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Not a redundant concept

June 08, 2012

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FEW things irk Pakistanis more than American violations of Pakistan’s sovereignty. Under international law, states are given near-absolute sovereignty domestically, i.e. non-interference by outsiders in their domestic affairs.

All states cede part of this sovereignty by joining international treaties and organisations which place restrictions on what they can do even domestically. For example, by joining the WTO, Pakistan has lost the freedom to provide certain subsidies to its domestic firms.

However, sovereignty is still not a redundant concept, for states have the right to decide which parts of their sovereignty they will cede and can rightfully protest if the non-ceded aspects are violated by outsiders. Thus, non-consensual violations of sovereignty are largely forbidden under international law.

States can violate another state’s sovereignty only in self-defence if attacked and even pre-emptively when another state is clearly poised to attack them. The UN Security Council has the right to approve violations of national sovereignty if a state poses a threat to international peace even if it has directly not attacked others. However, this option is utilised rarely due to disagreements among veto-wielding states.

So, is Pakistan justified in objecting to American drone attacks? Clearly, it has not attacked the US nor has the Security Council approved drone attacks. While there may have been a tacit understanding between the two on using drones earlier, Pakistan’s vociferous objections to them now mean clearly that it no longer abides by this agreement.

The problem with tacit agreements is that either side can withdraw from them unilaterally, leaving the other side with no legal remedy. Thus, Pakistan can justifiably object to drone attacks.

However, preserving one’s sovereignty requires that one respects others’ sovereignty. This means not only that a state does not violate others’ sovereignty itself but also that it takes responsibility for the action of its residents and does not allow them to violate the sovereignty of others.

Pakistan itself has admitted that non-state actors have used its territory to attack other states. Its defence is that it does not have the resources to tackle them. Unfortunately, this defence weakens its position further. How can Pakistan wax proud about its sovereignty while in the same breath indicating that it is too weak to control ragtag non-state actors?

Impotence and pride are strange bedfellows. This means that Pakistan is unwittingly delegating part of its defence and foreign policy to non-state actors —something no sovereignty-conscious state should do.

If it is too weak itself to tackle these actors presently, which are hurting Pakistan as well as others, then why not swallow its pride and ask for help from others instead of expecting its own citizens and others to suffer indefinitely while it develops the capacities to tackle them?

Fortunately, the Swat operation clearly demonstrates that Pakistan can tackle militants itself without external support. What is lacking now is the will not capacity.

While Pakistan’s failure to tackle non-state actors is evident, it is unclear whether this justifies American drone attacks. International law allows reactive or pre-emptive attacks against clearly identifiable state militaries but provides no guidance on cases where a state fails to tackle unmarked, violent non-state actors. Thus, drone attacks raise three legal issues.

First, they constitute attacks on a state which is not directly attacking America.

Second, they go beyond being pre-emptive attacks and constitute preventative attacks since the people usually targeted are not immediately in the act of attacking but are part of an organisation which may be planning future attacks against America. Preventative attacks have no legal basis and rely on the subjective judgment of a state without being verified by a neutral party.

Finally, there is the possibility of high civilian casualties since the determination of civilian-looking targets as combatants is based on intelligence operations whose level of accuracy is unknown.

The failure of American intelligence on the matter of Iraqi WMDs raises natural doubts about the accuracy of American intelligence operations everywhere. The last two objections would remain extant even if Pakistan agrees to American drone attacks.

America could take Pakistan to the Security Council arguing that Pakistan’s failure to tackle militants threatens international peace. However, it will undoubtedly not get the agreement of all veto-wielding states. Even so, it has many other options beyond drone attacks. Such attacks target both the Taliban and Al Qaeda.

For the Afghan Taliban, who only attack Afghanistan, the US can enhance the monitoring of the Pakistani border and attack armed Taliban fighters coming from Pakistan, using drones as well as conventional weapons. Such attacks will clearly constitute pre-emptive attacks and will not violate anyone’s sovereignty since Afghanistan has officially invited Nato troops. While this strategy may spare the Pakistan-based Taliban leaders, this omission may actually facilitate American desires to engage them peacefully.

Al Qaeda’s targets are global and its means more covert. Thus, its operations often are more difficult to stop pre-emptively. However, the US itself asserts that Al Qaeda is too weak to cause serious damage now. Furthermore, Pakistan has few compunctions about capturing Al Qaeda leaders. Thus, incentives to encourage Pakistan to capture Al Qaeda leaders through ground operations could replace drone attacks.

This strategy will require restraint which the US is often loath to exercise even though it preaches this quality to other states targeted by cross-border militants, e.g. Turkey and India. However, in the case of itself and Israel, the US behaves differently. Thus, the present Pakistan-American impasse can be broken through bilateral maturity and restraint. Unfortunately, neither country is famous for possessing these traits.

Finally, since the present state-focused international rules do not deal with cross-border militants effectively, clearer and effective rules must be developed multilaterally so that states are restrained both from tolerating militants within their territories and unilaterally pursuing dubious means in targeting them. Targeting terrorists is a worthy goal. The means used should be equally worthy.

The writer is a political economist at the University of California, Berkeley.

murtazaniaz@yahoo.com