April 03, 2012

Are Drone Strikes in Pakistan Legally Justified?

http://www.idsa.in/idsacomments/AreDroneStrikesinPakistanLegallyJustified_AshutoshMisra_030412

Ashutosh Misra





April 3, 2012

On March 12 a US drone strike in Waziristan killed 15 militants including two senior commanders of the Mullah Nazir faction of the Tehrik-e-Taliban. This was the ninth drone strike in 2012 and many more such strikes are expected in the coming weeks and months. On March 20, the all-party parliamentary committee in Pakistan called for an end to US drone attacks as well as to “hot pursuit or boots” on Pakistani territory, declaring them as a violation of Pakistani sovereignty. The committee has also rejected the US offer of providing advance notice for drone attacks and limiting the types of likely targets. In fact, the idea of advance notice appears to be a desperate attempt by the US to avoid a total stoppage of its drone operations; hitherto, it has been highly secretive about its drone operations in order to prevent any last minute tip off to the militants by elements in the Pakistani intelligence establishment.

Notwithstanding the 2010 Wikileaks cables’ claims that the drone strikes have the tacit seal of approval of the Pakistani government and the military, they have indeed generated extensive agitation and anti-Americanism in Pakistan. According to the Pakistan Institute of Peace Studies (PIPS), over 220 civilians have already been killed in drone strikes since 2004, although the American Foundation puts this figure at over 700—sufficient to arouse public sentiments and government sensitivities. Further, the PIPS data also notes that the US has eliminated over 2500 suspected militants of the Taliban and al-Qaeda, including Osama bin Laden, Ilyas Kashmiri, Baitullah Mehsud and Nek Muhammad in drone operations. Clearly, the drones have yielded rich dividends for the US.

Undoubtedly, the drones have heralded a new dawn in warfare: strike from a safe distance and with any troop commitment whatsoever. In fact, the global production of drones has reportedly risen and more and more states are inducting them into their inventory. A drone aircraft is a lethal piece of weaponry, which hovers overhead, unseen and unnoticed, and approaches its target silently and strikes with precision. It is a perfect device for surgical strikes. However, its increased use and success in the war on terror has sparked an international debate over the legality of its use and has raised three key questions: How lawful is this new form of warfare under international law? Are US drone strikes against terrorist groups a violation of Pakistan’s sovereignty? What rights and responsibilities do the injured state (the US or India) and host state (Pakistan) have should non-state actors (NSAs) continue to operate with impunity?

The Jihadi infrastructure in Pakistan continues to thrive with close linkages with the state organs (military and ISI). This indicates not only the state’s acquiescence to the unconstrained activities of non-state actors but also its unwillingness to rein in these “strategic assets” in contravention of UNGA resolution 2625(XXV) which establishes state responsibility to refrain from supporting acts of terrorism. The ISI’s ‘double game’ has been a major reason for the growing mistrust between Pakistan and the US and the suspension of US financial assistance on several occasions. Last year, for instance, the US had deferred $800 million because of charges about the ISI’s complicity in the killing of journalist Saleem Shehzaad who was investigating the infiltration of extremist elements in the military and the ISI.

The US urging of Pakistan to persuade Hamid Gul, the ex-ISI chief, to ask Mullah Umar to leave Pakistan is another instance of the ISI’s continued linkages with these groups. The testimony of David Coleman Headley also indicates the involvement of Pakistan’s state organs in supporting terrorist activities by non-state actors. These linkages are deep and are proving hard to dismantle.

Under these circumstances, what can the US or India do and who is accountable for the acts of non-state actors? According to article 8 of the International Law Commission Articles on State Responsibility (ILCASR), “The conduct of a person or a group shall be considered an act of a state under international law if the person or the group of person is in fact acting on the instruction of, or under the direction or control of that state in carrying out the conduct.”

Some past International Court of Justice (ICJ) cases are also instructive from the perspective of attributability (of NSA acts), state obligation (towards NSA acts), self defence (of the injured state), necessity (for the punitive action) and proportionality (of the punitive action).

In the Genocide Case, the ICJ had ruled that because of want of evidence the genocide of Bosnians by the Serbian army could not be attributed to the state and therefore the Former Republic of Yugoslavia (FRY) could not be targeted. But it went on to note that nonetheless it was the obligation of FRY, given its considerable influence on the Serbian army, to prevent the genocide, a task in which it had failed.

In the Nicaragua vs the United States of America case, the ICJ stated that in order to legitimate the US support for the Contras against the Nicaraguan government and military, the armed attacks by Nicaragua-based rebel groups against El Salvador needed to be attributable to the Nicaraguan state. Since this cannot be done, the targeting of the Nicaraguan government and military by the US-supported contras was unlawful.

In the Democratic Republic of Congo vs Uganda case, the ICJ ruled that since the attacks carried out by anti-Ugandan rebels operating from the territory of the DRC were not attributable to the DRC, Uganda had no right to use force in self- defence against the DRC. In other words, the rebels should have been the target and not the government.

What do these judgments imply in the Pakistani context? First, in order to target the state, the wrongful acts of the non-state actors must be “attributable” to the state. Although a majority of the acts of the non-state actors in Pakistan are attributable to the state organs, the US is not targeting the state and is only surgically targeting militant hideouts, barring occasional unintended and misdirected strikes.

Second, in targeting the militants, the US does not violate Pakistan’s sovereignty because there is an exception available to the state’s right of territorial sovereignty under customary international law. The UNGA resolution 2625 clearly establishes state responsibility to refrain from supporting acts of terrorism, failing which the injured state(s) can exercise the right of self-defence to protect its interest and citizens, which is also specified by Article 51 of the UN Charter.

Third, Article 51 provides that the case for targeting non-state actors rests on compliance with the requirements of necessity and proportionality. In Pakistan’s case, US actions in the form of drone attacks are in compliance with necessity (since political and diplomatic options have been exhausted in convincing the Pakistani state to rein in these groups), and proportionality (strikes are targeted at the militant hideouts in a localised area and not at government troops or installations.

And, fourth, the ICJ ruling implies that Pakistan, the host state for non-state actors, cannot escape responsibility towards the acts of NSAs whether they are committed with or without its knowledge, and that it must do everything in its capacity to rein in these groups. The mere denial of state involvement is not sufficient. Thus, drone strikes constitute an effective and lawful response if they are carried out within the bounds of the above provisions.

Dr Ashutosh Misra, an IDSA Alumni, is working as Research Fellow at the Centre of Excellence in Policing and Security (CEPS), Mt Gravatt campus, Griffith University, Brisbane, Australia.

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