US Drone Strikes in Pakistan: International Law Perspective | PKKH.tv
PKKH Exclusive | by Mariam Shah
In a recent statement Foreign Office spokesman Muazzam Khan said ‘drone attacks in Pakistan are illegal’. He told that international agencies have been asked to review casualties’ ratio in the drone attacks. This particular statement shows that our higher officials do acknowledge drones as illegal and unlawful. Still this account does not clearly state the stance of Pakistan on US drone strikes. There are many speculations upon a “covert treaty” between the Pakistan and US governments on this controversial drone issue. Many are of the view that Pakistan secretly endorses the US drone attacks on Pakistani soil that is why even after a decade; Pakistan has not forwarded this case to any international tribunal or justice system.
Back in 2011, Interior Minister Rehman Malik’s remarks on drones created a lot of stir among the public, when he said that Pakistan is not capable of stopping drone strikes. On the other hand Rao Qamar Suleman (Air Chief at that time) back in 2011 said that if ordered, the PAF can shoot down the US drones. Rehman Malik also demanded that the US should transfer the drone technology to Pakistan, and the irony is that Pakistan already possesses such a one. Both Foreign Minister Hina Rabbani Khar and Interior Minister Rehman Malik have also asserted that Pakistan has no issue with US drone strikes if they kill militants, but that the method of their conduction is not appropriate, which makes the general populace of the country disagree with the US policies on drones.
A study at Stanford and New York University titled ‘Living Under Drones’claimed that only ‘two percent’ of drone strike casualties in Pakistan are ‘top militants ‘or “high-level” targets .The study also mentioned that civilian causalities are less reported and far higher than acknowledge by the US. Below are the figures of US drone strikes in Pakistan according to the Bureau of Investigative Journalism:
CIA Drone Strikes in Pakistan 2004–2013
Total US strikes: 362
Total reported killed: 2,629-3,461
Children reported killed: 176
Total reported injured: 1,267-1,431
Now let us comprehensively look into the subject matter the drones regarding international laws, leaving behind our sentiment and reactive tendencies. In the following passages the UN charter, International Humanitarian Law and International Human Rights Law will be discussed and consideration will be given to all legal aspects.
UN Charter and Legality of Drone Strikes
The US has mostly used the principle of “self-defense” to justify drone strikes, but Pakistan is not directly involved in any conflict with US, so this claim stands nowhere.
Article 2(4) of the UN Charter clearly states 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”, so there is no justification of conducting strikes inside Pakistan’s territory.#
Article 51 gives right to states to go for self-defense but accordingly, the use of force in self-defense is permitted only (i) in case of necessity, where there is an attack and the use of force is necessary to repel it and is defensive in nature; and (ii) to the extent that the defensive use of force is proportionate to the attack and not punitive in nature.
International Humanitarian Law and Drone Strikes
IHL applies only if there is armed conflict, otherwise it’s not applicable; if for a moment we consider that IHL is applicable in Pakistan’s situation and there is armed conflict the legality of any drone strike must then be evaluated in accordance with IHL. All the fundamental principles of distinction, proportionality, humanity, and military necessity should be considered while evaluating the validity of drones with respect to IHL.
Article 51(3) of the 1977 First Protocol Additional to the 1949 Geneva Conventions mentioned that civilians shall not be targeted, unless they are directly involved in the fighting.
The Drone Strikes violate Article 2 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War by disregarding the human rights of the innocent civilians killed in the strikes#
According to the Article 13 of the Protocol II of the Geneva conventions “the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited”. As UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns observed, “f civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: Those strikes are a war crime….”#
Violation of Sovereignty of Pakistan
The issue of a state’s sovereignty cannot be neglected in the case of the drone attacks. The drones are a complete violation of international law and UN charter (1945), which clearly states that the all the member states should abstain from the use of force against the sovereignty of any state. 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’. 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.
