I agree entirely with the first point that Professor Paust makes in his previous post , about the impossibility of imputing the non-state actor attacks to Pakistan due to incapacity. Certainly imputation doesn’t make sense on these facts as he outlines them. However, the second point he makes goes to the heart of my question.
Professor Paust asks, rhetorically, how attacking Al Qaeda in Yemen could be an attack on Yemen as such. But saying that selective targetings of non-state actors on the territory of another state is not an attack on that state ‘as such’ makes those last two words do an awful lot of work, work not everyone thinks they can do. As Professor Paust notes, the ‘non-attack’ position is hardly a consensus view, and I don’t think that’s surprising, because the actions he describes are in fact a physical incursion of exactly the kind that would be an attack but for the particular target. Of course, we do that kind of contextualization all the time — self-defense itself is a contextual justification for the use of force. But here, little separates the two scenarios except the subjective beliefs of the state undertaking to use force (here, the US responding to a non-state attack) and facts that, inevitably, will be very contested. This is why I mentioned the complexity of evidence, meaning what truth value we can assign to the claims of actors undertaking such strikes.
The US actions would be an attack on Pakistan but for the intention to strike non-state actors. The status and presence of such actors involve very complex claims, the truth-value of which will not be immediately available to Pakistani decision-makers. As Professor Paust notes, the US doesn’t need to give notice, but precisely because the US doesn’t need to explain what it’s doing, this means that, from the Pakistani perspective, these are just missiles coming in over the horizon. Just as the US need not wait to respond to the non-state actors’s attacks, surely Pakistan has a right, under theories of self-defense, to respond to incoming missile fire without having to inquire about the nature of the intended target. It would seem strange to hold Pakistan responsible for a good-faith response. Thus my point was not about the US’ right (which I think is clear) but rather Pakistan’s: Pakistan might (also) have a legitimate claim to respond in self-defense notwithstanding the US’s intentions and actions.
Not to acknowledge this requires us to accept one state’s characterizations of its subjective intentions and of complex facts in an inevitably post hoc re-reading of what the other state could have known when it responded. And doing that implicates problems of differential power in interpreting such claims. In his intial post, Professor Paust mentions a scenario involving attacks over the US-Mexican border. I’d vary that scenario to bring my point out: if it were a missile strike by the Mexican government against Mexican rebels (with US citizenship, why not) in Arizona undertaken without US authorization, it is hard to imagine the US accepting that this would not be an attack on the United States ‘as such.’ I take it the US could legitimately react, without delay or notice, in self-defense. At least, it would claim that right.
The rest of Professor Paust’s analysis makes sense to me, and would be consistent with what I’m outlining here — which is to say, consistent in highlighting the logical problem that reading the available texts leads us to; apart from noting, as you also do, that they are hardly uniform, I agree that they mostly tend the way you say, but I see some very interesting, counter-intuitive implications in that: an odd conjunction in which two states might find themselves firing into each other’s territory, both operating in good faith under theories of self-defense. An interstate war of mutual self-defense, if you will.