Mike,

Working on a paper that explores this currently. Whether one looks at this as denying sanctuary or as deterring non-state actors the lines blur. But the hard fact is that the rules for states and those that operate within the reach of the law don't apply, so it calls for complex approaches that balance encouragement and discouragement across a range of state and non-state actors so as to build a proper mix that prevents without provoking; or that does not get so focused on encouraging or discouraging one group so that one loses sight of the provocative effects this is having on others.

At the center of this work is a chart or worksheet. It currently has 8 categories of actor across the middle. Four types of states on the left (nuclear, non-nuclear, failing and criminal) then four types of empowered non-state actors that live and operate within those four types of states ( Quasi-state [Hamas, Hezbollah], non-state[AQ, Taliban], insurgent populace [pashtuns] and Dissident individuals [McVeigh,etc]) These are all just examples.

For any particular problem one will have a mix of four types of states and within them a mix of the four types of empowered actors. One must take them all into account as they plan their engagement. Going up from this lineup are three degrees of encouragement. Level one is "Promote"; Level two is "Enable"; and Level three is "Enhance." Each denotes a greater degree of involvement with ones engagement. Going down from the lineup are three degrees of discouragement. Level one is "Deter"; Level two is "Preclude"; and level three is "Preempt." Again, each level denotes a greater degree of involvement.

Looking just at AFPAK you have a non-nuclear failing state and a nuclear failing state at the core. Afghanistan is arguably also trending toward being a criminal state. Within these there are a mix of non-state actors, insurgent populaces and dissident individuals. No one simple two-diemensional approach can balance this complex mix of actors. To over discourage AQ with a heavy scheme of Preempt and Preclude in Pakistan must be balanced by Promote-Enable-Enhance with Pakistan. But then also with some Deter and perhaps Promote with India to address the inbalance created there. Then over to Afghanistan where one must give them some encouragement to allow themselves to be used as a base to go after AQ; etc, etc.

The spreadsheet isn't perfect, but helps to visualize all of the actors and how ones engagement may be causing unintended provocative consequences that must be mitigated as well.

How then, to apply lawfare to this? Currently those outside the law have all the advantages, so perhaps something as simple as a waiver for states to act outside the law as well in certain circumstances. Again, it is about balance. Such waivers must allow effective opertations, but not at the same time compromise principles that weaken the moral authority of the state structure.

The spreadsheet also recognizes that as one goes from left to right, from nuclear state over to dissident individual one also shifts from where the same act is an act of war for one, and a criminal act for another. In the middle is a wide greyzone. it's a work in progress.

Step one is to understand that sanctuary is NOT "ungoverned space" but more accurately:

"Updated: Insurgencies take sanctuary in some combination of legal status, the support of a poorly governed populace, and some favorable combination of terrain and vegetation. Functional sanctuary associated with such status or support is more powerful than physical sanctuary provided by a particular place.

• Explained: The old adage of “ungoverned space” is not wrong, it is just incomplete and focuses on the wrong aspect of what actually provides the insurgent sanctuary. If ungoverned space were such terrific sanctuary, al Qaeda would be in Antarctica. The regions they prefer are more accurately described as self-governed spaces; removed from the reach of much of formal governance, but certainly governed all the same. Al Qaeda’s primary sanctuary, however, comes from their legal status. Being outside the law they are not constrained by the law. Similarly, being unencumbered by a state they are immune to the controls of statecraft. Al Qaeda also borrows the legal protection that the sovereign borders of host states (willing, knowing, or otherwise) provide where convenient. The sanctuary offered by a poorly governed populace cannot be overstated. It is the people who live in a space who support and protect such movements, and not the space itself. This is why “space” is largely fungible so long as the sanctuaries of legal status and poorly governed populaces are available. Consider Robin Hood and the famous sanctuary provided by Sherwood Forest. If the Sheriff had denied the forest in some way, the true sanctuary of being outside the law and protected and supported by a poorly governed populace would have remained in effect. Robin and his Merry Men would have just moved to a new forest.
Similarly, if the sanctuary of a specific place such as Afghanistan or Pakistan, (or Somalia, or Yemen, etc) is physically denied, al Qaeda would simply move to a new country. Denial of ungoverned spaces is a false argument that focuses on the wrong aspect of an effective sanctuary."