International Human Rights Law (IHRL) and Drone Strikes
Unlike the law of Armed Conflict, International Human Rights Law applies to all persons at all times, regardless of nationality, status, or location, and for the most part the International Human Rights Law applies in times of war as much as in times of peace. IHRL permits the intentional use of lethal force only when strictly necessary and proportionate. Therefore deliberate and intentional drone target killings cannot be lawful under IHRL. Intentional force is only allowed if necessary to protect against a threat to life, and where there are “no other means, such as capture or non-lethal incapacitation, of preventing that threat to life.”
Drone Strikes as Extrajudicial Killings
The individuals who have been killed in US drone strikes inside Pakistan are killed without any trial and legal process. No one knows the identity, names and whereabouts of the individuals killed in US drone strikes. Amnesty International stated, “If the attack was a deliberate killing, in lieu of arrest, in circumstances in which the men did not pose an immediate threat, the killings would amount to extra- judicial executions in violation of international human rights law. International Covenant on Civil and Political Rights (ICCPR), Article 6, prohibits irrational deprivation of life; ‘Fundamental human rights cannot be violated and negated in any situation whether its war time or peace’.
CIA Operatives and International Law
Involvement of the CIA in these operations has also raised several questions regarding the justification and legality. CIA officials are not a part of US military or armed forces nor do they come under their command. So according to international law they are civilians directly involved in hostilities and the violations of law. CIA officials don’t know about the laws of war and they are not bound by the Uniform Code of Military Justice to respect the laws and customs of war. Drones are operated by CIA and other private contractors and such practices are illegal according to international law and it is a violation of International law of Armed Conflict (LOAC); ‘This in fact makes all CIA operatives involved in drone strikes as unlawful combatants and a legitimate military target just like the Al-Qaeda.’
Pakistan’s Consent in Drone Strikes
Pakistan has not forwarded its case to any international court, so it is assumed that there is some ‘secret treaty’ between US and Pakistan government. It is assumed that Pakistan covertly endorses US drone strategy. This agreement permits the CIA to fire when it has solid intelligence and to provide notification to Pakistan, which typically means shortly after a missile is launched. This is one of those arguments which US take to justify drone strikes. Time and again, Pakistan has also condemned drone strikes and summoned US officials in Pakistan. The Pakistani government has also condemned the US drone strikes inside Pakistan. The reaction by Pakistani officials shows that Pakistan doesn’t endorse US drones strikes in Pakistan. Here a question arises that, if Pakistan has not approved US drone strikes then why does it not lodge an international complain in any international courts?
Two exceptions to the Article 2(4) prohibition on the use of force are particularly relevant to the question of whether US targeted killings in Pakistan are lawful: (1) when the use of force is carried out with the consent of the host state; and (2) when the use of force is in self-defense in response to an armed attack or an imminent threat, and where the host state is unwilling or unable to take appropriate action, wherein Pakistan is a sovereign country with a full army, working police, intelligence and a working governmental set-up and therefore fully capable to catch it’s criminals. Furthermore the people of Pakistan are not in support of these brutal acts, nor has the government openly declared them. The idea of self-defense by US is also not applicable, as Pakistan has not gone for any armed attack nor Pakistan is at war with US. There are certain internal conflicts but no international conflict.
Conclusive Remarks
In the light of the international law one can say that the use of drones is illegal, as killing innocent people without any legal process is illegal and cannot be justified in any case. Drones are not carried against an armed attacks or some threat, rather their strategy is quite disproportionate and besides suspected militants a large of number of civilians have been killed. There is a need and it is high time now that Pakistan should take a firm stance on the US use of drones. If Pakistani authorities secretly endorse the US drone strikes inside Pakistan then it should be made public and if not then some legal action against the US drones should be taken by the Pakistani authorities.
