Illegality of the use of Drones in Pakistan

What are drones? How and why are they being used?

            Unmanned aerial vehicles (UAV) more commonly known as drones are small aircraft, which is controlled remotely by a computer or pilot on the ground. The CIA has been using ‘Predator’ drones, which carry air to surface missiles, to conduct air strikes in Pakistan, primarily in the Federally Administered Tribal Areas (FATA) and the North-West Frontier, since 2004. Their objective has been to target (and kill) Taliban and Al-Queda leaders and members fighting, hiding and recruiting in that region. However, in the course of those attacks, civilians have been killed as well. The numbers of deaths of insurgents as well as civilians vary from source to source. “Nearly 8,000 people were killed in Pakistan in 2008 as a result of political violence. […] Virtually all of the violence and casualties were related in some way to the ‘war on terror’. ‘Operation attacks’ or security forces’ operations against alleged militants accounted for the largest since cause of death (3,182). (Gazdar 8)

Table 1 below are the high and low estimates of deaths published by New American Foundation, an American think-tank based in Washington D.C. Table 2 is another estimate from The Bureau of Investigative Journalism regarding the statistics about drone strikes in Pakistan also since 2004 as of March 2013. The total numbers of attacks are pretty close, but you can see that the estimates on the death totals have quite a wide range. By Table 2 we are also able to see that the level of attacks have increased substantially under the Obama Administration.

 

Table 1: US Drone Strikes Estimates (as of April 2013)

Year Number of

Attacks

Number Killed
Min. Max.
2004 1 5 8
2005 3 12 13
2006 2 90 102
2007 4 48 77
2008 36 219 344
2009 54 350 721
2010 122 608 1,028
2011 72 366 599
2012 48 222 349
2013 12 62 73
Total 354 1,982 3,314

 Table 2: Drone Strikes in Pakistan 2004-March 2013

Total Strikes 366
Total Deaths 2,537-3,581
Civilians reported killed 411-884
Children reported killed 168-197
Total reported injured 1,174-1,465
Strikes under the Bush Administration 52
Strikes under the Obama Administration 314

            For the United States, the fact that drones are unmanned and do not risk the life of a pilot manning the vehicle, makes it much more tempting to use. “Indeed, capabilities on hand at the time of the decision arguably influence choices about small-scale uses or threats of force more than they do decision about entering major wars.” (Fordham 635) However, we must discuss, is this use of force via drones legal under international law?

Legality of using drones

It is clear that the US drone attacks in Pakistan are not legal under international law but there is a lot of misinformation even about the program. One of the major issues hindering analysis of the drone strikes program, is the fact that the US and the Obama administration has been so secretive about the program which is reflected by the fact that the range of the death toll tallies vary so much. Considering that the US is targeting non-state actor terrorists who have not engaged in an ‘armed attack’ against the US, it wouldn’t be likely that the international community would accept the reason of self-defense to justify their drone air strikes. “Governments around the world showed little enthusiasm for the concept of pre-emptive self-defense.” (Brunnee and Toope 794)

The argument could be made that the US is acting in the interests of the Security Council and is using force against a collective threat. However, because the US has carried out these attacks in unilaterally and in secret, they have chosen to use force outside of the guidelines governing the use of force set forth in the Charter of the UN. If the US believed the drone strikes were successful and wanted to continue them legally within the guidelines they must take the issue to the Security Council in order to pass a resolution regarding the threat posed in the Pakistani tribal areas. “Relying on collective security as the basis for using force against the new threats is also preferable to developing new unilaterist doctrines because of the danger that such doctrines will substantially increase international insecurity by creating legal bases for erroneous or bad-faith uses of force.” (Weiner 494)

One of the advantages to making it an issue for the Security Council is that the use of force becomes a multi-lateral decision which can be based on more information (once information is being shared between the members of the Council) and that there is a system of checks and balances which will afford more legitimacy to the actions taken. “A rule permitting the use of force to counter new security threats on the basis of collective security exhibits a higher degree of legitimacy than does one allowing unilateral use of force on each of these indicators.” (Weiner 482)

The third issue of legality concerning the use of drones in Pakistan is the killing of civilians during the drone air strikes. “Under international humanitarian law, the use of force against valid targets such as combatants and civilians directly participating in hostilities is not directly governed by proportionality. Although the methods and means of using force are not unlimited emphasis is placed on prohibiting ‘superfluous injury or unnecessary suffering.’” (Watkin 33) The principle of proportionality states that it’s legally acceptable that civilians can be killed as casualties during the use of force, as long as the amount of force used was proportional and appropriate to why it was being used and that caution is taken not to cause civilian casualties whenever avoidable. “According to this principle, civilians are killed if the military objective is determined to be sufficiently important.” (Watkin 16) The CIA denies any civilian deaths from the drone attacks, however that is unlikely given how many independent sources report civilian deaths have occurred. The Brookings Institution reports that for every one mid-high ranking Al-Queda or Taliban leader 10 civilians are killed. (Byman) New America Foundation estimates 80% of those killed were militants. From Table 2 above, we can see that The Bureau of Investigative Journalism reports that of a significant number of civilians, including children have been killed in attacks. They also reported that follow up strikes have occurred when people have gone to help victims and they have also targeted funerals and mourners. (Woods and Lamb) According to the statistics with much higher numbers of deaths, one could argue that the civilian casualties are so high that the principle of proportionality is being violated.

