There was a time when wars were fought with swords and cavalry, and then came the age of early modern warfare with the excessive use of gunpowder which had a major impact on the way war was fought, or as Wendell Phillips likes to put it that “What gunpowder did for war, the printing press has done for the mind”. Today, the art of warfare is even more modernized with the help of information technology and advancement in sciences, and the way war is fought today is beyond the imagination of a person from a early modern era. The current age of warfare includes the use of “unmanned combat aerial vehicle” (UCAV), or in laymen terms known as the Drone. Over the last decade, drone has played a huge role, in particular for United States, on “War against Terrorism” after the catastrophic 9/11 attack. The countries affected by this policy of United States are Pakistan, Yemen, Somalia and Afghanistan. But one question that arises here is that this excessive use of drone attacks by United States on other states; is it even legal according to International Law? In this paper, I will be looking at the reason and legality of drone attacks in Pakistan, and why it is not a firm solution to end terrorism in the region.
First of all, it is important to understand the reason and legality behind the drone attacks in Pakistan. Christof Heyns, the UN special rapporteur on extrajudicial killings, summary or arbitrary execution, raises his worry against the attacks carried out by United States, since he believe it works as a challenge for International Law. Heyns expressed his stance at the conference, where at that moment a Pakistani ambassador was present as well, who stated that
“We find the use of drones to be totally counterproductive in terms of succeeding in the war against terror. It leads to greater levels of terror rather than reducing them.”
However, Christof Heyns failed to address the issue of legality here, because if Pakistan is condemning the attacks in UN, doesn’t that mean the drone attacks are taking place by United States’ unilateral will? If that’s the case, it must be clear that United States is violating the UN Charter’s Article 2(4) which 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, or in any other manner inconsistent with the purposes of the United Nations
It is not just the violation of UN Charter, but it is also a violation of Pakistan’s sovereignty, says Ben Emmerson, the United Nations’ special rapporteur on human rights and counter-terrorism.6 The first drone attack in Pakistan happened in June 2004, and up until October 2012; around 334 drone attacks took place in Pakistan.8 One may ask that if it is a breach of Pakistan’s independence and the UN Charter, why is there a huge record of drone attacks that took place in Pakistan? The search for legality behind this makes one think how controversial and tangled the situation is.
The drone attacks are usually conducted in Federally Administered Tribal Areas (FATA), which shares its border with Afghanistan. It is said that Taliban fighters from Afghanistan took refuge in FATA, where they further allied with Pakistani Taliban, and made their stronghold there, and launched attacks in different areas within Pakistan.9 The control of government of Pakistan over FATA is rather nominal, and the lack of ability to fight terrorists in that region was seen as a failure by the American administration, this is the point when the American policy to use drone attacks developed.
“The primary objective of the air campaign has been to disrupt Al Qaeda’s external network and prevent the group from striking at the US and her allies”. Another reason that is given is to stop the “Pakistani Taliban commanders who threaten the stability of the Pakistani state”.
These reasons mentioned can be seen as why the drone attacks take place in FATA region of Pakistan, but what about its legality? Sean D. Murphy discusses the legality of the issue, and states that there are three ways through which it can be legal; if the actions are taken with the consent of Pakistan, authorized by a UN Security Council Resolution, self-defence against Non-State actors, or as self-defence against Pakistan itself. Starting with the consent of Pakistan, this part is rather like a grey area. In 2008, Washington Post claimed that when the new chief of Pakistan’s intelligence service visited Washington to talk with USA’s head of military and intelligence staff, they had a secret understanding or consensus on the use of drone attacks. However, then-Pakistani government have openly said that these attacks are violation of their sovereignty, and have taken place without their consent. Now there is a possibility that then-Pakistani government was not unveiling the reality to the people of Pakistan, while they were making deals with United States behind closed doors. Prime Minister of Pakistan in 2008, Yousaf Raza Gillani, said to Anne Paterson, then-United States Ambassador to Pakistan, that:
“I don’t care if they do it (drone strikes) as long as they get the right people. We’ll protest in the National Assembly and then ignore it.”
