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Dawn/31-05-2017

Border politics

Sikander Ahmed Shah

IRAN is claiming that 10 of its border guards were killed by long-range guns from across the border in Balochistan on April 26. The attacks, according to Iran, were perpetrated by Jaish al-Adl, an extremist Iranian Sunni militant group active in the Iranian border province of Sistan-Baluchestan. Iran alleges that JA has bases in the border regions of Balochistan.

JA has claimed responsibility for several similar attacks in recent history, which have adversely affected relations between the two Muslim neighbours. This time, however, the rebuke from Iranian state officials has been much stronger, alarmingly taking the form of threats of possible armed retaliation. The Iranian border police voiced its opinion first, stating that “the Pakistani government bears the ultimate responsibility for the attack”. This was followed by a statement from the official spokesman for the foreign ministry of Iran, BahramQassemi, who contended that “the Pakistani government should be held accountable for the presence and operation of these vicious groups on its soil”.

The most serious warning, however, came later, a couple of weeks after the attack, when the Iranian armed forces’ chief of staff, Maj-Gen Mohammad Baqeri, issued a stern ultimatum to Pakistan that if these attacks, which were, according to him, being carried out with the support of the US and Saudi Arabia, were to continue, and Pakistan did not act by tightening its control over its own borders, then Iran would target terrorist safe havens across the border in order to protect itself.

To protest this, the Ministry of Foreign Affairs was quick to summon the Iranian ambassador; it also expressed its disappointment by officially emphasising that such statements by Iranian officials were “against the spirit of brotherly relations”. All this unease prompted JavadZarif, the Iranian foreign minister, to visit Islamabad and, with diplomacy ostensibly prevailing, both countries agreed — yet again — to enhance border cooperation. One of Zarif’s advisers accompanying him informally hinted that Baqeri’s statement was mere military rhetoric targeted at a purely local audience. This seems accurate considering that only the supreme leader of Iran or the Iranian president, with the consent of the former, can initiate any foreign military action and neither of the two has indicated any desire to use force against Pakistan even when national fervour and politicking are high in Iran because of national elections.

Pakistan has made it unequivocally clear that any cross-border attack or movement of Iranian border forces into Pakistan would be a violation of international law. This is an accurate rendition of international law under which armed reprisals by Iran against non-state actors residing in Pakistan would infringe on Article 2(4) of the UN Charter because, without the consent of Pakistan, these attacks would undermine Pakistan’s territorial sovereignty.

Any cross-border attack by Iran into Pakistan would be a violation of international law.

This long-established rule on the use of force has been clearly reiterated by the International Court of Justice on multiple occasions, which has held that a state targeting militant groups residing in another state would only qualify as a legitimate exercise of the right of self-defence by the former under Article 51 of the UN Charter when attacks conducted by such militant groups can be directly attributed to the state in which they are present. This would only be the case if the militia groups in question were de facto organs of the state, under its direct command and control. In other words, state sponsorship — and not state inactivity — would give rise to a right to respond, and Pakistan in no way controls the day-to-day operations of JA.

But the fact that Iran cannot use armed force in Pakistan without the latter’s consent does not mean that Pakistan, by not taking sufficient measures in preventing attacks on Iran from its soil, is not guilty of failing to comply with its state responsibilities as well as disregarding its obligations under international law. Pakistan’s consistent failure to act, if proven, would eventually establish an international wrongful act as outlined under the International Law Commission’s Draft Articles on State Responsibility (DASR), which reflect customary international law obligations. In such a scenario, Iran would be in a position to claim reparations for injuries which could include an acknowledgement of the breach, an expression of regret, a formal apology or even compensation. Under international law, however, armed reprisals cannot classify as a form of reparation and by themselves are a serious breach of the DASR.

Relations between Iran and Pakistan, while not necessarily bad, are tenuous. Geopolitics and some recent regional developments have made diplomacy between the two states quite complicated. Today, opposing pressures and competing interests are driving ties between these two powerful neighbours. JA’s alleged bases in Pakistan, Iran’s warm relations with India, the targeting of Shia minorities in Pakistan by terrorist outfits, KulbhushanJadhav’s entering Pakistan through Iran and Pakistan’s acceptance of the lead role in the Islamic Military Alliance which excludes Shia-controlled Iran, Iraq and Syria have all negatively affected diplomatic relations between the two neighbours. Conversely, however, the desire to improve bilateral trade including through the sale of Iranian petroleum imports and Iran’s desire to become a partner in the CPEC project have had a positive impact on ties.

While in a larger context, long-term diplomatic ties between Iran and Pakistan are subject to many influences, currently Pakistan should extend an olive branch by being as vigilant as possible in securing its border with Iran. However, Iran with all its military might and strong domestic writ has been unable to neutralise JA in Sistan-Baluchestan, where the conflict seems to simmer and demands an internal solution achieved through political means. Without Iran addressing the root causes giving rise to this ethno-political conflict domestically, it cannot justifiably expect that Pakistan, with its limited policing capacity, would be able to swiftly rein in and neutralise overseas factions of JA that Iran claims operate within the restive and porous border regions of Balochistan.

The writer is former legal adviser to the Ministry of Foreign Affairs, and law faculty at Lums.

Published in Dawn, May 30th, 2017