Are US Attacks in Pakistan an Armed Attack on Pakistan? A Response to Timothy Waters

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In a response to my previous post, Professor Timothy Waters, asks why it is that US attacks on non-State actors in Pakistan would not be acts of war against Pakistan. In this post, I attempt to answer that question. First, we can’t impute al Qaeda or Taliban attacks on our soldiers, which are continuous and well-known, to Pakistan merely because Pakistan is incapable of policing its territory.  Pakistan would have “state responsibility” (but not “imputation” or “attribution” [see Nicaragua v. U.S., 1986 I.C.J.]) – so Pakistan could be subject to sanctions not involving the use of armed force if Pakistan financed or even tolerated such attacks (according to the 1970 UN General Assembly Dec. Principles of  International Law, etc., and Nicaragua v. U.S., 1986 I.C.J.) unless Pakistan had effective control over al Qaeda or Taliban operations or later adopted them as its own (U.S. v. Iran, 1980 I.C.J.) — none of which has happened to my knowledge.  I suppose we agree on this.

Second, Professor Waters asks whether by merely using selective armed force in foreign state territory that is in response to ongoing armed attacks emanating from such territory engaged in or directed by non-state actors (triggering necessity as well as Article 51 self-defense) the U.S. has engaged in an armed attack on the state as such.  I understand from general patterns of practice and general patterns of opinio juris (obviously a few states and a few textwriters disagree) relevant to customary international law as well as a proper interpretation of Article 51 of the U.N. Charter that such selective responsive targetings are not an attack of the state as such and that such targetings do not trigger application of the laws of war applicable to an international armed conflict unless the non-state actor being targeted is a “belligerent” (under international law, triggering appllication of all of the customary laws of war vis a vis the armed conflict between the U.S. and such “belligerent” — perhaps still today, the Taliban [clearly the Taliban was at least a “belligerent” when the U.S. used armed force on Oct. 7, 2001 against the Taliban, and it had already been at least a “belligerent” during the war with the Northern Alliance before we went in]).  Importantly, this assumes that there has been no U.S. use of armed force against the military, government officials, government buildings as such (e,g., buildings not being misused by non-state actor attackers), of Pakistan as such in any other way.  Wasn’t the targeting of an al Qaeda operative and a few others in a car on a road in Yemen a few years back clearly not an attack on Yemen as such?

A very interesting point is raised by Professor Leila Sadat in her response to my previous post:  Is the targeting of a group of Pakistani nationals who are taking a direct (“active”) part in hostilities in Afghanistan and in the armed attacks emanating from Pakistan an attack on Pakistan?  Note the difference between use of force in Pakistani territory and use of force against Pakistani nationals.  In general, the international community recognizes that an armed attack (intentionally) on the U.S., its military abroad, its embassies abroad, or its nationals (here or abroad) is an attack on the United States.  Clearly, the al Qaeda 9/11 attacks on U.S. nationals in New York was an (intentional) armed attack on the United States.  Therefore, an intentional attack on U.S. nationals, perhaps hundreds, in Phoenix and El Paso might be considered to be an attack on the U.S. (by the way, is it a matter of numbers, intent or what re: the conclusion that there has been an attack on U.S. nationals?).  In a reverse circumstance, what about the attack on Pakistani nationals?  I believe that once necessity for a response involving Article 51 self-defense occurs that such changes the facts and legal policies at stake sufficiently for one to conclude that a selective targeting is not an attack on Pakistan as such.  Otherwise, we would be concluding (1) that the state being attacked, i.e., the United States, has no right of self-defense against the non-state actors engaged in continuing armed attacks on U.S. military in Afghanistan (which is not the case and would be unrealistic, clearly outside of general patterns of legal expectation as far as I can tell at this time), or (2) that a permissible response under Article 51 must necessarily trigger a war between the United States and Pakistan when the Pakistani government has not consented to the U.S. use of necessary armed force.  The latter conclusion would not be policy-serving and, in my opinion is not one that is generally shared by the international community.  Pakistan, for instance, does not consider that it is at war with the United States, nor should it.  Waiting for Pakistani consent could be unrealistic — consider my hypo about armed attacks emanating from Mexico on a U.S. military base in west Texas.  Must, will, the U.S. wait for Mexican consent during a time when missiles keep hitting the U.S. military base?  No, although the U.S. President should communicate as soon as possible with the Mexican government to explain that we are not attacking Mexico, and so forth.  Yes, this is otherwise an intervention (interference with “sovereignty,” which itself is not absolute under international law) into Pakistani, or Mexican, territory (even if only by a drone), but Article 51 of the U.N. Charter necessarily overrides an impermissibility that would otherwise attach with respect to such an intervention (e.g., the U.S. cannot rightly engage in “law enforcement” in Pakistan without Pakistani consent, but self-defense is permissible under Article 51 of the Charter).

Nearly everyone agrees that Article 51 self-defense is permissible once the “armed attack” trigger has occurred or there has been initiated or there is still occurring a process of armed attack.  Can the state being attacked only defend itself within its own state?  That would be nonsense and clearly opposed to general patterns of opinio juris concerning the propriety of self-defense against armed attacks (a few might disagree, but customary international law and the objective meaning of treaties rests upon generally shared opinio juris).  This does not obviate inquiry into the proportionality of the U.S. response (see, e.g., The Oil Platforms Case (Iran v. U.S.), 2003 I.C.J.; and Dem. Rep. of the Congo v. Uganda, 2005 I.C.J.).  During the Caroline “case” with respect to the 1837 incident when the U.K. (controlling Canada) attacked The Caroline in U.S. territory there seemed to be no questioning of the fact that “self-defense” by the U.K against prior (6 days prior) armed attacks by non-state actor “rebels” was what was being argued about, especially with respect to ongoing armed attacks that continued for a year or more.  U.S. Sec. of State Webster was complaining about the particular means used, e.g., when during the early 19th Century the U.K. could have waited until The Caroline entered Canadian waters.  Today, if the commanders of al Qaeda or the Taliban who order such attacks on U.S. military in Afghanistan do not enter Afghanistan, the you-can-wait-until-they-enter scenario does not arise.     An additional hypothetical:  What if a  person is firing a rifle from the back bedroom window of a house into another house and had killed a child in that house – would the neighbor whose child had been killed and is still under a rifle attack have to “warn” the shooter before using a weapon to kill the shooter (isn’t the shooter on notice of what can happen next)?  Would the neighbor have to wait for consent from the owner of the house from which the rifle fire is coming before using a weapon in self-defense?  What domestic law of any state within the U.S. or any country would require such a warning or consent?  Certainly police could be called by the neighbor (assuming time to even do that), but must the neighbor wait until the police arrive and take “measures necessary to maintain” law and order while still under a rifle attack that can kill other members of the neighbor’s family of the neighbor?  And at the international level, there is no world police force.

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jpaust says

December 15, 2009

The draft article on Self-Defense Targetings of Non-State Actors and Permissibility of U.S. Use of Drones in Pakistan is the result of extensive research after the EJILtalk chat. It will not actually be published until after March 2010, but an early draft is up on-line at SSRN. There was a Dec. 8 version and then a Dec. 9 version (with some typos corrected). This week there will be another version dated Dec. 14th, substituted for what is on SSRN (very few added thoughts and a change in Mary Ellen O”Connell’s title to her SSRN paper was added in my footnote 2).

If you are not signed up on SSRN you can do that easily and your SSRN User ID will be your email address, then add a code name/number