Living under drones – Part – 2

Legal analyses of the use of drones in Pakistan are the most revealing. The first question which the report titled: “Living under drones: death, injury and trauma to civilians from US drone practices in Pakistan” asks is whether the strikes violate the sovereignty of Pakistan in contravention of the UN Charter. It finds the answer in affirmative. This is a question of jus ad bellum, the body of law concerning the recourse to force, and depends on whether Pakistan has consented to the strikes, or whether the US is lawfully acting in self-defence. At one point in time, Musharraf did collude with the US but now repeated public statements by Pakistani officials, which intensified in 2012 – declaring that the US strikes are illegal, counter-productive, and violate the country’s sovereignty – clearly cast doubt on whether Pakistan consents to ongoing operations, the Report concludes.

Legal experts, including the current UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, have questioned whether “killings carried out in 2012 can be justified as in response to [events] in 2001,” noting that “some states seem to want to invent new laws to justify new practices.” “Anticipatory” self-defence has been offered as a narrow exception, invoked to prevent an attack that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation.”

There is little publicly available evidence to support a claim that each of the US targeted killings in northwest Pakistan meets these standards.

US strikes against the non-state actors in Fata would be justified under the international law if the host country was not ready or unable to take action against them on its own. The Pakistan army and civil armed forces have suffered 5000 dead and many thousand injured in operations in Fata.

The distinction between the International Human Law (IHL) and International Human Rights Law (IHRL) are important to understand. The former applies when an armed conflict exists between states and the latter outside an armed conflict. In case of an armed conflict both the IHL and the IHRL apply.

No armed conflict exists between Pakistan and the US. US officials, however, have been quick to apply the IHL, without establishing that the requisite threshold for its application has been met. Yet numerous experts have raised questions about whether the US is, in fact, in an armed conflict with all of the groups whose members the US has targeted. This is because of factors such as the lack of centralisation and organisation within some non-state groups, and the existence of only sporadic and isolated attacks by some groups.

If there is an armed conflict, the legality of any drone strike must then be evaluated in accordance with the IHL. The Report finds the drone attacks totally unjustified according to the criteria set by the IHL. The Report has painstakingly collected information about specific individual strikes, including those on mosques, funerals, schools, the first responders to help the victims or meetings of elders to gather and resolve community disputes, where large numbers of civilians were present. “[I]f civilian ‘rescuers’ are indeed being intentionally targeted, there is no doubt about the law: those strikes are a war crime,” says Christof Heyns, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions.

Between 2002 and 2007, the Bush administration reportedly focused on “personality” strikes, ie targeting named, allegedly high-value leaders of armed, non-state groups. Under Obama, the programme expanded to include so-called “signature” strikes. According to the US authorities, these strikes target “groups of men who bear certain signatures or defining characteristics associated with terrorist activity, but whose identities aren’t known.” Just what those “defining characteristics” are has never been made public.

The Report holds that the practice of such strikes, which reportedly are based on behaviour patterns observed from a height and interpreted thousands of miles away, raises concerns about whether they are conducted with the proper safeguards to ensure that they strike lawful targets. The New York Times (NYT) reported that some in the Obama administration joke that when the CIA sees “three guys doing jumping jacks,” they think it is a terrorist training camp.

The Report notes that there is a troubling correlation between events of political significance and the intensity of drone strikes, for example, in the case of Raymond Davis. The Congress Research Centre cited two additional examples of the intensification of drone strikes related to political events.

The IHRL permits the intentional use of lethal force only when strictly necessary and proportionate. Thus, “targeted killings” (intentional and premeditated) cannot be lawful under the IHRL, which allows intentional lethal force only when necessary to protect against a threat to life, and where there are “no other means, to prevent that threat”.

According to the Report there is little public evidence that many of the targeted killings carried out fulfil this strict legal test. Indeed, and as described above, many particular strikes and practices suggest breaches of the test.

The Report notes that the nature and effect of the US targeted killing policy may also contravene in some instances other sections of the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty ratified by the US. Sections of the ICCPR potentially violated by US drone practice include Articles 7, 9.1, 17, 21 and 22.

“In most coverage of drone strike casualties, ‘militant’ is never defined….Thus, for instance, members of militant groups with which the US is not in an armed conflict [or pose no immediate threat to the US] are not lawful targets. Further, simply being suspected of some connection to a ‘militant’ organisation – or, under the current administration’s apparent definition, simply being a male of military age in an area where ‘militant’ organisations are believed to operate – is not alone sufficient to make someone a permissible target for killing….

“The label ‘militant’ also fails to distinguish between so-called ‘high-value’ targets with alleged leadership roles…..and low-level alleged insurgents with no apparent access or means of posing a serious or imminent threat to the US national security analysts – and the White House itself – have found that the vast majority of those killed in drone strikes in Pakistan have been low-level alleged militants….Peter Bergen and Megan Braun of the New America Foundation reported that since 2004, some 49 “militant leaders” have been killed in drone strikes, constituting “two percent of all drone-related fatalities.”

Another justification given for the drone aerial warfare in Fata is that it makes the homeland safer. The findings are exactly the opposite. The practice has earned more recruits to the Taliban. The strikes are not accurate as normally claimed. They kill a large number of innocent people.

“When people are out there picking up body parts after a drone strike, it would be very easy to convince those people to fight against America.” – Noor Behram, Pakistani Photojournalist. Recognising the danger posed by a campaign that breeds such hostility, more than two dozen US Congressmen penned a letter to President Obama in June 2012 that described drones as “faceless ambassadors that cause civilian deaths, and are frequently the only direct contact with the Americans that the targeted communities have.” David Kilcullen, a former advisor to US General David Petraeus, has stated that, “Every one of these dead non-combatants represents an alienated family, a new desire for revenge, and more recruits for a militant movement that has grown exponentially even as drone strikes have increased.”

Concluded

By: A Rauf Khan Khattak, former federal secretary.

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