When A Country Defaults On Its Sovereignty, Can The International Community Come In?

In light of the massacre in Mumbai, Robert Kagan writes in The Washington Post on the need to ensure Pakistani cooperation in the investigation:

Have the international community declare that parts of Pakistan have become ungovernable and a menace to international security. Establish an international force to work with the Pakistanis to root out terrorist camps in Kashmir as well as in the tribal areas. This would have the advantage of preventing a direct military confrontation between India and Pakistan. It might also save face for the Pakistani government, since the international community would be helping the central government reestablish its authority in areas where it has lost it. But whether or not Islamabad is happy, don't the international community and the United States, at the end of the day, have some obligation to demonstrate to the Indian people that we take attacks on them as seriously as we take attacks on ourselves?

Would such an action violate Pakistan's sovereignty? Yes, but nations should not be able to claim sovereign rights when they cannot control territory from which terrorist attacks are launched. If there is such a thing as a "responsibility to protect," which justifies international intervention to prevent humanitarian catastrophe either caused or allowed by a nation's government, there must also be a responsibility to protect one's neighbors from attacks from one's own territory, even when the attacks are carried out by "non-state actors."

In general, this sounds like a terrible idea. Specifically, of course if there is a line forming for countries where the UN wants to put in its 2 cents and tinker with their sovereignty--Israel goes to the front of the class.

Ed Morrissey notes that this sort of idea was suggested by Samantha Power in an interview 7 months after 9/11 that US forces should occupy parts of Israel in defense of oppressed Palestinian Arabs.

Then again, when Kagan writes that "nations should not be able to claim sovereign rights when they cannot control territory from which terrorist attacks are launched," Gaza certainly comes to mind--and how much more so Lebanon 2 years ago during the Israel-Hezbollah War.

But that is where Kagan runs into trouble: his underlying thesis again is:

If there is such a thing as a "responsibility to protect," which justifies international intervention to prevent humanitarian catastrophe either caused or allowed by a nation's government, there must also be a responsibility to protect one's neighbors from attacks from one's own territory, even when the attacks are carried out by "non-state actors."

As it turns out, that is a pretty big 'if'. How can there be a responsibility for one country to protect another from its own, when apparently no country has the right of self defense?

According to the UN:

No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles.

Spelling it out more broadly:

Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another. [emphasis added]

Going a step further, this opinion apparently has the backing of the International Court of Justice in the Hague as well. When it ruled on the legality of Israel's Security Fence and the right of self-defence, it became clear that:

The ICJ recognises that this right is enshrined in Article 51 of the UN Charter. But the ICJ then says that this right is limited to self-defence in the case of armed attack "by one state against another state". That limitation does not appear anywhere in the text of Article 51 itself. Article 51 recognises that states have an inherent right of self-defence "if an armed attack occurs". It does not say that the armed attack must have been carried out by, or be attributable to, another state.

The distinction is critical in the on-going struggle against international terrorism. Although every act of terrorism necessarily originates in territory (or aboard a ship or aircraft) that is owned or occupied by a sovereign state, it does not follow that every such act of terrorism is supported by that state, and attributable to it in a legal sense.

The ICJ is now saying that if terrorists based in the territory of state A attack state B without the passive or active support of state A, state B may not have the right to defend itself from future attack by striking back at the terrorist base – despite Article 51. [emphasis added]

So the right to self-defense is not an actual right so much as a 'dispensation' when your self-defense entails harm to your attacker--and if your attacker is not a citizen of the state from which he is operating, the ICJ implies the host state bears no responsibility at all.

As extreme as Kagan's idea may be, the forces at work against such a plan are even more over-the-top. Apparently the first step in the war against terror needs to be to establish that we have a right to defend ourselves against them.

Crossposted on Soccer Dad

Technorati Tag: Mumbai and Right of Self-Defense.