Daily Times

Pakistan’s Foreign Office as well as Ministry of Defence have both reportedly and justifiably turned down the American request regarding any future drone operations on Pakistan’s soil. Owing to the opaqueness of legality, these so- called precision strikes are generally regarded as ultra vires, that is, without legal authority. This has been upheld by UN rights experts and international law specialists, particularly as these unilateral strikes are widely seen as instruments of preemption, coercion, and violence. Thus, many experts argue that legitimacy is sine qua non, or absolutely necessary.

Although the CIA-run clandestine drone programme, in its modern incarnation, began in earnest on the watch of US President George W Bush — this dramatically expanded under Barack Obama. According to the Obama administration’s official numbers, the US killed 2,436 people in 473 counterterrorism strikes in Pakistan, Yemen, Somalia, and Libya between January 2009 and the end of 2015. Of those, between 64 and 116 were “non-combatants” (that is, civilians). The US applied policy vis-à-vis the drone strikes lacked clarity on the applicable legal regime as well as restraints to prevent any misuse of the drone technology by the successive US administrations without transparency or accountability.

In tandem, the US claims of precision and the low number of civilian casualties caused by drone in Afghanistan, Pakistan, Yemen, and Somalia. “Drones are a technological advance, but in practice they carry their own problems for minimizing harm to civilians, especially when used in places with fewer US boots on the ground,” said Naureen Shah, Acting Director of the Human Rights Clinic at Columbia. Signature strikes—strikes that target individuals based on patterns of behavior identified by US intelligence—are particularly risky for civilians. The U.S. drone policy during Obama’s regime claimed to abide by the international rules, but this is not true.

Factually, the U.S. drone strikes challenge the international rule of law– precisely because they defy straightforward legal categorization. In fact, drone strikes—or, more accurately, the post-9/11 legal theories underlying such strikes—constitute a serious, sustained, and visible assault on the generally accepted meaning of certain core legal concepts, including self-defense, armed attack, imminence, necessity, proportionality, combatant, civilian, armed conflict, and hostilities. Moreover, the drone regime challenges the very basis of state sovereignty as well laws of war.

The UN’s special rapporteur on extrajudicial, summary or arbitrary executions has already pointed out that drone technology is being misused as a form of global policing. Not least because this undermines international security and will encourage more states and terrorist groups to acquire unmanned weapons, a UN report warns

And above all, the unlawful use of force remains the core: of drone strikes’ ‘illegitimacy. Article 2(4) of the UN Charter provides that “[a] 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.” These cross-border drone operations– carried outside the areas of active hostilities—are in clear violations of Article 2(4) in the absence of some form of justification, for they entail military personnel or weapons entering Pakistani territory and inflicting considerable violence upon persons present in Pakistan and their property.

“Drones are becoming synonymous with US counterterrorism strategy,” said Sarah Holewinski, executive director of the Center for Civilians in Conflict. “But unlike in regular wars, policymakers are failing to ask the hard questions here, including whether other tactics or strategies are more appropriate than drone strikes, and whether US expansion of drone operations is causing more harm than good.” The government of Pakistan has categorically said that we will not allow kinetic use of drones nor are we interested in the surveillance of your drones. That’s a very clear-cut policy of this government, “Foreign Minister Shah Mehmood Qureshi said.

By many measures, these concerns about the drone operations— motivated by norms of humanity and the voices of public conscience—have been progressively encoded into international law through treaties such as the Hague Conventions, Geneva Conventions, International Covenant on Civil and Political Rights, Convention on Certain Conventional Weapons, Antipersonnel Landmine Ban Treaty, and Convention on Cluster Munitions. They have also undergirded activism, academic writing, and various forms of legal and political action to curtail, prevent, or stop the spread of tools of violence, as well as violence itself.

Needless to say, the issue of legitimacy raises at least four significant questions/ unresolved issues. But unfortunately, these questions remain insufficiently answered: (1) the need to find out more about why nations do not comply with their international law obligations and the role those government legal advisers actually play in this respect; (2) the desirability of examining the role of, not only the US State Department Legal Adviser, but of all foreign office legal advisers collectively in making the international legal system work and of fostering closer consultative and other cooperative relationships among foreign office legal advisers from the US and other countries;(3) the consequent need to learn more about what these attitudes and perceptions are and how they might be changed so as to encourage broader governmental and public understanding of and respect for the role and importance of international law in an effective US foreign policy; and (4)what are the costs of acting illegitimately?

According to the Foreign Policy Magazine, ‘’If the US is successfully going to persuade both allies and adversaries to behave in ways that the US would prefer, then Washington itself must act in ways that are appropriate and that accord with accepted norms and standards of established international behavior.’’ These ferocious strikes intrinsically violate the basic tenets of International Humanitarian Law (IHL), International Human rights law (IHRL), and International Criminal Law (ICL) as well.

The UN’s special rapporteur on extrajudicial, summary or arbitrary executions, Professor Chistof Heyns already pointed out that the drone technology was being misused as a form of global policing. Deploying drone strikes as a form of global policing undermines international security and will encourage more states and terrorist groups to acquire unmanned weapons, a UN report has warned. In March last year, the International Criminal Court (ICC) called an investigation into the US war crimes in Afghanistan. Thus, the plight of civil causalities in the Afghan war still haunts the vicious US drone legacy in that country.

The writer is an independent ‘IR’ researcher and international law analyst based in Pakistan.jpg