Source: The Frontier Post
By : Niaz A Shah
The government of Pakistan has, on several occasions, said that the US missile strikes in the tribal areas of Pakistan are against the United Nations Charter. The US Secretary of State, Robert Gates, argues that the US has the right of self-defence against the Pakistani Taliban fighters as they are attacking the US troops in Afghanistan. The doctrinal position of public international law, both in conventional and customary sense, is very clear on the issue of self-defence. In my view the US missile strikes inside Pakistan are illegal for the following reasons unless Pakistan has a tacit agreement with the US as is suggested by some media reports. Article 2(4) of the United Nations Charter prohibits the ‘threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations’. There are two exceptions to this rule. The first exception is the limited right to use force in self-defence under Article 51 of the UN Charter which states that ‘nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’. The second exception is when the Security Council authorises the use of force as an enforcement measure under Article 42 after all other means of enforcing its decisions are exhausted. The United States is relying on the first exception, i.e. the use of force in self-defence under Article 51. Traditionally, the right of self-defence was interpreted as a right available to states when the forces of one state cross border intending an armed attack against another state (International Court of Justice, Israeli Wall Opinion (2004)). The wording of Article 51, however, does not specify the attacker: it can be one state attacking another state or a non-state actor such as an armed group mounting attack on a UN Member State. On this interpretation, the right of self-defence is available to the United States against armed groups in the tribal areas of Pakistan. There, however, are three conditions which must be satisfied before the use of force against a non-state actor inside another sovereign UN Member State. The first condition is that there must be an ‘armed attack’ against the state which relies on the use force in self-defence. The key question, here is, what constitutes an armed attack. The severity and scale of damage done by the attack of a non-state actor must be such that it would amount to an armed attack had it been carried out by the regular forces of a state. The second condition is that there must be a link between the non-state actor and the host state. The International Court of Justice (Nicaragua v. USA, (1986)) has held that the host state must exercise an ‘effective control’ over the non-state actor to trigger the right to use force in self-defence. The standard of effective control was slightly lowered by the International Criminal Tribunal for former Yugoslavia (Tadic case, (1997)) to an ‘overall control’ standard. Article 8 of the International Law Commission’s Articles on the Responsibility of States for International Wrongful Acts also states that the ‘conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct’. The current law is that the host state must has either (a) an effective control or (b) an overall control over the non-state actor to trigger the right to use force in self-defence. The factual link between the host and non-state actor must be established before resorting to use of force. In addition, the host state shall not be either willing or unable to control the non-state actor. Once these two conditions are met, then proportionate use of force is permitted which is the third condition. The targets hit must be contributing to military objectives, i.e. only military targets shall be hit (International Court of Justice, Iran v. USA (2003)). Let us turn to the US claim of self-defence against Pakistani Taliban. First, Pakistan has neither effective nor overall control over the armed groups in its tribal areas. On the contrary, the umbrella organisation – Tehrik-i-Taliban Pakistan - is banned. The security forces of Pakistan are fighting different armed groups. Both are actively engaged in an armed conflict. Hence, the required factual link is missing. Second, the Pakistani Taliban fighters are helping the Afghan Taliban in their fight against ISAF, US forces and the newly formed Afghan National Army. Individuals joining the Taliban movement in Afghanistan do not constitute an armed attack on the United States in the sense required by international law. The argument that Pakistani Taliban fighters are posing security threat to the US forces inside Afghanistan does not warrant the US missile strikes in the tribal areas of Pakistan (International Court of Justice in Iran v USA (2003)). The argument that Pakistan is not willing to do enough to suppress armed groups inside its borders is not convincing. Hundreds of Taliban fighters and Pakistani troops are killed in the ongoing armed conflict. If Taliban and Al-Qaeda fighters are not defeated in the tribal areas of Pakistan, this must not be construed as the unwillingness or inability of Pakistan. The International Security Assistance Force (ISAF) and the US forces are also unable to defeat Afghan Taliban and Al-Qaeda inside Afghanistan. Bin Laden and Mullah Omer are alive inflicting great harm on the US and other forces. The US-led coalition is also unable to suppress armed groups in Iraq. Can we interpret ISAF-US failure as their unwillingness? I believe all are unable to suppress armed groups in Iraq, Afghanistan and Pakistan.

 E-mail this article to a friend

Tags: government of Pakistan, tribal areas, United Nations Charter, US missile strikes