The legality of US drone strikes against terrorists in Pakistan and Yemen according to international law.

Introduction

The US drone programme has its roots in the Vietnam War when the Pentagon tested unmanned and unarmed aerial vehicles for intelligence, surveillance and reconnaissance missions[1]. After the 9/11 terror attacks, the incumbent President of the US, George W. Bush, ordered US drones equipped with missiles to seek and kill Al Qaeda leaders[2], setting in motion their present day use. Today, the US owns more than 7,000 drones[3] and the Central Intelligence Agency (CIA) operates a large number of these drones in Pakistan and Yemen for strictly covert operations. According to statistical data compiled by The New America Foundation, there have been a total of 422 drone strikes in Pakistan and Yemen from 2004 to 2013 (approximately 351 strikes in Pakistan and 72 strikes in Yemen), leading to an estimated total mortality count of 2,426-3969[4]. Given the dramatic increase in drone strikes under the Obama administration and the relatively high, yet unaccounted for death toll, it has become essential to discuss the legal and strategic ramifications of the drone operations. This paper will discuss the possible legal violations under the rules of the use of force and conduct of hostilities and the respective defences involved. It will conclude that the drone strikes legally breach domestic laws but still fall within the legal ambit of international law. It will also conclude that there are severe human rights violations involved. Similarly, this paper will deliberate over the strategic consequences of the drone strikes, and conclude that the strikes are strategically counter-productive and unwise.

Legal Ramifications: International Law

In essence, the drone operations conducted by the CIA target terror suspects based in Pakistan and Yemen. The drones are controlled by reachback operators in the US who, using joysticks reminiscent of those used in video games, zoom in on targets in sovereign foreign countries that the US is not at war with[5], and fire missiles at them[6]. The principal ramification of drone strikes is that they seemingly violate the territorial sovereignty of Pakistan and Yemen. Article 2(1) of the UN Charter provides for the sovereign equality of all UN members[7] and, therefore, unauthorised drone strikes by the US could constitute a breach of Article 2(4) of the Charter, which prohibits the use of force by a state against the territorial integrity of another state. The targeted attacks carried out by the US in Pakistan and Yemen could be lawful, however, if they correspond to one of the two exceptions: if the host state consents to the use of force[8] or if the use of force is employed in self-defence in response to an armed attack, whereby the host state is unwilling or unable to take appropriate action[9].

As far as Pakistan is concerned, recently released Wikileaks clearly establish that the Pakistan government tacitly approved of the US drone operations[10], despite disapproving of them publicly. Pakistan’s former Prime Minister, Yusouf Gilani, was quoted as saying, ‘I don’t care if they do it as long as they get the right people. We’ll protest in the National Assembly and then ignore it.’[11] Given the fact that some of the drone strikes are conducted from the Shamsi airbase in Baluchistan[12], the argument that Pakistan tacitly approves of the operations seems convincing. Moreover, very recently, Pakistan’s former President, Pervez Musharraf, has admitted openly to consenting to drone strikes[13]. Even though he claims that he only consented to a few risk-free strikes, this statement confirms beyond doubt that his express consent was given and therefore Pakistan’s sovereignty was not breached.

In the recent times, Pakistan officials have shown stronger opposition to drone strikes, leading to a sharp decline in the number of drone strikes in the country. Compared to the 122 strikes in 2010, there were only 48 in 2012 and merely six in 2013[14]. One reason cited for this decline was that Pakistan had withdrawn support for these strikes[15]. It can be concluded that the US is violating the UN Charter by its continued use of force despite the withdrawal of consent. However, it is essential to remember that consent need not be constant and can be expressed at different points in the time continuum, insofar as it is proven to be genuine[16].

In the case of Yemen, the evidence is clear enough to constitute consent to the US drone operations. Documents released by Wikileaks reveal that Yemen’s President had told General David Petraeus, then the head of CENTCOM, ‘We’ll continue saying the bombs are ours, not yours.’[17] Yemen’s President, Abed Rabbo Mansour Hadi, publicly supported the employment of drones in his widely reported September 2012[18] speech at the Woodrow Wilson Center. Al Qaeda in the Arabian Peninsula (AQAP) has inflicted much more damage in Yemen than in the US[19] and, given the fact that Yemen has vast tracts of land that lie beyond the control of the government, the Yemen government has been supportive of the use of drones for they help eliminate terror suspects that the government itself is incapable of dealing with.

