By Faisal Shakeel

The Nato-led Isaf’s incursions into Pakistan’s tribal areas cannot be justified either on the basis of the doctrine of ‘hot pursuit’ or through the concept of engagement in a ‘combat zone’.

Experts say that Isaf forces violated Pakistan’s airspace as well as its sovereignty when they crossed the Afghan border and fired missiles at the Frontier Corp’s border post, killing three personnel. The attack put more pressure on the government to act against such violations, which have multiplied since the US increased drone attacks in the tribal region.

“We can approach the United Nations under the law, which guarantees the sovereignty of a state. But the matter may not be actionable; it is rather condemnable,” says Ross Masood Hussain, a consultant in international law.

This leaves Pakistan with two options: to take up the matter with the US and Nato at a diplomatic level, or desist from helping the Isaf forces in Afghanistan. The government opted for both options as it protested over the strikes with Nato and the US, while closing down the Torkham border for trucks carrying goods for Isaf forces.

But the situation on the ground, coupled with Pakistan’s sacrifice as a frontline state in the war on terror, makes it abundantly clear that the government will soon unblock the Torkham border and continue pursuing diplomatic means to put its point of view across.

A study of the genesis of Isaf reveals that its attack on the Frontier Corp’s post breaches its mandate flowing from Chapter V11 of the UN Charter and elaborately expressed in nine UNSC resolutions.

UNSC Resolution 1386 says that Isaf will “request neighbouring states … to provide … such necessary assistance as may be requested, including the provision of overflight clearances and transit.”

Since no request was made for assistance or flight clearance, the Foreign Office (FO) rejected Nato’s justification that the choppers crossed into Pakistan in hot pursuit of the militants returning from Afghanistan. “There are no agreed ‘hot pursuit’ rules. Any impression to the contrary is not factually correct. Such violations are unacceptable,” the FO says.

The doctrine of hot pursuit is derived from Article 111 of the 1982 UN Convention on the Law of the Sea, which authorises a state to pursue a ship that enters 12 nautical miles into its territory. Internationally, the doctrine has been the source of much controversy as it could be “twisted into a self-defence idea”.

Defence analyst Dr Riffat Hussain says: “The Pentagon’s emphasis on the need for the ‘helicopters to return fire in a battle zone’ does not really hold water. The concept of a battle zone presupposes two armies and a disputed territory.”

Where the Pentagon stresses the need for investigating “what were the communication breakdowns”, Pakistan want the US-led Isaf to forge a stronger alliance with it to stop the war on terror from turning sour. “Pakistan has always emphasised the need for coordinated and joint action against forces inimical to regional and global peace. Pakistan has boldly and at a great cost countered terrorists,” the FO statement says.

More than 50 people, many of them believed to be fighters of the Haqqani network, were killed over the past few days in three Nato/Isaf strikes in Pakistani tribal areas along the border with Afghanistan. Retired Colonel Inam Wazir, an expert on tribal affairs, says the US-led strikes were meant to step up pressure on Pakistan to start an operation in North Waziristan at a time when the armed forces are busy in the relief operation in flood-hit areas.

The US believes the Haqqani network, entrenched in North Waziristan, is instrumental in launching attacks against Isaf and is detrimental to the objectives of the international community in Afghanistan. Defence analysts believe it would be asking too much from the army to go into North Waziristan, keeping in view its teeth-to-tail ratio set against their presence in Swat, South Waziristan and along the Afghan border.

Pakistani officials have stated time and again that the government would decide about the timing of the operation when it feels appropriate. However, they feel the US should exercise its influence to ensure better communication between Isaf and the Pakistani forces along with continued cooperation on sharing intelligence information.