Home EJIL Analysis Are the US Attacks in Pakistan an Armed Attack on Pakistan? A Rejoinder

Are the US Attacks in Pakistan an Armed Attack on Pakistan? A Rejoinder

Published on October 1, 2009        Author: 

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.

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16 Responses

  1. John C. Dehn

    This is quite an interesting discussion. I wonder what Professors Paust or Waters might think about the relevance of Article 9 of the Responsibility of States for Internationally Wrongful Acts. This article attributes to a state the actions of a non-state actor when the latter “is in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances calling for the exercise of those elements of authority.” While the reference to “incapacity” above may allude to this concept, I think Article 9 is broader than circumstances of simple incapacity. I, for one, do not have trouble viewing the armed attack of a non-state actor against a state actor as an “exercise of governmental authority.”

    There is much in the media suggesting that the Federally Administered Tribal Area of Pakistan presents one of the gravest threats to the U.S. If Pakistan’s mode of governance (or lack thereof) facilitates the use of the region for armed attacks against the U.S., would not Article 9 (assuming its status as customary international law of course) permit, at the very least, the infringement of sovereignty or territorial integrity necessary to counter and engage the threat? Perhaps the issue is better framed as one of necessity, as Professor Paust suggest and Article 25 of the RSIWA supports.

    This discussion, of course, does not address the jus in bello questions raised in prior threads. I think there are fundamental flaws in some arguments below regarding the applicability of international humanitarian law and/or its relationship to human rights law in these circumstances. However, I will wait and address those more thoroughly in future work.

  2. Our main point is that, as recognized by the International Court of Justice in Nicaragua v. United States (1986), there is a difference between “state responsibility” and “imputation” or attribution” for purposes of responsive uses of armed force. The ICJ used an effective control test, i.e., imputation does not occur unless the government of a state has effective control of the non-state actor that has initiated an armed attack. However, the state can have “state responsibility” for a number of things (such as financing, even tolerating, non-state actor attacks). “State responsibility” can lead to political, diplomatic, certain economic, and even juridic sanctions against the state, but does not mean that imputation of the non-state actor attacks exists so that others can treat the non-state actor attacks as if they had been engaged in by the government of the state (e.g,, Pakistan).

  3. John C. Dehn

    Precisely so. I feel as though we may be speaking past one another. My point was that the limited infringement of Pakistan’s territorial sovereignty occasioned by these attacks might be a justifiable response by its responsibility for them under Article 9.

    I agree that the use of force is not against Pakistan as such, and that its potential responsibility under Article 9 does not mean that the U.S. could attack Pakistan’s government or armed forces. Doing would be in the realm of a responsive use of force against Pakistan. I would then agree that the Nicaragua case would be dispositive.

    As I said, perhaps the proper framing of the issue is solely one of necessity. The international obligation at issue is one owed to Pakistan by the U.S. Thus, I am uncomfortable with reference to any excuse or justification which does not address itself directly to that obligation. Necessity is one way to view this. ANY use of the term self defense is, to my mind, problematic because the application of the Nicaragua case would not permit a violation of a duty owed to Pakistan absent its “control” as you state.

  4. For the “readers” — I see that there is a relatively new article of interest by Major Banks in 200 Military Law Review 54 (2009). He stresses that imputation or attribution is not necessary for justificable use of self-defense against a non-state actor.

  5. John C. Dehn

    It seems to me that the major and I agree, on the basis of these excerpts:

    “Attribution is only important if either the injured State intends to use force against host State forces or facilities, or seeks to hold the host State liable for the damages resulting from the terrorist attack. Instead, it is simply necessary to establish a geographic nexus.”

    “The injured State must instead pinpoint the location of the terrorist organization posing the threat, thereby identifying the host State. Second, having identified the host State, the injured State may now call upon the legal responsibility of the host State to prevent the commission of terrorist attacks from within its borders, setting the stage for a required balancing of the injured State’s right of self-defense and the host State’s right to territorial integrity.”

    “Just the same, failure to control the misuse of the FATA as a jumping-off point for terrorist attacks leaves Pakistan in breach of its international legal obligations, and leaves the door open for Afghanistan, or an ally tied to Afghanistan through a mutual security treaty, to use military force in Pakistan against the Taliban.”

