Wednesday, November 30, 2011

An International Legal Perspective of the British Embassy Attack in Tehran

Iran has done it again. On 28th November 2011, Iranian protestors stormed the British Embassy compound and a diplomatic residence, tearing down the British flag, breaking windows, vandalizing walls and  holding six embassy staffers “hostage” for a short time. The protest which appeared to have the full support of the Iranian government was in response to Britain’s harsh new sanctions against Iran for its ongoing nuclear weapons’ programme. The incident brought back memories of the diplomatic crisis between Iran and the US when 52 American Embassy personnel were held hostage for 444 days from 4th November 1979 to 20th January 1981 after a group of Islamist students and militants took over the US Embassy in Tehran in support of the Iranian Revolution.

The attack on Tuesday began when about 50 protesters invaded the offices in the vast walled compound housing the British Embassy and its manicured grounds, situated in a busy neighborhood in the heart of Tehran. Outside the gates, thousands of student protesters chanted religious slogans and demanded the expulsion of the British ambassador. In the meantime, 200 to 300 others broke into a British diplomatic residence a few miles north of the embassy, called Qolhak Garden. The facility also houses a school. 

Television images showed protesters, some armed with gasoline bombs, rampaging through offices strewn with papers, and at least one vehicle was shown burning inside the compound. There was ample evidence of the state’s complicity in the attack: police was shown as silent spectators in television footage, and in any case the security forces have maintained strict control over all large protests in Iran ever since the disputed presidential election of 2009. Further evidence of Tehran’s complicity in the attack is apparent from the fact that the embassy attack came a day after Iran’s Parliament approved a measure to expel the British ambassador and downgrade diplomatic relations between the two countries, in retaliation for Britain’s new economic sanctions.

Iran’s semi-official Fars news agency reported that police officers freed six British staff members who had been surrounded by the Qolhak Garden protesters and that 12 of those protesters were later arrested.

The Iranian authorities have organized similar political demonstrations against foreign embassies in the past, intervening only after the protest was well under way and the message was clear.

This attack very clearly proves that Iran has scant regard for the provisions of international law and particularly the provisions of Vienna Convention on Diplomatic Relations, 1961.

Article 22 (1) of the Vienna Convention stipulates that the premises of the mission are inviolable and the agents of the receiving State may not enter them, except with the consent of the head of the mission.
Article 22 (2) of the 1961 Convention enjoins on the receiving State (the host country) take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity.

So also Article 30 provides that the private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

Article 29 lays down that the person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

All the three provisions referred to above were infringed with impunity in the incident in Tehran.

Iran, by permitting this attack, is also guilty of violation of the provisions of the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents, 1973

A diplomat is an internationally protected person within the meaning of the above-mentioned Convention and at the time when and in the place where a crime against him, his official premises, his private accommodation or his means of transport is committed, is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household.

The 1973 Convention vide Article 2 provides
1. The intentional commission of:
(a) A murder, kidnapping or other attack upon the person or liberty of an internationally protected person;
b) A violent attack upon the official premises, the private accommodation or the means of transport of an internationally protected person likely to endanger his person or liberty;
(c) A threat to commit any such attack;
(d) An attempt to commit any such attack; and
(e) An act constituting participation as an accomplice in any such attack shall be made by each State Party a crime under its internal law.

2. Each State Party shall make these crimes punishable by appropriate penalties which take into account their grave nature.

3. Paragraphs 1 and 2 of this article in no way derogate from the obligations of States Parties under international law to take all appropriate measures to prevent other attacks on the person, freedom or dignity of an internationally protected person.

Iran needs to be reminded that apart from the provisions of Vienna Convention, in Islamic tradition too, a messenger should not be harmed, even if coming from an arch-enemy and bearing a highly provocative or offensive message. A hadith attributes this sunnah to the time when Musaylimah sent to the Prophet Muhammad messengers who proclaimed Musaylimah be a Prophet of Allah and the co-equal of Muhammad himself.

