S Qamar Afzal Rizvi
THE junior Bush administration’s applied controversial fashion— of techno warfare via military/armed drones— has been deviously followed by Obama’s administration. For the most part, the U.S. government adopts a policy of legal escapism about the reported drone strikes that take place outside of ‘hot’ battlefields or the zone of active hostilities/combats, and it does not release lists of those targeted or killed. Obama administration’s officials have offered oblique accounts of the drone strike programme, but these have been at an extremely high level of generality, with few factual details or details relating to the administration’s ‘legal analysis’. Given fair rule of international law, the legitimacy of Obama’s drone strikes largely remains in ‘question’.
Despite the US military strategists’ ‘advocated justification of precision theory’, the US drone strikes represent a significant challenge to the international rule of law. The strikes precisely defy straightforward legal ‘categorization’. In fact, drone strikes or, more accurately, the post-9/11 legal theories underlying such strikes—constitute a serious, sustained, and visible assault on the generally accepted meaning of certain core legal concepts, including ‘self-defence,’ ‘armed attack,’ ‘imminence’, ‘necessity,’ ‘proportionality,’ ‘combatant’, ’civilian’, ‘armed conflict’, and ‘hostilities’—have created more ‘legal ambiguities’. Even President Obama’s speech on drones, delivered at the National Defence University on May 23, 2013, did not serve to shed much light on the subject.
The correct legal categorization of the conflict (keeping in view, the Law of Armed Conflict) with Al-Qaeda is not obvious. It is plainly not a civil war or other ‘internal’ armed conflict, such as the conflicts to which Additional Protocol II paradigmatically applies. It is also not an ‘international’ armed conflict in the sense of Common Article 2 of the Geneva Conventions, nor is it a ‘war of national liberation’ in the sense of Additional Protocol I. Nonetheless, under the U.S. Supreme Court’s ‘ruling in Hamdan v. Rumsfeld’, it is an armed conflict ‘not of an international character’ to which at least some elements of the LOAC apply. It is assumed, then, that the conflict is best described as a ‘transnational’ one between a ‘nation state’ (United States) and its allies, and a ‘transnational terrorist group’(Al-Qaeda/Daesh/ISIS) and its non-state affiliates.
The review by the Stimson Center, a nonpartisan research organization, gives the Obama administration an ‘F’ for failing to provide a clear legal justification for its use of drones to kill al Qaeda or Islamic State extremists in countries where the United States is not at war. And the administration also receives an ‘F’ for failing to ensure strong oversight and accountability for the secret program, which has become a signature of Obama’s tenure. There are also ‘Ds’ and ‘unknown’ awarded to the White House on other aspects of drone programme.
Ben Emmerson United Nations special rapporteur on human rights and counter- terrorism, and an expert on international law acknowledges: “ …..there is “no clear international consensus” on the laws controlling the deployment of drone strikes. The special rapporteur concludes by urging: “the United States to further clarify its position on the legal and factual issues … to declassify, to the maximum extent possible, information relevant to its lethal extraterritorial counter-terrorism operations; and to release its own data on the level of civilian casualties inflicted through the use of remotely piloted aircraft, together with information on evaluation methodology used.”
As for the majority of international law experts, the CIA- operated drone strikes are’ ultra vires’ since their operations cause ‘legal miscarriages’. The concept of signature strikes is not a legal term of art and risks creating confusion by suggesting the possible introduction of a new (legal) notion. The way in which this concept is used – i.e., in distinction to ‘personality’ strikes – also erroneously implies that targeting under IHL will only be lawful if the identity of the person targeted is known. This requirement is not an element of the principle of distinction and would for the most part not be possible to fulfil in the reality of armed conflict. If targeting on this basis has been or is taking place, it would be contrary to the principle of distinction as the vicinity of a person to a particular area, coupled with his age, cannot make him a ‘military objective’.
The U.S. use of drones is failing the relevant tests of the ‘lawful use of force’. It is failing under Article 51 of the UN’s charter; failing under the principle of ‘necessity’ and failing under the principle of ‘proportionality’. The U.S.’s use of drones in many cases does not meet these criteria. Professor Kenneth Anderson an expert on international humanitarian law correctly concludes: “[A] strategic centrepiece of U.S. counter terrorism policy rests upon legal grounds regarded as deeply illegal…by large and influential parts of the international community’’. Maria LaHood, a senior staff attorney with the Centre for Constitutional Rights said,” If the interpretation of international law were up to the U.S. and Israel, there would scarcely be any law left”.
Obama administration’s toxic strategy—of launching drone strikes in Somalia, Yemen and Pakistan(without addressing the issue of legality) —seems to have gravely questioned the authenticity of the doctrines of ‘self defence, pre-emption, and humanitarian intervention’. The US drone legacy has posed great threat to the ‘legitimacy’ and ‘efficacy’ of international law, particularly with reference to the Law of Armed Conflict(‘jus ad bellum’and’jus in bello’), International Humanitarian Law(IHL) and International Human Rights Law(IHRL). The paradox of setting a double standard in ‘theory and practice’ has created a ‘legal apartheid’ regarding use of drone technology vis-à-vis sovereignty, thereby making a mockery of international law, arguing that sovereignty only belongs to powerful states.
Islamabad can no more ignore this discriminatory attitude which undermines its ‘sovereignty’. Based on Pakistan’s judicious policy assertion, drones can no longer fly out of Pakistani bases and Pakistan itself should have an increased role in the decision making over the strikes.
In a befitting statement given in response to US’s drone strike in Balochistan, the Pak army chief said such acts of sovereignty violations are detrimental to relations between both countries and are counter-productive for ongoing peace process for regional stability. “Pakistan’s efforts, successes and sacrifices in fight against terrorism have been unparalleled,” General Raheel added. What America needs today is the strategic vision of following universal standards, not double standard.
— The writer is an independent ‘IR’ researcher based in Karachi.