    “In the end, both Iraq and Pakistan provide examples of States that are unwilling or unable to act effectively against the terrorist organizations present within their borders. This failure opens the door for the use of military force in self-defense by Turkey and Afghanistan, respectively…”

    “Host States are responsible for preventing the commission of terrorist attacks from within their borders. If they cannot live up to this responsibility, their failure to do so may trigger the injured State’s right
    of self-defense under Article 51 of the U.N. Charter. As the suggested analysis details, the injured State, having determined that the terrorist threat constitutes an armed attack, and having determined the geographic nexus, should then provide the host State with some warning and opportunity to respond to the problem. This overcomes the prohibition against the use of force under Article 2(4) of the U.N. Charter, because the host State must then address the problem, provide consent for the injured State to act inside its territory, or subordinate its right of territorial integrity to the injured State’s right of self-defense.”

    To clarify, the right of self defense is against the non-state actor, not the host state. The major seems to implicitly recognize this though some of his phrasing could be misconstrued.

    In the end, one must justify an infringement of the host state’s territorial integrity. While citing several sources, the major never cites Article 9 of the the Responsibility of States for Internationally Wrongful Acts (that I can find). The omission is curious given that it directly supports his argument.

    Ultimately, self defense does not “do the work” in the context of the host state’s right to territorial integrity. It appears that the state’s “responsibility,” and perhaps “necessity” (see Article 25 of the RSIWA) do for both the major and me.

  6. John C. Dehn

    On second thought, it is also possible to read the major as saying that the right of self defense justifies an attack against the territorial integrity (preserved by Art. 2(4)) of the host state. I have trouble viewing the problem in this way as it appears theoretically inconsistent with the Nicaragua decision and his early attribution analysis. However, under such a reading, self defense does the work in justifying the breach of a host state’s territorial integrity rather than responsibility and/or necessity.

  7. Our point has been that the U.N. Charter-based right to engage in Article 51 self-defense against a non-state actor armed attack or prosess of armed attacks is independent of any “host state” responsibility. In certain circumstances, it is common sense that a response must be relatively immediate to stop a series of ongoing attacks. Article 51 self-defense overrides “territorial integrity” otherwise important under Article 2(4) of the Charter.

  8. John C. Dehn

    Thanks Jordan. I understand and respect your position and appreciate the exchange of ideas. I am simply unsure whether your claim is entirely necessary or theoretically accurate, though it may be accurate in substance.

    Again, I agree with you that resort to self defense against the non-state actor is independent of the host state’s responsibility. However, one must still find an excuse or justification that precludes the wrongfulness of a violation of the “host state’s” territorial integrity.

    As a general principle, self defense justifies an otherwise-prohibited act only against the source of a threat or act. Thus, absent some form of host state responsibility, it is unclear how the right of self defense against a non-state actor justifies abrogating the right of a third party, the territorial integrity of a host state.

    The major’s claim appears different from yours given what I excerpted above. He asserts host state “responsibility” (but not “attribution”) as a precondition or justification for the “override” of its territorial integrity and resort to self defense. I am unable to locate with precision, in his argument, the role the right of self defense against a non-state actor plays with regard to the breach of the territorial integrity of that actor’s host state.

    The Carter, Bradley, and Trimble international law text appears to follow this approach. It seems to frame this issue (in a much broader context) in terms of countermeasures coupled with necessity. This, at a minimum, has the advantage of relying upon excuses or justifications that directly operate on the right (of territorial integrity) or duty (to respect territorial integrity) being abrogated.

    Article 21 of the RSIWA states that ” [t]he wrongfulness of an act is precluded if the act constitutes a lawful measure of self defence taken in conformity of the Charter of the United Nations.” As a purely textual matter, it could bear the weight of the theoretical approach you offer, though I do not have my commentary handy to seek further information on this provision. I suspect it was not intended to be that broad or to contravene the Nicaragua decision.

    What better supports your overall position, from my perspective, is a necessity claim under Article 25 of the RSIWA. This would potentially excuse a violation of territorial integrity necessary to exercise the right of self defense in the face of an imminent threat without the precondition of responsibility. This was my earlier point. In that case, the right of self defense is not doing the work – necessity is. For that reason, I would take issue with your phrasing that “self defense overrides territorial integrity.”

