American courts and our sovereignty

Prime Minister Yousaf Raza Gilani — not a little egged on by parliamentary opposition leader Chaudhry Nisar Ali Khan — has bravely told off an American court asking Pakistan’s chief of the Inter-Services Intelligence (ISI) and two other army officers to appear before it to answer accusations made against them in regard to the 2008 Mumbai attacks in India. The suit has been filed by relatives of Rabbi Gavriel Noach Holtzberg and his wife, who were among the 166 people killed in the attacks. He, however, left a little opening by allowing that he could actually agree to the summons “after consulting the country’s top intelligence agency and other stakeholders.”

Chaudhry Nisar Ali Khan, intending to put the government on the back foot, had condemned the US court for summoning the ISI chief and other officers in the case. He said: “It is not the decision of the court, but a political move to bring Pakistan under pressure.” He challenged the prime minister to “protect Pakistan’s sovereignty”, presumably under attack by the US. Mr Gilani thought he could steal Mr Khan’s thunder by launching into another subject where Pakistan’s sovereignty was under challenge, and added; “No one should have an impression that they can dictate when military operations should be conducted in North Waziristan and South Waziristan.”

Legally, there is nothing the American courts can do if Pakistan is not ready to surrender its ISI chief to them for trial and presumably conviction too. But what if there is something the US is doing which already seriously violates our sovereignty — like the drone attacks — and puts the onus of response on Pakistan? The red line drawn by Pakistan in this regard is that America can ply its drones in some areas of Pakistan but not in others. There have been occasions when the red line was crossed but Pakistan did nothing. Does that mean that Pakistan is not in a position to retaliate in order to assert its sovereignty? No, the last time American troops violated the territorial boundary of Pakistan, dozen of Nato supply trucks were attacks and burnt (in separate incidents) during transit and this continued till the Americans apologised.

There is apparently nothing the Americans can do to make Pakistan surrender its ISI chief, in which case the court will wait till the chief visits America and then get him to attend proceedings. Pakistan and the US have no extradition treaty, therefore it is not possible for the Americans to take up the matter effectively with Pakistan. But there are things that must embarrass Pakistan when it comes to its nationals doing funny things in other countries. Dual nationality terrorists caught in the US and the UK routinely reveal that they had taken their training in Fata.

There are safe havens for foreign terrorists inside Pakistan from where they carry out attacks inside the territory of other states like India, Afghanistan, Iran and Uzbekistan — violating their sovereignty. Can they do anything about it under international law? Their courts can’t but they can approach the United Nations and get the UN Security Council and to pass a resolution under Chapter 7 to force Pakistan to stop this activity. But the UN is no court and, if Pakistan can manage a veto, there is nothing anyone can do. But ‘illegal’ actions can be taken against Pakistan’s perceived transgressions. Some of it is happening and some more can happen in the future. India and Iran have threatened action in their own different ways but America, aware that Pakistan is doing something positive but ‘not enough’, is already doing a little as a prelude of all that it can do in the last resort.

Pakistan’s plea that it is not violating other countries’ sovereignty, simply because Pakistan itself is a victim of terrorism at the hands of the same non-state actors, will not hold. Its protest that the non-state actors destroying its law and order were created by America during the war against the Soviet Union will hold even less. What is difficult to establish is sovereignty over territory without effectively holding that territory. And there is no way Pakistan can prove its effective control over the territory where it is inconclusively fighting foreign elements who are trying to establish Pakistan as their platform for international terrorism.

Published in The Express Tribune, December 25^th, 2010.