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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Living under drones – Part 1

In September 2012, the International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law) in collaboration with the Foundation of Fundamental Rights in Pakistan brought out a report “Living under drones: death, injury and trauma to civilians from US drone practices in Pakistan.” It took the dedicated team nine months of research, 130 interviews with victims, witnesses and experts and review of thousands of pages of documentations and media reporting.

The team was led by Professor James Cavallaro and Clinical Lecturer Stephan Sonnenberg of Stanford Law School. It is the most comprehensive document of 184 pages, covering all aspects of drone warfare in Pakistan and most importantly its legal aspect. An effort is made in this article to highlight some of the findings of the Report.

Much of the public debate about drone strikes in Pakistan, notes the Report, has focused narrowly on whether strikes kill militants or civilians. The Report, however, aims to draw attention to a critical gap in understanding, specifically about life under drones and the socio-economic impacts of drone strikes on civilians in North Waziristan.

Available evidence suggests that these impacts are significant, and challenges the prevailing US government and media narrative that portrays drones as pinpoint precision weapons with limited collateral impact.

When the same target is hit more than once, it is referred to as ‘double tap’. Chris Woods of The Bureau of Investigative Journalism (TBIJ) independently confirmed 12 out of 18 such attacks. The secondary strikes hamper rescue work, humanitarian and medical assistance by civilians and professional workers. People no longer rush to the scene to help for at least half an hour. Those who do the daring, go with the knowledge that they may be killed.

“The dissuasive effect that the ‘double tap’ pattern of strikes has on first responders, raises crucial moral and legal concerns. Not only does the practice put into question the extent to which secondary strikes comply with international humanitarian laws’ basic rules of distinction, proportionality, and precautions, but it also potentially violates specific legal protections for medical and humanitarian personnel, and for the wounded. As international law experts have noted, intentional strikes on first responders may constitute war crimes,” notes the Report.

Naturally these attacks also cause damage to property and pose economic hardship. The survivors experience severe financial hardship as a result of strike damage to their homes, loss of a primary breadwinner, or medical costs incurred in caring for drone strike survivors.

In many cases they live on the charity of the village people, which may or may not be regularly available. In many cases young school or college going students are pulled out and discontinue education to earn a living for their families through hard physical labour. The rate of poverty is already quite high in Fata. Added to this are medical bills that include surgeries, medicine and hospital stays. One such bolt from the blue reduces a family to poverty or sometimes even below the poverty level.

“US authorities have not made any coordinated effort to provide compensation to strike victims in Pakistan. The Pakistani authorities have offered limited compensation in some instances, but these offers, rejected by many Waziris on principle, fail to address adequately the damage and loss of income the victims have sustained,” notes the Report.

Drones have given rise to a number of mental health problems. The most pervasive is the constant fear in which the entire population lives. A former New York Times journalist, David Rohde, who was kidnapped by the Taliban from Afghanistan in 2008 and kept for months in Fata from where he escaped, reported, “…..the buzz of a distant propeller is a constant reminder of imminent death.” Describing the experience of living under drones as ‘hell on earth’, Rohde explained that even in the areas where strikes were less frequent, the people living there still feared for their lives.

In the words of one interviewee for the Report: “God knows whether they’ll strike us again or not. But they’re always surveying us, they’re always over us, and you never know when they’re going to strike and attack.”

“Drones are always on my mind. It makes it difficult to sleep. They are like a mosquito. Even when you don’t see them, you can hear them, you know they are there,” Mohammad Kausar (anonymised name), father of three. People often complain that they wake up in the middle of the night screaming because they are hallucinating about drones.

Based on interviews with local psychotherapists, the Report notes, “People are proud and it is difficult for them to express their emotions…..” Reluctant to admit that they are mentally or emotionally distressed, the patients instead “express their emotional ill health through their body symptoms,” resulting in “hysterical reactions,” or “physical symptoms without a real [organic] basis, such as aches, and pains, vomiting, etc.”

It leads to anticipatory anxiety and post-traumatic stress disorder (PTSD). Many people have been severely affected to the point of completely losing sanity because of which they are permanently locked up in their homes.

The impact of drone attacks on children is most worrying. Most have experienced a loss in comprehension and a drop in scoring in different subjects. Nobody can concentrate in class if drones are hovering above or are expected to make sudden appearances. Many children have stopped going to the school for fear of being killed

Noor Behram, a Waziri journalist who investigates and photographs drone strike sites, noted the fear in children: “If you bang a door, they’ll scream and drop (to the floor) like something bad is going to happen.”

A Pakistani mental health professional shared his worries about the long-term ramifications of such psychological trauma on children: “The biggest concern I have is that when these children grow up, the kinds of images they will have with them, it is going to have a lot of consequences…… People who have experienced such things, they don’t trust people; they have anger, desire for revenge…. When these young boys and girls grow up with these impressions, it causes permanent scarring and damage.”

By: A Rauf Khan Khattak, former federal secretary.