Airstrikes In Pakistan's Tribal Areas Legally Murky

Second in a two-part series

Map promo i i

hide captionPakistan's Federally Administered Tribal Areas, or FATA, cover more than 10,000 square miles of rugged landscape that sweeps down western Pakistan, hugging the border with Afghanistan. It is home to the Pashtun people and a haven for Taliban and al-Qaida militants.

Mor Vimmer/NPR
Map promo

Pakistan's Federally Administered Tribal Areas, or FATA, cover more than 10,000 square miles of rugged landscape that sweeps down western Pakistan, hugging the border with Afghanistan. It is home to the Pashtun people and a haven for Taliban and al-Qaida militants.

Mor Vimmer/NPR
Pakistani tribesmen gather at the site of a missile attack in North Waziristan i i

hide captionPakistani tribesmen gather at the site of a missile attack near Miranshah, the main town in troubled North Waziristan on Oct. 23, 2008. Suspected U.S. spy drones fired missiles into a school set up by a top Taliban commander in the tribal area bordering Afghanistan, killing 11 people.

Thir Khan/AFP/Getty Images
Pakistani tribesmen gather at the site of a missile attack in North Waziristan

Pakistani tribesmen gather at the site of a missile attack near Miranshah, the main town in troubled North Waziristan on Oct. 23, 2008. Suspected U.S. spy drones fired missiles into a school set up by a top Taliban commander in the tribal area bordering Afghanistan, killing 11 people.

Thir Khan/AFP/Getty Images

Related NPR Series

NPR's Soraya Sarhaddi Nelson spent two weeks traveling with the U.S. military to remote and difficult spots along the long border between Afghanistan and Pakistan, reporting on efforts on the Afghan side to secure this critical frontier.

Over the past several months, the United States has intensified an aerial campaign on Pakistan's tribal regions along the border with Afghanistan. Pakistan's central government exerts only nominal control over the region, which is primarily run by Pashtun tribal chiefs.

As the missile attacks from unmanned drones increase, so, too, does the debate over what legal authority the U.S. has to attack Pakistan's tribal areas.

The U.S. does not talk openly about the missile strikes, except to say that Taliban and al-Qaida militants have been killed in some 30 aerial attacks since August.

Pakistan's government has complained frequently about the attacks, particularly the increasing loss of civilian lives. Still, many people assume Pakistan has quietly given it tacit approval for the strikes.

Lack Of Explicit Consent

If that's true, then Pakistan needs to make that consent both explicit and public, says Mary Ellen O'Connell, a professor of international law at the University of Notre Dame.

That way, O'Connell says, it will be clear the U.S. has full legal authority to launch the attacks on the tribal regions — known formally as the Federally Administered Tribal Areas.

"Right now, we're in this middle ground where they don't say it's OK, but they also don't say, 'Stop it now,' and we're playing along with that. I don't think it's a good position to be in," says O'Connell.

It is unlikely that Pakistan's government will give permission publicly for the drone attacks any time soon. Anti-Americanism is rife in Pakistan, and the government there is fragile.

'Ungoverned Territory'?

But some analysts say the U.S. doesn't actually need Pakistan's consent to strike the tribal areas because they are seen as an ungoverned territory, and under international law, are open to attack if warranted.

But Thomas Johnson, a professor at the Naval Postgraduate School, doesn't buy that argument. In his opinion, to talk about the tribal areas as ungoverned space is "Western arrogance."

Johnson says certainly there is chaos and anarchy there. But for 200 years, the region has had very strong governance — based on tribal traditions and tribal mores.

"It's very different from the Western conception of 'governance,'" he says.

'Hot Pursuit,' Other Legal Precedents

But Harvey Rishikof, a professor at the National War College, says the U.S. is within its right — under the doctrine of hot pursuit — to pursue Taliban and al-Qaida militants who regularly launch cross-border attacks in neighboring Afghanistan into Pakistan.

Michael Scharf, the director of the International Law Center at Case Western Reserve University School of Law, says there are other precedents. He notes that under Article 51 of the United Nations Charter, a country is allowed to use force against another country when it has been subject to an armed attack.

But there is a caveat, Scharf says. Normally, force is allowed when the other country is responsible for the attack. But here, Pakistan is not directly responsible for the armed attack, he says.

When Congress passed the Use of Military Force resolution in September 2001, it authorized the U.S. to go into any area to attack the nations, people or organizations involved in the Sept. 11 attacks, notes Notre Dame's O'Connell.

"But that's just U.S. domestic law, and it has no impact on what our rights are internationally," she says.

International law — which governs U.S. interactions with both Afghanistan and Pakistan — has different rules, O'Connell says.

New Threat, New Fight

But Rishikof, with the National War College, says the Sept. 11 attacks illuminated a new type of threat that, in turn, brings into question how to fight it, such as using drones in Pakistan.

He characterizes the situation as a "very, very complex and difficult" set of legal and political questions.

"You realize, when you start pulling on this string, a whole new set of problems, issues, legal institutions are brought into question," he says.

Legal Ambiguity As A Strategy

Ruth Wedgwood, a professor of international law at Johns Hopkins University, says that at the end of the day, the U.S. may just want to keep its legal authority for the missile strikes ambiguous — deliberately, strategically ambiguous.

"Sometimes, legal issues are kept undefined almost on purpose," Wedgwood says. "I think some are left hazy both because they're still emerging and because people think that a bright line rule would encourage the practice too much."

The practice of drone attacks on Pakistan's tribal areas shows no sign of abating. There were more missile strikes in the region this weekend.

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