ATTACK OF THE DRONES:

INTERNATIONAL LAW AND THE AMERICAN WEAPONIZED DRONE PROGAM IN PAKISTAN

Matt White

August 22, 2016

Liberty University PPOL 650 – International Law, Policy, and Politics

Abstract

            This policy briefing examines the use of weaponized drone strikes within Pakistan under the context of existing international law. The legal justifications given by the United States are outlined, as well as the encompassing international law of jus ad bellum and jus in bello. Certain aspects of the American drone program within Pakistan contradict existing international law, such as in determination of combatants vs. civilians. This briefing argues that while the military and national security benefits that drone strikes provide should be maintained, several reforms should be adopted, in development of a legal regime specifically geared towards drone strikes within friendly nations, in order to earn greater international legitimacy.

Introduction

Since 2004, the United States has been employing weaponized Unmanned Aerial Vehicles (UAVs), commonly known as drones, to kill suspected al-Qaeda leaders within the borderlands of Pakistan. Terrorist threats are being eliminated from their ability to plot against the civilian masses, all without placing American troops on the battlefield. Yet, American drone operators fight a war by remote control, safely distant from the real world destructive and fatal consequences of the drone-projected missiles, raising important questions on the legitimacy of the self-defense claim. Against a borderless enemy, the United States has extended the drone battle globally, into the territory of the United States’ allies though with ambiguous permission, straining the crucial relationships. While dangerous al-Qaeda criminals have been killed by weaponized drones within Pakistan, so have numerous innocent Pakistani civilians, and even children, frequently at American unilateral discretion in deciding who is targeted. While the use of weaponized drones to eliminate suspected terrorists within friendly nations is not explicitly governed by its own unique legal regime, several aspects of the American program have come into conflict with overarching international law, therefore requiring the adoption of reforms towards greater international concurrence and transparency, in order for the program to earn global legitimacy within the existing rules.

Background

Unmanned Aerial Vehicles (UAVs), or drones, are remotely piloted aircraft that can be operated from any area on the globe, in any region, and have become integrated into the American arsenal. The typical drone is equipped with cameras and other surveillance equipment that can be used to monitor the activities of rogue organizations from high altitudes, for long durations, without detection. Drones are much cheaper to operate and can be more effective than older high-altitude surveillance methods, such as the U2 spy plane or spy satellites. If a drone is destroyed, the remote human operator remains far from harm’s way. As the use of drones evolved, drones moved beyond the role of surveillance, and became weaponized. One typical drone in the American arsenal is the General Atomics MQ-1 Predator, armed with Hellfire missiles.[1] Although the weaponized drone program is technically classified, it is still well-known.

The use of weaponized drones to kill terrorist suspects within Pakistan was initiated in 2004, under President Bush, and continues to this day. The program peaked in 2010, with a significant increase in the number of drone strikes within Pakistan during President Obama’s first term. The most recent strike within Pakistan was on May 21, 2016. In this instance, Muhammad Mansour was killed, the Taliban’s emir and successor to Mullah Omar.[2] Since the program began, including this most recent strike, between 2,499 and 4,001 individuals have been killed, and between 1,161 and 1,744 have been injured. Of those killed, between 424 and 966 were civilians, including between 172 and 207 children.[3] The discrepancy in these statistics is partially due to the fact that the program is still technically classified. The London-based Bureau of Investigative Journalism maintains actively updated datasets on drone casualties in each field of operation. The Bureau is perhaps the most authoritative source, and is cited in multiple academic journals. The Bureau’s methodology consists of gathering information reported by international and local reputable news agencies, as well as from video footage and direct eyewitness reports given to field agents, then compiling reported counts, along with reconciling discrepancies.[4]

Within Pakistan, drone strikes have been confined to the Federally Administered Tribal Areas (FATA), adjacent to the Afghan border, in the northwest corner of Pakistan. FATA is composed of seven tribal agencies, with a political agent, a representative from the Pakistani government, assigned to each agency to work with local tribal leaders. Importantly, this region does not fall under the protection of the constitution of Pakistan, rather, FATA is governed under the Frontier Crimes Regulation (FCR). The FCR does not protect citizens of FATA against arbitrary arrest, displacement, or forfeiture of property. Residents of FATA are by some, considered to be second-class citizens.[5]  This environment has turned FATA into a haven for militant Islamic extremists. Due to the nature of the region, no foreign journalists are allowed into FATA without an escort, and even most Pakistani citizens are restricted.[6] In addition to FATA, drones are frequently used in Afghanistan, in addition to Yemen and Somalia though FATA has been the most prominent field of activity for drone strikes within the borders of friendly nations.