How are the combatants who are being targeted and killed in Pakistan classified? “Categorizing these private actors is made more difficult by the increasing use of the ‘terrorist’ label. A definition of terrorism has yet to be agreed upon, and proposed versions sometimes show a preference for limiting it to the criminal sphere or non-state activity.” (Watkin 6) Differentiating between civilians and combatants is a crucial point to the argument supporting the legality of drone usage. “In addition, civilians are separated from combatants in accordance with the fundamental humanitarian law principle of distinction. Moreover, any use of force must be controlled to ensure that it is used internationally only against valid military objectives.” (Watkin 15) Protocol I of the Geneva Conventions articulates the obligation of the state to distinguish between people who are engaged in hostilities and those who are not. In addressing the use of force President Obama has said, “Where force is necessary, we have a moral and strategic interest in binding ourselves to certain rules of conduct. And even if we have a vicious adversary that abides by no rules, I believe that the United States of America must remain a standard bearer in the conduct of war. […] I have reaffirmed America’s commitment to abide by the Geneva Conventions.” (Obama 128) In spite of having reaffirmed America’s commitment to differentiate between civilians and combatants, it is clear that the drone air strikes have not adequately done so.

A final point of contention is the issue of state sovereignty. “A more controversial question concerns a state’s use of force to apprehend alleged terrorists who are within another state’s jurisdiction or control.” (Schachter 139) The military actions taken by the US are occurring on Pakistani soil. There are also conflicting reports about Pakistan’s knowledge of or approval of the drone strikes. Initially, Pakistan claimed that they had not given consent to the air strikes. “The US also has frequently attacked suspected militants in tribal regions of Pakistan near the border with Afghanistan. A ground raid in early September drew strong protests from Pakistan. […] Following an attack in late October that killed 20 people, including Taliban commanders, Pakistan lodged strong protests with US ambassador Anne Patterson and Central Command head General David Petreaus and demanded an end to the attacks. However, press reports indicate that Pakistan and the US may have reached a tacit agreement allowing the attacks to continue.” (Journal of International Law 162)

However, later, reports emerged that Pakistan did actually know about them and not only gave consent to the US to carry out air strikes, but that they also even shared information and requested more air strikes. In April 2013, Pakistan’s ex-President Musharraf admitted to the press that he had approved US drone strikes “only on a few occasions, when a target was absolutely isolated and no chance of collateral damage.” (Robertson and Botelho) He still contends that the number of times they approved the strikes was limited and that the majority of the attacks occurred without the government’s consent. However, in a communication from August 2008, which was posted on Wikileaks, then-US Ambassador to Pakistan Anne Patterson stated, “Malik [Rehman] (then Interior Minister) suggested we hold off alleged Predator attacks until after the Bajaur operation,” Patterson wrote. “The PM (Yousuf Raza Gilani) brushed aside Rehman’s remarks and said, ‘I don’t care if they do it as long as they get the right people. We’ll protest in the National Assembly and then ignore it.’ ” (Robertson and Botelho)

Conclusion

On May 11th 2013, the Peshawar High Court declared the use of drones illegal and called the US operated air strikes “war crimes.” (Gao)

“Chief Justice Dost Muhammad Khan, who presided over the case, cited a litany of broken international laws and agreements, ranging from the U.N. Charter to the U.N. Millennium Declaration and the Geneva Conventions. He also called for the U.S. government to redress Pakistani civilian victims of U.S. drone strikes, and for U.N. Secretary General Ban Ki-moon to establish a war crimes tribunal to investigate further injustices.” (Gao)

It is clear, upon examining the current laws, which exist today in international law, that the US has violated international law concerning the use of force. The drone attacks do not qualify under the exception of self-defense and they were not acting with the knowledge and support of the Security Council under the exception of a threat to the collective security. Neither are they abiding by the Geneva Conventions Protocol 1’s requirement to sufficiently differentiate between civilians and insurgents. The Peshawar High Court is accurate in their assessment. If the US firmly believes that their cause is just, then they should go through the Security Council and seek to continue their mission in a multilateral way. Weiner argues that going through the Security Council will make their mission more legitimate as well as more efficient. “[…], the use of force is more likely to succeed—in terms of achieving the political goals for which force was employed – when rooted in collective security mechanisms, than if founded on doctrines that expand the right to use force unilaterally.” (Weiner 493) The UN must take steps to immediately reprimand the US for their illegal actions, if one state is allowed to break the law governing the use of force without censure, then others will follow, and the entire system will be undermined.

How can you help?

http://droneswatch.org/

#notabugsplat

http://notabugsplat.com/

http://www.codepink.org/ground_the_drones

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