The attacks on Mumbai that appear to have come from Pakistan were incubated and nurtured in the tribal areas that are a law unto themselves. Osama bin Laden has apparently been hiding there since Operation Enduring Freedom overthrew the Taliban and drove al Qaeda from Afghanistan.
Robert Kagan suggests we revoke Pakistan's sovereignty over the tribal areas since Pakistan will not exercise sovereignty over the area enough to suppress the terrorists who thrive there:
Rather than simply begging the Indians to show restraint, a better option could be to internationalize the response. Have the international community declare that parts of Pakistan have become ungovernable and a menace to international security. Establish an international force to work with the Pakistanis to root out terrorist camps in Kashmir as well as in the tribal areas. This would have the advantage of preventing a direct military confrontation between India and Pakistan. It might also save face for the Pakistani government, since the international community would be helping the central government reestablish its authority in areas where it has lost it. But whether or not Islamabad is happy, don't the international community and the United States, at the end of the day, have some obligation to demonstrate to the Indian people that we take attacks on them as seriously as we take attacks on ourselves?
I suggested much the same thing more than two years ago:
Let's split our recognition. We recognize a government that holds a UN seat and borrows money and is responsible for its actions, as we do now. Right now it is all or nothing. You are recognized or not and if you do you are given credit for controlling everything within the lines on the map indicating your country.
The government has legal responsibility to control their territory, but in practice there is no way to compel them to do so and yet international law prevents others from trying to install some level of control--or at least to destroy threats gathering in those areas beyond government control.
But as part of this recognition, we also declare the boundaries of these recognized governments that reflect effective control and not just legal fictions based on lines on maps. For most countries, we'd use the formal boundaries. Germany controls their territory. But not all countries are in this situation.
Where a country's government does not or cannot control all their territory, we should declare areas "free of control" by a national government and therefore deprive the non-state actor from hiding behind the nominal legal government when they are attacked on their de facto territory that the non-state actor rules.
The UN is never going to go along with this. Although we might be able to cut our funding as a threat. Or maybe we just sign a treaty with our friends and declare it in force.
We'd have to write the rules carefully so nobody can argue Canada's far north is "free of control" just because Canada does not have much activity up there. The ice and permafrost aren't taking advantage of the lack of Canadian law and military presence to train for attacks on us. But some countries so poorly governed would have perhaps only their capital recognized as the effective country and a vast hinterland colored gray reflecting no government control.
By mapping out the gray areas between countries we would establish our right to send military forces into land "free of control" to destroy threats. Or establish friendly de facto governments that will control the territory and prevent threats from originating in that territory.
We'd have to update it quarterly, allowing nominal states to make their case that they do control the territory we've designated free of control. We'd need to have additional penalties for failure to control territory and rewards for establishing
control.
So let's get working on the Lexington Rule. Assuming state control is an increasingly dangerous fiction in an age of vicious terror groups that aspire to government-level violence.
But the midst of a crisis is no time to implement this. Pakistan would never give up legal sovereignty over their territory even if they have little in practice. They don't like us firing missiles from drones or sending in special forces teams to kill Pakistani and foreign jihadis, how will they accept foreign armies roaming about doing that?
Nor will China or Russia refrain from exercising their Security Council veto over any UNSC measure that proposes this in Pakistan. Heck, we probably couldn't get a majority in the General Assembly since many countries would worry they'd have large parts of their national maps colored grey under this rule.
And just who would staff that magical international force that Kagan proposes? Germany? Spain? We can't get them to fight in Afghanistan, will they roll into Pakistan now? No, it would have to be an American army. Pakistan now has about 100,000 security forces in those areas. Will we do better with fewer? And good luck with supplying those troops.
Kagan's idea has merit, if I may humbly agree. But this is absolutely the wrong time to propose this solution to the deadly dilemma of the gap between legal sovereignty and real world control.
