In early September, New York Times correspondents Pir Zubair Shah, Eric Schmitt and Dexter Filkins reported that U.S. Special Operations Forces engaged in hostile contact with militants inside of the internationally recognized borders of Pakistan. These military raids are inherently controversial because such actions may be perceived to be in violation of Pakistani national sovereignty and international law. U.S. military commanders have chosen to pursue this course of action because it is, according to Filkins, “inside the Pakistani tribal areas, where hundreds, perhaps thousands, of Taliban, along with Al Qaeda and other foreign fighters, enjoy freedom from American attacks.” While these limited yet aggressive raids are certainly controversial, the United States must be concerned about this threat for one reason: The militants who cross into the internationally recognized borders of Afghanistan do so with the sole aim of undermining the political and security situation within said state. In the absence of Pakistani will or Pakistani military capability to address these militant threats originating in their supposedly sovereign territory, the United States is justified in the use of force in order to disrupt and counteract violent operations that seek to subvert the reconstruction and stabilization of Afghanistan in the wake of the U.S. invasion in 2001.

The Federally Administered Tribal Areas of northwestern Pakistan serve as a seemingly lawless environment and safe haven for Islamist terrorist organizations. Based on his extensive travels throughout the Middle East, Filkins noted that (emphasis added), “Inside the tribal areas, Taliban warlords have taken near-total control, pushing aside the Pakistani government and enforcing their draconian form of Islam.” The relevant question that this scenario poses in relation to American military intervention in said area is whether or not the FATA are, in fact, sovereign Pakistani territory. It is our opinion that if the FATA are indeed sovereign Pakistani territories, then the United States would not be justified in using military force in this area. However, if the FATA do not fall under the auspices of sovereign Pakistani territories, the United States is justified in using force within this area to counter militant threats that seek to destabilize neighboring Afghanistan.

Currently, the FATA serve as little more than staging areas in which militants can engage in unlawful and violent incursions that seek to destabilize Afghanistan. The U.S. military has crossed into Pakistan to address this threat in much the same manner as the militants it seeks to eliminate have crossed into Afghanistan. However, the United States is justified in using force in the FATA region for two reasons. First, the militants crossing into Afghanistan are not doing so with the aim of stabilizing it the way American soliders hope to do with Pakistan in the face of external threats. Conversely, the U.S. military justifiably conducts raids into the FATA with the explicit purpose of eliminating threats that pose a danger to the political and economic stabilization of Afghanistan. Second, the FATA region, while under the de jure, or legal, sovereignty of Pakistani, is in fact not under the control of said government. Filkins, during his trip to the region in question, went so far as to say that the Pakistani government has been “push[ed] aside.” The Pakistani government’s inability to exercise its legal right to enforce the rule of law in the FATA renders this region outside the purview of said government. In other words, the FATA are Pakistani territories in name only. If the Pakistani government did maintain sovereignty over the FATA, it could not, in good conscience and given its position as a key ally in the global war on terror, allow for its supposedly sovereign territory to be used in such an unlawful way.

Given the above arguments, the FATA cannot be considered to be within the sovereign territory of Pakistan. Furthermore, the FATA are being used as little more than an area in which militants can conduct violent operations aimed at destabilizing Afghanistan with complete impunity. The U.S. Coalition forces invaded Afghanistan in October 2001 with the goal of securing the country from extremist elements such as the Taliban and Al Qaeda. At the time, these extremist elements, among others, were operating primarily within the confines of the internationally recognized borders of Afghanistan. Currently, in the fall of 2008, the threat to Afghanistan’s security extends beyond these borders, namely into the FATA region of Pakistan. These militants have altered their operating tactics and strategy in order to combat the robust military, economic and political efforts of the United States and its allies to secure Afghanistan. U.S. incursions into the FATA do not represent a change in the overall military strategy to secure Afghanistan. Rather, these pinpoint raids serve as proportional and thus justified responses to a militant threat that aims to cripple and exploit Afghanistan.

George Foulard and Jackson Holahan are both seniors in the College.

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