Wednesday, May 25, 2016

Could Killing Taliban Chief Undermine International Norms?

     The killing of Taliban chief Akhtar Mohammad Mansour and the tactics used to carry it out – a series of drone strikes in a region of Pakistan where U.S. kinetic operations had never taken place – has raised important concerns.  One of the most important issues the strike brings forth is the apparent violation of Pakistan’s sovereignty yet again by the United States (the first being the raid by Navy SEALs that killed Osama bin Laden in 2011).  Could the justification for the strike undermine the U.S. position to maintain global stability as well as threaten general principles of international law?

     The mere fact that the U.S. decided to take kinetic action against Mansour is not surprising, or even potentially troubling in its own right.  Generally, the U.S. has operated drones and maintained small cadres of troops in other countries for counterterrorism purposes with the blessing of host governments, Pakistan included.  While previous strikes in Pakistan’s tribal regions – considered to be a safe haven for a raft of terrorist and insurgent groups that Pakistan has either tacitly harbored or done little to disrupt (until the attack in Peshawar that many say led to Operation Zarb-e-Azb, the effort to eliminate tribal safe havens) – have drawn ire and criticism from Pakistan, there is reason to believe those outcries are for purposes of appeasing a domestic audience. 

     Mark Mazzetti of the New York Times, in his book, “The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth,” describes the agreement between the U.S. and Pakistan to fly armed drones within Pakistan’s boarder; “The [Inter-Services Intelligence] also insisted that all drone flights in Pakistan operated under the CIA’s covert-action authority—meaning that the United States would never acknowledge the missile strikes and Pakistan would either take credit for individual kills or remain silent.”  This allowed some level of plausible deniability among the Pakistanis in the event of controversial strikes despite the fact that, as Mazzetti recounted, “Pakistani intelligence officials insisted that they approve each drone strike before it happened, giving them tight control over the [U.S] killing list.  After tense discussions about where exactly the drones could fly, Pakistani spies insisted that the drones be restricted to narrow ‘flight boxes’ in the tribal areas, knowing that more extensive access would allow the CIA to spy in places where Islamabad didn’t want the Americans to go.”         

     The normalization of, or the increased frequency of relying on principles that would appear to bless violations of sovereignty are what could undermine international norms the U.S. has publicly sought and has worked so hard to maintain.  As law professor Marty Lederman points out, the U.S. justification for potentially violating Article 2(4) of the United Nations Charter regarding state sovereignty seems to be collective self-defense, permissible by Article 51 of the charter, given the admission by President Obama that Mansour was “specifically targeting U.S. personnel and troops inside of Afghanistan.”

     Lederman noted, however, that he was not aware that the Defense Department cited the “unwilling/unable” principle used in Syria – which says if that state (a) is unable or unwilling to quell threats within its borders potentially posed against state (b), state (b) can act – for justification adding that the U.S. had some level of cooperation with Pakistani officials in the tracking of Mansour.  Pakistan, though, has publicly derided the alleged sovereignty violation.

     For many nations around the world, threats are all relative.  For instance, in the nearly seven decade feud between India and Pakistan, perceived threats across the border from Pakistan or India could potentially provoke some use of force that might run contrary to certain norms.  In fact, one of the reasons Pakistan has, to some level, supported terrorist organizations is they have served Pakistani interests in undermining India by waging cross border attacks.  The same can be said for other nations with similar feuds.

     The Mansour strike also reignites the argument surrounding the global proliferation of drones as a signal of doom coming from flying killing machines across the globe, though some have refuted this.  Drones are just one of many ways a nation can use force.  Some officials both inside and outside government have noted that drones of all sizes enable some level of flexibility and no risk to pilots because it is a potentially easier option to use force from the air with a robot than troops or manned aircraft.  However, as evidenced by the bin Laden raid, despite consideration for using a drone or an airstrike to neutralize him, Navy SEALs crossed the border without the consent of the host nation.   

     While U.S. officials have declined to call the strike against Mansour a change in strategy, it is noteworthy that the U.S. has demonstrated and now acknowledged that it is willing to hunt down persons of interest wherever they are.  As law professor Jack Goldsmith reminded his Twitter followers, “Attacking the enemy in Pakistan is precisely what Candidate Obama pledged to do in 2007.”  “If we have actionable intelligence about high-value terrorist targets and [then-Pakistani] President Musharraf won't act, we will,” Obama said in 2007.

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