Mariam Shah is a regular contributor at PKKH and a ( Columnist @ The Fortress Magazine), She is a Human Rights, Youth and Peace Activist and doing MPhil in ”Peace and Conflict Studies” From NDU. She Can be reached at ms.fortress@gmail.com and she tweets at @battlehawk_
Source
PKKH Exclusive | by Mariam Shah
In a recent statement Foreign Office spokesman Muazzam Khan said ‘drone attacks in Pakistan are illegal’. He told that international agencies have been asked to review casualties’ ratio in the drone attacks. This particular statement shows that our higher officials do acknowledge drones as illegal and unlawful. Still this account does not clearly state the stance of Pakistan on US drone strikes. There are many speculations upon a “covert treaty” between the Pakistan and US governments on this controversial drone issue. Many are of the view that Pakistan secretly endorses the US drone attacks on Pakistani soil that is why even after a decade; Pakistan has not forwarded this case to any international tribunal or justice system.
Back in 2011, Interior Minister Rehman Malik’s remarks on drones created a lot of stir among the public, when he said that Pakistan is not capable of stopping drone strikes. On the other hand Rao Qamar Suleman (Air Chief at that time) back in 2011 said that if ordered, the PAF can shoot down the US drones. Rehman Malik also demanded that the US should transfer the drone technology to Pakistan, and the irony is that Pakistan already possesses such a one. Both Foreign Minister Hina Rabbani Khar and Interior Minister Rehman Malik have also asserted that Pakistan has no issue with US drone strikes if they kill militants, but that the method of their conduction is not appropriate, which makes the general populace of the country disagree with the US policies on drones.
A study at Stanford and New York University titled ‘Living Under Drones’claimed that only ‘two percent’ of drone strike casualties in Pakistan are ‘top militants ‘or “high-level” targets .The study also mentioned that civilian causalities are less reported and far higher than acknowledge by the US. Below are the figures of US drone strikes in Pakistan according to the Bureau of Investigative Journalism:
CIA Drone Strikes in Pakistan 2004–2013
Total US strikes: 362
Total reported killed: 2,629-3,461
Children reported killed: 176
Total reported injured: 1,267-1,431
Now let us comprehensively look into the subject matter the drones regarding international laws, leaving behind our sentiment and reactive tendencies. In the following passages the UN charter, International Humanitarian Law and International Human Rights Law will be discussed and consideration will be given to all legal aspects.
UN Charter and Legality of Drone Strikes
The US has mostly used the principle of “self-defense” to justify drone strikes, but Pakistan is not directly involved in any conflict with US, so this claim stands nowhere.
Article 2(4) of the UN Charter clearly states 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”, so there is no justification of conducting strikes inside Pakistan’s territory.#
Article 51 gives right to states to go for self-defense but accordingly, the use of force in self-defense is permitted only (i) in case of necessity, where there is an attack and the use of force is necessary to repel it and is defensive in nature; and (ii) to the extent that the defensive use of force is proportionate to the attack and not punitive in nature.
International Humanitarian Law and Drone Strikes
IHL applies only if there is armed conflict, otherwise it’s not applicable; if for a moment we consider that IHL is applicable in Pakistan’s situation and there is armed conflict the legality of any drone strike must then be evaluated in accordance with IHL. All the fundamental principles of distinction, proportionality, humanity, and military necessity should be considered while evaluating the validity of drones with respect to IHL.
Article 51(3) of the 1977 First Protocol Additional to the 1949 Geneva Conventions mentioned that civilians shall not be targeted, unless they are directly involved in the fighting.
The Drone Strikes violate Article 2 of the Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War by disregarding the human rights of the innocent civilians killed in the strikes#
According to the Article 13 of the Protocol II of the Geneva conventions “the civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited”. As UN Special Rapporteur on extrajudicial, summary or arbitrary executions Christof Heyns observed, “f civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: Those strikes are a war crime….”#
Violation of Sovereignty of Pakistan
The issue of a state’s sovereignty cannot be neglected in the case of the drone attacks. The drones are a complete violation of international law and UN charter (1945), which clearly states that the all the member states should abstain from the use of force against the sovereignty of any state. 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’. 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.