Iran has in the past been indicted and held guilty by the International Court of Justice in the case involving seizure of the US Embassy and its personnel in 1979. In the case concerning United States Diplomatic and Consular Staff in Tehran decided on 24th May 1980 by the International Court of Justice, the Court, inter alia, held that the Islamic Republic of Iran, had violated in several respects, obligations owed by it to the United States of America under international conventions in force between the two countries, as well as under long-established rules of general international law. The Court also held that Iran was under an obligation to make reparation to the Government of the United States of America for the injury caused by the events of 4th November 1979 and what followed from these events.

Given Iran’s past record, it is indeed far-fetched to expect Iran to abide by the rules of international law. In such circumstances, international community must take cognizance of the inherently delinquent behaviour and adopt “strong measures” to deter and prevent Iran from violating the law of nations in general as well as international treaty obligations.

Monday, November 28, 2011

NATO Attack on Pak Check Post - Ramifications

On 26th November 2011 (around 2.00 am local time), helicopters/aircraft belonging to NATO/International Security Assistance Force (ISAF) carried out an attack, alleged to be unprovoked by Pakistan, on a military border outpost at Baizai area of Mohmand tribal region a lawless border area which abuts Afghanistan's eastern Kunar province, killing about 24 to 28 soldiers including a major and a captain. Fifteen more personnel were wounded and the death toll could rise as condition of some of the injured was reported to be serious. The attack prompted Islamabad to launch strong protest with the United States and close its frontier for supplies to allied forces in Afghanistan. Pakistani authorities responded to the attack by stopping all container trucks and tankers carrying supplies for US and NATO forces in Afghanistan. The attack threatened to further strain the already tense US-Pak relations.

According to the spokesman for the NATO-led ISAF in Kabul the coalition was aware of "an incident" near the border and was gathering information on it. Security forces blocked all entry points to Mohmand tribal agency after the incident and began checking all vehicles, TV news channels reported. Several crossings on the Afghanistan frontier, including Landikotal and Takhtbai, were closed and over 150 NATO supply vehicles sent back to Peshawar.

Pakistan rejected the regret expressed by NATO and warned that the action would have grave consequences. The regret expressed by NATO over the killing of the Pakistani soldiers is "not enough", chief military spokesman Maj Gen Athar Abbas said. "The NATO strike can have grave consequences," he said. NATO Secretary General Anders Fogh Rasmussen on Sunday said he had written to Pakistan Prime Minister Yousuf Raza Gilani to express regret over the "tragic unintended incident".

Apart from closing all NATO supply routes, Pakistan asked the US to vacate Shamsi airbase within 15 days. The base is believed to be used by Central Investigation Agency for operating drones. 

While Pakistan has alleged that the air strike was unprovoked, there are reports suggesting that Afghan troops operating near the Pakistani border came under fire and in response called in NATO air strikes. The officials, who spoke on condition of anonymity because of the sensitivity of the issue, said it was unclear who attacked the Afghan troops before dawn Saturday, but that the soldiers were fired upon from the direction of the Pakistani border posts that were hit in the strikes.

The border area where the soldiers were operating contains a mix of Pakistani forces and Islamist militants.

But there are forces working against a total rupture in the relationship. Pakistan continues to rely on billions of dollars in American military and civilian aid, and the U.S. needs Islamabad's help to push Afghan insurgents to engage in peace talks.

Tensions are likely to exacerbate if militants unleash attacks against hundreds of trucks carrying supplies to U.S.-led forces in Afghanistan that were backed up at Pakistani border crossings after Islamabad closed the frontier.

Suspected militants had destroyed around 150 trucks a year ago after Pakistan closed one of its Afghan border crossings to NATO supplies for about 10 days in retaliation for a U.S. helicopter attack that accidentally killed two Pakistani soldiers.

