursuit of such elements or to identify and specifically target any bases or the lines of communication of insurgents?
One thought was that Article 2 (4) of the UN Charter forbids states from doing so. It reads: “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 Purposes of the United Nations.”
I disagreed for two reasons. One, legally, the article forbids member states from using force but only if such a threat or its actualisation is “inconsistent with the Purposes of the United Nations”. If State X has failed to fulfil its obligations under several Security Council resolutions towards State Y, then Y could be said to have resorted to the threat of use of force or its actual use consistent “with the Purposes of the United Nations”.
My second reason for disagreeing with the invocation of Article 2 (4) was two-fold.
One, Article 51 of the UN Charter grants members the right to self-defence: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
While there is a clear limit on such action — until the Security Council has taken measures necessary to maintain international peace and security — in such a situation as the one in which State Y is defending itself on the basis of Security Council resolutions, its action(s) will be deemed to have been in consonance with and in reaction to the inability of State X to fulfil its obligations under the relevant resolutions.
Indeed, responsibility to bring its behaviour in line with the relevant resolutions will devolve on State X in the same way as, for instance, in the case of Afghanistan it did on the ousted Taliban regime.
Two, given the problem of terrorism and the threat it poses, international law experts are already debating the operation of Article 2 (4) in light of the problem of how to “develop cooperative strategies (by adopting old institutions and arrangements and — where appropriate — crafting new ones) that will meet the twin tests of legitimacy and effectiveness and provide a meaningful alternative to unilateralism or institutional paralysis” (Ejaz Haider, “Force and legitimacy: evolving US thinking — I”; The Friday Times, September 23-29, 2005 | Vol. XVII, No. 31).
Seen from this perspective, the legal position increasingly begins to tilt towards the state that has to be normalised and against the one where some elements may be opposed to such international effort.
While the Pakistan Foreign Office has invoked the issue of sovereignty to rubbish President Karzai’s threat, we need to develop a more nuanced legal position in this regard.
The second level is political. Karzai’s statement has not come out of the blue. It obviously has the backing of the United States which, while cautiously monitoring Pakistan’s attempt to strike deals with the militants, is also geared up to use force inside Pakistani territory if and when necessary.
The US also knows that the Taliban based in the tribal belt have made clear, repeatedly, that while they are prepared to cease hostilities against Pakistani troops they will cross over into Afghanistan and create mischief there.
The recent incident in Mohmand Agency in which 11 Pakistani soldiers were killed is a case in point. It shows that the US and US-led troops are prepared to strike inside Pakistani territory even if such actions resulted in damage to Pakistani troops.
This is where we enter the more troubled operational level. Hot pursuit or a planned operation into Pakistani territory without any coordination with the commanders east of the Durand Line could mean fire-fights between troops on both sides. The area is already extremely troubled and any such possibility runs the risk of getting out of hand. At any rate, it could, and would, result in developing adversarial relations between forces on both sides of the Line. It does not need saying that the only beneficiary of such a situation would be the Taliban-Al Qaeda elements.
On all three levels, therefore, Karzai’s threat or its actualisation offers a cure which is worse than the disease. All actors in this arena are facing difficult choices; it makes no sense to worsen the situation and face a standoff that redounds to everyone’s disadvantage.
For its part, Pakistan needs to understand that it is on a weak legal, political and military wicket. It must play carefully.
Ejaz Haider is Consulting Editor of The Friday Times and Op-Ed Editor of Daily Times. He can be reached at email@example.com
Source: Daily Times, 17/6/2008