    Thus, from a theoretical perspective, it appears preferable to invoke the host state’s responsibility, though resort to a necessity claim might make it unnecessary. That said, one of the elements of that article (assuming it represents customary law) might preclude its use and I must reflect further on it.

    In any event, invoking the responsibility of the host state is probably the best course as a practical matter in my humble opinion. There is generally no question of a “host state’s” responsibility. Either it is controlling the non-state actor or failing to do so. In either case, its responsibility is clear (see arts. 8 & 9, RSIWA). Failing to invoke that responsibility opens the door to claims that the host state’s rights are impermissibly abrogated.

  9. Jordan Paust

    Timothy: You have rightly highlighted a very important point regarding what some of us recognize is an inevitable “process of review” in which all actors participate even if their participation takes the form of inaction and apathy. You recognize that there is a process of review of decisions when you note that each state’s decision to use responsive force (e.g., the decisions of the U.S. and Pakistan in the hypo) is subject to “an inevitably post hoc re-reading” that can take into account the actual features of context (the “facts”) and claims of the responders, including “claims of actors” and their “subjective beliefs.”

    However, with respect to beliefs and expectations, the international community’s review normally is not (and should not be) limited to inquiry into U.S. and Pakistani subjective views and whether they acted “in good faith.” The community normally will also consider “objective” views or those generally shared within the community (i.e., generally shared expectations or generally shared subjectivities) regarding the appropriateness or reasonableness (itself an “objective” standard or conclusion based in common patterns of expectation about what a reasonable actor under the circumstances would or should do) of the actor’s conduct. This is common when conduct, even if engaged in in good faith, is second-guessed by the community (or its formal institutional representatives) under community standards and a theory (or conclusion) of “fault” or “crime,” and so forth. A similar process of review can take place with respect to my last hypo involving a domestic “self-defense” killing of a shooter from a neighbor’s house and an equally odd situation could arise if the owners of the two houses started exchanging fire. Of course, the “problem” is only exacerbated if the community would tolerate “anticipatory” self-defense as opposed to what is textually limited in Article 51 of the U.N. Charter to self-defense “if an armed attack occurs.” Presently, the community’s requirement that an “armed attack” occur provides a relatively objective aspect of “fact” that can be addressed during a process of review of decisions to use responsive armed force in self-defense that may be lacking if people started to accept the use of force in circumstances where a state merely claims to be responding to a “threat,” even a “threat” of alleged imminent “armed attack” (because, by definition, an armed attack has not yet occurred or been initiated).

    I note another problem that is presented in one of the comments by Mary Ellen. If civilian CIA personnel are flying the drones and targeting targets during an armed conflict, they would seem to lack “combatant” status and, therefore, “combatant immunity” for what otherwise would be lawful targetings during an international armed conflict (no one has combatant immunity during a mere insurgency). Such persons would be unlawful, “unprivileged” fighters and subject to prosecution under relevant domestic law for crimes such as “murder.” If so, President Obama should direct that only members of the regular armed forces of the United States (“combatants”) should fly the drones and engage targets. Yet, perhaps because of the Article 103 of the U.N. Charter override with respect to conduct (that any person could be engaging in lawfully) that involves permissible self-defense targetings, CIA personnel could have an Article 51 defense.

  10. John C. Dehn

    I am aware of no doctrine of international law that permits the use of the jus ad bellum to permit a violation of the jus in bello. I do not believe Art. 103 and At. 51 changes this result with regard to IHL treaties or CIL.

  11. John C. Dehn

    I should also note that the unavailability of combatant immunity in a non-international armed conflict is subject to debate among modern IHL scholars. I believe it probably exists in CIL as a matter of state practice and opinio juris.

    I also believe the availability of combatant immunity in non-international armed conflict is is firmly established in U.S. law, see the Lieber Code and William Winthrop, Military Law and Precedent. As to engaging in hostilities without combatant immunity from the perspective of U.S. law (as preserved in the UCMJ and codified in the MCA), see John C. Dehn, The Hamdan Case and the Application of a Municipal Offence: The Common Law origins of ‘Murder in Violation of the Law of War'” J. Int’l. Crim Just. 63-82 (2009).

