By Yasser Latif Hamdani
(First published in The Friday Times)
The question of legality of American drone strikes in Pakistan’s tribal areas is one that hits at the core of the laws of war and international law. Two questions need to be asked for us to better understand this debate.
1) Is the use of American drones on Pakistani soil to kill insurgents illegal?
2) Is the use of drone technology to target specific members of the Al Qaeda or Taliban permissible under international and American law?
The first corollary itself may be divided into two sub-questions:
i) Who is operating the drones? Are these operators lawful combatants under the Geneva Convention?
ii) If drones are operating on Pakistani soil, are these attacks permissible under the laws of nations? And if they are, are they bound by any limitations?
According to the Geneva Convention, members of regular armed forces – involved in conflicts – are the only persons who may be considered lawful combatants and authorised to use lethal force. If the operators are members of the US or Pakistani military, they acquire this status. But the Central Intelligence Agency (CIA) as it were is not a military force. And since the CIA is not a military force, presumably the drone attacks constitute extra-judicial killing. But that point will be covered in the second corollary.
Secondly, if the drones are operating on Pakistani soil, the question of whether this is permissible under the law of nations will be determined by what arrangements exist between Pakistan and the US in the pursuit of terrorists covered by the UN resolution passed in the aftermath of 9/11 making it incumbent on all member states to crack down on this menace. Since these arrangements are not public knowledge, nothing conclusive can be said about it.
The question of illegality arises foremost in the way certain individuals are targeted by these drones – whether those individuals are combatants and whether the individuals operating the drones are combatants. On a purely theoretical legal plane, if the drones are being operated by individuals who fall under the Geneva Convention’s definition of combatants and the individuals being targeted are also combatants, then, all other things equal, a drone strike would be legal. Yet we now know that the drones are being operated by CIA operatives who are open to legal challenge on grounds of their status, and of the non-combatant collateral damage of individuals killed in drone strikes against a specific Al Qaeda target.
The distinction becomes hazy when we consider that all armed forces, at least in the West, are in the final analysis subject to policy considerations thought up and drafted by civilians. It is not clear whether drones be considered military instruments of war. But what it is clear is that law has to take into account the ground realities and therefore, all good intentions notwithstanding, no legal challenge against CIA operators of drones is likely to succeed given the covert nature of this war.
There is a litmus test of the legality or illegality of these strikes, beyond the question of whether those targeted and those targeting fall in any category of combatants under the Geneva Convention. The test is twofold: a) Distinction: which requires that attacks be limited to military targets and objects and that civilians or civilian objects shall not be subjected to direct hostilities; b) Proportionality: that the collateral damage to civilians or civilian objects should not in any way be excessive. Excessiveness will be ultimately determined by an analysis that compares the advantages gained by such attacks and the losses – in other words, a legalistic cost benefit analysis to determine the greater good.
It is this second principle that assumes paramount importance for the policy makers involved in this war on terror. Pakistanis agitating for an end to drone strikes should also make their case in terms of proving that the proportionality principle does not justify strikes of the kind we have witnessed. On the face of it, this argument holds no water especially when Pakistan’s own action against militants has been crippled by technical frivolity that is employed by those seeking to defend militants in the court of law.
The subject, however, requires far more legal work by experts in international law and the laws of war.
Yasser Latif Hamdani lives in Lahore