The main advantage of drones is that they are able to eliminate high-level terrorists, while keeping American troops out of harm’s way. This aspect of the War on Terror is fought via remote control. Sending ground troops into FATA to capture al-Qaeda leadership is more cost-prohibitive, carries greater risk to the American military, and is politically unviable. Over the past twelve years, drones have successfully eliminated senior al-Qaeda leadership. In addition to Mansour, among the senior al-Qaeda leadership killed by drones in Pakistan are bin Laden’s former chief of staff who was eliminated in 2011, and in 2009, Sa’ad bin Laden, one of Osama’s sons and a potential successor, as well as two senior al-Qaeda leaders who were both wanted for the 1998 Embassy Bombings.[7] Despite the success of the drone program in this regard, some argue that the use of drones can be disadvantageous to a degree.[8] Villagers in FATA live in fear that they will become drone targets or incidental casualties based on their neighbor’s misdeeds, all at American discretion.[9] This can be a catalyst for further radicalization and anti-American sentiment.[10] As current al-Qaeda leaders are eliminated, more move in to replace them, as the pipeline is replenished.

American Legal Justification

            May 23, 2013, President Obama delivered a speech at the National Defense University at Fort McNair, Washington, D.C.,[11] which became a cornerstone speech in outlining the legal justifications of the drone program offered to the public by the administration. The topic of Obama’s oration was the state of the battle against terrorism in general, though specifically focused on defense of the use of drones. Obama’s domestic legal defense rested on the 2001 Authorization of the Use of Military Force (AUMF) against al-Qaeda.[12] The AUMF authorized President Bush to take appropriate measures to being the perpetrators of September 11^th to justice. The 9/11 attacks were committed by al-Qaeda, and drone strikes are used exclusively against al-Qaeda, Obama claimed. Therefore, Obama has continued authorization to fight al-Qaeda wherever they are in the world, to prevent the continued operation of the organization. The utmost care is taken to thoroughly vet each target, Obama claimed, and “there must be near-certainty that no civilians will be killed or injured.” With sufficient oversight, a Congressional contingent is briefed prior to any strike, though the program remains officially clandestine. Each al-Qaeda member that is targeted poses an imminent threat to national and global security. Obama acknowledged that although civilian casualties have regrettably occurred, allowing the terror suspects to continue to operate would result in far greater civilian casualties. While the United States aims to minimize civilian loss to the greatest extent, al-Qaeda’s primary goal is to inflict civilian casualties. Al-Qaeda is a borderless organization, so acts of national self-defense against al-Qaeda cannot be constrained by international borders.

            The use of the AUMF to justify drone operations within Pakistan is questionable. The AUMF authorized President Bush to “use all necessary and appropriate force against those nations, organizations, or persons he determined planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001…”[13] Instead of being limited to acting against those directly involved in the planning or execution of the 9/11 attacks, the AUMF is used by President Obama as justification for continued transnational operations against al-Qaeda in general, fifteen years after 9/11. 

            Other legal justifications of the drone program within Pakistan have been articulated. Al-Qaeda continues to pose an international threat, and the United States is fighting a battle of self-defense against an organization that wishes to destroy America. Targeted drone strikes are not an act of aggression, some argue, so they can legitimately be considered self-defense under Article 51 of the UN Charter.[14] Al-Qaeda does not operate under the norms of international law. Civilian casualties sometimes cannot be avoided when al-Qaeda uses human shields, clearly in violation of customary international humanitarian law,[15] yet the United States continues to operate under international humanitarian law as much as reasonably possible.[16] Besides, the United States has the permission of Pakistan for continued drone operations inside of FATA, against a common foe of the two allies. President Bush gained permission from then-President Musharraf in 2004, at the onset of the program, to conduct drone strikes within FATA. However, after Musharraf was ousted, members of the Pakistani government have routinely denounced the drone program, and have publically denied permission.[17]  Nevertheless, some claim that despite public denunciations, the government privately collaborates with the CIA. [18]  

