Thursday, February 11, 2010

Drones and the Law

This is one of the rather rare articles that actually considers the status of drone attacks under International Law. Most discussion seems to ignore the issue and concentrate upon the question of whether they are useful or counterproductive. This article argues that the main arguments for their legitimacy under international law do not stand up to critical investigation.

Drones and the law[Translate]

Dawn By Rafia Zakaria 27 January 2010

Supporters of the Labour Party rally against the United States and condemned drone attacks on militants in tribal areas along the Afghanistan border, Friday, Dec. 4, 2009 in Lahore. – Photo by AP.
In recent months, international and local attention has begun to focus on the legality of these attacks and the international instruments that control incursions by one government organisation into the territory of another.

In the United States, some of these questions have begun to arise as commentators begin to evaluate President Obama’s first year in office in relation to the promises of his campaign. In Pakistan, debates have been instigated by the attacks themselves as well as recent threats of their reach being expanded to beyond the immediate border areas and South Waziristan.

The doctrine of jus ad bellum or the right to wage war is the subject of several international treaties that together provide a legal framework that defines the parameters for lawful conflict between nations. Article 2(4) of the UN charter provides that: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.”

Based on the article, unless justifications are provided, drone attacks in their current form are in contravention of the UN charter and hence a violation of international law.

The most prominent justification offered by the US is that these attacks are occurring with the consent of the Pakistani government. Consent, it seems, obviates any violation of the UN charter. Specifically, Article 20 of the UN’s ‘Responsibility of States for Internationally Wrongful Acts’ states: “Valid consent by a state to the commission of an act by another state precludes the wrongfulness of the act in relation to the former state to the extent that the act remains within the limits of that consent.”

Simply speaking, the argument is that since Pakistan implicitly agrees to the use of drones on its territory, it consequently precludes the possibility of complaining against any international law violations. As noted by Sean Murphy in his article on the legality of drone attacks, the problem with this justification is that it has been based almost entirely on news reports and ambiguous indications by unnamed officials.

Indeed, one Washington Post report of September 2008 states that while Pakistan “formally protests such actions as a violation of its sovereignty, the Pakistani government has generally looked the other way when the CIA conducted Predator missions or US troops respond to cross-border attacks by the Taliban”.

The consent justification also becomes problematic in the light of the actual statements that have been made by Pakistani leaders. Mere days after the report mentioning the tacit agreement with Pakistan, Gen Ashfaq Kayani stated: “There is no question of any agreement or understanding with the coalition forces whereby they are allowed to conduct operations on our side of the border.”

Ultimately, however, the consent argument is problematic because a covert or tacit agreement suggests the absence of a written instrument that demarcates the boundaries and instances of such incursions and the nature of those that are being consented to. The absence of such an agreement at worst makes the drone attacks a violation of international sovereignty and at best relegates them to the status of legal limbo. There is simply no stipulation of what is allowed, what area it covers and how long such incursions may occur, all crucial questions given the indefinite nature of the war on terror itself.

A second legal argument offered in justification of drone attacks is based on their status as acts of self-defence against attacks by non-state actors. Article 51 of the UN charter allows such actions provided that the military force used is necessary to achieve a defensive purpose and does not cause a disproportionate loss of civilian lives and property. Furthermore, it is necessary also that the non-state actors whose actions have motivated the defensive action are actually in control of the state.

In the present case, this argument would be based on the fact that Khalid Sheikh Mohammed — the alleged mastermind of the 9/11 terrorist attacks — was arrested in Pakistan and is accused of having planned the attacks there. The obvious problem, however, is that there is no proof whatsoever that the non-state group in question, Al Qaeda, is under the control of the Pakistani government.

Furthermore, if the argument for self-defence is based on the fact that the Taliban are conducting raids against allied and US forces from across the border in Pakistan, it runs into a different problem. If the drone attacks are seen as motivated by the ‘hot pursuit’ doctrine through which they are actually pursuing Al Qaeda operatives who have attempted to escape across the Afghan border, then they must be connected to specific operations.

Instead, it is common knowledge based on statements made by various US defence and military officials that the drones are actually launched in response to intelligence gathered from reconnaissance also conducted through drone aircraft, making the hot pursuit doctrine inapplicable in this situation.

While there has been much anger and public outcry against the drone attacks in Pakistan, there have been few attempts to present objections to international forums where the violations of international instruments can be noted. Commentators in the Pakistani media have focused exclusively on the utility of these attacks in killing foreign fighters rather than their legality. The problem with the former approach is that it evaluates the attacks from the angle of political and tactical considerations at the expense of the legal.

Given the increasing frequency of drone attacks in Pakistan, as well as the likelihood of the expansion of the programme, it is imperative that human rights and civil society groups in Pakistan unite in protesting the illegality of the attacks and attempt to garner the support of the international community against them.

The writer is an attorney and director at Amnesty International, US.

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