Makes you think.

this would require investing in a larger army (that is trained in peacekeeping, peacemaking, counter-insurgency, as well as traditional land warfare) and spending less on air force gadgets… but that’s a whole nother topic

As to the Pakistani sovereignty argument. Well, there is the Armed activities on the territory of the Congo case from before the International Court of Justice which might be pretty relevant here. I have read the really lengthy judgement back at the time when it came out. And I have to report that international law and international lawyers are still mostly stuck with a dreamed up Westphalian image of the world, but in an inconsequential manner, actually. In its decision the ICJ essentially said that neighbouring countries can’t do anything on the territory of the DRC, unless it is the DRC that attacks them, which would be the only case when they could use their right to self-defense (based on the UN Charter). As to whether it is a breach of the ‘duty of vigilance’ when a government (such as that of the DRC) doesn’t stop a non-state actor from attacking another state from within its own internationally recognised boundaries, they concluded that it’s not a breach in the case if the government doesn’t effectively control the given area from where attacks are launched by the non-state actor.

Logical? Absolutely not.

It is essentially saying that military action, by the state that is threatened by a non-state actor, is aggression, because it is the harbouring state’s territory that is attacked then, but it’s not a breach of the duty of vigilance on the part of the harbouring state if its territory harbours an aggressive non-state actor, since it’s not really the harbouring state’s territory. Mind-boggling, really.

To translate this to the Pakistani context, for simplification I’ll talk of an Afghan-Pakistani equation. If Pakistan were to claim that it doesn’t control its tribal areas effectively (it hasn’t claimed that to my knowledge, actually), then Afghanistan couldn’t attack, because it would be an aggression, and A’stan couldn’t even claim that Pakistan is in breach of its duty of vigilance. However, since Pakistan does claim it is doing everything possible in its tribal areas, and its stance usually is that the Afghan government and ISAF/OEF forces should do more to control cross-border movements, the situation is more complicated. It would be interesting to see this case before the ICJ and what ruling they would come to then. I do think, though, that the Pakistani line of defence would probably be that Pakistan is the victim, and it is the Afghan government and the international forces that are in breach of their duty of vigilance. (If you think back to the sort of things Musharraf said before his spring Ankara meeting with Karzai in Turkey, it is more than realistic to expect that they would be arguing like that.)

A different scenario could be the Security Council bringing a decision about this. The Security Council has already shown understanding to concerns by a state about a non-state actor’s activities, allowing military action in response to that concerned state in at least one very relevant case (9-11). But would the Security Council back similar action inside Pakistan?

However, this of course is not only an international legal issue. The U.S. wouldn’t push this case as far as the Security Council, really. The way to go about this is informally working out some arrangement, as it has been done up till now, although up till now arguably not enough has happened.

(I’ll cross-post this international legal agony part of my comment over at my place, too, Josh, if you don’t mind, since I also looked to raise this issue since a while now.)

Michael – are you telling me a 1000 pound bomb will fit through the window of one of these, while leaving neighbors unscathed?

Color me skeptical. Even the newest JDAMS with laser seeked bolted on the front have a CEP of 3 meters, which not only isn’t just a window, but in a typical village actually is another house. When you add in that these houses are made out of dirt, and are not blast-resistant, it should be no wonder there is a lot of collateral damage.

You’re right, too, that intel matters — which is why I brought up Zakharov. He knew when he was being baited into attacking civilians, and when he could ambush and destroy the mujahideen. We don’t yet have that sophistication (and, in fairness, neither did most of the Soviets).