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Legality of the Drone Attacks

May 9th, 2011 | 3 Comments

By Yasser Latif Hamdani

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

Written by yasserlatifhamdani

Filed under: Taliban · Tags: combatants, Drone Attacks, legal, war

3 Responses to "Legality of the Drone Attacks"

Feroz Khan says:

May 10, 2011 at 4:52 am

The use of United States’ drones to target and eleminate insurgent leadership in Pakistan is legal according to United States’ law if an argument can be made to show its legality and the same applies to international law, where such killings can be deemed permissable. The answer to the second question is also in the affirmative and international law and United States’ law can authorize such acts.

The Taliban leadership and Al Qaeda as far as the United States is concerned represents the enemy leadership and such, can be targetted. There is no international law or convention that says enemy leadership cannot be targetted in a war and there is no proviso which stipulates that such actions can only can be undertaken by combattants involved in a war and not by civilians.

There are many examples of civilians being used to advance military aims and being used assassinate enemy leadership. In the Second World War, the British intelligence used Czechoslavakian civilians to assassinate Henrich Heyderich, a high ranking Nazi offical considered as Hitler’s deputy. The French resistence, composed of French civilians, was used by the British and American intelligence, Office of Strategic Services which was the forerunner of Central Intelligence Agency (CIA), to run operations in occupied France and was used extensively to attack military targets prior to the opening of the second front in Europe.

During the Second World War, the British routinely refused to sanction the assassination of Adolf Hitler by the Americans or even by the German resistence groups because they did not wish to make into a martyr.

In Vietnam, there was a very high degree of cooperation between the United States’ military and the CIA in which many operations were generated for intelligence purposes and were carried out by the United States’ military. Such operations were carried out in Laos and Cambodia; nations which were not at war with the United States in Vietnam, but were considered to be providing sancturies to the enemy – the Viet Cong – and thus, were considered legitimate targets.

In the case of Pakistan, we have to understand that while actual combat operations are taking place within Afghanistan, there is active intelligence war being fought inside Pakistan. This is an asysmetrical war being waged by select groups of United States soldiers under the direction of Joint Operations Command and this type of warfare is not adequately covered by the Geneva Conventions.

Even if the CIA is operating the drones and it is the civilians who are operating those drones, it does not lessen the fact that these civilians are engaged in tasks which aid the military operations against the Taliban and Al Qaeda. Again, during the Second World, it was the British civilians working at Bletchely Park, who were breaking the German naval codes and locating German U-Boots and passing the information to the military and therefore, were responsible for the death of German sailors.

In modern war, there is no distinction between a combattant and a non-combattant. The United States’ Eight Army Air Force conducted a strategic bombing campaign of Germany in which German industry was attacked and civilians were killed, but they were considered as combattants because they working in factories, which were producing the means that were aiding the German forces to resist the allies.

Drone technology is a weapon for political assassination and this weapon and its use is sanctioned by the civilian leadership of the United States as a legitimate weapon in the fight against Taliban and Al Qaeda. These attacks are permissable on Pakistani soil against the Taliban and Al Qaeda, because the United States considers them to be targets of opportunity in a war, which means that they do not actively seek out the targets but if such a target is located; it will be eleminated.

International law and its stance on the issue of asysmetrical warfare is still emerging because the war on terror is not a traditional war between sovereign nation-states but a transnational war. In this sense, Geneva Conventions and their application to this type of warfare is limited and is in a sense outdated.

It is moot on this issue, because this war involves the idea of sovereign state power versus non-state actors involved in a transnational war and this area of internation relations theory is still in its infancy. There are no clearly defined laws on this issue, because the nature of this war is so different from the manner in which war was understood and defined under international law.

International laws and the Geneva Conventions, as they presently exist, apply to war between states and not to wars between states and non-state actors.

It is a fascinating subject and the emerging area of future conflict studies in international law and international relations.

ciao
Legality of the Drone Attacks | Tea Break says:

May 10, 2011 at 5:52 am

[...] Legality of the Drone Attacks [...]
rex minor says:

June 2, 2011 at 8:28 pm

I guess that the crap that Feroz Khan has put out is no different than that promoted by Rumsfeld and Cheyney gang, supported by the wide eyed Attorney General under George w. Perhaps Feroz Khan was the intern at the time in the Pentagon?

Rex Minor