Another principal legal argument raised in the domain of sovereignty is that there is a call for sovereignty to be interpreted in a contemporary rather than a traditional manner. Former US Secretary of Homeland Security, Michael Chertoff, has argued that one of the main responsibilities tagged with sovereignty is the responsibility to ensure that one’s country does not become a clandestine base from which terrorists operate[20]. Given that the government of Pakistan has been unwilling or unable to attack terrorists in the federally administered tribal areas (FATA)[21] and that there are large ungovernable tracts of land in Yemen that geographically fall within Yemen’s boundaries, strict adherence to the sovereignty or the legally permissible exceptions could potentially ‘act as a hindrance to international order rather than a contribution’[22].

When applying the rules of self-defence, as set out in Article 51 of the UN Charter, as a legal justification of drone strikes, it has to be concluded that the drone strikes cannot be justified under this rule. Legal experts, such as the current UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, have argued that attacks in 2012 cannot be justified as a response to attacks carried out in the US in 2001.[23] Neither can anticipatory self-defence[24] be invoked, as this can only be invoked to prevent an attack that is ‘instant, overwhelming, and leaving no choice of means, and no moment of delib­eration.’[25] Given that it is hard to prove that the militants in Pakistan and Yemen are about to launch attacks against the US, such a defence will not be valid. However, the drone strikes will still be valid under the rule of consent.

Legal Ramifications: Human Rights Violations

The drone strikes carried out by the US in Pakistan and Yemen are allegedly indiscriminate and have tended to kill scores of civilians alongside militant leaders, thereby violating the principle of non-combatant immunity[26] that is the core value of international humanitarian law. This is because the US’s drone operation is conducted in an information black hole – when CIA officers fire a missile from the drone onto a locked target, they almost certainly do not know who they are firing at[27]. One of the main methods of choosing a target to strike is the ‘guilt by association’ approach, the assumption being that anyone close to a targeted actor must be a suspect owing to the high operational security maintained by groups like Al Qaeda[28]. The result is that innocent civilians like shopkeepers and drivers have been targeted just because they have regular contact with terror suspects, thereby breaching non-combatant immunity.

Another mode of picking targets via drone strikes does not lie in the combatant status of the target but rather his/her pattern of behaviour[29]. Such a strike, known as a signature strike, relies on behaviour like loading a truck with suspicious material, crossing the border frequently within a short period of time, etc. In a signature strike, operatives almost certainly do not know who is being killed and signature strikes, while having a good success rate[30], have also resulted in non-combatant deaths. For example, drone strikes have been known to kill rescuers offering humanitarian aid in an area razed by a drone attack. This method of selecting targets breaches Article 21 (right to peaceful assembly) and Article 22 (right to freedom of association) of the International Covenant on Civil and Political Rights[31], an international human rights treaty ratified by the US.

Legal Ramification: US Domestic Law

The drone strikes have had the effect of diluting the legal limitations of the US President’s powers endowed by the constitution. Under Article II of the US constitution, the President has authority over national security and the use of force[32], but the authority to declare war is entrusted to Congress[33]. The principal legal basis offered to justify drone strikes in Pakistan and Yemen is the Authorisation to Use Military Force (AUMF), a joint resolution passed by both houses of Congress after 9/11, permitting the President to use all necessary force against the perpetrators of the attacks[34]. However, the Obama Administration has used the AUMF to state that the country is at war with all affiliated groups of Al Qaeda and the Taliban[35], thereby striking at terror suspects such as the Haqqani network and TTP, although they were not involved in the 9/11 attacks. This is a direct breach of the US constitution and the checks placed on the President’s powers.

