The US raids into the Federally Administered Tribal Areas (FATA) have inflamed Pakistani public opinion. Seen as a violation of the Pakistan’s sovereignty, President Asif Zardari has recently suggested that these attacks were in violation of the UN Charter Article 2 (4) which prohibits attacks against “the territorial integrity or political independence of any State.”
Yet the international law surrounding the circumstance is very complicated. The PIPS research assistant Mahmud Naqi contacted a leading expert on Self Defence in International Law; Dr. James A. Green, Lecturer in International Law at the University of Reading, UK, to get his views on the situation.

Background
When discussing self-defence in international law there are three main criteria: the first is that an ‘armed attack’ has occurred against the responding State – this is a grave use of force, and comes from Article 51 of the UN Charter. The other two are ‘necessity’ and ‘proportionality,’ which come from customary international law. The ‘necessity’ criteria means that a state must ensure that forcible action is the only option available. The second criteria, ‘proportionality,’ requires that armies only respond to an attack in a way that responds directly to the threat facing them, and that it does not act excessively.

The Legal Discourse
The worsening situation between Pakistan and the United States over the tribal areas is complex, and dangerous. US forces have been attacked by Pakistan based militants. Pakistan is attempting to suppress these groups but has so far had little success, leading the US strikes on Pakistani soil without Pakistani approval.

“Can the US respond against non-State actors, especially when Pakistan at least avowedly has no control, and perhaps not even the ability to stop such actions emanating from its territory?” Dr. Green argues that the law is unclear. “In the Israeli Wall advisory opinion, the ICJ appeared to suggest that self-defence could only be taken against a State, and elsewhere the Court has suggested that at least some degree of State involvement is necessary before a response can be taken.”

However, the way that states have behaved in the past 50 years suggests that “[customary law allows] self-defence against non-State actors in the territory of another State, even if that State is not at ‘fault’ with regard to the actions of those actors (eg, because it cannot police all areas of its territory effectively, even though it would wish to).” This suggests that even if Pakistan is not directly involved in sponsoring attacks across the border, the United States can still claim self-defence against fighters based in Pakistan.
 
Dr. Green believes that “in cases where the activity of non-State actors creates a defensive necessity (though only in such cases), the victim State has little choice”. If Pakistani based militant attacks in Afghanistan cause a major loss of life, or severely threaten its institutions, Afghanistan or the United States could claim self-defence and attack these militants on Pakistani soil.

This matter is controversial “especially where no State responsibility can be found for the ‘host’ State.”

Key to this discussion are the criteria of ‘armed attack,’ ‘necessity,’ and ‘proportionality.’  “Even if all of the above is accepted, any US response [against Pakistan] must be both necessary and proportional.”

Dr. Green quotes Prof. Sean Murphy’s definition of necessity in these circumstances: “[T]he condition of necessity…requires that, before resorting to self-defence, a State must satisfy itself that the State in which the non-State actor is located is unwilling or unable to take steps necessary to remove the threat caused by the non-State actor… under such a position, the focus is less on whether a prior armed attack can be imputed to a State, than on whether that State is capable of preventing further attacks and is willing to do so.” (2005, AJIL, emphasis added) However if the US were to claim that attacks against US troops in Afghanistan, it has a difficult task proving that it is justified in doing so. “There must be a balance between the necessity of the response and the implications of using force against a State that is not even responsible for the attack. As such, that ‘necessity’ must be extremely high for an action to be found to be proportional.” Because Pakistan is not directly responsible for attacks on US troops, there is a very high standard to be met before US troops can violate Pakistani sovereignty.
In the recent cross border escalation, Dr. Green argues that the core issues are:

1- Whether the Pakistan can effectively deal with the actors within its borders.  If so – I would argue the US does not have the right to respond.  However, it is not enough for Pakistan to simply claim this: it must be genuine.

2- Whether the response was limited to a proportional one by the US. Still, even under these circumstances, “There are elements of such a claim which other scholars would see as being very controversial, and so the US could hardly be said to be on ‘solid’ legal ground here.”

This is important because while the Pakistani military “[can] not respond against a lawful self-defence action.” However, because of the contentiousness of this situation “any Pakistani response [to a US attack] could equally arguably be seen as self-defence, depending on whether one accepts the US argument of self-defence.”

Many Pakistani’s feel that the US presence in Afghanistan is to blame for the problems. The United States is seen as occupying of Afghanistan. Is their military presence there justified according to international law?

According to Dr. Green The legal basis for the War in Afghanistan is controversial, on two counts:

• It was not authorized by the UNSC.
• The claim of self-defence was debatable, in that that the ‘armed attack’ being responded to – 9/11 – had ended, and that the overthrow of the Taliban may in any event be seen as disproportional to the 9/11 attacks.

Equally, current US troop deployments are legal under UNSC resolution 1386 (December 2001) which created a ‘Chapter VII’ peacekeeping force, the ISAF. This force has been legally empowered to provide security to Afghanistan and includes US troops deployed there. However, can the US really argue that it is responding in self-defence to attacks on its troops in Afghanistan?

Dr. Green argues that customary law has evolved with time. “Traditionally, self-defence concerned responses to attacks on the territory of the State responding.  However, it is now uncontroversial that an attack on the military abroad can constitute an armed attack, giving rise to self-defence.... In principle, attacks on US troops lawfully present in Afghanistan could give rise to the right of self-defence.”

Most of the attacks against US troops are relatively minor and do not constitute a major threat to the bulk of US troops. Can a number of ‘smaller’ attacks give rise to an armed attack?
 
“For self-defence to be triggered it must be possible for an armed attack to occur through cumulative minor attacks – the ‘gravity threshold’ being reached through what is usually referred to as ‘an accumulation of events’.” This is a very difficult threshold to meet.

Still, Dr. Green holds that “State practice suggests that a number of smaller attacks can together amount to an armed attack that allows for a military response in self-defence.” 

Unfortunately, much of the international law in circumstances such as this is unclear and contradictory. However what is clear, is that Pakistan must prove that it is providing no support to militants attacking American forces, and that it must respond forcefully against these forces to prevent a dangerous confrontation.