At the enemy?s gates

Soldiers keeping an eye out against unwanted intrusions. Photograph:( Others )

WION Noida, Uttar Pradesh, India Sep 26, 2016, 06.27 AM (IST)

The recent stories about whether India did carry out a strike deep inside Pakistan-occupied Kashmir after the Uri attack have fuelled the debate on what possibilities exist to curb the ongoing attacks on Indian military and civilian positions. Since neither side has admitted that such a strike did take place, we can’t say with certainty whether the attack was a fact or a figment of the imagination.

But strategically speaking, nobody would openly acknowledge that such strike had taken place. The Indians have already done the damage, and it will now have to be on high alert to fend a counter covert strike. If the Pakistani government admits that the strike had indeed taken place on its soil, it would then have to respond. Otherwise, it risks losing face in its own country. And if both admit, then the two neighbours will be locked in a full-scale war against the other. It is all cloak-and-dagger at this stage. 

Both countries will use their financial and PR strength to accuse each other. As the Cold War is no longer raging, Gilgit, Baltistan, Balochistan and Kashmir are all part of the same debate. It has ceased to be a narrow debate between India and Pakistan since Afghanistan and China are also involved.

Hot pursuit: Is it legal?
Hot pursuit owes its origin to the law of the seas against vessels that are involved in piracy or smuggling. The coastal country would take action in spite of the principle of freedom of the high seas — the rights of vessels of all nations to navigate freely on the high seas. The right to free navigation on the high seas has been designed to protect innocent vessels, and it ensures that no ship violating the rule is able to escape. This customary doctrine has been codified in the Article 111 of the 1982 United Nations Convention on the Law of High Seas (UNCLOS) and in Article 23 of the 1958 Convention on the High Seas. 

However, the Convention clearly spelled out that the right of hot pursuit ceases as soon as the ship pursued enters the territorial sea of its own country or a third state, so as to not violate the sovereignty of other nations. There is no international law governing ‘hot pursuit’ over land. However, nations have time and again used the argument of self-defence to enter the territory of another country in pursuit of a terrorist, terrorist organisation, criminals or anyone that is a threat to the defence of the pursuing country.

Under international legal norms on state responsibility, and UN Security Council Resolution 1373, passed shortly after the events of 9/11, state sovereignty implies a duty to control one’s territory. A state will not allow its land to be used by the non-state actors — or terrorist organisations — to carry out operations against its neighbours. Also, article 51 of the UN charter defines self-defence. It is the action necessary to preserve a country’s territorial integrity and political independence.

After 9/11, the nations are increasingly resorting to ‘the expanded doctrine of self-defense’; they are citing the above two laws to carry out hot pursuit against other nations even through land boundaries, in absence of a defined law on the same. It is considered a better and a less consequential alternative to a full blown war. However, critics argue that hot pursuit can escalate tensions between nations which can eventually result in a war.

Hot pursuits in the global context
In 1970, South Africa used the term to justify frequent raids into Angola. The incursions were to target separatists from the South West Africa People’s Organization, a group fighting for the independence of Namibia, which was then under South Africa’s control.

The phrase 'hot pursuit' has been used as a ‘threat’ by nations when another country does not act against elements of threat in its own territory or is incapable of handling it. In 1949 following the civil war, several Greek communists fled to Albania. The then Greek government threatened Albania with a possible hot pursuit if it allows its territory to be used as a base by the communists. In 1984, the Soviet Union and Afghanistan threatened Pakistan that they would conduct guerilla warfare in its territories if Pakistan did not cut off support to the mujahideen.  

Similarly, in 1986, Angola warned Congo about the possible consequence if the latter continued to shelter and train the separatist Unita movement. This forced the then Congolese President Mobutu Sese Seko to investigate the evidence presented by Angola.

The act of hot pursuit has a wide-ranging geopolitical impact. It can involve several players (states). In 1956, when the Hungarian forces, with the backing of Soviet Union, briefly entered the Austrian borders to pursue Hungarian anti-communist rebels, they made the entire combat operation a global incident, impacting the geopolitics of the region.  

Since there is no international law defining hot pursuit on land, in some cases countries have entered into bilateral agreements to mitigate the destabilising effects of cross-border incursions. Iraq and Turkey agreed in the 1980s to a joint security zone which few miles in length where both could operate. The US and Mexico also agreed to a deal to pursue drug mafia about 100 miles inside Mexican territory by aircraft. However, such agreements are an exception and not the norm.  

India and its neighbours
India has carried out many hot pursuits in the last few years. All have been undertaken with some understanding with the host country whether they openly agree or not. Because of terror camps in Myanmar, Nepal, Bhutan and Bangladesh, India has gone inside these countries and taken action against armed groups.

Pakistan has been violated many times over by the Americans. But in all those cases there was tacit support from the Pakistani side. The operation to assassinate Osama Bin Laden could not have taken place without a secret understanding between the US and a section of senior Pakistani military leadership.

Hot pursuit — sign of a good relationship
The ability to go after terrorists and criminals is a sign of a good relationship between nations. But with Pakistan, India mostly has had a hostile relationship. The camps of terror groups exist due to Pakistan government’s patronage. Hot pursuit needs to be carried out with a full understanding that India should be ready that it may escalate into a full-scale war. But military planners will tell you that you must never give time to your opponent to plan a counter-strike. Your attack needs to be devastating enough for the opponent to not being able to get up and fight.