Bombs across the border

The US makes a strong case that its military interventions in Pakistan are just and legal. Whether they’re good is another question.
Jacob Shively | 10 February 2012
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The United States government actively kills foreign citizens inside Pakistan’s sovereign territory. For years an open secret, President Obama publicly acknowledged the campaign in a January 30 web chat. He said the operations are a “targeted, focused effort at people who are on a list of active terrorists,” and they avoid a “huge number of civilian casualties.” Ultimately, Obama said, “The really bad guys are being killed.”

Outside observers are not as certain. Along with over 2,000 presumed al Qaeda, Taliban and other militants, estimates of civilian deaths since 2004 range widely: between 391 and 780 non-combatants, including up to 175 children. For every high-profile strike like the 2011 raid that killed Osama bin Laden, dozens of other strikes occur with little outside scrutiny and much public protest from Pakistanis.

Is the West undermining its own principles, violating human rights and inviting unnecessary backlash with such violence? Supporters agree with Obama that “halting the pressure now would be a mistake” because, they say, the campaign efficiently eliminates or harasses many militant leaders who would otherwise be coordinating attacks in Afghanistan.

Opponents, however, insist that the military campaign violates international laws (and generates more enemies than it kills). Despite some US-Pakistani collaboration on the program, the US effectively conducts its operations at will inside Pakistan—a clear violation of state sovereignty. Plus, questions of human rights and humane treatment abound. To many, US interventions in Pakistan look like violations of the values Americans and their allies are claiming to defend.

The debate begins with NATO success in Afghanistan. With support from a friendly Taliban regime in Kabul, al Qaeda had established a permanent presence in Afghanistan, from which it orchestrated the 9/11 terror attacks. By late 2001, US air strikes and Special Forces were leading an anti-Taliban coalition across Afghanistan. Many Taliban and al Qaeda leaders fled west, over the mountainous frontier and into Pakistan.

Those leaders understood that western forces, constrained by international law, would halt their pursuit at the Afghan border. They also feared little from the Pakistani government: those regions remain dominated by tribal governance and a culture of independence. Furthermore, in an effort to retain influence and leverage, Pakistan’s Inter-Services Intelligence agency (ISI) had long maintained a relationship with the Taliban and other regional militant groups. Indeed, a credible report recently concluded that “Pakistan’s manipulation of the Taliban continues unabatedly.”

Frustrated by Pakistan’s unwillingness or incapacity to shut down or consistently pursue militants on its territory, US strategists resorted to “targeted killings.” These actions typically rely upon unmanned aerial vehicles, or drones, which can observe a target for many hours and then strike with high-precision missiles. Drones as attack weapons were used intermittently in Pakistan until 2008, when US officials stopped coordinating with their Pakistani counterparts under fears that secret information was leaking to their targets. In turn, the Obama administration dramatically expanded drone attacks. Both administrations have insisted that the practice is not assassination, which US and international law forbid. They cite a 1981 executive order, 12333, which effectively allows covert use of military force against legitimate targets in war time.

Overall, American officials say the campaign is a success. Al Qaeda is a shadow of its former self, while surviving Taliban leaders are under constant pressure. The Americans admit to, and claim to carefully count, a relatively small number of unavoidable casualties because, they say, the militants deliberately mix with noncombatants. Nevertheless, Pakistanis are furious: the attacks seem to be a national insult and wantonly destroy more civilian lives and property than the US suggests.

At stake in this debate are basic questions of just behavior in international politics and the legitimacy of military actions ending thousands of lives. Classic just war theory offers one way that Americans analyze the campaign in Pakistan. Long the province of Catholic and other Christian thinkers, modern versions of the theory, as the doyen of American just war theorists, Michael Walzer, famously argues in Just and Unjust Wars, rest on tests of intent and consequence. Most observers agree that America’s Pakistan campaign extends the war in Afghanistan, but is that Afghan war itself just?

Many Americans argue that Jus ad Bellum (“justice of the war”), including just cause, right intention and last resort, shows that the Afghan war is just. The US and its allies responded to a direct, physical attack, and the Taliban regime refused to cooperate in addressing al Qaeda; NATO’s goals focus on stabilizing the government (rather than, for instance, extracting resources); and a plausible argument can be made that military coercion was inevitable given the fact of Taliban and al Qaeda extremism.