International Human Rights Law (IHRL) and Drone Strikes
Unlike the law of Armed Conflict, International Human Rights Law applies to all persons at all times, regardless of nationality, status, or location, and for the most part the International Human Rights Law applies in times of war as much as in times of peace. IHRL permits the intentional use of lethal force only when strictly necessary and proportionate. Therefore deliberate and intentional drone target killings cannot be lawful under IHRL. Intentional force is only allowed if necessary to protect against a threat to life, and where there are “no other means, such as capture or non-lethal incapacitation, of preventing that threat to life.”
Drone Strikes as Extrajudicial Killings
The individuals who have been killed in US drone strikes inside Pakistan are killed without any trial and legal process. No one knows the identity, names and whereabouts of the individuals killed in US drone strikes. Amnesty International stated, “If the attack was a deliberate killing, in lieu of arrest, in circumstances in which the men did not pose an immediate threat, the killings would amount to extra- judicial executions in violation of international human rights law. International Covenant on Civil and Political Rights (ICCPR), Article 6, prohibits irrational deprivation of life; ‘Fundamental human rights cannot be violated and negated in any situation whether its war time or peace’.
CIA Operatives and International Law
Involvement of the CIA in these operations has also raised several questions regarding the justification and legality. CIA officials are not a part of US military or armed forces nor do they come under their command. So according to international law they are civilians directly involved in hostilities and the violations of law. CIA officials don’t know about the laws of war and they are not bound by the Uniform Code of Military Justice to respect the laws and customs of war. Drones are operated by CIA and other private contractors and such practices are illegal according to international law and it is a violation of International law of Armed Conflict (LOAC); ‘This in fact makes all CIA operatives involved in drone strikes as unlawful combatants and a legitimate military target just like the Al-Qaeda.’
Pakistan’s Consent in Drone Strikes
Pakistan has not forwarded its case to any international court, so it is assumed that there is some ‘secret treaty’ between US and Pakistan government. It is assumed that Pakistan covertly endorses US drone strategy. This agreement permits the CIA to fire when it has solid intelligence and to provide notification to Pakistan, which typically means shortly after a missile is launched. This is one of those arguments which US take to justify drone strikes. Time and again, Pakistan has also condemned drone strikes and summoned US officials in Pakistan. The Pakistani government has also condemned the US drone strikes inside Pakistan. The reaction by Pakistani officials shows that Pakistan doesn’t endorse US drones strikes in Pakistan. Here a question arises that, if Pakistan has not approved US drone strikes then why does it not lodge an international complain in any international courts?
Two exceptions to the Article 2(4) prohibition on the use of force are particularly relevant to the question of whether US targeted killings in Pakistan are lawful: (1) when the use of force is carried out with the consent of the host state; and (2) when the use of force is in self-defense in response to an armed attack or an imminent threat, and where the host state is unwilling or unable to take appropriate action, wherein Pakistan is a sovereign country with a full army, working police, intelligence and a working governmental set-up and therefore fully capable to catch it’s criminals. Furthermore the people of Pakistan are not in support of these brutal acts, nor has the government openly declared them. The idea of self-defense by US is also not applicable, as Pakistan has not gone for any armed attack nor Pakistan is at war with US. There are certain internal conflicts but no international conflict.
Conclusive Remarks
In the light of the international law one can say that the use of drones is illegal, as killing innocent people without any legal process is illegal and cannot be justified in any case. Drones are not carried against an armed attacks or some threat, rather their strategy is quite disproportionate and besides suspected militants a large of number of civilians have been killed. There is a need and it is high time now that Pakistan should take a firm stance on the US use of drones. If Pakistani authorities secretly endorse the US drone strikes inside Pakistan then it should be made public and if not then some legal action against the US drones should be taken by the Pakistani authorities.
Mariam Shah is a regular contributor at PKKH and a ( Columnist @ The Fortress Magazine), She is a Human Rights, Youth and Peace Activist and doing MPhil in ”Peace and Conflict Studies” From NDU. She Can be reached at ms.fortress@gmail.com and she tweets at @battlehawk_
Source
