Published in the 11 August 2007 issue of the Daily Times
http://www.dailytimes.com.pk/default.asp?page=2007%5C08%5C11%5Cstory_11-8-2007_pg3_3
Hassan Aslam Shad & Taimur Malik
In recent weeks many voices in the United States have called for strikes in Pakistani territory to take out alleged Al Qaeda “safe havens”. It is important to take a legal view of the situation and understand the policy imperatives that operate in the backdrop and often subvert the international rule of law.
The events of September 11 and the US response to attacks on its soil have set in motion a series of non-trivial events. There is an increasing tendency towards carving out “extra-legal” exceptions on the pretext of the global war on terror. Generally, the US response after September 11 can be put in two categories: rhetoric and reality.
The rhetoric aspect is a massive political drive. Likeminded states continue to garner consensus to label some states as non-compliant and compel them to take steps towards eliminating terrorism in their territory. The earliest manifestation of rhetoric culminated in United Nations Security Council (UNSC) resolutions 1368 and 1373 (passed in 2001) which set out certain norms of state behaviour. Besides other matters, these resolutions require states to put an end to terrorist acts and financing channels.
The reality aspect goes a step ahead. It is emblematic of a unilateralist interpretation of post-September 11 situations by the states situated at the “core” (US, Great Britain) towards those situated at the political and economic periphery (Iraq, Pakistan, Afghanistan, and Iran). Reality has manifested itself across a wide spectrum in which the periphery has been, and could possibly continue to be, the target of armed attack in the future.
The reality aspect is a formal legal worry in the post-9/11 world. For the purposes of comprehending the international law norms relating to the use of force, in particular a pre-emptive attack on Pakistani soil, let’s consider the following:
The traditional conception of use of force is rooted in the United Nations (UN) Charter. Article 51 of the UN Charter requires an “armed attack” on the territory of a state to trigger its right of self-defence; nothing less will do. The only other instance when force may legally be used in the Charter is under Chapter VII which refers to UNSC-authorised collective action, e.g. Gulf War I.
Adding value to the Article 51 prohibition is the famous Article 2(4) which obliges states to refrain from threatening or using force directed against the territorial integrity and political independence of other states.. Both these articles are read together in determining the threshold at which a state can use force. In the traditional conception underscored in Article 2(4) and 51, the optimal level of war approximates zero. The traditional conception has the force of history behind it. States were unwilling to have a repeat of World War II.
However, customary international law did allow the states some exceptions. Circumstances would arise when states could not wait for an armed attack to first materialise and then trigger their right of self-defence. In what came to be known as anticipatory self-defence, states could respond to anticipated aggression from other states when: an attack was imminent; other means of subverting it had been exhausted; the response was proportionate to the threat, and finally, that the response ended when the original threat subsided.
Provided these stringent conditions are met, a state in the present-day which retaliates against an amassing of troops across the international border is said to have acted in compliance with Article 51.
Legal loopholes remain and continue to be exploited by some states. Add to it the fact that we now have non-state actors (national liberation movements, insurgents, terrorists) that have positioned themselves in the new world order. The dynamics of engagement have changed and so has the political viability of legal norms such as Article 51.
The doctrine of pre-emption is one such controversial dimension. Pre-emption literally means launching a first strike on the territory of a state or against non-state actors on the pretext that there is likelihood (either obvious or remote) that they plan to launch an attack. The doctrine of pre-emption was used by the US when it invaded Iraq in 2003.
In contrast with anticipatory self-defence, which requires meeting certain criteria, pre-emption operates in isolation and on the subjective assessment of a state. The majority of international academia argues that pre-emption is outside the ambit of international law.
But states justify pre-emptive strikes by arguing that the rules of the game have changed and that they cannot afford to be “sitting ducks” in the face of impending terrorist threats. Doing so would amount to waiting for attacks to materialise before the right to respond could be triggered.
In other words, in a polarised world where ticking time-bomb situations are many, it would be an absurdity to wait for some law to reach its purported threshold. Anchoring self-defence in Article 51 norms, these states argue, is the least viable tactical and strategic option. Consequently, they justify resort to strikes against terrorists when there is credible intelligence of their presence in a given territory.
The post-9/11 tendency to de-emphasise the robust requirements set out in Article 51 and to introduce a new decision-calculus tethered to pre-emption compromises on the purposes of the UN Charter. We argue that the doctrine of pre-emption crosses over into the domain of the absurd in the following ways:
First, the purpose of Article 51 and the UN Charter was always to cultivate a culture of respect for the international rule of law. With Article 51 couched in stringent requirements, states were unable to resort to war at will. But pre-emption takes away from international law its humanitarian aspects and gives nothing in return: any and every country in the world may be attacked.
Second, and related to the above, is another alarming development. Pre-emption seems to have conditioned a particularised response of certain Western countries. In what is labelled a pragmatic rationale in line with the increasingly uncertain threat of terrorism, these states have set out on an aggressive strategy of first strike. This could lead to a disincentive for the rest of the world to comply with whatever remains of international law.
And this is where the rubber hits the road for Pakistan. The rhetorical gesture mentioned above, when coupled with this conditioned response, could manifest through unilateralist pursuits by the US in Pakistani territory. That these actions would violate the UN Charter seems to have become a trivial consideration in some respects.
But what is chilling in the US threat is that its rhetoric/reality pair is tailored in a political environment where certain state and non-state actions are characteristically within its scope. Recent statements by US policymakers read with the legislation that ties US aid to Pakistani compliance, show how the US views its relationship with Pakistan. That this rhetoric has reasserted itself in the geo-political situation characterised by the post-March 9, post-Lal Masjid, and post-Taliban regrouping in the tribal areas is indeed cause for concern.
The likelihood of pre-emptive strikes inside Pakistani territory must be assessed in light of the above-changed political and legal dynamics. US rhetorical gymnastics ranging from arguing for a direct attack on Pakistani soil to working alongside Pakistani forces depicts an attempt to change the existing legal instruments in view of new threats.