It's Legal

28 September 2010



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NATO Forces' Entry into Pakistan in Hot Pursuit is Legal

NATO helicopters entered Pakistani airspace on Friday and killed 55 suspected insurgents. This is not the first time this has happened. The Pakistani Foreign Ministry is having a fit. "These incidents are a clear violation and breach of the U.N. mandate" covering the war in Afghanistan it said in a statement. "There are no agreed 'hot pursuit' rules," the statement said. "Such violations are unacceptable." The Ministry ought to hire an international lawyer, because the incursions are entirely in keeping with international law governing hot pursuit.

Under international law, combatants and neutrals have duties toward one another. By law, Pakistan is a neutral power in the conflict between the US, NATO, Afghan government and their war against the Taliban insurgents. The US and NATO are present because of the invitation of the Kabul regime and the UN mandate, and thus, they are legal combatants in this fight.

It is clearly the obligation of the neutral party to ensure that its territory is not used as a base for any combatant. The presence of the combatants is not sufficient for hot pursuit; the neutral power must also fail to inter or expel them. Obviously, Pakistan is not keeping its end of the bargain; however, given recent floods, the difficult terrain in the northwest of that country, and the irregular nature of the Taliban fighters, one is prepared to accept for now that Pakistan's failure is more a case of inability rather than unwillingness.

In the event that the neutral cannot or will not deal with the combatants on its territory, the opposing combatants are entitled by right to enter the neutral territory to deal with the situation. The Council on Foreign Relations offers an excellent and understandable explanation of the law.

International law on hot pursuit largely focuses on actions on the high seas. Applying it to land territory is somewhat trickier because sovereignty is, in theory, being violated. In practice, however, sovereignty is the ability to act as the sole power in a territory. The presence of NATO forces in the northwest of Pakistan on the face of it proves that Pakistani sovereignty is dubious at best in that region.

Naturally, there is a solution to the entire problem. Pakistan's army can decide to act like an ally of the United States (it does, after all, receive billions in aid) and go after the jihadis in the northwest. NATO and the US will not have to do the job if Pakistan's army does it. Of course, that presumes that the Pakistani military is on the side of 21st century civilization and not on the side of 12th century ignorance.

© Copyright 2010 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Ubuntu Linux.

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