US intrusion is illegal. Period

It is a matter of grave concern that the Government of Pakistan has failed to formulate a comprehensive policy in response to an armed American attack inside Pakistani territory which US officials themselves have described as deliberately unilateral. It took Prime Minister Yousaf Raza Gilani eight days to stand up in parliament and tell the world that Pakistan will not tolerate a violation of its sovereignty. The problem is, Pakistan’s sovereignty has already been violated and words alone, unless backed by credible action, will do nothing to restore it.

Consider what is happening. Reeling under the shock of the discovery of Osama bin Laden in Abbottabad, just kilometres away from the Pakistan Military Academy, and facing terrible US pressure, official and unofficial, GoP seems to think it has no space left to press the point about the incursion.

Such is the disconnect between state and society on one level and society and the military on the other that even bright, sharp minds in this country have bought into just one side of the story and dismiss as irrelevant – or indefensible – the issue of Pakistan’s sovereignty. The situation has reached a point where ‘national honour’ is now associated only, and pejoratively, with a bunch of loonies that want Pakistan to declare a global war rather than accepted as a necessary function of the very idea of sovereignty without which there can be no state.

Fortunately, despite this attitude and the pusillanimity of GoP, Pakistan remains in a position to respond to this incursion through non-military means. There can be a series of responses but let me here point to only one.

It is not enough to summon the US ambassador and protest the illegal US action. Pakistan needs to take the issue of incursion to the UN Security Council and pronto. Comments are already out by international law experts on the problem of justifying the intrusion and many await with bated breath Pakistan’s response. It may be noted that waiving its right to agitate the issue would set a precedent that could prove very dangerous for the state.

But there’s more. David Bosco, contributing editor at Foreign Policy writes: “There are really three different sets of legal questions here. First, whether the operation comported with US law and had legal authorisation from Congress. Second, whether it was consistent with the international rules on armed conflict (specifically, whether OBL was a legitimate target and whether US forces complied with accepted rules on discrimination and proportionality). And third, whether the American attack on Pakistani soil violated the UN Charter.”

Bosco finds the third question “actually the most difficult” to answer and not without reason. An armed attack on another state must either flow from Article 51 of the UN Charter which deals with self-defence or should be authorised by the UN under Chapter 7. Moreover, while there is a legal regime dealing with terrorism and terrorist acts and the right of states to defend themselves against such threats, the UN “has never given blanket authorisation for countries to conduct cross-border operations without the consent of the governments involved”.

The reason is simple: there is no clear “limiting principle” to guide the conduct of states attacking terrorist targets in another state on the pretext of self-defence. The reason for the absence of a limiting principle is owed to a number of conceptual, legal, definitional and operational problems which cannot be debated here. Suffice to say that the absence of such principle means a state cannot be allowed to violate the sovereignty of another state because such conduct once condoned could result in a free for all.

The UN Charter provides an additional barrier to unilateral action in the form of Article 2 (4). The article, now customary state practice, prohibits states from use of force or the threat to use force. Writes Bosco:

Some scholars insist that Article 2(4) … should be read very narrowly. Focusing on key terms within that article, they ask whether a raid like this one actually interfered with the ‘territorial integrity’ or ‘political independence’ of the target country. Because the US wasn’t trying to seize Pakistani land or change its government, they might argue that there’s no UN Charter problem at all. But this interpretation is in a distinct minority. Most scholars – and almost all national governments – defend a much more robust version of 2(4): if your armed forces cross into my territory without my consent, you’ve violated the UN Charter.”

That is the dominant interpretation. But then Bosco tries to wiggle out of this difficulty by quoting Ashley Deeks, a lawyer who has also worked at the US Department of Justice, who posits as the key test the question of whether a state is unable and unwilling to tackle the problem of terrorism and a terrorist threat.

“If the territorial state is either unwilling or unable, it is reasonable for the victim state to consider its own use of force in the territorial state to be necessary and lawful (assuming the force is proportional and timely). If the territorial state is both willing and able, the victim state’s use of force would be unlawful … Although the test is easy to state, international law gives the United States (or any state in a similar position) little guidance about what the ‘unwilling or unable’ test requires.”

Right; so we have a test here with its own difficulty. But let’s take it as it stands. The US is on record on multiple occasions to have declared Pakistan a state that is both willing and able to deal with terrorism – and continues to do so. These statements have been made by US presidents, legislators, and other officials, both civil and military. Even in this case, US President Barack Obama acknowledged getting help from Pakistan. Pakistan has captured and handed over more Al Qaeda leaders and members than any other state. Simultaneously, it has conducted counterinsurgency operations that have been far more successful than anything the US and its allies can claim in Afghanistan.

Juxtapose this test then with avowed declarations by US officials that (a) after getting the initial leads from Pakistan they kept it in the dark and (b) they decided deliberately to take unilateral action inside Pakistan.

Note also that both the UN and the EU, while welcoming bin Laden’s killing have refrained from commenting on the intrusion because they know that legitimising it would open up a Pandora’s box. Officially, nothing can be done until the state whose sovereignty has been violated takes the issue to the UN and agitates. Pakistan, however, is going about life as if nothing has happened.

This is a triple whammy: bin Laden violates our sovereignty; in comes the US and violates it; and now, through inaction, we are undermining it ourselves.

The writer is Contributing Editor, The Friday Times.