There have been questions raised about the legality of the CIA being in charge of the drone programme in Pakistan and Yemen[36]. The nature of the drone programme means that it naturally falls under the operational authority of the US military, which is governed by the US Code Title 10. The CIA is governed by the US Code Title 50, which expressly states that covert operations undertaken by the CIA do not include traditional military activities[37]. Therefore, the drone attacks conducted by the CIA in Pakistan and Yemen are in clear breach of US law[38]. However, it has recently been confirmed that the White House intends transferring the drone programme from the CIA to the military in order to subject the drone programme to proper international laws of war and to operate with the consent of host governments[39] (such as Pakistan and Yemen).

Strategic Ramifications: Creating more Terrorists

Statistics gathered by the New America Foundation show that approximately 276–368 civilians have died in the drone strikes in both Pakistan and Yemen. The killing of civilians, despite being accidental, has led to public anger with the US, stoking firm anti-American sentiments[40]. This does not directly imply that drones are technically incapable of determining the combatant status of targets[41]: Plaw’s database on American drone strikes in Pakistan show that the strikes resulted in a ratio of 17 to 1 militant to civilian deaths, while other forms of offensive killed only three militants for every civilian[42]. Yet, according to a Gallup poll conducted in August 2009, only nine per cent of Pakistanis approved of drone strikes[43] and, as per a poll conducted by Pew in 2012, some 74 per cent of Pakistanis considered the US to be an enemy[44], the impact of non-combatant deaths in drone strikes being a clear reason. Christopher Swift, a researcher at Georgetown University who spent the summer of 2012 in Yemen studying the reactions of the public to drone strikes, has stated that, on average, Yemeni people were not supportive of drone strikes due to civilian deaths[45].

These anti-American sentiments have had the effect of garnering more support for the very terrorist organisations that the US is attempting to uproot. The people view the fallen militants as heroes, and join their cause in order to register their anger with the US and take revenge. David Kilcullen has argued that every deceased non-combatant represents an alienated family with a thirst for revenge, prompting more voluntary recruitment for militant movements. This is evidenced by the fact that as drone strikes have increased, recruitment for these movements has increased exponentially[46]. In Pakistan, the tribal areas are run according to a set of customs known as Pashtunawali. According to one particular tradition, called the Badal, it is imperative to kill those who have killed one’s friends or relatives[47]. This also has an incremental impact on militancy recruitment in the tribal population of Pakistan. Therefore, whilst the strategy of drone strikes has caused severe damage to the functioning of major terrorist organisations in these areas, it has also proved counterproductive as it indirectly feeds the purpose of these organisations, plunging the war into a potentially endless vicious cycle.

Looking at the broader picture, the drone strikes have proven to be a sound tactic rather than a sound strategy. While drones were initially employed as part of a long-term strategy, the tactic changed and they became a strategy to deal with short-term threats, thereby discounting the long-term benefits of focusing on strategy rather than tactics. As Christopher Swift said, even if the US’s tactic is winning in the military domain in Yemen, drones would undermine the long-term interest of creating a stable Yemen with a functional political system and prosperous economy[48]. Though the US is seeking to balance various priorities in Yemen, such as disrupting the terrorist networks, securing waterways and aiding Yemen’s transition into a stable democracy[49], adopting the strategy of drone strikes only deals with the terror problem and would eventually leave the country in a vulnerable state again, thereby becoming the refuge for a fresh generation of terrorists.

Similarly, at the start of Obama’s administration, strengthening the civilian governmental institutions in Pakistan and helping the government gain better political control over FATA were seen to be the long-term solution to eradicating extremism emanating from the country. Yet, it is the same drone programme that has led to deteriorating relations between the two countries. The US’s continuance with its drone programme ‘undercuts the very same civilian government the US is spending billions in aid to build up’[50]. Moreover, the persistent lack of reliance on the elite counterterrorism units present in Pakistan and Yemen by the US also sends out the clear signal, both to militants and civilians, that these units are incapable of dealing with insurgencies on their own. This would again undermine the long-term strategy of making these countries powerful enough to deal with such problems independently.

[1] M.Hastings, ‘The Rise of The Killer Drones: How America Goes to War in Secret’ Rolling Stone (16 April 2012) <http://www.rollingstone.com/politics/news/the-rise-of-the-killer-drones-how-america-goes-to-war-in-secret-20120416> accessed on 18 March 2013.

