Further, it must be shown that the host state is “unwilling or unable to take [the appropriate steps against the non-state group].”616 Pakistan has at times U.N. Special Rapporteur on failed to act decisively against non-state extrajudicial, summary or arbitrary 617 groups, raising executions Christof Heyns, has questions about its ability questioned whether “killings carried out and willingness to take necessary steps. At others, in 2012 can be justified as in response however, it has also shown to [events] in 2001.” a willingness to take action.618 Any such action by Pakistan must, however, also comport with all IHRL and IHL concerning the use of force (see below for a discussion on jus in bello considerations).
616 Deeks, supra note 602, at 487-88. See also Special Rapporteur, Study on Targeted Killings, supra 598, at ¶ 35 (“[A] targeted killing conducted by one state in the territory of a second state does not violate the second State’s sovereignty if . . . . the first, targeting, State has a right under international law to use force in self-defense under Article 51 of the UN Charter, because . . . . the second state is willing or unable to stop armed attacks against the first State launched from its territory.”). 617 See, e.g., Jaysharee Bajoria and Eben Kaplan, Backgrounder: The ISI and Terrorism: Behind the Accusations, COUNCIL ON FOREIGN RELATIONS (May 4, 2011), http://www.cfr.org/pakistan/isi-terrorismbehind-accusations/p11644; Bob Gates, America’s Secretary of War, CBS NEWS (May 17, 2009), http://www.cbsnews.com/2102-18560_162-5014588.html?tag=contentMain;contentBody (noting Defense Secretary Robert Gates conceding that “to a certain extent, [Pakistan] play[s] both sides”); Pakistan Helping Afghan Taliban- NATO, BBC NEWS (Feb. 1, 2012), http://www.bbc.co.uk/news/worldasia-16821218 (citing a leaked 2012 NATO report claiming that “Pakistan’s manipulation of the Taiban senior leadership continues unabashed.”); Declan Walsh & Eric Schmitt, New Bold From Militants Poses Risk to US-Pakistan Ties, N.Y. TIMES (July 30, 2012), http://www.nytimes.com/2012/07/31/world/asia/haqqani-network-threatens-us-pakistanities.html?pagewanted=1&_r=2&nl=todaysheadlines&emc=edit_th_20120731 (maintaining that the Haqqani Network, a non-state group affiliated with the Taliban, operates “unmolested by the Pakistani military” in North Waziristan”). 618 Interview with Samina Ahmed, International Crisis Group, in Islamabad, Pakistan (Feb. 28, 2012) (“It’s a pattern we’ve seen since 2002, where the Pakistani military has delivered foreign Al-Qaeda in return for benefits.”). Pakistan has arrested dozens of senior Al-Qaeda leaders, including Khalid Sheikh Mohammed, and undertaken operations against militant groups in Swat Valley and parts of FATA.
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