Qammer Abbass Anka
“The end does not justify the means. No one’s rights can be secured by the violation of the rights of others”.
(Ayan Rand)
The issue of legality of drone attacks inside Pakistan has been a source of friction between Pakistan and United States ever since 2004 when they were first launched in Pakistan’s tribal areas. In justifying the legality of the attacks, American Government cites a domestic law, the ‘Authorization of the Use of Military Force’ (AUMF) passed during George W Bush’s regime, as well as the United Nation’s Charter of Self-Defense. Pakistan terms the strikes a violation of its sovereignty and denies any tacit agreement with U.S. over drone strike.
To counter the ongoing militancy in FATA, in 2004, U.S. initiated its drone campaign against the militants who were regrouping and establishing their network, posing threat to the NATO forces in Afghanistan. Since initiation of drone strike programme, a large number of strikes have been carried out in FATA. These strikes though have facilitated elimination of some most wanted terrorist yet also resulted in large number of civilian causalities much beyond the acceptable limits of collateral or mistaken damages.
Government of Pakistan as well as the International anti-drone activists strongly argue that drone strikes violate Pakistan’s sovereignty and human rights in the targeting area. Moreover, the argument that drones violate the normal international human rights clauses that call for proportionality and discrimination, etc have also been frequently put forward against US Drone strikes. However, publicly, not many speak in favour of drone strikes. Many writ petitions have been filed in Pakistani courts from time to time against US led drone campaign. The petition filers hail from human rights activists as well as the family members of the victims. Besides opponents of Drone strikes from Pakistan, a sizeable international community has also joined hands with critiques of these deadly strikes which kill dozens in seconds that too without any warning. Drone critiques raise many objections. The first primary critique on drones is their unaccountable operation which risks civilian lives. Benjamin, an anti-drone activist writes in her book titled, ‘Drone Warfare: Killing by Remote Control’. “American presidents now assert the right to be judge, juror and executioner, a de facto license to kill free from the irksome interference of checks and balances” .
Similarly, Philip Alston, a UN reporter on extra judicial killings, writes, “America’s strongly asserted, but ill-defined license to kill without accountability is not an entitlement which the United States or other states can have without doing grave damage to the rules designed to protect the right to life and prevent extra judicial executions. Because operators are based thousands of miles away from the battlefield, and undertake operations entirely through computer screens and remote audio-feed, there is a risk of developing a ‘PlayStation’ mentality to killing”. Alston, a law professor, views these strikes and the killings as extra judicial, thereby suggesting that these strikes are unjustified under international law. Amnesty International, has many a times called drones to be tools of extrajudicial killings.
The other important objection in the U.S. drone campaign in Pakistan is its operation by the CIA. Experts argue that the scope and legality of U.S. drone strikes can never be acknowledged considering the division of their authority between the Department of Defense and the CIA. Many civil rights promoters and advocates have raised questions on CIA’s involvement in the drone programme. One such activist, Hina Shamsi, director of the American Civil liberties Union’s National Security Project, opines that, “A lethal force apparatus in which the CIA and regular military collaborate, as they are reportedly doing, risks upending the checks and balances that restrict where and when lethal force is used, and thwart democratic accountability, which cannot take place in secrecy”.
As per the constitution, USA is not obliged to acknowledge any covert actions undertaken by the CIA. Resultantly, US drone programme has remained under intense fog of constitution backed secrecy. The U.S. constitution also protects the Government and the authorities from revealing CIA activities. In 2011 a U.S. judge while arguing against a lawsuit filed by the ACLU (American Civil liberties Union) stated that ACLU did not have the right to access information related to CIA’s activities. Despite heavy protection by US and its entire State machinery, official stance on drone strikes under CIA always lacked substance. Experts consider that the drone strikes by CIA classified as ‘Title 50 covert actions’, are defined as “activities of the United States Government” , where it is intended that the role will not be apparent or acknowledged publicly, but does not include traditional military activities”. In fact, it is the secrecy behind Drone Strikes programme which makes it more controversial. In the same context, experts argue that the secrecy over drone operations leads to further criticism, as the death toll, both civilian and militant, goes unaccounted and thus the exact figures of casualties could never be known.
With the Worldwide ongoing awareness campaign and strong criticism by international experts and human rights activists, argument by the United States using the AUMF as a justification is losing its acceptability. Even the strong drone advocates like Professor Kenneth Anderson believe that the U.S. may soon have to revoke the AUMF as it may no longer justify the drone strikes and operations in FATA and other parts of the world.
International experts on conflict and peace are of the opinion that the U.S. targeting policy is problematic because of its reported reliance on so-called “signature strikes”. These strikes entail targeting groups of men based on behaviour patterns that may be associated with terrorist activity rather than known identities and thereby can be erroneous. Some legal scholars also claim that the signature strikes approach impedes FATA’s cultural and conflict-resolution activities, for example by leading to the targeting of tribal Jirgas (Council of Elders). It is contended that tribal elders are now reluctant to convene such meetings due to fear of being targeted under the ambit of signature strikes. Similarly, the routine rituals like funerals and marriages are also not free from drone strike phobia.
The U.S. drone program in Pakistan raises serious concerns under both international as well as the U.S. law. Unfortunately, the debate on the legality of the program has been hampered by the Obama administration’s consistent refusal to answer even the most basic questions about drone strikes in Pakistan and elsewhere. This lack of transparency, itself inconsistent with international law and principles of governance, has frustrated attempts to evaluate the efficacy of the drone program in routing terrorist networks in Pakistan, most notably in FATA, and made it impossible to fully assess the legality of the program or individual attacks. Vague statements of U.S policy on drones in the absence of clear, public and authoritative guidelines risk eroding key principles of international humanitarian and human rights law. Besides, failure in satisfying international concerns, the question of violation of Pakistan’s sovereignty also awaits answer since long. In today’s era of global peace and harmony, every State must respect the sovereignty of other State. UN Charter’s Article 2(4) clearly prohibits a member country to use force against other members. It thereby prohibits America to use drone force within Pakistan territory because Pakistan is not in a state of war against the United States. Justifications like tacit approval by Pakistani authorities are mostly baseless. The drone strikes within Pakistan are not only violation of international norms but also a sheer disregard of UN charters on sovereignty of States. The international community which is raising voices against US led drone strikes, especially in Pakistan, should not get confused by America’s vague assertions like tacit approval. They should also raise concerns about Pakistan’s sovereignty vis-à-vis these deadly strikes. Pakistan is an independent democratic State and will not compromise on its sovereignty at any cost. David Lee rightly said, ‘Anything that ruins our sovereignty is out of the question”.