Setting aside sovereignty questions (addressed below), the extension and conduct of the war in Pakistan also meet most standards of Jus in Bello, or “justice in war.” Under this type of analysis, a justified act, such as bombing a known insurgent compound, may sometimes yield unintended consequences, such as killing an insurgent’s family. Most available information suggests that the US makes this good-faith effort in Pakistan: whether motivated by genuine concern or fears of public relations fiascos, the bulk of American strikes focus on known or observed insurgents. In some cases, decision-makers may know a few civilians are present but judge that the target is of high value. Again, this scenario is justified by US officials because the primary effect is good, even if the secondary effect (killing noncombatants) is not. Exactly how to weigh innocent lives against those of high-value targets, though, remains a basic weakness of just war thinking that US officials remain hesitant to admit.

Indeed, this logic raises a major concern: proportionality. Do the attacks end in more destruction and civilian death than a neutral observer would accept as inevitable? Some credible studies suggest that a number of drone strikes have killed more civilians than insurgents, that many targeted militants have been low-value relative to the risk, and that, in some cases, innocents have been wrongly targeted and killed. Clearly cases of disproportionate destruction exist, and for noncombatants, that error is catastrophic. However, American officials insist that these events represent an exception, not the rule, and that both the intentions and outcomes of US strikes in Pakistan broadly conform to “just war” standards. Most publicly-available evidence suggests that this American claim is true; however, assessing both sides’ factual claims may have to wait until long after the fog of active combat has lifted.

If the military campaign is largely just, what of the claim that the US brazenly violates international law every time it crosses the border? As Theresa Reinold recently argued, by failing to condemn US actions in Pakistan, most other governments tacitly agree with the US: any state unable or unwilling to use force against a violent international organization inside its borders forfeits at least some of its sovereign rights. This principle, however, extends only to third party organizations like al Qaeda actively engaged in cross-border violence. In other words, if Pakistan can’t or won’t stop the insurgents, its sovereign claims do not matter.

One of the key elements of sovereignty is the ability of a government to monopolize the possible use of violent means for maintaining law and order inside its own borders. When Israel attacked Hezbollah in Lebanon (2006), or when Turkey bombed Kurdish insurgents inside Iraq (2011), the question for both cases was proportionality, not sovereignty. Many governments, for example, objected to Israel’s 2006 war not because Israel violated Lebanon’s territory but because the response—a massive invasion—seemed disproportionate to the offense—Hezbollah killing two soldiers and kidnapping a third. In this case, evidence exists that Pakistan is unable to exert real control over its borderlands and that some elements of its government are even supporting the militants. From this perspective, then, as long as the US response is proportionate, it is a legitimate response to military threats emanating from an ungoverned region.

On the grounds of just war thinking (as Americans advance it) and sovereign territorial rights, the US campaign in Pakistan is justified. The overall war is just, its conduct largely fits standards of intent and proportionality, and violating Pakistan’s territory becomes a null issue if Pakistan is unable or unwilling to stop a threat within it own borders.

All of this, though, says nothing about whether the campaign is good. The nature of the international system, and perhaps human nature itself, makes violence and coercion inevitable aspects of international politics. If a state’s material interests or physical security are threatened, policy makers must ask themselves, “How can we minimize human suffering?” However, no standard in international law demands that they ask, “Should we take this action if it causes suffering?”

The tragic irony, as the American Protestant theologian Reinhold Niebuhr argued, is that while states are made by people in order to serve people, they must act impersonally. State power must be constitutionally contained, but sometimes states must resort to force in order to protect against human evils. Sadly, as US security strategy in Pakistan shows, that reality makes a world of difference for hundreds of civilians caught between militants who bring violence as an act of conviction and foreigners who bring death as an act of defense.

Americans make a strong case that their campaign in Pakistan is justified. But that justness is also tragic: it sets aside individual good for collective security.

Jacob Shively is a PhD candidate in Political Science at Indiana University. He researches US grand strategy and political thought in international relations.

This article is published by Jacob Shively and MercatorNet.com under a Creative Commons licence. You may republish it or translate it free of charge with attribution for non-commercial purposes following these guidelines. If you teach at a university we ask that your department make a donation. Commercial media must contact us for permission and fees. Some articles on this site are published under different terms.

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