Drones and Pakistan's sovereignty

Psychologically the people of the country were quite bewildered when it transpired from the morning papers of morning of February 14 by reading the reverberating story from Washington that the drones that had killed several hundred of their fellow nationals since the present civilian government took office were actually flying from Pakistan territory itself. Could it be true? Did not the federal government protest several times to the US about these incursions into the county's airspace? Surely, people wondered how was it possible that these planes could do what they were manifestly doing with the knowledge and permission of the present regime? I had come to know of this startling news item on the previous day when I was in Islamabad. I got word from my US law offices at about midday on the February 13 that it had been reported that Senator Feinstein, the powerful Senator from California, and now serving as the chair of the Senate Intelligence Committee had told the press that "she failed to understand the 'protests' of the Islamabad government" over the flying of drones in the northern parts of the country, as these "pilot-less predators were actually taking of from the territory of Pakistan" itself. I further learnt of this developing story when the Chicago Tribune Website reported of this disclosure that Diane Feinstein had made in Washington DC after on February 12. Soon thereafter it had been carried by LA Times as well. While it would be foolhardy to deny that many disturbing questions arise as a result of this painful realisation for the people of Pakistan, my legal prediction prompts me to examine one particular aspect of this matter. If this is true as averred by the senator, what implications are we faced with in connection with the notion of sovereignty of Pakistan? Are sovereign nations, let alone those with nuclear capacity, subjected to this kind of treatment? What is the position of international law on this point? International law had somewhat well defined rules about the "unilateral use of armed force." They were very limited too. Except or the deployment of force in "self-defence" or "retaliation", countries could not us force against the territory of other sovereign states. This is the "dicta" of the Permanent Court in the famous Naulila case. In the last forty years with the advancement of technology, the notion of self-defence changed its conceptions. It was then maintained that there could be-pre-emptive right of self-defence as well to save the subsequent or present the aggressor from possible initial damage from the state that it had attacked. The rider was clear that evidence that this kind of attack was about to occur was manifest. The same is true of the UN Charter which mandates that states categorically refrain from use of force against other member states. The attacks on mud huts in which admittedly many civilians have died can hardly constitute the basis of pre-emptive strike in law. Since this is happening consistently over a period of several months, it cannot be said to be case of a self-defence of the variety identified by me. As such it looks either a case of attacks during "war" or attacks by "consent". There is obviously no "war" in any sense since not only Pakistan and the US continue to "allied" there is the arrival on almost weekly basis of visits of high visibility from Washington to Islamabad. Since none of these legal grounds are even averred to be present in the case of the drone attacks on the Pakistani territory, the only legal justification under which these drones could operate was with the approval and consent of the Pakistan government. This matter therefore needs a dispassionate analysis to examine the matter of "consent" or "approval" of the Pakistani authorities. This is necessary since blaming the US does not take the matter anywhere and is thus irrelevant. I take it as a priori foundation of current international affairs that nations would do what really is perceived by them to be in their own interest. It is equally clear that the US does not really worry about its actions as perceived by the public of such areas as Pakistan. Why that is so need not be examined here as that inquiry is not necessary for the present analysis. Let us therefore look more deeply in to this matter of "consent" of Pakistani government in allowing these drones to do at will what is causing such heartache in the public in this country. The most telling disclosure on this point comes from the following three sources: ? General Mirza Aslam Beg, the former chief of army staff, said on the day following this disclosure that what he knew would utterly shock the nation. He said that still there was an air base near Tarbela which was used by the US serving as nerve centre of its air operations in this region. He said this was started in 2004 under Musharraf who was then alarmed by an attack on him. General Beg felt that position remains unchanged. ? Secondly there has been confirmation of the Feinstein view by other sources. Two leading British papers as well such as the Financial Times not only repeated the statement but referred to other independent material to contend the same conclusion. There are the photographs by the search engine Google showing drones parked at the Balochistan air base at Shamsi. It seems that even a book has appeared written by an American writer emphasising that there existed an understanding between Musharraf and the US to do just what was now going on. Otherwise one cannot easily overlook 51 drone attacks on Pakistani territories during the period of the present government. ? Then there is the current opinion of considerable weight. Not only the NATO Commander Jaap de Hoop Scheifner in Kabul has asserted on February 18 that there has been such a "state of affairs" that drones operated by CIA have a five year period under an agreement with Pakistan. The US also announced in Washington on February 19 that they have air bases in Pakistan provided by Islamabad. Is this therefore the reason that even the Pakistani defence minister said simultaneously on February 18 that these drone attacks are "counterproductive" rather than that they are illegal? There is no talk of law or sovereignty but of the wisdom of pursuit of certain policy Why? Probably because he is trying to convince the Americans about the shortcomings of their current policy. The president is also on record of saying just that. In other words, it is clear by semantically applying Socratic perspectives; the issue of "consent" seems to be there. Otherwise one cannot see how the drones can go on as they have done without the slightest bit of opposition. I thought over this matter and decided to talk about it with some of the Pakistani leaders who I considered would be interested in it. Out of the people I exchanged my ideas with, only Imran Khan seemed genuinely interested and he issued a statement in which he questioned the government about the veracity of this severely damaging news and its complicity in it. In view of the Musharraf's press conference held recently in which he denied giving any such understanding to the US, heavy burden is now cast on Zardari and PM Gilani to tell the nation and the Parliament what has really been happening in respect of this matter. Given the fact that such drone attacks have caused widespread civilian causalities, it is naturally amongst the most unpopular actions in the country in this war against terror. The otherwise spineless national Parliament has even "debated" such issues and reached a consensus resolution on such matters. The implication that the federal authorities may at least be a part of this policy of attacking parts of northern western areas of the country through this modality has thus manifest and grave significance for Pakistani people. The sole point of this analysis was to examine this matter from the perspective of Pakistan's' sovereignty. Any country worth its place amongst the dignified nations of the world is bound to castigate its own administration if it is found wanting to protect its citizens life and property. In constitutional theory that is why the people entrust their governance to a selected few to do what they cannot accomplish themselves in multitudes. It is the fundamental postulate of the theory of social contract from the royalty supporting Hobbes to Republican Locke or to the philosopher of the masses Rousseau. The formal document which regulates the affairs of this country and generally referred to as the "constitution" also specially stipulates in numerous ways that the state has to protect the life and property of its citizens and indeed of anyone else that is within its territories. Without being to technical let me state this categorically that this is indeed the duty of any government of Pakistan as it is repeatedly affirmed in Part 1 of this Document particularly in the Preamble and Article 1 thereof. So it is elementary that those responsible for such national deceit have to be answerable to the country and its people under Article 6 which proscribes anti-state-activity. This is thus not a matter in which the US should be directly or indirectly involved as I see it remains purely a domestic issue of grave significance. Every country has the duty to advance its national causes and interest in the best manner it can. If Washington finds the Pakistani leaders who are willing to go to any lengths for their own personal benefits, it has the opportunity to do what it thinks will advance such a cause. As Shakespeare says in Julius Caesar that fault lies in us and not in our stars for fixation of ultimate blame The point is thus of the mantle, calibre and vision of Pakistani leadership It has to be judicially determined whether it was Musharraf or now his hand picked successors who are responsible for this terrible accusation made by Senator Feinstein.

The writer is barrister at law (US and UK), senior advocate of the Supreme Court of Pakistan and professor at Harvard University.


ePaper - Nawaiwaqt