The New York Times recently carried two reports by Declan Walsh about alleged drone strikes that took place in Pakistan’s tribal areas in February. The first report noted that the strikes may have been conducted not by the United States, but by Pakistan itself. If that’s true, Walsh notes, then Pakistan finds itself in the fortunate (from its perspective) position of being able to hide its military activities behind the “open secret” U.S. drone strikes in Pakistan. The follow-up piece reported that the Pakistani military denied responsibility for the strikes. What is more interesting than the he said/she said, though, is the role that consent to the use of force may be playing in this episode.
I have written recently about consent to the use of force as an under-examined phenomenon in international law. (At Opinio Juris, which is running a symposium with Harvard Int'l L.J., Duncan Hollis has offered a very thoughtful response to some of the issues I raise in my article.) Many scholars cite consent as one of the three bases on which a state may use force in another state’s territory (in addition to Security Council authorization and self-defense). But few have considered precisely what work consent can (and should be allowed to) do as an international legal justification. My argument, in short, is that we are seeing an increasing number of incidents in which a state seeks another state’s consent to use force in the latter’s territory. And we also are seeing territorial states provide that consent, even in the face of limitations that may exist in their own laws – such as restrictions on the presence of foreign troops in its territory, or prohibitions on the use of particular weapons, or due process requirements. That move by territorial states stands in tension with the usual understanding of consent in law generally, which is that an actor only may consent to that which the actor could do herself.
From the acting state’s perspective, getting consent from the proper officials in the territorial state is all that it needs to do. International law tells the acting state that it doesn't have to look behind the territorial state’s consent to see if that consent tracks the latter’s domestic laws. But the territorial state often has incentives to give consent regardless of what its domestic laws say. It may face political pressure to give consent, or it may welcome the acting state’s help suppressing violent non-state actors on its territory, or it may think that its consent will not come to light. So consent ends up muddying the territorial state’s compliance with its own laws.
Here’s where the Pakistan example comes in. My thinking about consent had focused mainly on the ways in which consent, even if sloppily given, might bolster an acting state’s legal justifications for using force, and the ways in which incautious consent might allow the territorial state to accomplish things by proxy on its territory that it itself couldn’t lawfully do. But Tuesday's stories present a third complication surrounding consent. If the first Times report is accurate, Pakistan’s use of force in the tribal areas was facilitated by the fact that it consented to the U.S. use of drones on its territory, and that the U.S. has used force pursuant to that consent. That is, having (reportedly) consented to the U.S. Government’s forcible actions in Pakistan, Pakistan can hide its own activities more easily behind those of the United States.
Are Pakistan’s activities consistent with international and domestic law? It may be that Pakistan is acting in a manner fully consistent with its own laws when it uses force against militants in the tribal belt – presumably on the theory that it is engaged in a non-international armed conflict (NIAC) against one or more groups active there. But to my knowledge Pakistan has refused to date to call it an armed conflict, choosing instead to call it “law enforcement action.” [If anyone knows differently, I would welcome more information on this point.] This is not uncommon: states frequently are reluctant to acknowledge that they are in NIACs because it reveals political weakness. But many outside commentators consider Pakistan objectively to be in a NIAC, which means that a different set of rules would apply to Pakistan’s activities.
It is not clear the extent to which other states, NGOs, domestic constituents, and groups like the ICRC have pressed Pakistan to clarify the legal framework under which it is operating. But if Pakistan comes under this kind of pressure, concealing its actions behind those of the United States (if that is indeed what it is doing) would make it easier for Pakistan to avoid having to identify the actual legal framework that governs its actions and – maybe more importantly – to face the political ramifications of its actions domestically.
There are, to be sure, advantages to allowing consent to the use of force to do work in international law. The Pakistan example helps to illustrate how consent has a problematic side as well.