Sovereignty and the rules of engagement
IN a recent report The New York Times revealed that in July this year President Bush had authorised US troops stationed in Afghanistan to carry out ground assaults in Pakistan without the permission of the Pakistani authorities. Under the new policy, the US would only have to inform the Pakistani government, but would not have to take permission.
The underlying reason for the order appears to be US disappointment over the failure of joint operations, such as the Bajur operations jointly undertaken by Nato and the Pakistani forces to catch al-Qaeda leader Osama bin Laden and his deputy Ayman al-Zawahiri, who were reported to have been in the area.
Two days before the troops were ordered from the corps headquarters in Peshawar, the news of the impending attack was leaked to the militants and the al-Qaeda leadership vanished from the area.
The Americans were also not pleased at the Pakistan government's decision for ceasefire during the holy month of Ramadan because the Americans believe that the Taliban feel no such moral compunction.
Despite the assertions of Pakistan ambassador to the US, Hussein Haqqani, that the US respects Pakistan's sovereignty and that media reports about US cross-border incursions were incorrect, the US State Department spokesman did not say that the NYT report was wrong.
Though President Zardari has reiterated his commitment to fight Islamic extremism, echoed by Prime Minister Yusuf Raza Gilani during his visit to Washington, former prime minister Nawaz Sharif's PML (N) is threatening to end Pakistan's co-operation with the US on the war on terror.
Sharif's party is demanding holding of a parliamentary session to discuss US intrusions into Pakistani territory. In the long run it is, however, doubtful that the parliament can do little more than condemn the American actions, as billions of dollars poured by the US into the Pak economy will dry up should Pakistan take retaliatory steps against the US. But then again, the US has to consider if it can fight an effective war on terror without Pakistani help.
Pakistan's insistence on its sovereignty and territorial integrity has to be seen in the light of changing definition of sovereignty that is deemed to have decreased when a government is unable to control the whole of its territory.
A government to be sovereign has to be responsible as well as to the peace and tranquility of the world at large. Annie-Marie Slaughter, a member of the International Commission of Jurists, and Lee Feinstein of the Council of Foreign Relations advocate re-writing some of the rules and provisions of the UN Charter in view of the most dangerous security threat, posed by non-state actors, facing the 21st century.
They argue that the UN Charter aimed at outlawing the use of force except in self-defense, or when used through a multi-lateral institution, was written in the context of classic inter-state conflicts waged by standing armies of identifiable soldiers.
Though President Bush's doctrine of preemption had been rejected by then UNSG Kofi Annan, yet recognising the gravity and the unprecedented nature of the threat, he called upon the UNSC to consider "early authorisation of coercive measures."
Slaughter and Feinstein argued that Kofi Annan's call for authorisation opens the gate for revision, or at least a reinterpretation, of what constituted a "threat to peace" under the UN charter.
Hamid Karzai's threat to send troops across the border is perhaps based on the assumption of a country's "right of hot pursuit" right of self-defense. Despite Pakistan's description of Karzai's comment as "irresponsible" and "illegal under international law," some analysts have drawn comparison with the Turkish hot pursuit of Kurdish rebels into northern Iraq.
But Jim Denslow (of Kings College, London) has refuted the argument on the ground that at the time of the Turkish incursion, northern Iraq was not sovereign territory since 1991 due to the imposition of no-fly zone and the establishment of Kurdistan Regional Government, which was an autonomous entity.
Nich Grono of the International Crisis Group has doubts about the application of the doctrine of hot pursuit in Afghanistan because the concept originated from the law of the sea that authorised chasing of an offender ship that had crossed into the water of another country.
But the behaviour of the superpowers during the Cold War and beyond, of Colombia's pursuit of FARC rebels into Ecuador, Israeli incursions into Gaza Strip, and Uganda's request to ICJ to grant it the right of hot pursuit of militants into Congo weakens legal experts' claim that hot pursuit can be justified on grounds of invitation, peace time reprisals, protection of a country's own citizens, and humanitarian intervention.
Many have wondered whether the 9/11 terrorist attacks should not necessitate revision of the UN charter. While the developed countries' call for revision is for gaining authority to pre-empt not an imminent but a plausible threat, the developing countries would like a reconstitution of the UNSC and other UN organs because the UN charter, when formulated, reflected the ground realities of the post-Second World War era but not the sea changes that have taken place since then.
The wave of decolonisation had seen the emergence of many countries joining the UN. The end of Cold War has seen fragmentation of the Soviet empire and of East Europe. And now the world is witnessing the scourge of al-Qaeda and its associates.
Historian Bernard Lewis finds several forms of Islamic extremism active at present (though he recognises Muslim complaints when media speak of terrorist movements and actions as "Islamic" and do not identify the Irish and Basque terrorists as "Christian"), the most advertised being al-Qaeda, the fundamentalism of the Saudi establishment, and institutional revolution of the Iranian ruling hierarchy.
While al-Qaeda needs little elaboration, the perceived threat from Saudi fundamentalism is contested. Lewis describes Wahabism, which is embraced by the Saudi rulers, as a "rejection of modernity in favour of a return to the sacred past," where ire is not directed primarily against outsiders but against those who they see as betraying and degrading Islam from within.
Regardless of the debate on a clash of civilisations, Islamic extremism has caused less damage in the Western world than it has in the Islamic countries. In Benazir Bhutto's words: "Within the Muslim world there has been and continues to be an internal strife, an often violent confrontation among sects, ideologies, and interpretations of the message of Islam. This destructive tension has set ... a deadly fratricide that has tortured intra-Islamic relations for 1,300 years."
Afghanistan and the Nato forces have to judge whether, by inflaming the anti-West sentiment in a front-line state armed with nuclear weapons and engaged in the war on terror, they are not unwittingly falling into the trap of the Taliban.
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