LEGITIMACY
OF DRONE ATTACKS: WHEN MAY ONE STATE LAWFULLY ATTACK THE CITIZENS OF ANOTHER
STATE?
By
M. Anum Saleem
and Ayesha Tahir
The
legal status and validity of humanitarian intervention and actions of self
defense create a great challenge for the global world. "The use of force
by and against States remains a persistent Feature of international affairs.
NATO forces based in Afghanistan target Taliban fighters based in Pakistan,
while Turkish jets strike Kurdish separatists in Iraq, Columbian soldiers
attack armed groups in Ecuador, Israeli commandos enter Gaza in their ongoing
conflict with Hamas, and various naval powers retaliate against pirates docked
in Somalia" (Robinson and Hague). The after math of 9/11
attacks has been the immense operations carried out by United Sates and NATO
against terrorist groups in middle east, Afghanistan and Pakistan and one of
the inhumane targeted operation used by United States is of Drone attacks
targeted on the Northern Waziristan in Pakistan to target Terrorism groups
operating in Pakistan. These attacks are carried out and justified by United
States under self defense doctrine. "Since World War II, international law
has prohibited States from threatening or using force except in self-defense or
pursuant to Security Council authorization".The legality of using force
against armed groups on the territory of another State is of pressing concern
to the. United States. United States reasons for attacking the territorial
integrity of Pakistan can be because justified on self defense but whether
International law provides United States with such basis is an ongoing debate.
International
law justifies armed attacks on another State under certain conditions. As the
UN Charter Article (51), mandates that,
"Nothing
in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the
United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in the
exercise of the right of self-defense shall be immediately reported to the
Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the Charter to take at any time
such action it deems necessary in order to maintain or restore international
peace and security".
"The
ICJ (International Court of Justice) has only recognized two forms of armed
attacks as triggering a right to use defensive force, namely "action by
regular armed forces across an international border" and "the sending
by or on behalf of a State of armed bands, groups, irregulars or mercenaries,
which carry out acts of armed force against another State ... 'or its
substantial involvement therein.'
However
Leading scholars have concluded that "where a State is not responsible for
terrorist attacks, Article 51 may not be invoked to justify measures in
self-defense" taken on the territory of the host State". However when attacking
Pakistani territories, America has never been able to prove Pakistan's
involvement in terrorism activities as a State. It is important to realize that
self-defense is a term of art in international law. "The reference in
Article 51 to self-defense is to the right of the victim State to use
significant offensive military force on the territory of a State legally
responsible for the attack. The ICJ has made clear that the armed attack that
gives rise to this right of self-defense must be an attack that involves a
significant amount of force-it must be more than a mere frontier incident, such
as sporadic rocket fire across a border". However Pakistan as a
state has never been involved in an attack against United States.
United
States claims that terrorist groups of AL-Qaeda remain active along the borders
of Afghanistan and Pakistan. However, "Even where militant groups remain
active along a border for a considerable period of time, their armed
cross-border incursions are not considered attacks under Article 51 giving rise
to the right of self-defense unless the State where the group is present is
responsible for their actions. In the case of Congo v. Uganda, Uganda sent
troops into Congo after years of cross-border incursions by armed groups from
Congo into Uganda. Congo, however, was not responsible for the armed groups--it
did not control them. Congo's failure to take action against them did not give
rise to any right by Uganda to cross into Congo to attack the groups
themselves: During the period under consideration both anti-Ugandan and
anti-Zairean rebel groups operated in this [border] area. Neither Zaire nor
Uganda was in a position to put an end to their activities. However, in the
light of the evidence before it, the Court (International court of justice)
cannot conclude that the absence of action by Zaire's Government against the
rebel groups in the border area is tantamount to--tolerating or-acquiescing in
their activities. Thus, the part of Uganda's first counter-claim alleging
Congolese responsibility for tolerating the rebel groups prior to May, 1997 cannot
be upheld" (16, O'Conne11).
Since
United States has been unable to prove substantial involvement of Pakistan as a
state in terrorism activities or any armed attack against United States its
political integrity cannot be harmed under Article (51). As, "The ICJ
ruled in the Nicaragua case in 1986,83 the Congo case in 2005, and Bosnia v.
Serbia in 2007 that St state must be in control of a non-state actor group for
the state to bear legal responsibility and be the legitimate target of the use
of force in self-defense following a significant armed attack. Pakistan has not
attacked the United States. The only attack on the United States that could
give rise to the right of self-defense since the drafting of the UN Charter had
occurred on 9/11. The Security Council stated in Resolution 1368 that those
attacks gave rise to the right, but it did not determine who was responsible
for the attacks or whether a response in self defense would meet the principles
of necessity and proportionality. Pakistan is in no respect responsible for the
9/11 attacks. The United States has no basis, therefore, for attacking in self-
defense on Pakistani territory".
Therefore
if the State is not involved in or allow an armed attack against another State
it cannot be targeted under Article (51) and self-defense doctrine. As in the
international court of justice ruling in the case of Israel v. Uganda, when
"On July 3-4, 1976, approximately 100 members of the Israeli Defense Forces
(IDF) entered Entebbe Airport in Uganda to free 80 Israeli nationals and 25
French Jews held hostage by German and Palestinian hijackers of Air France
Flight 139 and their Ugandan supporters. Forty-five Ugandan soldiers, seven
hijackers, three hostages, and one IDF officer were killed in the raid. France
strongly defended the raid as having "the purpose and the effect of
freeing certain Israeli citizens who, together with French citizens, were being
subject to the most detestable blackmail [and] . . . threatened with immediate
death." The United States, United Kingdom, and Sweden also supported the
raid, arguing that it involved only a limited infringement of Uganda's
territorial integrity, did not undermine the general prohibition on the use of
force, and was limited and proportionate to the purpose of protecting Israeli
nationals. But the Soviet Union, China, and a majority of the nonpermanent
members of the Security Council concluded that the raid was an illegal use of
force because Israel was not directly attacked. Indeed, according to the ICJ's
reasoning, it seems that the hijacking of a plane and the kidnapping of over
100 people did not constitute an armed attack triggering Israel's legal right
of self-defense, and therefore the rescue mission constituted an illegal use of
force".
