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SALALA INCURSION: HELPLESSNESS OF INTERNATIONAL LAW?

Mohammad Akram Sheikh
Friday, December, 9, 2011

U.S. lead NATO strikes on Salala Check-Post on 26th November, 2011 was an act of naked aggression against the sovereignty and integrity of Pakistan, who is an ally against war on terror. The invading forces presence in Afghanistan was mandated by United Nations Security Council (U.N.S.C) Resolution No.1974 of 2011 adopted by the Security Council in its 65000th meeting on 22nd March, 2011.

The International Security Assistance Force (ISAF) in Afghanistan was authorized by the UN Security Council Resolution 1386 of December 2001, which laid down the initial mandate for a 5000 strong International Security Assistance Force to be deployed in the region, in and immediately around Kabul, in order to provide security and to assist in the reconstruction of the country under Chapter VII of the UN Charter.

While UN had mandated; the ISAF force is not deployed as UN force and until August 2003 when NATO assumed command of the operation, it has been conducted as coalition of the willing.

Since UNSCR 1386, the UN Security Council has adopted several resolutions extending the deployment of ISAF, including UNSCR 1510 in October, 2003, which expanded the ISAF mandate to cover the whole of Afghanistan and thereby lay the groundwork for ISAF commanders to expand operations beyond Kabul. UN Security Council Resolution 1833 of 2008 authorized deployment of ISAF until 13 October, 2009.

Between October 2003 and the end of 2005 ISAF operations were expanded into the north and west of the country. Deployment of ISAF forces into the southern provinces was endorsed by NATO Leaders in December 2005 and completed on 31st July, 2006, while command of the final 14 eastern provinces of Afghanistan was assumed on 5th October, 2006.

NATO-led ISAF forces do not operate in Pakistan, although forces do operate near the Afghan-Pakistani border. In addition to the overall task of assisting the Afghan government in extending its authority and creating a secure environment, the ISAF operation has the following objectives:-

  1. Conducting stability and security operation in coordination with the Afghan National Security Forces (ANSF);
  2. Assisting in the development of Afghan National Security Forces (ANSF) and structures, including training the new Afghan National Army and National Police (ANP);
  3. Identify reconstruction needs, such as the rehabilitation of schools and medical facilities, restoring water supplies and providing support for other civil-military projects;
  4. Support the Afghan government to Disarm Illegally Armed Groups (DIAG);
  5. Provide support to the Afghan government and internationally-sanctioned counter-narcotics efforts through intelligence-sharing and the conduct of an efficient public information campaign, as well as support to the Afghan National Army Forces conducting counter-narcotics operations. ISAF, however, is not directly involved in the poppy eradication or destruction of processing facilities, or in taking military action against narcotic producers; and
  6. Support humanitarian assistance operations.

 

From UNSCR 1386 of December, 2001 till the last resolution i.e. 1974 of 2011 of the Security Council, none of the resolutions confer upon the U.S-led forces to invade the sovereignty of the States including Iran, Pakistan, Tajikistan, Russia or any other neighbouring country, nor does it acknowledge the right of hot pursuit. Therefore, the NATO-led American Forces absolutely did not have any mandate to invade Pakistan’s territory and to inflict upon a collation partner such heavy casualties in terms of its officers and soldiers.

Although the Government of Pakistan have not lodged a formal complaint of this gory act of naked aggression and invasion of the US-led NATO forces, but the U.S. Security Council has taken note of the resolution of the Defence Committee of the Cabinet adopted on this issue.

In view of the unequivocal and categorical stand taken by the Cabinet Committee on Defence (CCD) as endorsed by the Cabinet subsequently, demands by some self-styled experts of defence strategy for bilateral or multilateral probe into the incident looks helpful to the Americans, rather than Pakistan’s interests. Pakistan has clear remedies under International Law for reporting the matter to the UNSC and asking for a debate and protection of the UN Charter guarantying sovereign equality the States and visit the delinquent state with such penalties/ liabilities as are permissible under its charter. Clearly this act of aggression constitutes a violation of the mandate authorizing activities of ISAF, NATO and U.S. forces in Afghanistan under the various resolutions mentioned hereinabove.

The jurisdiction of International Court of Justice unfortunately is only consensual and could be invoked by the parties with their mutual consent. The International Criminal Court could be approached against such a naked aggression and violation of most fundamental and foremost human right of citizens of states ratifying Rome Statue of International Criminal Court; Both Pakistan and the U.S. are not included in the countries ratifying this Statute, although most of NATO Member states from Europe are signatories to this International treaty.

But there is another side of the story, which suggests that such attack could be an extension of the controversial memo attributed to President Zardari and Ambassador Haqqani and this attack may have been mounted on Pakistan in furtherance of the objectives detailed in the Memorandum reportedly written to the U.S. by an American loyalist Ejaz Mansoor on dictation from Ambassador Haqqani and with the blessing of President Zardari in order to generate pressure on the Pakistan Armed Forces, justifying action against their leadership including dismissal of the few Generals for having failed to defend the territories of Pakistan.

One is not really aware what pressure did it mount on the Armed Forces, but the pressure on President Zardari became manifest from his sudden departure for Dubai after notifying to the nation that he would address the joint session of the Parliament in his capacity as President, Co-Chairman of the PPP and also to the Supreme Commander of the Armed Forces. The American Magazine, Foreign Policy quoting some official of the state department reported that President Zardari was not coherent in his long conversation with President Obama in the aftermath of Salala raid.

It was yet a greater surprise when on Tuesday afternoon the story of President Zardari leaving for abroad started poring in the media. By then, not only the controversial memo written in May 2011 when the action could have been taken against the military leadership more convincingly had lost its relevance, but the leaked story stalled any such action the same way as was done by the joint session of the Parliament and in-camera briefing by the Military Chief and DG, ISI.

The Salala incursion had once again unified the whole nation behind its national institutions which include armed forces, the Parliament and the judiciary.

An in-depth analysis of the two events i.e. the sending of controversial memo and Salala incursion unequivocally suggest that the controversial memo was initiated at the behest of U.S. Government through their own handpicked source whom National Security Advisor General James L. Jones has publicly owned as a confidant of Pentagon and the U.S.

Obama is desperately trying to leave Afghanistan before he enters the race to win Democratic Party’s nomination for a second term as President of the United States, but it looks as if all the efforts made by the Obama administration so far have remained counterproductive and found the ground reality more hostile to their interest, rather than creating a conducive environment for a smooth exit out of Afghanistan quagmire.

The nation awaits a drop scene of this long strife between President Zardari and the military leadership as the country cannot afford any stand-off for such a long time and every passing moment is making people of this beleaguered country more and more tense. This is the time when everyone is remembering Shaheed Benazir Bhutto who with her political wisdom could have offered a solution for the present ongoing crises.