DRONE ATTACKS National and International Law Dimensions

International law is regarded as the language of international relations; for a country with limited international space, the language of international law remains the only tool to assert its point of view on a particular issue.

In the case of drone attacks, Pakistan’s viewpoint has not been presented sufficiently in the international law jargon. Conversely in the West, various research papers have been published on the subject. All these research papers have tried to analyse the drone attacks from different dimensions. For example, the most recent report styled as ‘Living Under Drones’ has been published by Stanford Law School and New York Law School in September this year. The report is comprehensive; however, the aspect of impact of civilian killings on US-Pakistan relationship has been particularly highlighted in the press in Pakistan. Likewise, Philip Alston, Special Rapporteur of the UN on extrajudicial, summary or arbitrary executions, in his report has underlined various legal issues related to extra-judicial killings in which he has analysed the issue of drone attacks. Also, there are specialised research papers like Robert P. Barnidge Jr’s A Qualified Defence of American Drone Attacks in Northwest Pakistan under International Humanitarian Law and Oxford Research Group’s (ORG) Drone Attacks, International Law, and the Recording of Civilian Causalities of Armed Conflict: whereas, the former obviously tries to protect the American drone policy by assuming existence of an ‘armed conflict’, the latter, is more balanced in its approach in applying the relevant legal regimes. Besides, the issues of statistics, objectives, civilians, means and methods of warfare, all have been discussed in different reports. For a country like Pakistan, the best bet is to approach the drone attacks issue from a legal point of view: in doing so, Pakistan has variety of scenarios to offer. As adumbrated in abovementioned ORG’s paper, there are as many as four possible legal domains applicable to drone attacks.

FIRST is the Law Enforcement Model.
This is the applicable national law. This can be illustrated by the case of attack on Qaed Salim Sinan Al Harethi, a suspect of attack on USS Cole bombing, in November 2002 in Yemen by a US predator. In this case, four other men also died. The attack was launched with the consent of government of Yemen. Similarly, a drone attack was launched in Bannu on November 19, 2008 in which Abdullah Azam Al Saudi was targeted. The area of Bannu is squarely not part of tribal areas and obviously there is no applicability of international humanitarian law in the area as there is no ‘international’ or ‘non-international’ armed conflict in the area. It may be noted that the applicability of law enforcement model does not provide for any collateral damage and therefore any civilian causality attracts prosecution. This is precisely the formulation of some of the law professors of the US like Professor David Glazier of Loyola Law School in response to Legal Advisor, US Department of State, Harold Koh’s speech at the annual meeting of American Society of International Law in 2010.

 SECOND is the Domain of Jus ad bellum (law of use of force).
The use of force against another state is prohibited by Article 2(4) of the UN Charter. However, Article 51 of the Charter provides with the right to self-defence. The right to self-defence is not at all absolute; caveat reflecting imminence being one of the pre-conditions. Ben Emmerson, QC who is rapporteur of the UN has very aptly stated as to how a civilian can be killed in 2011 in self-defence for attacks that took place in 2001. Any such attacks can best be categorised as reprisals, which are prohibited under IHL.

THIRD is the Domain of International Law of Human Rights.
ORG’s report pronounces clear international law obligations emanating out of international human rights treaties which are applicable at all times.
The characteristic obligations in this domain are: rights to recognition before the law, to security and liberty of a person; right to life; right to property and inherent dignity of the human person.

FOURTH is the Jus in bello (International Humanitarian Law).
This law has two streams, namely Geneva Law and Hague Law. Geneva Law ensures protection in war, whereas, Hague Law primarily regulates means and methods of warfare. The cardinal principles of civilian protection, distinction and proportionality occupy dominant position in debate on use of drone attacks. A related debate is the categorisation of armed conflicts as international and non-international.

The purpose of elucidating the four domains is that the issue of drone attacks is not simplistic; covert and implied consent or acquiescence by Pakistan or any of its representative departments further complicate the legality of drone attacks.

Raising the edifice of Pakistan’s stance on the basis of principles of international law having customary value can fortify Pakistan’s position at all levels. However, for this, a concerted and knowledge-based effort is needed; off the shelf tactical and adhoc stances will demolish Pakistan’s case.

Likewise, thoughtful state practice has to supplement principled stance well entrenched into international law. State practice that contradicts the principled stance will expose Pakistan to further manipulation. Whereas facts of cases constantly change, the immutable characteristics of values underlying principles of international law, which by and large concur with Islamic law, provide the best shield to a developing country of our posture. To do so within the established governance structures in Pakistan, all the components providing input will have to share everything, at least amongst themselves. Mutually exclusive relationship amongst different components of governance comprising civil service, military establishment and political leadership has been counterproductive and leaves much to be desired. Concerted effort is in order; lack of trust will breed fragmentation and will infuse feebleness.