Are drone attacks legal?

No

Classical wisdom amongst international lawyers is that no state can carry out attacks in another country against its wishes. However, the US Defence Secretary Leon Panetta has recently justified the US drone attacks as legal based on the right to self defence and has announced a decision to ratchet up the drone attacks. This in spite of the Pakistani government’s vociferous and repeated objections.

The world, as we knew it, changed on 11th September, 2001. What happened on that day was indeed tragic. As a result the USA declared a war against terrorism. Since then, wars have been conducted in two countries, Iraq and Afghanistan, and drone strikes are regularly conducted in two more, Pakistan and Yemen. An unforeseen casualty of the events of September, 11, have been two branches of international law; Law on the Use of Force and International Humanitarian Law (Laws of Warfare), along with the concepts of international rule of law and due process. George Bush and his Republican administration of neo-cons, in the glow of the post Cold War era, were unfettered in their pursuit of ‘the terrorists’. The US reaction was based on not just the wrong done; it also had the sentiment of ‘how dare you, let me teach you a lesson’ stamped all over it – hardly a measured response you expect from a law abiding leader of the civilised world.

Admittedly, the other side don’t subject themselves to law and due process, and give a very wide connotation to ‘guilty by association’. However, that does not mean that the governments whose job it is to uphold ‘rule of law’ do so as well. This just makes their job more difficult but nevertheless it is still their responsibility to work within the ambit of law. We in Pakistan understand this, as we have suffered tremendously at the hands of terrorism, more than perhaps any country, other than Afghanistan.

International law was developed as a mechanism for control of relations between states. It was meant to order, not to do justice. However, ever since the Second World War, the law of nations has changed from a law to maintain an order in international affairs, to a law aspiring to do justice. USA as the self claimed leader of the ‘free world’ should have a greater weight on its shoulders to uphold the law of the nations, and of decency. War, the most horrific of human experience, is sought to be humanised through the laws of warfare, based on the principle that ‘all is not fair in love and war’.

In this background, Mr Panetta’s statement is very disturbing. Ends can never justify the means. This is the motto of the ‘other side’, not of responsible governments. Rule of law means that everyone is subject to law, no matter how serious the provocation, and how powerful you are, everyone, the king and the peasant, must remain within the ambit of law. America must lead by example. A recent story carried by The New York Times, tells of how the president of the US himself decides if to allow a drone strike where the targeted alleged terrorist is surrounded by civilians and killing him would also kill them, for which the Americans have coined the euphemism of ‘collateral damage’. This means that there is no defined legal process controlled by due process rights, it is simply an executive action, which is subject to no oversight, and is done perhaps in pursuit of, in Mr. Panetta’s words, of doing ‘whatever is necessary’. These are chilling words indeed, irrespective of the guilt or otherwise of the targeted enemy. US policy as per a recent NY Times editorial is to presume guilt by association of people who are alleged terrorists, and thus justify their deaths, as permissible.

There was some ambiguity among international lawyers earlier when Pakistan was supposed to have given a secret nod of approval for the drone attacks; but now when the Pakistani government and parliament have vociferously and repeatedly denounced such attacks, that fig leaf of legitimacy has been removed. Now it is much more clearly a case of violation of sovereignty of Pakistan. Article 2 (4) of the UN Charter prohibits the use of force in international relations. The UN was formed in the background of the Second World War, and thus stressed the need for peace. It therefore encourages peaceful resolution of international disputes, and prohibits the use of force or threat of the use of force. The only exception is self-defence; hence the term is repeatedly used by the US administration.

But the use of self-defence has to be subject to limits of plausibility, proportionality and reasonableness. Even here self defence is allowed through the armed forces, not a spy agency, as in this case the drones operations are conducted by the CIA. There are some UNSC resolutions allowing the use of force against Al-Qaeda, but they do not suspend the other rules and principles of international law of due process and rule of law. The UN Charter which gives binding authority to certain resolutions of the UNSC under Chapter VII, does not overrule jus cogens (peremptory norms of international law). In this background, the excuse of self-defence is becoming less and less tenable.

The writer is a Lahore based lawyer and political analyst. He can be reached at [email protected]