The Dilemma & the Response
Contemporary terrorism commonly exists as a framework of rapid change, immense complexity and genuine uncertainties. But perhaps the most threatening aspect of this malice is its ability to use the porous Af-Pak border to regroup and metastasize rapidly. Given the Af-Pak relationship sensitivity, which is accompanied by periods of low to zero level cooperation between the two neighbors, unilateral cross-border operations to target terrorist hideouts are a common feature on the Durand Line. The question then arises: does shelling into another country (the territorial state) with the intention of solely taking out miscreants but without that country’s consent constitute a violation of the territorial state’s sovereignty?
The answer is a resounding “Yes”: an international armed conflict between the territorial state and the foreign state arises because without the consent of the former, any foreign use of force (even if solely directed against non-state actors) within the territorial state is an act of aggression against the territorial state.
In the Af-Pak case, the only major justification backing cross-border shelling (acts of aggression) is self-defense. Ever since the inception of the modern-day War on Terror, counter-terrorism has remodeled away from the traditional restrictive approach to include a more expansive self-defense doctrine. Consequently, the unilateral force against terrorists has become increasingly normative. As Tom Franck, an international law expert, had noted in 2002, the right to exercise self-defense against terrorist and non-state attacks “are no longer exceptional claims”.
What does the UN Charter say?
The UN Charter provides an inconclusive answer, leaving its provisions to be interpreted on a case-by-case basis. Article 2(4) of the Charter explicitly warns against “the threat or use of force against the territorial integrity or political independence of any state”. Chapter VII then expands on acts of aggression and counter-aggression. For the Af-Pak case, Article 51 is most relevant: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs…”. The rest of Chapter VII (Articles 39-50) provides comprehensive means to collectively pursue armed and unarmed acts as sanctioned by the Security Council to restore “international peace and security”.
In the Af-Pak region where bilateral counter-terrorism is prone to geopolitical upheavals, Articles 39-50 quickly make way for Article 51 (self-defense). However, the application of Article 51 is nothing new: Israel (against Hamas in Palestine and Hezbollah in Lebanon), Turkey (against Kurdish PKK in Iraq), the US (against Al-Qaeda in Sudan and Afghanistan), Iran (against the Mujahedin-e-Khalq Organization in Iraq), Russia (against Chechen rebels in Georgia), and Colombia (against FARC in Ecuador) are a few examples which come to mind. All of these instances involve the foreign state attacking non-state actors in the territorial state as an act of self-defense without the consent of the territorial state.
To sum up, while the UN theoretical framework provides robust means of pursuing counter-terrorism collectively through the Security Council, practically, Article 51 has been engaged most often, sometimes even in preemptive self-defense counter-terrorism. Again, this is perhaps reflective of the evolving nature of the counter-terrorism regime from containment of the terrorist threat to full-on military operations to exterminate it.
The issue for Pakistan is more strategic than tactical: unilateral self-defense operations (while legally permissible and effective in the short-run) and joint counter-terrorism initiatives with Afghanistan do not go hand-in-hand. For Pakistan, the challenge is to establish where unilateral self-defense factors in Islamabad’s long term strategic counter-terrorism plans and in bilateral Afghan relations.
This is where the Af-Pak case stands out from some of the other examples mentioned above. For Af-Pak, despite the constant belligerent jousting, there is room for joint coordination and collective anti-terrorism drives. In a relationship built on distrust, this room will fast get crowded out in the case of Kabul and/or Islamabad solely exercising unilateral self-defense. The key for Pakistan is to move forward keeping both unilateral self-defense and collective counter-terrorism operation options open. The distrust between Kabul and Islamabad is there to remain. As such, any efforts to curb cross-border militant sanctuaries need to instead be instituted on quid pro quo and verification basis.
One way Islamabad can maneuver through this sticky situation resembles incorporating the “snap-back” mechanism that the P5+1 have engaged in the JCPOA with Iran. Af-Pak coordinated counter-terrorism should lead the way with the possibility of Islamabad reinstating cross-border anti-terrorism strikes if Afghanistan fails to keep up or deliver. This provides unique leverage to Pakistan by keeping the diplomatic channels open, providing robust legal grounds for Pakistan to retaliate in case of a no-show from Kabul, and preserving the Pakistan military (the kinetic threat) as a relevant factor at all times against the terrorists. Such engagement will also eliminate any uncertainty as to whether and under what conditions UN law and international paradigms would afford Islamabad a right of self-defense against non-state actors across the border.
A dilemma with such an engagement is to evaluate whether it should be grounded at the bilateral or multilateral (UN) level. Regardless of the agreement level however, the more obvious challenge for Pakistan will be to provide an incentive for Kabul to partake in such an agreement in the first place. In other words, if Kabul acts upon the terrorist list provided by Pakistan, Islamabad too must demonstrably act upon the one Kabul provides. This effort would ensure Afghanistan has a compelling interest to avoid non-compliance, lest it lose Pakistan’s cooperation and give Islamabad legal grounds for conducting cross-border anti-terrorist campaigns.