The situation could become worse this time because Pakistan has closed both its crossings. Nearly 300 trucks carrying coalition supplies are now stranded at Torkham in the northwest Khyber tribal area and Chaman in southwestern Baluchistan province. A prolonged closure of Pakistan's two Afghan border crossings to NATO supplies could cause serious problems for the coalition. Recent reports suggest that the closure of the crossings is permanent. The U.S., which is the largest member of the NATO force in Afghanistan, ships more than 30 per cent of its non-lethal supplies through Pakistan. The coalition has alternative routes through Central Asia into northern Afghanistan, but they are costlier and less efficient. According to the Telegraph, although the US is transporting more of its equipment, food and fuel through Central Asia in an attempt to reduce Pakistani leverage, the route through Karachi still accounts for 49% of supplies destined for the 140,000-strong foreign force.

The incident will have far-reaching ramifications not only on US-Pak relations, but also for the ISAF operations in Afghanistan and the US-led war on terror.

Firstly, ISAF will have to explore the possibilities of opening and maintaining alternate routes for transport of food, equipment and fuel for its forces stationed and operating in Afghanistan. Secondly, Pakistan’s action of closure of the border crossings will most likely be met with cut US military and non-military aid to Pakistan, something which it can ill-afford.

Pakistan’s Afghanistan policy is highly suspect. The US Government and its lawmakers are highly skeptical of Pakistani intentions and its policy of hunting with the hounds and running with the hare. Western officials have alleged that Pakistan has played a "double-game" since 2001, by allying with the US but at the same time providing support to the Taliban and other Afghan insurgents. US officials suspected that the Pakistani ISI had conspired with the Haqqani network in the September 2011 attack on the US Embassy in Kabul. The relations between the two sides have nose-dived since then. This incident may give Pakistan a pretext to withdraw support to the US war on terror, particularly because of the unpopularity of the drone attacks inside Pakistan. And the US too may be looking for an excuse to carry out military strikes inside Pakistan because of Pakistan’s reluctance to take action against groups like the Haqqani network, which Pakistan considers to be a strategic asset.

The most important ramification of this incident is Pakistan’s call to vacate the Shamsi air base operated by the CIA.

First offered to Washington in the early days after 9/11 by the Musharraf regime when it simpered before the American threat that it will be bombed back to the Stone Age if it did not cooperate, Shamsi's US operations was a well-kept secret till February 2009 when Internet trawlers ferreted out Google earth photos showing drone aircraft at the base. News that the US was using Pakistani facilities to carry out its Predator campaign within Pakistani territory against Pakistani targets embarrassed Islamabad no end, sparking off a campaign to evict American assets. Pakistan, it must be noted managed to get US to vacate the Jacobabad airbase, the second of the air base operated by the US. Reports suggest that Pakistan has not been successful in getting the US to vacate the Shamsi base. How did the US manage to cling on to this base? The answer lay in the fact that the air base was not even under Pakistani control. Like with some other parts of the country like areas of Pakistan Occupied Kashmir ceded to China and parts of the Khyber Pakhtunwa given up to extremists, Islamabad earned itself the dubious reputation as a rentier state, it turned out that Shamsi Air Base had been leased out to some Gulf potentates.

During the Pakistan national assembly debate following the Abbottabad operation, Pakistan air chief Rao Qamar Suleman reportedly told lawmakers in camera than Shamsi has been under the control of the United Arab Emirates and Pakistan Air Force had no say in the matter. In fact, the Shamsi air strip was originally built for Arab sheikhs who flew into Pakistan to hunt for the houbara bustard, a rare bird some Arabs believe has aphrodisiac properties.

Now, the US-UAE arrangement in Shamsi rendered the Pakistani establishment impotent. 

In the event of closure of the Shamsi Air Base, the drone operations being carried out by CIA may be adversely affected. The US may have to shift these operations to a secure location in Afghanistan or elsewhere. If such a situation were to arise, then the US may probably adopt a no holds barred approach to taking on terrorists in Pakistan

In conclusion, Pakistan must realise that playing a dangerous double game as they have done so far in Afghanistan is fraught with serious risks wherein allied forces may carry out military strikes as highlighted  by this incident "accidentally". None, but Pakistan alone, will be responsible for such actions.