The illegality of drones
By Dr Tariq Hassan
Tuesday, 02 Jun, 2009 | 12:58 AM PST
MEMBERS of the United Nations are categorically required by Article 2(4) of the UN Charter to refrain in their international relations from the threat or use of force against the territorial integrity of any state.
Yet, the United States, a founding member of the UN, has in its relations with Pakistan used both with impunity.
The missile attacks by the drones in the border areas of Afghanistan and Pakistan are not only continuing as a sad legacy of the Bush era, they seem to be increasing under the current Obama administration. Being of the same vintage as the writer — from Harvard Law School — and a product of international law professors like Louis B. Sohn who was a great proponent of the UN, one had expected President Obama to have more respect for international law and institutions. This expectation, though grounded in the youthful idealism instilled by Professor Sohn, was witnessed in President Obama's early pronouncements on the closure of the prison camp at Guantanamo Bay.
Having earned tremendous respect among international lawyers for his principled stand on Guantanamo Bay, President Obama seems to be faltering on the issue of US drone attacks in Pakistan. Besides their manifest illegality, the drone attacks are unjust since they cause civilian casualties. Even though the drone attacks are intended to kill suspected militants, the US acknowledges the fact that they cause 'collateral damage'.
Thousands of people have fled their homes in the tribal areas to escape the indiscriminate and unwarranted attacks and have become refugees in their own country. The number of these internally displaced persons is increasing by the day and the situation is fast becoming unmanageable and doing little to gain the support of the people for the so-called war on terror.
The US does not have any legal right to launch missile attacks on Pakistan through drones or otherwise. Under international law, it is only entitled to self-defence pursuant to Article 51 of the UN Charter which preserves "the inherent right of individual or collective self-defence if an armed attack occurs against a member of the United Nations". This limited use of force under Article 51 is an exception to the general prohibition prescribed by Article 2(4) of the UN Charter.
The language of Article 51 does not allow pre-emptive attacks. As a matter of established practice, acts of self-defence are legitimate only if they meet certain preconditions. Accordingly, the use of force in self-defence 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. Although some states assert the right of pre-emptive self-defence in order to avert attacks, where there is threat of imminent attack there is generally no consensus among international scholars.
The US drone attacks fail on all counts. They are not carried out to repel an attack and instead constitute preemptive strikes which not only use disproportionate but also deceptive force against suspected militants and innocent civilians.
It is important to bear in mind that the UN Security Council, while recognising and reaffirming the inherent right of individual or collective self-defence in accordance with the UN Charter in Resolutions 1368 and 1373 in the aftermath of the 9/11 attacks in the US, did not authorise the use of force in any way. Even later, UNSC resolutions such as Resolution 1540, made under Chapter VII of the UN Charter (which provides for enforcement action), to combat terrorism did not provide for the use of force. Therefore, the use of force in Pakistan by the US is not consistent with its obligations under the UN Charter.
The US has sought to legitimise its interventions in Pakistan by other means. For example, former President Bush authorised the military cross-border use of force from Afghanistan into Pakistan by means of domestic legislation. Sanctioning the concept of hot pursuit across international boundaries through domestic legislation is of no legal consequence. Sanctioned killing across borders not only negates due process it precludes accountability as well. In any event, domestic measures do not limit or override international obligations in any way and adversely affect international relations instead.
There is mounting criticism at all levels in Pakistan against the US drone attacks. However, the US continues unabashedly to carry out targeted killings of suspected terrorists through drone attacks in Pakistan. Needless to say this drastic measure used as a counter-terrorism strategy is not consistent with either conventional or customary international law. The use of force against non-state actors, particularly targeted killing, is not only proscribed by the general principles of international human rights law but also by specific rules of international criminal law and the laws of war.
No one has or can be granted a licence to kill under international law. Extra-judicial killings, outside the realm of war, at the international level remain a crime and are included in international criminal activities like genocide. Moreover, unwarranted killings even during war constitute war crimes (e.g. wilful killing; killing or wounding a combatant who, having laid down his arms or having no longer any means of defence, has surrendered; killing or wounding treacherously individuals belonging to a hostile nation or army; and killing or wounding treacherously a combatant adversary).
Nothing can be more treacherous than killing and wounding through the stealth action of drones. The drone attacks are, therefore, a clear violation of established international norms and practices. In any case, whether legal or not, the drone attacks are not helping Washington's counter-terrorism efforts.
Under the circumstances, President Obama should take the moral high ground and review his administration's policy of such targeting inside Pakistan. Even if it is not willing to reassess its legal position, Washington must re-evaluate it in the light of public policy given the moral hazard created by the immense human suffering produced by the attacks.
The writer, a former chairman of the Securities and Exchange Commission of Pakistan, is a lawyer based in Islamabad.
-----------------------------------------------------------
N A D E E M M A L I K
Director Programme
AAJ TV
ISLAMABAD
http://nadeemmalik.wordpress.com/What can you do with the new Windows Live? Find out
