Characterizing United States Operations in Pakistan: Is the U.S. Engaged in an Armed Conflict?

Abstract:     
U.S. drone strikes in Pakistan in 2010 follow two consecutive years of dramatically increased drone activity within Pakistan. Despite a high degree of interest in the United States’ use of drones in Pakistan, little attention has been focused on whether the U.S. is engaged in an armed conflict in Pakistan, as defined and categorized by international humanitarian law. Although most coverage of U.S. operations in Pakistan focus on the use of drones and the lawfulness of self-defense responses to terrorist and militant groups, it is important to analyze the nature of the hostilities in Pakistan to understand whether international humanitarian law – and its key principles governing the conduct of parties and the protections for persons in the conflict zone – apply to the situation in Pakistan. This article first analyzes the extent and nature of the hostilities between Pakistan and Tehrik-e-Taliban, the main insurgent group in opposition to the Pakistani government. Both the intensity of the hostilities and the level of the TTP’s organizational structure demonstrate that Pakistan and the TTP are engaged in a non-international armed conflict, along with other relevant non-state armed groups in Pakistan.

The intensity of the hostilities between the U.S. and the TTP – which has steadily increased over the past two years, both in frequency and in scope – suggests that the U.S. and the TTP are also engaged in an armed conflict. Once identified as an armed conflict rather than isolated acts of violence, the hostilities between the U.S. and the TTP can be characterized as an intervention into the existing non-international armed conflict, which remains a non-international armed conflict because the U.S. is intervening on the side of the state actor. Alternatively, the conflict between the U.S. and the TTP can be characterized a separate parallel conflict, either a Common Article 3 conflict, using the broad standard established in Hamdan, or, at a minimum, a transnational armed conflict triggering the application of fundamental principles of the law of war that govern the conduct of any military operations.

Number of Pages in PDF File: 39

Keywords: Pakistan, armed conflict, international humanitarian law, Taliban, law of armed conflict, drones, common Article 3

Accepted Paper Series