[2] P.Bergen & K.Tiedmann, ‘Washington’s Phantom War’ (2011) Foreign Affairs <http://www.foreignaffairs.com/articles/67939/peter-bergen-and-katherine-tiedemann/washingtons-phantom-war> accessed on 21 March 2013.

[3] P.W.Singer, ‘Do Drones Undermine Democracy?’ (21 January 2012) <http://www.nytimes.com/2012/01/22/opinion/sunday/do-drones-undermine democracy.html?pagewanted=all&_r=1&> accessed on 21 March 2013.

[4] ‘Counterterrorism Strategy Initiative’, The New America Foundation <http://counterterrorism.newamerica.net/drones> accessed on 16 March 2013.

[5] J.Mayer, ‘Torture and Obama’s Drone Program’ The New Yorker (15 February 2013) <http://www.newyorker.com/online/blogs/newsdesk/2013/02/torture-and-obamas-drone-program.html#ixzz2P9GpaAsv> accessed on 19 March 2013.

[6] J.Mayer, ‘The Predator War’ The New Yorker (26 October 2009) <http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer#ixzz2OxS6wGwP> accessed on 25 March 2013.

[7] United Nations, ‘Charter of the United Nations’ (24 October 1945) 1 UNTS XVI <http://www.un.org/en/documents/charter/chapter1.shtml> accessed on 15 March 2013.

[8] G.A. Res. 36/103, UN Doc A/RES/36/103 (Dec. 9, 1981); Ashley Deeks, ‘Unwilling or Unable’: Toward a Normative Framework for Extraterritorial Self-Defense, 51 Va. J. of Int’l Law 483, 492 (2012)

[9] “Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices In Pakistan”. International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law: 1–165, 105. September 2012.

[10] T.Lester, ‘WikiLeaks: Pakistan Quietly Approved Drone Attacks, US Special Units’ CNN (1 December 2010) <http://articles.cnn.com/2010-12-01/us/wikileaks.pakistan.drones_1_drone-attacks-predator-strikes-interior-minister-rehman-malik?_s=PM:US> accessed on 15 March 2013

[11] (n2).

[12] J.Page, ‘Google Earth reveals secret history of US base in Pakistan’ . The Times, 19 February 2009 < http://www.thetimes.co.uk/tto/news/world/asia/article2609737.ece> accessed on 18 March 2013.

[13] J.Rowland, ‘Ex-president Musharraf admits approving CIA drone strikes’ 12 April 2013 < http://afpak.foreignpolicy.com/posts/2013/04/12/ex_president_musharraf_admits_approving_cia_drone_strikes>

[14] (n4).

[15] P.J.Crowley, ‘The Cost of Obama’s Secret Drone War’ BBC (8 February 2013) <http://www.bbc.co.uk/news/world-us-canada-21389200> accessed on 15 March 2013.

[16] E.Lieblich, ‘Intervention and Consent: Consensual Forcible Interventions in Internal Armed Conflicts as International Agreements’ (2011) 29 B.U. Int’l L.J. 337, 350.

[17] D.Filikins, ‘What We Don’t Know About Drones’ The New Yorker (7 February 2013) < http://www.newyorker.com/online/blogs/comment/2013/02/john-brennan-and-the-truth-about-drones.html#ixzz2P9EatcCq> accessed on 23 March 2013; P.Bergen & J.Rowland, ‘Obama ramps up covert war in Yemen’ CNN (12 June 2012) < http://edition.cnn.com/2012/06/11/opinion/bergen-yemen-drone-war> accessed on 19 March 2013.

[18] Ty McCormick, ‘Yemeni president: I love drones’ Foreign Policy (28 September 2012) <http://blog.foreignpolicy.com/posts/2012/09/28/yemens_president_warns_iran_endorses_us_drone_policy_0> accessed on 16 March 2013.

[19] R.F.Worth et al, ‘Drone Strikes’ Risks to Get Rare Moment in the Public Eye’ The New York Times (5 February 2013) < http://www.nytimes.com/2013/02/06/world/middleeast/with-brennan-pick-a-light-on-drone-strikes-hazards.html?_r=1&> accessed on 28 March 2013.

