LAST week , a Nato helicopter crossed the Afghan border into Pakistan while engaged in combat with a group of militants that had crossed into Pakistani territory.

As a result of the incursion, three Pakistani soldiers manning a security post were killed. In the fallout from the attack, several vehicles carrying supplies to Nato forces in Afghanistan were set on fire, apparently by angry militants. On Oct 1 the Torkham border crossing, which is the major goods’ transport point for Nato forces in Afghanistan, was shut down by Pakistan. In the aftermath of the border incursion, Nato forces justified their actions by saying that they had been in “hot pursuit” of the militants who had attacked them.

In the meantime Abdul Basit, a spokesman for the Pakistan Foreign Office, denied that there were any “agreed-upon hot pursuit rules” and called the action “a clear violation and breach of the UN mandate under which Isaf [International Security Assistance Force] operates”.

The incident is not the first in which hot pursuit has been cited as the legal basis for encroaching on Pakistani territory. A similar case occurred in June 2008, when US troops pursued a group of Taliban fighters from Kunar in Afghanistan into Mohmand Agency and killed some Taliban fighters. A similar incident took place in November 2008 when US forces launched rocket attacks and ground strikes in Tirah valley and extended its pursuit into Pakistan.

These incursions were in addition to strikes by unmanned Predator drones to which the Pakistani establishment had not objected. As has been pointed out by various news sources, this September was the deadliest month for drone strikes with an estimated 22 attacks taking place.

The emergent legal question before Pakistan’s civilian and military establishment is whether waiving the claims to sovereignty, as they relate to drone strikes, automatically eliminates such objections when incursions extend to manned aircraft and even to ground troops. According to Isaf and Nato forces, this is precisely the implication. The arguments used to justify incursions into Pakistani territory through drone strikes are indeed identical to the ones employed in defence of allowing helicopters and even troops engaged in combat to extend their reach beyond the Afghan border.

Documents obtained by the Associated Press in 2007 show, in fact, that US forces have been given instructions that crossing the Pakistani border is permissible. The documents which detail the rules of engagement to be employed by US forces state that entry into Pakistani territory is permissible in the following cases: “Hot pursuit of Al Qaeda and Taliban terrorist command and control targets from Afghanistan into Pakistan so long as pursuit is continuous and uninterrupted” or if “the head of US Central Command or the secretary of defence allow such incursion” or to “recover personnel that may have been taken across the border”. At the time these documents were released, the then military spokesperson stated that the rules were nonsense and that “no agreement had been reached” with the United States relating to entry into Pakistan.

The lack of agreement on hot pursuit suits the interests of both Pakistan and the United States. Without signing any explicit agreement, Pakistani politicians and military officials retain the option of feigning outrage every time it becomes apparent that few obstacles exist for Isaf forces wishing to pursue Taliban fighters into Pakistan. For the United States, the absence of a clear agreement permits the use of a strategy which allows them to put pressure on their Pakistani allies whenever the quota of apprehended terrorists isn’t met.

When a few months pass without apprehending a ‘high-value’ target or things bode ill in operations in Marja or Kandahar, an air strike in Pakistan can embarrass both the Pakistani military and political officials before their own population and hammer in the point that the billions of dollars of aid come at a definitive and invasive price.

Interestingly, on its own borders thousands of miles away, America has adopted a very different approach. On Oct 1, just days after the Nato incident in Pakistan, US forces engaged in an armed standoff with Mexican forces that had crossed the international bridge in pursuit of a vehicle related to a drugs case. US forces at the Texas border at Progresso shut down the international crossing when the Mexican military was reported to have crossed the border.

While no shots were fired, the US customs and border police refused to admit that the Mexican military had the right to cross into the US while in pursuit of criminals. This despite the fact that drug-related crimes caused nearly 5,500 deaths in Mexico in 2008 and the US supplies 90 per cent of the weapons used by drug cartels in Mexico to carry out these murders. All these would seem good reason to allow the doctrine of hot pursuit to apply when Mexican police or military are engaged in an operation against the deadly cartels and cross into the US.

Of course, such is not the case. Mexico is not permitted to fly drones into US territory, searching for intelligence on the drug trade or to thwart arms deals that cause deaths of their citizens. Similarly, Pakistan has to look the other way when the US chooses to ignore the Afghanistan-Pakistan border in search of terrorists. Crudely stated, the rules of the game in the current case are being dictated not by any existing legal doctrine in international law but rather at the will and whims of the most powerful player.

Having poured millions into the pockets of the Pakistani military and the civilian government, the US sees itself as having purchased the right to go wherever and whenever it wants, and kill whoever it deems an enemy. While Pakistan may consider itself insulated against a large-scale US incursion through tactics such as choking the supply lines at Torkham, such tricks are at best a temporary reprieve. In the long run, weak states that waive their sovereignty for one type of invasion are likely to find themselves without legal recourse when drones become planes and the occasional intrusion becomes a regular invasion.

The writer is a US-based attorney teaching constitutional history and political philosophy.

rafia.zakaria@gmail.com