As Pakistani president Asif Ali Zardari and Afghan president Hamid Karzai were meeting in Tehran last month, Afghans were protesting the firing of hundreds of rockets from Pakistan into Afghan territory. According to the Afghan government, cross-border shelling cost the lives of 42 civilians and wounded many more whilst 12,000 civilians fled for shelter. The Afghan Parliament promptly announced an inquiry into the shelling, an army general resigned and hundreds of ordinary Afghans took to the streets, frustrated by the impotency of a government that proved unable to protect their life or property. The Pakistan army for its part only vaguely denied the allegations, admitting that whilst it has shelled militants in the past, it was not on the magnitude claimed by Afghanistan; in a press briefing, the army acknowledged that it fired "a few accidental rounds", but only in pursuit of Taliban fighters who had fled into Afghanistan. Karzai has until now faced down pressure to respond, though he could be justified in protesting Pakistan's actions; such cross-border incursions and attacks, even if undertaken to combat terrorism, possess slim justification under international law. In practice, however, claiming such a legal right may be of minimal value, when there is little Afghanistan possesses in the way of force to vindicate protect the legal claims it could assert.
International law does not look favorably upon foreign armies firing across borders to suppress insurgents, at least not without strong proof that the other state was internationally responsible, for example, because it tolerated or supported the insurgents. However, the law is still evolving on whether Pakistan would have been able to claim a right of self-defense in retaliating without making a specific claim about Afghan complicity or support. As such a determination is presently only speculative; we would have to assume that an international wrong may have been committed.
Of course, such a legal analysis might be necessary to determine whether Pakistan is in breach of its international law obligations and whether the use of force was justified, but a resort to legalism will not protect Afghanistan from foreign aggression, now or in the future. Karzai would therefore be wise to heed recent events as a grim portent of things to come.
In realpolitik terms, Pakistan has credibly signaled to its weaker neighbor that it possesses the ability and will to use overwhelming force across borders when necessary, and that such a disparity will shape their bilateral relationship going forward, particularly after the foreign powers depart in 2014.
These incidents have also clearly demonstrated Afghanistan's inability to defend itself. The country's political posturing appeared hollow when no one took seriously Kabul's rhetoric that it will not respond with military force. Similarly, Karzai's statement late last month that NATO had fired back against Pakistan was equally unconvincing. What incentive would NATO have to repel raids that end up hurting locals and have no direct effect on NATO's mission, and would only further inflame already tense relations with Pakistan?
Since 2001, international forces have provided Afghanistan with "sovereignty insurance," without specifying an expiration date, permitting the Afghan government to mistakenly believe that its sovereignty would be perpetually guaranteed against violations. Just as subsidies reinforce inefficiency in domestic industries, this insurance led the Afghan government to engage in the self-defeating fallacy that it needed to do precious little to develop its own defense capabilities. It was this moral hazard, for example, that encouraged Karzai to boldly claim in 2008 that he would send Afghan soldiers across the border into Pakistani territory to kill militants if Pakistan did not reign in the Taliban.
Naturally, as subsidized industries end up suffering in the face of competition when protectionist measures are eventually withdrawn, the events of the past few weeks should have reminded Karzai that Afghanistan will also soon face similar challenges to its territorial integrity once the insurance provided by the West expires. In fact, the history of Afghanistan is a recurring narrative of how foreign powers cannot be relied on to protect that state.
Perhaps it is not too late for Karzai to realize that unless Afghanistan develops a credible means of deterring its neighbors, sovereignty will remain a practical fiction, even if it is a legal reality. Due to the free movement of militants along the border, future violations on the pretext of terrorism are not only likely but inevitable. Therefore, rather than placing faith in NATO or hope that Pakistan or in fact any of Afghanistan's neighbors are altruistic enough to respect Afghan sovereignty, the government needs to adopt a much more honest outlook on its security needs.
This means two things: first, Afghanistan needs to adopt a realistic perception of its geographical handicap and ensure that it develops a military capability that can act as a reasonable deterrent against its neighbors - at a minimum, this should aim to significantly increase the costs to any states wishing to trespass Afghan borders. Although, NATO and the U.S. have been training the Afghan army and police, the Afghan National Army is much too young and ill-equipped to achieve self-sufficiency in defending the Afghan state against domestic attacks, let alone a territorial challenge from a neighbor that boasts the sixth largest army on the globe. As such, it is highly unlikely that reasonable deterrence can be developed by Afghanistan before the final draw down of U.S. troops in 2014.
So as Afghanistan develops such self-defense capabilities, it needs to humbly appreciate its weaker bargaining position and make efforts not simply to seek peace with its neighbors but to negotiate international treaties with them that oblige each party to reduce cross-border incursions and accept legal responsibility for any such violations. Most importantly, this needs to be done when the Afghan government still has some bargaining clout remaining; in other words, before the U.S. troops go back home.
Negotiating such an international treaty will prove no easy task, because such treaties can only work if borders are well defined - something that is not the case in the region. Any attempt to demarcate precise borders along the infamous Durand Line is likely to rekindle ethnic and nationalistic feelings, or dormant political debates, that may further weaken the Afghan central government. Nevertheless, long-term security in the region cannot be achieved without first overcoming this difficult step. Unless this is done, any international agreements will be difficult to implement.
The only other alternative is that the U.S. underwrites Afghan sovereignty for the foreseeable future, as part of a broader strategic framework with Afghanistan. However, this type of guarantee could serve to further perpetuate Afghan dependence, and require the commitment of vast resources for a goal that may provide only incidental benefit to the United States.
Afghanistan's neighbors will also need an incentive to negotiate on this issue. The Pakistani army in particular is not used to treating Afghanistan as a sovereign entity due to past "strategic depth" calculations, and it would need very strong reasons to entertain such a treaty. U.S. military pressure, domestic citizens' frustration with terrorism and promises of foreign aid could convince them otherwise. However, the single biggest factor that could help in bringing them to the negotiating table is the clear and dangerous realization that if such cross-border incursions are undertaken against Afghanistan on the pretext of combatting militancy, then it may be difficult to deny that right to India if at some point it sees fit to retaliate against Pakistan-based terrorists. An agreement to protect Afghanistan's borders could then be the start of a broader framework to bring some level of security to South Asia's volatile borders.
Dawood Ahmed is a doctoral candidate in international law at the University of Chicago. He has previously practiced as an attorney in the London offices of the international law firm, Linklaters.
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