Drone Strikes, Fighting Terrorism, and International Law

            The United States is not legally bound to any narrowly-focused international law that explicitly governs the use of drones within friendly nations. Therefore, the use of targeted drone strikes to take out terrorist suspects within Pakistan must be viewed in a broader international legal context.[19] Governing international law, in the broadest sense, falls under the principles of jus ad bellum and jus in bello. The principles of jus ad bellum attempt to fashion a set of guidelines that define when a nation is justified in undertaking military action. Self-defense is a universally accepted legitimate reason for the use of force, and Article 51 of the UN Charter upholds the inherent right to self-defense. However, a universal definition of self-defense is quite difficult to agree upon, especially in attempt to apply a generic definition to specific real world occurrences.[20]  If a nation can justifiably conduct military action per jus ad bellum, then justice must be preserved while fighting, under the principles of jus in bello. The Geneva Conventions, and all laws of international human rights, must be adhered to. Civilians may not be targeted, including those offering medical aid or other forms of assistance to the injured.

            In the spirit if jus ad bellum, the United States is legally justified in using military force specifically against al-Qaeda in Afghanistan. The United Nations Security Council unanimously passed Security Council Resolutions 1378 (2001),[21] 1383 (2001),[22] and 1386 (2001),[23] which effectively retroactively endorsed the already-successful overthrow of the Taliban, by supporting the transitional Afghan government, by endorsing self-determination in the post-Taliban era, and by creating an International Security Assistance Force to help enforce stability and order. The Security Council urged all member-states to participate. Important to note, is that the Security Council provided this legal basis for military action specifically within Afghanistan, not Pakistan. However, prior to authorizing action specifically in Afghanistan, the Security Council unanimously passed Resolution 1373, on September 28^th, 2011, which called for international cooperation for fighting the global terrorist threat, including those who finance terrorist activities, wherever terrorist activity exists.[24] Terrorism was equivocated with an extreme form of international crime. Resolution 1373 encouraged bilateral and multilateral cooperation, especially regarding intelligence sharing. While military force was authorized within Afghanistan, international policing actions to root out al-Qaeda within Pakistan, with Pakistan’s full cooperation, would be generally authorized under Resolution 1373.

In December 2013, the General Assembly passed Resolution 68/178,[25] Protection of human rights and fundamental freedoms while countering terrorism, which mentions the use of drones. As a deliberative body, the General Assembly does not pass binding international law. Nevertheless, the resolution aimed “To ensure that any measures…including the use of remotely piloted aircraft, comply with their obligations under international law…in particular the principles of distinction and proportionality.” By the principle of distinction, only those who directly participate in hostilities may be targeted.[26] By the principles of proportionality, the degree of the reprisal must fit the degree of the threat.

The General Assembly Resolution took note of a report by the United Nations Special Rapporteur, Philip Alston. Alston’s report covered the legality of targeted killings by any method, including through the use of drones. Alston asserted that in order for drone strikes to fall within international law, it must be fully verifiable that the targets were indeed terrorists.[27] Alston urged the United States to respond to requests for information on how the use of drones complies with international law, but the United States failed to respond.

The American Drone Program within the International Legal Context

            With this understanding of existing international law, specifics of the American drone program within Pakistan may be analyzed within the global legal context. Self-defense is a legitimate cause for jus ad bellum, as reinforced by the UN Charter, Article 51.[28] The United States claims that targeted drone strikes against al-Qaeda leadership, within Afghanistan, Pakistan, or anywhere else in the world, is an act of self-defense, as al-Qaeda poses an imminent threat to national security, and endangers the lives of civilians globally. In order to legitimately claim that a person is an imminent threat, under the law of distinction, General Assembly Resolution 68/178, and per Alston’s report, absolute certainty must exist that a target is actively engaged in terrorist activity, and is a direct participant in hostilities by planning an imminent attack. However, questions arise as to the legitimacy of the self-defense claim in perpetuity, and in concert, raises doubt about the United States’ knowledge and confidence level that an actual attack is imminent.[29]

            In 2011, the United States Department of Justice published a confidential white paper that was subsequently leaked to the press. The white paper in general provided legal justification for issuing drone strikes against al-Qaeda members who happen to be American citizens. Most notably though, the Justice Department made quite a controversial claim on the definition of imminent threat.