Therefore it can be concluded from these rulings that United States attacks on
Pakistani territories are illegal as Pakistan itself as a State is not involved
in the armed attacks. Furthermore, "When in 2009, Pakistan resorted to
major military force; the U.S. needed the express consent of Pakistan to carry
out attacks. Pakistan has not expressly invited the United States to assist it
in using force. At best there have been mixed signals from Pakistan about
officials attitude toward the U.S strikes. Mixed signals do not support a legal
claim to the right to kill".
Furthermore
it is difficult for United States to justify its claims of self defense as
United States in actual is acting under anticipatory self defense. And International
law fails to provide any law legalizing an 111 armed attack in a case of
anticipatory self defense. Chapter VII also provides in Article 51 that States
may respond in self-defense --if an armed attack occurs. However in United
States case there has been no armed attack by Pakistan. "The exercise of
self-defense can take place only, in the words of Article 51, if an armed
attack occurs. Absent an armed attack, a State has no right of self-defense. A
State can meet preparations for attack only by preparations to resist. Under
the Charter, writes Elilip C. Jessup, former judge of the International Court
of Justice (ICJ), alarming military preparations by a neighboring State would
justify a resort to the Security Council, but would not justify resort to anticipatory
force by the State which believed itself threatened. Self-defense provides
protection against illegal use of force and nothing more".
Apart
from that, "As stated by Justice. Horace Gray in Paquette Habana,
international law is part of our law. The US Constitution, Article I, section
8, clause 10 and Article III, section 2, recognizes that the United States is
subject to international law and Congress has the power to define offenses
under the law of nations. From the very beginning of our federal republic, US
courts have treated customary international law as an integral part of the law
of the United States. As Prof Louis Henkin, Columbia University, states,
international law is not merely law binding on the United States
internationally but it is also incorporated into United States law. Violation
of international law becomes a breach of US law that can have a significant
impact on us as a nation and as individuals" (Erickson). Furthermore,
"American Journal of International Law 41(1947): 878. Sorensen (p. 778)
argues that there is no right to the first or anticipatory strike"
(Erikson). Therefore if international law is part of US law as well United
States illegal use of force through drone attacks would be prohibited by
International law as well US Law.
Apart
from that by attacking Pakistani territories United States is defying UN
charter Article 2(4) which mandates,
"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".
Thus
provisions of this Charter render armed attack against another State illegal
and as established earlier that United States self defense doctrine while
attacking Pakistani Territories is not justified. United States use of force
not only harms the territorial integrity but the political independence of
Pakistan as well. United States claims of attacking Armed terrorist groups in
Northern Waziristan in Pakistan renders when a large number of non-terrorist
civilians are killed in drone attacks. As, "Between 2006 and late 2009,
about 20 suspected militant leaders have reportedly been killed in Pakistan
during strikes that killed between 750 and 1000 other persons"
(O'Connell). Furthermore, "The most important rule respecting the conduct
of armed conflict may well be the rule of distinction. Under international law,
civilians may not be intentionally targeted. Only members of a State's armed
forces during armed conflict or persons taking a direct part the in hostilities
of an armed conflict may be targeted. In the ICRC study of customary
international humanitarian law, distinction is the first rule:
Rule
1: The parties to the conflict must at all times distinguish between civilians
and combatants. Attacks may only be directed against combatants. Attacks must
not be directed against civilians.
This
rule is supported by a number of legal authorities, including, perhaps most
importantly, Additional Protocol I of 1977 to the 1949 Geneva Conventions:
Article 43(2) Members of the armed forces of a Party to a conflict (other than
medical personnel and chaplains covered by Article 33 of the Third Convention)
are combatants, that is to say, they have the right to participate directly in
hostilities Article 51(3) Civilians shall enjoy the protection afforded by this
section, unless and for such time as they take a direct part in hostilities.
Persons with a right to take direct part in hostilities are lawful combatants;
those without a right to do so are unlawful combatants. Having the right to
participate in hostilities means that the person may/will not be charged with a
crime for using force. CIA operatives, like the militants challenging authority
in Pakistan, have no right to participate in hostilities and are unlawful
combatants" (O' Connell).
As
mentioned by Mary O'Connell, "Australian counter-terrorism expert David
Kilcullen wrote in The New York Times in March 2009, however, that drones are
anything but--precise and the numbers of civilian casualties have not
been--limited. He said the U.S. was killing 50 unintended targets for each
intended target" (O'Connell). So therefore United States is not only
defying International laws of safeguard of political and territorial integrity
of another State but the humanitarian laws as well.
In
conclusion, the U.S. has used drones in Pakistan to launch major military
attacks, attacks only lawful in the course of an armed conflict. The U.S. has
not, however, limited its attacks to situations of armed conflict. Moreover,
Pakistan has neither requested U.S. assistance in the form of drone attacks nor
expressly consented to them. Pakistan's weak civilian authorities have
protested on occasion, as much as they dare, presumably. There is no Security
Council approval of for drone attacks not does the U.S. have a basis in the law
of self defense for attacking inside Pakistan and United States. United States
also has a vulnerable stance as it is unable to justify its actions
humanitarian law restricting one State to attack another and inflict harm upon
its civilians.
