On US drone attacks

Consensual intervention or illegal violation?

The NATO attacks that caused the deaths of 24 Pakistani soldiers in Mohmand have infuriated the government, with the result that it has boycotted the recent Bonn talks. In retaliation to the attacks Pakistan has demanded that the US vacate Shamsi airbase in the coming weeks. It is suspected that the Shamsi base is regularly used by the US for carrying out drone attacks and surveillance flights in Pakistan.

Officially, the government of Pakistan asserts that the drone attacks are illegal under International Law and are a violation of its sovereignty. Indeed, absent special circumstances, the drone strikes in FATA would be in violation of the UN Charter. They do not qualify as acts of self-defense, which is the only basis under which a country can unilaterally use force against another state, absent consent.

An act of self-defense must be immediate, necessary and proportional. Interestingly, no immediate danger was presented to the US if it did not conduct its drone campaign. Drone attacks are unnecessary, keeping in mind that the US has not exhausted peaceful means of dealing with the threat.

In fact, drone strikes fuel militarism. Drone strikes are also not a proportional response considering those primarily targeted a decade later, are not responsible for the September 11 attacks. Drone strikes also result in civilian deaths and cause unacceptable levels of collateral damage, as can be seen.

The fact, however, that Pakistan has recently asked the US to vacate the Shamsi airbase, strongly indicates that it had acquiesced or implicitly authorised how the base was going to be used. The question to ask is whether the level of such authorisation amounted to Pakistan consenting to the drone attacks, with the result that the US had neither violated Pakistan’s sovereignty, nor undertaken a wrongful or unlawful act.

Under international law, consent provided by one state removes responsibility for wrongful actions against another. However, the defence of consent cannot be invoked if the intervention amounts to the commission of an unlawful act, such as aggression, slavery, racial discrimination, genocide, war crimes and crimes against humanity, etc.

It is fair to say, however, that if a state provides free consent, which has not been effected by coercion, deceit or mistake and allows another country to carry out attacks on its territory, the use of force will be legal under international law. However, if the attacks qualify as unlawful aggression or exceed the amount of force originally consented to, then state wrongfulness would not be precluded. Importantly state consent can be accorded by an official who operates within the scope of his authority, keeping in mind the nature of the intervention being consented to.

Therefore, in order to determine whether the drone attacks carried out in FATA are wrongful under international law, it must first be determined whether Pakistan consented to drone strikes on its territory freely, whether the US exceeded the ambit of attacks authorised, whether the attacks amount to genocide, war crimes and crimes against humanity, etc., and whether the appropriate organ or agent of the Government of Pakistan sanctioned the drone strikes.

The writer is a Professor of Public International Law at LUMS. He may be contacted at [email protected]