The current government responded when asked if they have a deal with United States, they openly said that there might be some kind of understanding with previous government; the spokesman for Pakistan’s foreign ministry said “We regard such strikes as a violation of our sovereignty as well as international law. They are also counter-productive.” In a nutshell, it can be concluded that there is no common grounds between United States and Pakistan because of unavailability of a legal document which will say otherwise.
Coming to the UN Security Council, the UN Charter Chapter VII allows the Security Council to “decide upon measures necessary for maintaining or restoring peace and security”. After the 9/11 attacks, many resolutions were adopted by UN in relation with Afghanistan, but none of them allowed United States for operations in Pakistan, hence there is no evidence of UNSCR allowing the drone attacks in Pakistan legally. Only way it may be justified is on the basis of “individual or collective self-defence” against a non-state actor. Article 51 of the UN Charter may justify the violation of Article 2(4) as it allows a state to practice use-of-force when acting in self-defence, by keeping this in mind, it can be said that it is still possible that United States is defending itself against Al-Qaeda through drone attacks in Pakistan, as it is believed that they are taking refuge in FATA.17 The final case behind the legality of drone strikes is self-defence against the Pakistani state, and this can only be done if it is proven that the Pakistani state is helping the Taliban in the FATA region, and also through:
“The International Court of Justice held that a state that suffers an armed attack by irregular forces from the territory of another state shall ‘attribute the armed attack to [the] state”.
But this is only possible if there is an existing relationship between the militants and the Pakistani state. This is obviously not the case, as Pakistan has been doing an operation known as Zarb-e-Azb in one of the tribal regions of FATA since 2014, and has killed more than 3,400 militants.
The detailed analysis of legality of drone strikes makes it easy to understand why it is a problem for International Law. The post 9/11 era opened a door to a lot of new political agendas, like the introduction of the US National Security Strategy of 2002, allowing United States to act pre-emptively “against a threat that may possibly emerge in the future”. And also the justification of United States using drone attacks is based on the argument of “preemptive attack against non-state actors”, even though they have never referred to their exercise of right of self-defence as allowed by Article 51 in the Security Council. The non-state actors operating in Pakistan are matter of the Pakistani state itself, and it would be reasonable if Pakistan was a ‘failed state’ or did not have the military capability, whereas Pakistan has the sixth largest army in the world. A point that should not be ignored here is that Pakistani government is often strong-armed by United States, and they usually have to oblige to what the American administration instructs because Pakistan receives financial assistance from it, and also U.S. has a strong diplomatic influence on Pakistan too, as it can use the Security Council to put pressure on Pakistan. United States also demanded Pakistan to collaborate with it on war against terrorism, or else prepare to be bombed back to the Stone Age.
To put it in a nutshell, are these drone strikes a solution for terrorism in the region? It seems so it is not as it is being counterproductive for Pakistan. The strikes have certainly destabilized the position of Al-Qaeda; but with them becoming fragile, it created a vacuum of power which is then filled by other terrorist organizations, like Tehrik-i-Taliban Pakistan, which poses an even bigger threat to the Government of Pakistan. Hence, United States “has weakened its principal enemy, Al-Qaeda, but only at the cost of earning a new set of enemies”. Another issue to address is that the drone strikes contradicts with American strategic goal of increasing the legitimacy of the Pakistani government, because the attacks decline the position of Pakistani government in international and domestic realm, causing it to lose its legitimacy and sovereignty among its people and also in the international community. It can be concluded that with drone strikes, United States is creating more terrorists in the region and damaging the position of the Pakistani government. United States and Pakistan should find a common ground and a legal way to address this issue, as they already have a consensus on war against terrorism; both states need to come up with a way which is less counter-productive and has a more concrete end result compared to drone attacks, otherwise Pakistan may have to face the results of these counterproductive acts.