The legal course

Nato strikes and the international law

War, like other adversities, it is argued, has great unifying force. World War II brought the world nations together in search of a just peace. This unified effort brought into existence, albeit for a sort period, the League of Nations. Its primary purpose was to jointly get rid of the scourge of war and give peace a chance. The intention was right but the execution faulty. Resultantly, the League of Nations soon faced existential threat as there emerged grave and imminent threat to peace. The powers to be, realizing the urgency of the matter scampered to form the United Nations. With a new outlook and charter, United Nations looked promising. However, the romance did not last long. Soon it was realised that United Nations too had fallen hostage to international players who wanted to dominate the world and the resources that lie within. Colonialism had a new face. The theme was new, script and heroes, however, remained unchanged.

Ever since its creation, the United Nations has failed to provide cover to all the nations coming under its protective umbrella. Be it the Kashmir issue, genocide of the Muslims of Bosnia, apartheid in Africa, Israeli atrocities or the right of self-determination of the Palestinians, Gulf war, Iraq war, Afghanistan war, Iranian nuclear program, repeated and regular armed standoffs between India and Pakistan or the recurring NATO strikes/invasions and many other such events have exposed the inherent weaknesses of the United Nations. When it comes to maintaining international trans-border peace or ensuring mutually beneficial existence among states, United Nations at most times plays the role of a puppet in the hands of its master. In the New World Order it seems logical to be with the suppressor rather than the suppressed especially when the former unilaterally controls substantial global resources. The world has moved from an ignominious bi-polar age to a humiliating uni-polar era.

Nato aerial strikes have violated our territorial and air space sovereignty. We must examine the law relating to air space sovereignty. The Chicago Convention on Civil Aviation signed on December 7, 1944 even today remains the governing framework for all the signatory states including Pakistan. The contracting states recognise that every state has complete and exclusive sovereignty over the airspace above its territory. For the purposes of this Convention the territory of a state is deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State. Aircrafts used in military, customs and police services are deemed to be state aircrafts. It is clearly understood by nations that no state aircraft of a contracting state shall fly over the territory of another state or land thereon without authorisation by special agreement or otherwise, and in accordance with the terms thereof.

It is a serious breach of international law when one state violates the air sovereignty of another state. The state of Pakistan is well within its right to defend, preserve and protect its sovereignty, territorial or otherwise against external or internal aggression. The right of self-defense is a well-recognised right available to Pakistan. This right should have been exercised on November 26, 2011. However, for reasons best known to the armed forces this right was not used by us and this inaction cost us 26 precious lives. The morale of the nation and that of our brave soldiers has been seriously dampened.

Another option is to seek compensation from Nato. In July 1988, US warships shot down an Iranian passenger airplane Air Flight 655 killing all 290 passengers on board. The US government did not admit its liability but offered to pay ex-gratia compensation (payment without admitting any liability) to the families of the victims. Iran, however, declined this offer and instead approached the International Court of Justice. However, in February 1996 the Iranians and USA entered into an out of court settlement in which USA agreed to pay US$ 300,000 (for wage earning victims) and US$ 1,50,000 (for non-wage earning victims) for the victims of Flight 655. Pakistan must learn from this example. Even though monetary compensation may not be enough to alleviate the human cost borne by the families of the martyrs but the state of Pakistan must press upon Nato to provide compensation to the families of the victims of November 26, 2011 attack.

Under the international laws a nation responsible for wrongful actions against another state must provide restitution, compensation and satisfaction to the aggrieved state. The ICJ in a number of cases has held that an injured state is entitled to claim compensation from the state accused of wrongful action. In addition to compensation, Nato must tender unconditional apology to the bereaved families and the state of Pakistan.

The state of Pakistan must use the platform of UN Security Council and vociferously protest against the Nato airstrikes. The world conscience must collectively respond to our collective remonstration. The Nato attack must be condemned by the world at large.

The matter may be brought to the notice of the International Court of Justice (ICJ). But it may not serve the purpose on account of legal technicalities and lack of jurisdiction. Both states to a dispute must agree to get their disputes settled with the intervention of ICJ. We must remember that Pakistan had invoked the jurisdiction of the ICJ when its Atlantique aircraft was shot down by India killing a number of our soldiers. However, India successfully established that there was no treaty between her and Pakistan that conferred jurisdiction on ICJ. Resultantly, ICJ did not exercise jurisdiction in this matter and Pakistan lost the case.

The state of Pakistan must adopt and pursue all available means to lodge its protest against the NATO airstrikes. Compensation for the families of the martyred soldiers must also be sought. NATO must apologise for its wrongful actions. The world must condemn Nato for its breaches of international laws. The Security Council must play its role and pass appropriate resolutions condemning the Nato attacks and condoling with the bereaved families. Our armed forces must rise to the occasion. The entire nation stands behind them.

The writer is a lawyer based in Islamabad. He can be contacted at [email protected]