Leadership: In Praise Of Lawyers


October 10,2008:  For over a year, there have been U.S. attacks on Taliban and al Qaeda personnel inside Pakistan, typically just across the border from Afghanistan. Pakistan has protested, and pro-Taliban Pakistani border guards have been reported shooting at U.S. troops and helicopters on the border, often inside Afghanistan. But Pakistan has done little beyond protesting, and ordering its troops to fire on "invading" U.S. forces. Not much has changed on the border as a result of that.

Pakistan's lack of real action is apparently due to U.S. officials (some quite senior ) holding several meetings with Pakistani leaders. These were described as briefings and discussions about Taliban and al Qaeda operations inside Pakistan, and pleas for more Pakistan action. But something else was presented by the U.S. officials; international law. It goes like this. The United Nations Charter allows nations to defend themselves when under attack, and allows operations inside a foreign nation that cannot, or will not, stop attacks on a foreign country from within its borders. This clause was included to cover a common situation, where one nation will tolerate rebels from another taking refuge inside its borders. This is usually rebels or bandits who base themselves across a border, and use that base to conduct raids and banditry inside the neighboring nation. Often, the sanctuary nation is unable to clean out the hostile gunmen, or are unwilling to do so because they support the goals of the gunmen, or simply want to weaken their neighbor by making it easier for the rebels or bandits to operate.

Afghanistan would appear to meet these criteria. Afghan officials have long complained about Taliban gunmen crossing over from Pakistan, often with the assistance of Pakistani border guards. Same with al Qaeda. Pakistan has never been able to control the tribes along the border, and has special laws that grant some autonomy to the border tribes, as long as they control cross-border raids. Pakistan has obviously not been controlling the Taliban and al Qaeda terrorists, so the U.S., as an ally of the Afghans, has been crossing the border, in compliance with the UN Charter, to strike at the hostile forces.

It's this legal angle that has prevented Pakistan from taking the U.S. before an international court. The Pakistanis know that there is a preponderance of evidence proving that the Taliban and al Qaeda are camping out in Pakistan, and operating across the border in Afghanistan. It's one of those rare cases where the lawyers have come in handy in the war on terror.


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