[20]‘Official rationalises raids ‘badlands’ ‘ Dawn (1 November 2008) < http://archives.dawn.com/archives/37164> accessed on 27 March 2013.

[21] M.W. Aslam, ‘ Understanding the ‘Pak’ in ‘AfPak’: the Obama administration’s security policy for Pakistan at the mid-term’ (2012) 7:1 Journal of Policing, Intelligence and Counter Terrorism, 2.

[22] H.Bull, ‘The anarchical society: a study of order in world politics’ (London: Palgrave Macmillan, 1977) Page 143.

[23] O.Bowcott, ‘Drone Strikes Threaten 50 Years of International Law, Says UN Rapporteur’ Guardian (21 June 2012),< http://www.guardian.co.uk/world/2012/jun/21/drone-strikes-international-law-un#start-of-comments> accessed on 19 March 2013.

[24] T. M. Franck, ‘Recourse to Force: State Action against Threats and Armed Attacks’ (Cambridge University Press, 2002); W. C. Bradford, ‘The Duty to Defend Them: A Natural Law Justification for the Bush Doctrine of Preventative War’ (2004) 79 Notre Dame L. Rev. 1365; M.Glennon, ‘The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter’ (2002) 25 Harv. J.L. & Pub. Pol’y 539, 557-58.

[25] B. E. Carter & A. S. Weiner, International Law 981 (Aspen Publishers, 6th edn, 2011) p 936-937.

[26] Protocol I to the Geneva Conventions 1977, Article 51(3).

[27] (n17).

[28] M.J.Boyle, ‘The costs and consequences of drone warfare’ (2013) 89(1) International Affairs, page 29.

[29] G.Miller, ‘CIA seeks new authority to expand Yemen drone campaign’ Washington Post (18 April 2012) < http://articles.washingtonpost.com/2012-04-18/world/35453346_1_signature-strikes-drone-strike-drone-program> accessed on 29 March 2013.

[30](n17).

[31] International Covenant on Civil and Political Rights 23 March 1976 999 UNTS 171.

[32] US Const. Art. II, S. 2, cl. 1.

[33] US Const. Art. I, S. 8, cl. 1, 11

[34] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).

[35] J. C. Johnson, General Counsel, Department of Defense, ‘National Security Law, Lawyers and Lawyering in the Obama administration, Address at Yale Law School’ (Feb. 22, 2012) <http://www.cfr.org/national-security-and-defense/jeh-johnsons-speech-national-security-law-lawyers-lawyering-obama-administration/p27448> accessed on 17 March 2013.

[36] Michael McAndrew, Wrangling in the Shadows: The Use of United States Special Forces in Covert Military Operations in the War on Terror, 29 B.C. Int’l & Comp. L. Rev. 153, 161 (2006).

[37] 50 US Code 2006 , S.413b(e)(2).

[38] 50 USC. § 413b(a)(5).

[39] S.Gorman, A.Entous & J.E.Barnes, ‘U.S. to Shift Drone Command’ March 20 2013 < http://online.wsj.com/article/SB10001424127887324103504578372703357207828.html> accessed on 13 April 2013.

[40] (n2).

[41] B.J.Strawser ‘Moral predators: the duty to employ uninhabited aerial vehicles’ (2010) 9(4) Journal of Military Ethics, page 342.

[42] A.Plaw, ‘Sudden justice’ 7th Annual Global Conference on War and Peace, (1 May 2010).

[43] P.Bergen, and K.Tiedemann, ‘The Year of the Drone: An Analysis of US Drone Strikes in

Pakistan, 2004-2010’ New America Foundation 2010.

[44] (n15).

[45] (n19).

[46] (n6).

[47] (n21).

[48] (n19).

[49] D.Greenfield & D.J.Kramer, ‘Drone Policy Hurts the U.S.’s image in Yemen’ The Washington Post (02 April 2013) <http://www.washingtonpost.com/opinions/drone-policy-hurts-us-image-in-yemen/2013/04/01/b12d2550-9af5-11e2-9a79-eb5280c81c63_story.html> accessed on 02 April 2013.

[50] (n15).

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Protocol I to the Geneva Conventions 1977

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