“…the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”[30]

Arguably, with a unique definition of the term imminent threat, the Justice Department’s criteria for labeling a person as an imminent threat does not meet the criteria per existing international law and jus ad bellum that would otherwise justify the use of force in self-defense. 

            Other practices and policies of the United States, concerning the use of drones, contradict the laws of distinction. Per the laws of distinction, only those who directly participate in hostilities may be targeted.[31] As noted, wide discrepancies are reported in the number of killed or injured by drone strikes, including civilians and children. In part, these discrepancies are due to the fact that the use of weaponized drones in Pakistan is technically clandestine. Also in part, the discrepancies are due to the nature of FATA, and the fact that foreign journalists do not have full access to FATA, and cannot easily acquire firsthand information from local citizens. In addition to these handicaps, the United States has been accused of labeling victims as combatants in retrospect, after they have been killed, thus vastly reducing the number of reported civilian victims.[32] If an individual was merely in proximity to an attack, the United States assigns them combatant status, unless there was conclusive proof of innocent posthumously.[33] This practice clearly does not conform to the laws of distinction.

            The United States engages in a practice known as signature strikes, which is direct violation of the law of distinction. Drone operators use algorithms to monitor the activity of military-age males, suspected as al-Qaeda members, for patterns of behavior such as travel routines and other behavioral traits. If a suspect fits the criteria, without any other knowledge of who they are, the suspect becomes a target. Protocol for signature strikes dictates that all males of military-age within a strike zone is assumed to be a combatant, unless proven otherwise.[34] The practice of signature strikes contradicts the administration’s claim that every drone target is a carefully selected and thoroughly vetted high-ranking member of al-Qaeda.[35]

            Per the laws of jus in bello, utmost care must be taken to operate in compliance with international human rights law. Jus in bello encompasses the laws of distinction, and the violations discussed. Civilians may obviously not be deliberately targeted. However, the United States has placed specific Afghan drug lords on its kill list, due to the fact that their activities help finance terrorism, even though there is no direct participation in hostilities or membership in al-Qaeda.[36] Per international human rights law outlined in the Geneva Conventions, wounded or sick combatants who have laid down their arms, medical personnel, and those administering aid to the injured may not be targeted,[37] however, the United States has also been guilty of violating these agreements. In one instance, a chronically ill al-Qaeda suspect, Baitullah Mehsud, was in the process of undergoing medical treatment, receiving an intravenous transfusion on the rooftop of his house, under the medical care of his father-in-law, when a drone struck, killing Mehsud and eleven other people.[38] This one perhaps extreme example is against every norm of accepted international human rights law.

By the law of proportionality, the degree of the reprisal must fit the degree of the threat. Some claim that drone strikes fall within the law of proportionality. One, or a few combatants are taken out by each drone strike, and those terrorists are thus unable to plot against the death of multitudes. Drones can be far more precise than other weapons. The United States is not blindly carpet-bombing villages with known terrorist populations, unlike American practices in previous wars.[39] Yet, drone strikes at American discretion, and the potential for civilian casualties, may cause entire villages to live in fear from unseen armed drones hovering above, which would move towards the boundaries of the laws of proportionality. And as shown with the example of Mehsud and with many other cases, a strike against only a single individual as a target has the potential to kill and injure multiple people who happened to be within the proximity of the target.

Recommendations

            As shown, even though no binding international conventions explicitly govern the use of drone strikes within friendly nations such as Pakistan, several aspects of the American drone program within Pakistan are in violation of accepted overarching international law. Because of this, in order for the program to gain increased global legitimacy, reforms to the program need to be made, and specific international guidelines should be adopted on the matter. When attempting to develop any reforms to the program, the fundamental advantages of the use of remotely-piloted drones cannot be undermined. That is, weaponized drones eliminate terrorists who plot to destroy massive numbers of civilians, all while keeping American troops out of harm’s way. Activists who universally condemn the use of weaponized drones, claiming they should be globally outlawed, narrow-mindedly ignore the tremendous benefit drones may provide. This analysis aims to preserve the advantages to as great a degree as possible, while reconciling the legally questionable aspects with existing and proposed international law, focused on the use of drones within friendly territory.

