As bullets and drone bombs rain down on the Pakistani Army and civilians in the border region, many have passionately raised the issue of Pakistan’s sovereignty. Some allege that Pakistan’s sovereignty is being violated by the actions of the US, both in physical form, through military excursions over the border, and through the work of the “unseen American hand” in Pakistani politics. Though the issue has been painted as one of American aggression and morality, the only true remedy to such a violation of sovereignty is through the international courts. However, such a move would open a Pandora’s Box, which could subject the nation’s power-brokers to unfavorable results.
To begin this discussion, I recognise that many readers may discount the institutions and treaties of international law as mere manipulations by Western powers to impose their will on developing nations like Pakistan. If one looks to organisations like the International Criminal Court, their prosecutions have primarily targeted African leaders. In this respect, international courts are similar to the domestic courts of Europe and the US, where possessing dark-skin often subjects one to greater scrutiny by the law.
Though the international tribunals may be influenced by its ‘elite members’ who enjoy immunity from the law they subject others to, few alternative options remain for Pakistan to successfully challenge the violation of its sovereignty. One example of the ways in which Pakistan is protesting the recent incursion by Nato that led to the death of two dozen Pakistani soldiers is by shutting down American interests like Shamsi Airbase and supply routes to Afghanistan. However, these strategies have been attempted previously and failed; usually the US issues some threats and promises to the Pakistan military and things return to “normal” (if such a state exists in US-Pak relations).
Dr. Martin Luther King Jr. once said, “It may be true that the law cannot make a man love me, but it can stop him from lynching (hanging) me, and I think that's pretty important.” In this manner, there are several international principles that support Pakistan’s claims that the US has violated international law in trampling on their sovereignty. The United Nation’s Charter Article 2 states the organisation is based on “the principle of sovereign equality of all its members”, and that all members must refrain “from the threat or use of force against the territorial integrity or political independence of any state.”
Therefore, there is an actionable claim by Pakistan against the US for the drone attacks carried out on its territory, leading to the death of hundreds of civilians. A nation in Pakistan’s position can file such a claim through various international venues including the International Court of Justice (ICC) or the International Criminal Court (ICJ). However, there is a cost to bringing an action before an international tribunal. Not only will bringing such claims subject Pakistan to international scrutiny of its own domestic policies, but the US is likely to raise valid defenses against Pakistan’s allegations.
The first case Pakistan could lodge against the US is with respects to how the drone program violates its sovereignty, for which the US will raise the defense of “consent.” While international law bans the use of force, under the principle of consent, a nation may use force on the territory of another nation, so long as the other nation agrees to allow the action. Therefore, if the US was brought before an international tribunal, it would likely uncover the secret agreements between themselves and Pakistani leaders giving permission and consent for the drone program.
This is only one part of Pandora’s surprise for Pakistan. The International Court of Justice also has a requirement that a nation must exhaust all local remedies before attempting to bring a claim before the court. With the accusations and evidence presumably to be presented by the US, the ICJ could find the case against the US as ‘unripe’. This would mean that Pakistan’s highest domestic court, the Supreme Court, would have to initiate a case to determine the liability of Pakistan’s top brass in consenting to a violation of the nation’s sovereignty through secret deals with the US.
The other issue that could be raised by Pakistan is the recent cross border Nato raid that led to the destruction of two military outposts and the death of two dozen soldiers. The International Criminal Court was established by the Rome Convention, and aims to prosecute any crimes of war and aggression with universal jurisdiction. This means that any nation that has signed the Convention is obliged to arrest any suspected violator of the Convention, including military personnel.
This would mean that if Nato’s cross border raid was found to be a crime of aggression, any individual from the Obama Administration involved in the decision could face arrest and criminal penalties. However, the treaty also bans all forms of ethnic cleansing, through murder or forced disappearance, which has been an issue raised in Balochistan. This means that while Pakistan could bring a claim against the US for a crime of aggression, Pakistan would have to subject itself to inquiries on Balochistan, a topic the military would much rather avoid.