By Ms Elizabeth Dominic*
Maintenance of the Sovereignty of a nation and the measures implemented to combat terrorism, in today’s scenario, are often getting into the way of each other. With the advent of the nuclear weapons that can destroy vast areas in micro seconds nations are often left with the dilemma of whether they should let the sovereignty of a neighbouring nation survive at the expense of their own nation being exposed to the extreme danger of being wiped out by the use of the destructive killing weapons. This has arisen as a huge problem in the international scenario which puts the sovereignty of every nation at peril.
The recent terrorist events undertaken by the powerful non-state actors like Al Qaeda which were accused to have been undertaken with the indirect and underlying support of nations depicts the extreme form of actions undertaken by them; the extent of the advancement of the weapons and the harm thereby caused when they are employed. These events will not let any nation to sit back and wait for it to get attacked and thereafter retaliate. This is the point at which the problem of the violation of the sovereignty of a nation begins. With these sorts of armed attacks happening all around, a nation is forced to act in its self defence even without the consent of the other nation in which the violent non-sate actor who is posing as a threat is situated irrespective of whether both the nations are having a hostile relation or not. The question that points directly on our face is when the defending state has the right to take such a step. At what point can the battle be fought outside the hot battle field? A mandatory condition for this right to be exercised is that an armed conflict must be in existence between the nation and the non-state actor. Also it can be lawfully exercised only if the territorial state is unwilling or unable to combat the threat themselves or as a step towards self defence or if the action is done with the approval of the UN Security Council under Chapter VII of the UN Charter.
The “unwilling or the unable test” has a dark side. It involves disclosing the confidential information to the territorial state which it can pass off to the non-state actor if they are working in collaboration with each other or it can even tip off the latter before any proper action or mission is undertaken by the acting state. Another repercussion of abiding by this rule is that it often demands granting of time to the territorial state to determine what measures they can undertake. However time is of the essence given the character and the potential of the arsenals of the adversaries. At times even after granting time the measures that the territorial state comes up with may not be satisfactory for the action state to attain the objective. In such instances the time that is wasted on such deliberations is exposing the latter to greater threats.
When it comes to self-defence, a lot of confusions exist as to whether this right is embedded in the UN Charter. A restrictionist approach to Article 51 places particular importance upon the wording “if an armed attack occurs” so as to incorporate an exhaustive nature into it i.e. it makes a mandatory rule that for a state to legally respond in self-defence an armed attack must have occurred. This is quite contrary to the argument of the adaptavists who give emphasis to the customary law that prevailed before the charter. According to them Article 51 has not extinguished the customary law and their idea is derived from the term “inherent right” contained in the article which gives validity to the customary rules. They use this argument to support anticipatory self-defence. The word “armed attack” used in the article encompasses the planning, organisation and the logistical groundwork for an assault and not just the direct meaning conveyed by the words. As a result article 51 automatically permits the use of ASD even if customary laws are neglected. This interpretation of Article 51 helps in bypassing the restrictions of Article 2(4). However ASD alone does not satisfy our needs. The “emerging threat concept or Bush doctrine (pre-emptive self defence)” has gained a lot of momentum in counterterrorism. As most of today’s counterterrorism is aimed at non-state groups the dynamics of reciprocity, deterrence and retaliation holds no value which would have worked in the case of other states for they are neither beneficiaries to nor hostages of the territorial system. Along with this the proliferation of the atomic, biological and chemical weapons and their diffusion into the hands of these actors have further aggravated the situation and all these demands the need to have self-defence as one of the grounds for initiating an action by turning a blind eye towards the concept of protection of sovereignty. If these measures are restrained then the terrorist act might develop to such a stage that it can be neutralized only at a high, possibly unacceptable cost. Sometimes it might even become too late to retaliate.
States are allowed to act pre-emptively once they have obtained the permission from the Security Council. This is done so as to ensure a sort of checks and balances upon the powers exercised which is believed to be much better in comparison to a judgement arrived at by a single state which might become arbitrary and thereby threat the international peace and stability. However the existence of the veto power and the highly political round of deliberations have a higher possibility of arriving at an arbitrary decision; the process can also be extremely time consuming. Therefore resorting to Security Council is not a viable option.
The US military’s action of killing Osama in Pakistan without the latter’s consent brought about a huge ruckus in the international scenario; it was contended that the action was clearly in violation of the sovereignty of Pakistan. However US had its reasons for doing so. It had suspected close tie-ups between the Al Qaeda members and Pakistan Military officials from the circumstances. One has to agree that the circumstances were pointing towards that direction. Moreover the country could not have risked the chances of tipping off its information at any cost. After all the operation was directed against the head of the most dangerous non-state actor, who was a terror in the minds of all. Not only has US benefited from the operation; the entire world has. Therefore I see no ground for opposing the action undertaken by US.
When one argues to give more importance to sovereignty over counter-terrorism measures the lives of millions of people are being exposed to danger to protect the sovereignty of a nation. Not only does the action state benefit from this-the entire mankind does because even though a violent non-state actor might has declared armed attack only against the action state at present there is no guarantee that it might not turn hostile against others at some point of time. Moreover many might argue that a lot of discretionary and arbitrary power is vested in the state when it is allowed to combat terrorism at the expense of sovereignty which might undermine the power of the UN. However one has to keep in mind that there is not much that UN can do when the action is directed against a non-state actors as none of its measures are binding upon them. UN can play a significant role only when the issue is between 2 states. Here even though the issue involves 2 states the territorial state is only involved as a third party. Also the power of the UN is never undermined in these circumstances because UN still has the authority to keep a check upon the action-it can see whether it was reasonable and proportional or not. When it is answered in the negative it can order the action state to provide sufficient compensation. Therefore the UN still has sufficient amount of power which would prevent its member state from exercising excessive discretionary powers while combating terrorism. Also depending upon the UN to come up with proper counter-terrorism measures so that the sovereignty of the territorial state would not be affected can be a lengthy and time consuming process. The decision might be arrived at at a stage when it has become too late.
Sovereignty and counterterrorism are like the two sides of a coin but you have to choose either one of it; you don’t have the option of taking a neutral stand. Therefore, taking into consideration the above mentioned points, in my opinion counterterrorism should be placed on a higher pedestal than maintaining sovereignty of the nation as it would only ensure a worldwide betterment.
Self Defence In An Age Of Terrorism, W.Michael Risman
The Right To Self Defence, Eli.E.Hertz
Defence And Pakistani Sovereignty
* Author worked as Intern at CPPR and is currently pursuing law at Jindal Global Law School