  12. Thanks John Dehn. Regarding the U.N. Charter, article 103 declares that it prevails over other international agreements, so in case of an unavoidable clash, it seems that there is no exception for a law of war treaty.
    Regarding the second point, I doubt that general patterns of state practice and opinio juris require provision of “combatant immunity” or pow status to mere insurgents during a non-internatonal armed conflict. The Lieber Code was written with respect to the customary laws of war that apply during a true civil war or “belligerency,” when a “belligerent” such as the CSA meets the criteria for “belligerent” status (e.g., The Prize Cases (U.S. 1862). In modern parlance, these should be considered to be “international” armed conflicts, especially since all of the customary laws of war apply to a true civil war “belligerency” in any event (and Geneva law is customary international law). The laws of war did not seem to apply to an “insurgency” as such (Geneva parlance, an “armed conflict not of an international character”) until after World War II with the advent of common Article 3 of the Geneva Conventions. It was a major step for states to accept that any laws of war would apply to something less than a “belligerency.” Common Article 3 does not grant “combatant” status to insurgent fighters or pow status. See, e.g., 28 Yale J. INt’l L. 325 (2003); 56 Catholic U. L. Rev. 759 (2007).

  13. John C. Dehn

    Thanks Jordan. On your first point I more strongly disagree.

    Just as I do not think self defense against a non-state actor addresses itself to the right of territorial integrity for its host, I do not believe the right to exercise national self defense includes the right to do so in ways not permitted by customary or conventional IHL. The implications of taking that position are staggering. I do not believe the preemptive power of Art. 103 extends that far. There is no necessary conflict between Art. 51 self defense and IHL.

    I am also not sure that I can agree with your definitions of international and non-international armed conflict. In any event, my point did not relate to combatant immunity for insurgents. It is clear that none is available in IHL. My point related to those acting on behalf of a sovereign; meaning – in the context of that discussion as I understood it – CIA personnel operating drones. Perhaps this is another case where we spoke past one another a bit. I was addressing your point that no combatant immunity was available, and clarifying that it is, I think, generally understood to exist for armed forces representing a state in non-international armed conflict. Exactly how my understanding of non-international armed conflict relates to your above expressed insurgency threshold, I am uncertain at this point.

    In any event, this has been truly stimulating. I wish everyone the best and look forward to more great chats on EJIL.

  14. Jorge K

    This is a very interesting discussion. On the difference between “imputation” and responsibility, I find it interesting that similar issues were raised after the recent Mumbai terrorist attacks. An Indian domestic law blog I follow had discussed the issue; which was heavily debated in the Indian press at that time. The posts on the “Link to Pakistan” represent a fair summary of the international position I believe. I am givingthe links to the two part post – Part 1 and Part 2 are available below:

  15. Shantanu Naravane

    An interesting parallel can be drawn between this debate on whether the attacks on non-State actors can be considered an attack against the State on the territory of which they are situated, and the debates on the legality of humanitarian intervention. In the case of humanitarian intervention, one of the significant controversies has been whether ‘intent’ is relevant for an act to amount to a ‘use of force’ under Article 2(4) of the Charter. Proponents of humanitarian intervention (notable among them being Dame Rosalyn Higgins, 230 RECUEIL DES COURS 9 (1991-V)) have argued that the mere exercise of force against a State’s territory without ‘hostile intent’ cannot be considered a use of force. Those in favour of a broader interpretation of Article 2(4) (for instance, Schachter, 178 RECUEIL DES COURS 1 (1982-V)) argue that it is the effect of the conduct that is determinative and not the object.

    In the context of the debate on whether the drone attacks amount to a use of force against Pakistan, there is no disputing that the intent is hostile. Professor Paust seems to be justifying this hostile intent on the basis that it is directed not againt the State of Pakistan, but against the non-State actors situated on its territory. However, the object of the attacks aside, the effect is nevertheless a violation of Pakistan’s territorial integrity. Thus, if the Article 2(4) was to be interpreted on the basis of the ‘effect’ test, this would amount to a use of force against Pakistan, and provide them the right to self defence. If the ‘intent’ test were to be adopted, it would justify the attacks, but would also potentially have far-reaching implications in the context of humanitarian intervention, which is yet to receive widespread legal recognition.