Characterizing US Operations in Pakistan: Is the United States Engaged In An Armed Conflict? (2011)

On January 14, 2010, four Hellfire missiles fired from an unmanned aerial vehicle (“drone”) slammed into a compound in Pakistan’s South Waziristan region, killing ten people. Hakimullah Mehsud, leader of Tehrik-e-Taliban Pakistan (“TTP”), was the reported target of the strike. Already the eighth US drone attack in Pakistan in 2010, these strikes followed two consecutive years of dramatically increased drone activity within Pakistan. Despite a high degree of media and scholarly interest in the United States’ use of drones in Pakistan, little attention has focused on whether the United States is engaged in an armed conflict in Pakistan, as defined and categorized by international humanitarian law (“IHL”). Instead, most analyses consider the efficacy of the campaign or the legality of the use of force and, in particular, the use of drones for so-called targeted killings. The primary debate has centered on whether the United States is acting lawfully in self-defense and presumes that the US drone campaign in Pakistan is an extension of either the NATO campaign in Afghanistan or the broader US conflict with Al Qaeda. Those who argue that the US drone attacks do not qualify as self-defense thus find that the United States is in violation of the international law governing the resort to force (jus ad bellum), and add that Pakistan has not specifically requested US support against militants within Pakistan. In contrast, some argue that the US drone campaign is justifiable self-defense, but suggest that actions taken in self defense by a state against a nonstate actor do not necessarily result in an armed conflict. Kenneth Anderson, in particular, views the drone campaign through a lens of self-defense and sees each drone strike as a discrete self-defense event. The report of the United Nations Special Rapporteur on Extrajudicial Killings addresses the parameters and definition of armed conflict in analyzing the legality of the drone strikes, but does not reach a definitive conclusion regarding the existence or nature of the conflict in Pakistan. However, it is unsatisfactory to simply dismiss each drone strike as a discrete self-defense response—thus obviating the need to examine whether the United States is in an armed conflict in Pakistan—without examining whether the whole of the campaign might rise to the level of an armed conflict. The level of violence attending the drone campaign, the increasing rate of drone strikes since 2008, the drone campaign’s focus on the TTP, and the ongoing hostilities between Pakistan and the TTP all combine to make an assessment of the existence and nature of an armed conflict critical at this juncture. Moreover, the existence of armed conflict triggers the application of international humanitarian law, otherwise known as the law of armed conflict or the law of war. The law of armed conflict governs the conduct of both states and individuals during armed conflict and seeks to minimize suffering in war by protecting persons not participating in hostilities and by restricting the means and methods of warfare. This Article examines whether the United States is engaged in an armed conflict—as defined by IHL—with the TTP in Pakistan, and if so, explores the nature of that engagement. Part I provides background information on the TTP and other militant groups; the development and current state of hostilities between Pakistan and the TTP; and the US drone campaign in Pakistan, particularly against targets linked to the TTP. Part II applies the legal framework of armed conflict to the situation in Pakistan. After setting forth the definition and elements of armed conflict, this Part analyzes the nature of the conflict between Pakistan and the TTP. Finally, Part III examines US involvement in the conflict in Pakistan to assess whether it constitutes an intervention in an ongoing conflict or a separate parallel conflict and how such determinations might affect the applicable law.