By Hamid Pakteen
Right before the break of dawn on April 16, 2022 Pakistan’s military forces conducted airstrikes within the territory of Afghanistan. These airstrikes were supposedly in retaliation to ‘violent acts’ of the Tehreek-e-Taliban Pakistan (TTP) or the Pakistani Taliban. However, this abrupt use of overwhelming force by Pakistan led to a total of 45 casualties, amongst them were 20 children including 12 girls and 3 boys in Khost Province, and 3 girls and 2 boys in Kunar Province. The Taliban regime, Afghanistan’s de facto Government, condemned the airstrikes and summoned Pakistan’s ambassador in Kabul to hand him a diplomatic démarche.
While no country has “recognised” the Taliban regime as Afghanistan’s new government since it took power in August 2021, would that absolve another sovereign nation from conducting airstrikes under the garb of counterterrorism and killing children? Would it not be a blatant violation of international law and obligations thereunder? Will the proxy Taliban regime remain mute spectator allowing innocent Afghan people to be killed by Pakistan?.
The traditional approach under international law is that foreign recognition is not a requirement or condition precedent of whether an entity is the government of a state or not. Rather, a state government is an entity if it effectively, independently and durably controls the state’s territory. It becomes immaterial if there is opposition to the regime, meaning thereby a situation where the regime is not supported by the people or recognised but with no rival effective authority, effective being the operative and imperative word. Any subsequent recognition by another nation may be declaratory in nature and the legal sovereign status may not depend entirely on recognition by other nations.
As per international law, the above would be the case even if the ‘government’ in question came to power through unconstitutional means, till the time there is no rival entity with a constitutional claim. However problematic it may be, for one’s personal conscience may disagree with the logic, international law as a rule of thumb cannot work in a vacuum. That is precisely the reason that even though no country recognises the present Afghanistan dispensation, and Afghanistan’s UN Mission is functioning under a Charge d’Affaires which the UN Credentials Committee is yet to formally acknowledge – Naseer Ahmad Faiq, the Charge d’Affaires at the Permanent Mission of Afghanistan to the United Nations wrote to the President of the Security Council, that the airstrikes by the Pakistani Air Force inside Afghanistan are an “aggression against the territorial integrity” of Afghanistan.
Pakistan’s actions constitute a clear violation of international law, most flagrantly against the prohibition on the use of force or the threat of use of force as encapsulated in Article 51 of the UN Charter. This should be a moment of international outrage considering that the people killed in these targeted strikes were innocent bystanders and children. A basic principle of international law is respect for sovereignty and international borders. Similarly, a fundamental principle of international humanitarian law (the law of armed conflict) is that military force cannot be used against civilian targets. Arguably then, the Pakistani actions are not only contrary to customary and treaty law governing the use of force, but also constitute war crimes inasmuch as they are in utter defiance of the Geneva Conventions.
Further, these strikes pose bigger threats for the troubled region of the Afghanistan-Pakistan border. In eastern Afghanistan, many feared that due to the recent airstrikes more violence would be propagated, perhaps escalating into a full-scale war. Reinforcing these specific concerns, Afghanistan’s Minster of Defense Mullah Yaqoub warned that the Taliban regime would not tolerate any more “invasions” from neighbouring countries on Afghan soil.
Surprisingly though, this latest tailspin of Afghanistan-Pakistan relations come after the Pakistani Establishment had been handholding the Taliban regime post its takeover, and assisting in finalising the government formation. While there is little doubt that the relationship between Islamabad and Kabul would nonetheless continue to remain uncomfortable, such violations of international law by Pakistan, and the deliberate targeting of civilians, cannot and should not go without reprimand.
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