            In order to comply with the laws of distinction, the first recommendation is to eliminate the practice of signature strikes. Anyone targeted must be a known terrorist, engaged in hostile activity, or actively planning an attack, wherever that attack may be. Targets must conclusively be an imminent threat. Needless to say, civilians should never be targeted, nor should they be labeled as combatants in retrospect, only after they have been killed. If specific targets are well-known and well-classified as combatants, then civilian casualties could be more easily counted. Some cases may be situationally dependent, as mere proximity to a target cannot universally be a determining factor in culpability, but some in proximity, such as drivers and bodyguards, may be considered complicit in the target’s crime and thus be counted as non-civilian combatant casualties.

            The laws of warfare govern military action in self-defense against a declared enemy. The Security Council authorized military action in Afghanistan to overthrow the Taliban and to combat al-Qaeda, whom the Taliban was harboring. The Security Council authorized the use of force specifically within Afghan borders, but the laws of warfare become a little more troublesome against a stateless, transnational enemy such as al-Qaeda. The Security Council did not authorize the use of international military force within any country where an alleged al-Qaeda member resides. However, the Security Council authorized and encouraged international cooperation in defeating al-Qaeda, not just within Afghanistan, but wherever they happen to be. In this regard, it would be more appropriate to compartmentalize drone strikes within friendly nations under the laws of international policing, against common enemies of humanity, rather than the laws of warfare. The nexus of criminal terrorist activity could be extended across borders, but in combating it, the applicability of human rights law is not geographically-bound.[40]

The permission of the ruling Taliban was not required in order for international troops to conduct operations aimed at defeating the Taliban within Afghanistan under the rules of warfare. Yet for any international policing action, to eliminate the threat of common enemies of humanity within the borders of a friendly nation as an act of international policing, not just permission, but bilateral or multilateral cooperation is essential. This cooperation cannot be ambiguous, as it currently is with Pakistan. If the host nation refuses to cooperate, they could potentially be considered complicit in harboring terrorists.

Furthermore, the United States and the host country, as allies, must mutually agree on a list of eligible targets, conclusively-known terrorists that can commonly be considered as enemies of humanity. Pakistan holds sovereign authority over those residing within its borders, even illegally residing outlaws in the borderlands, so such agreement would uphold the respect for the principle of national sovereignty. Lastly, the United States and the host country should publicize who the targets are. Targets should be given a fair warning, and the chance to surrender before the Hellfire missiles strike. This reform would fit within the realm of international policing actions, and the American sense of justice and due process of law. This measure would highly increase the likeliness that those within proximity are combatants, partially culpable in sheltering a wanted terrorist. Captive terrorists could be tried in the country where they are captured, in the United States, or by an international criminal tribunal. Although the most zealous al-Qaeda leaders would be unlikely to surrender, capture could provide the opportunity for interrogation and hence the accumulation of valuable information.

Conclusion

In conclusion, American drone strikes within Pakistan remove al-Qaeda leadership from the field of battle, prevent future terrorist attacks, all without placing American boots on the ground. However, some could claim that American tactics could cause further radicalization. Additionally, even though the United States is not party to international law that explicitly governs the use of drone strikes within friendly nations, several aspects of the targeted drone program seemingly come into conflict with widely-accepted international law, particularly the laws of distinction, under the umbrella of humanitarian law. Reforms of the drone program could be adopted either informally, or by binding treaty, in order to reconcile targeted drone strikes within existing international law. Civilians should not be assumed to be combatants simply due to proximity, nor should they be labeled as combatants post mortem, and the practice of signature strikes should be discontinued. Well known terrorists, mutually agreed-upon targets residing within allied nations, should be brought to justice. If terrorists refuse to surrender, then removal from terrorist operations via drone and Hellfire missile would be an option. But in doing so, the sovereign borders of American allies should be respected, requiring permission and collaboration during policing actions against common enemies. These reforms would further protect innocent civilians, all the while continuing the battle against mutually agreed-upon enemies of humanity.

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