A precedent with potential

The only difference between the latest US strikes andthe other examples is that the latter were reactions to political events or crises, whereas the US has now retaliated against what it identified as terrorist groups led by Osama bin Laden. America8217;s allies and a number of South American, African and Asian countries have welcomed the decisive action against international terrorism. The majority of Muslim countries and many developing and non-aligned countries have criticised it as a violation of international law and interference in sovereign states. A third reaction is that the US should have ensured legitimacy for the strikes from the Security Council. This was articulated in Boris Yeltsin8217;s outrage at not being consulted.

India8217;s reactions have been mixed. According to information available so far, about 70 Tomahawk missiles were fired from the Arabian Sea and the Red Sea, traversing 1000 to 1500 miles in each case. These missiles overflew the coastal waters and air space of countries other than those which were targeted. The governments of the targetedareas were given no advance information. Nor were the countries whose coastal seas and air space were involved. The only exception was perhaps the visit of the Vice-Chairman of the US Joint Chief of Staff General Ralston to Pakistan to clarify that the missiles overflying their territory were not fired by India but were missiles from a 8220;friendly8221; US aimed at specific targets. Reports state that while the missiles fired on the Khartoum chemical factory achieved pre-designated damage, those fired into Afghanistan destroyed more than the specific target, one or two even falling inside Pakistani territory and causing civilian casualties. The US says it targeted a group which had carried out anti-US terrorist activities; which bombed the American embassies in Tanzania and Kenya; which is likely to undertake further violent activities against US personnel and establishments; and that the US could take such action under the provisions of article 51 of the UN Charter.The first three reasons given are factualpredications rooted in the judgment of the US government. The provisions of Article 51 are worth recalling: 8220;Nothing in the present UN charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security8221;. The US has not formally mentioned article 51 as the umbrella for its action. It has just implied that this is justification. But can the terrorist bombing of American embassies in third countries be perceived as an armed attack on US territory? Nor has the US so farformally reported its action to the Security Council. In fact it has precluded, by implication, the necessity of the Security Council taking further action by categorically stating that the US will carry out further unilateral strikes against its terrorist enemies if necessary. The US may participate in Security Council proceedings on the complaint lodged by Sudan in the Council.

The political reality is that the UN has been given the go-by. In terms of normative requirements, America8217;s actions can be considered illegal. It has violated the territorial jurisdiction of a number of countries. From one point of view it creates a dangerous and destabilising precedent. It is that if a state is powerful and immune from retaliatory action, it can indulge in unilateral and coercive military operations against other countries or sections of their people at will. Israel perhaps is the only other country which has undertaken similar anti-terrorist action, but it has never launched large-scale missile attacks on othercountries. Most of its operations have been commando operations. If the US considers a military or security posture of a country like India a threat to its security or to its stipulations on peace and stability in our region, it would feel free to undertake long-distance military strikes against Indian targets. Even if this is far-fetched, the fact remains that Tomahawk missiles can carry nuclear warheads. How does the international community cope with such a prospect? The Security Council and the General Assembly in its sessions between September and December should focus on this.

Indian reactions have been mixed. Atal Behari Vajpayee, without commenting directly, has stated that the American action provides the basis for unified efforts by the international community against terrorism. This presumably is the government reaction: unified support for the US action. America8217;s action will certainly make it difficult for it to lecture us if we decided to take pre-emptive action against terrorist headquartersin Pakistan-occupied Kashmir. But George Fernandes has roundly criticised the Americans. So has the Communist Party, and Pranab Mukherjee of the Congress. Pakistan faces a contradictory predicament. If it supports the US, it risks strong domestic opposition and trouble from the Taliban and militant Afghan elements. If it opposes it, American pressure will debilitate it. It is also potentially vulnerable to India considering retaliatory strikes in PoK. India8217;s primary stance should be to utilise this precedent for its security interests while remaining committed to broad stipulations of international law.