United States (U.S.) policy on use of drones in Pakistan: Sometimes the policy is lawful but awful.
United States (U.S.) POLICY ON USE OF DRONES IN PAKISTAN: SOMETIMES THE POLICY IS LAWFUL BUT AWFUL
Aditya Pratap Singh
Throughout the course of human history, war has been a part of the human condition. Every successive generation from ancient Mesopotamia to the present has been in involved in conflict. As warfare has evolved, so have its means and methods. From the crossbow to the rifle, the biplane to the jet fighter, the mortar to the atomic bomb, advances in technology have often been adapted for military ends. Because of their novel applications, however, new weapons sometimes have escaped the bounds of international law. For example, the military adaption of the airplane shortly following its invention at the beginning of the twentieth century dramatically changed the dimensions of warfare, making attacks far behind enemy lines much easier to carry out.
A state action may constitute a legal act, but its undesirable ramifications may overshadow any prospective benefit resulting from following that course of action. The military use of drones or Unmanned Aerial Vehicles (UAVs) and Unmanned Combat Aerial Vehicles (UCAVs) in combat operations is one of the more legally controversial issues confronting international humanitarian law (IHL). Drones represent a summit in long-distance killing. From the Neolithic spear, to the bow and arrow, to artillery, to the airplane, to the cruise missile, advances in weaponry over the millennia have made it easier and safer to kill from great distances. Drones, combined with suitable missiles, have taken this process to its logical extreme.
As we all know every phenomenon around the globe is expanding and mankind is giving definition to the new world which has an ambit of no boundaries. Use of Drones is one of that phenomenon kind only which has been taken into study in this paper by analyzing a particular countries scenario over it.
The history of the Law of War is as old as war itself. The Law of War lays out principles that give States a legal basis to justify the use of force and the employment of force. The Law of War is separated into two different categories: Jus ad Bellum and Jus in Bello. Jus ad Bellum, Latin for “right to wage war,” is the concept that provides justification for a State to engage in warfare. Jus ad Bellum developed what is known today by political philosophers as the “Just War Theory.” The Just War Theory espouses principles on what justifies a State to use force against another State. Traditional principles of this theory are that war can only be waged if there is a just cause, there is a right intention, the State has proper authority, war is waged only as a last resort, there is a probability of success, and there is proportionality. Additionally, the Just War Theory requires that all of these principles must be satisfied in order for a State to engage in war.
Jus in Bello, Latin for “justice in war,” is a second body of laws that covers the conduct of warfare. It was developed after Jus ad Bellum and the purpose of Jus in Bello was not to govern the ways in which a State can enter into a state of warfare, but rather to govern warfare itself. Both Jus ad Bellum and Jus in Bello have long histories and have developed jurisprudence regarding their respective bodies of laws. Aspects of both bodies of laws can be found in the writings of numerous ancient philosophers, as well as in religious texts, such as the Old Testament.
The culmination of these two aspects of the Law of War came to a forefront in the 17th and 18th centuries. During this time period warfare became a de facto situation. The general thought process was that States “had discretionary powers to wage war and that those powers could be used as a means of pursuing national policy. This mind set caused the deterioration of Jus ad Bellum and gave rise to Jus in Bello. “Now that the field of vision had been restricted, greater attention could be paid to the conduct of hostilities :for owing to this indifference [to the cause of war], armed violence came to be seen first and foremost as a process to be regulated in itself, regardless of its causes, motives and ends.” Eventually, after the First World War and the introduction of the League of Nations, the two bodies of law began to be “considered on equal footing and found their place in positive law.” Furthermore, while these concepts had been Customary International Law in one respect or another through out most of history, the Hague Peace Conferences of 1899 and 1907 and the Geneva Conventions of 1949 were some of the first contemporary attempts to codify the Law of War and put in the form of treaties. Numerous treaties have been created and ratified concerning the Law of War incorporating both Jus ad Bellum and Jus in Bello.
Since the Hague Conferences, there have been almost 30 treatises that have been codified governing the Law of War, and most of them have been ratified by the United States. While one body of law was thought to be superior to the other at different points in history, modern Law of War has realized the importance of what both bodies of law bring to the forefront. The atrocities and suffering of warfare created a need to stop arbitrary warfare, as well as a need to limit the suffering that resulted from the means and methods of warfare. As a result, contemporary Law of War embodies both sources of law, holding them to equal footing, requiring nations engaging in armed conflict to satisfy both to be in accordance with international law.
Today, the United Nations Charter in one of the modern codifications of the principles of Jus ad Bellum. The UN Charter’s main purpose is to maintain international peace and security and develop friendly relations among nations. Article 2 (4) set forth the Charter’s guiding principle on the prohibition of the use of force. Article 2 (4) states that: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Although Article 2(4) is the general rule, the Charter recognized limited instances in which the use of force would be necessary. Specifically, the “UN Charter provides for self-defense pursuant to Article 51 which governs acts of both individual and collective self-defense. Article 51 embodies the notion of a States inherit right to self-defense. Under the black letter law of Article 51, a State may only defend itself “if an armed attack occurs.” Much controversy has existed in recent years on the scope of Article 51 and self-defense; “some States, including the United States, argue that an expansive interpretation of the UN Charter is more appropriate, contending that the Customary International Law right of self-defense (including anticipatory self-defense) is an inherent right of a sovereign State that was not ‘negotiated’ away under the Charter.”
The Law of War is not a single treaty, but rather a compendium of agreements and considerations. In addition to the UN Charter, the other relevant sources of the Law of War alluded to earlier are codified in the Hague Laws of 1907, the Geneva Conventions of 1949 as well a subsequent treaties such as Additional Protocol I and II. It is important to understand the general construct of the Law of War, as well as when it applies and how it applies. International Humanitarian Law is only activated during armed conflict. In essence, the Geneva Conventions are the modern codification of Jus in Bello. However, International Humanitarian Law has separated armed conflict into two categories: international armed conflict and armed conflict not of an international character.
International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I. Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II.
When the armed conflict occurs, “the full complement of protections provided by International Humanitarian Law applies in cases of international armed conflict.” However, a more limited range of rules apply to armed conflict not of an international character which “bind all parties to the conflict, including non-State actors. Conventional thought is that Jus ad Bellum and Jus in Bello are two separate bodies of law that cover distinct issues related to war. The legality regarding the use of drones in Pakistan appears by some to be a hybrid of Jus ad Bellum and Jus in Bello. The United States is finding legal justification for the employment of drones in Pakistan, using self-defense as its basis – the Jus ad Bellum concept. However, continued and sustained use of drones in Pakistan is a concept covered by Jus in Bello. Moreover, the justification for the use of drones in Pakistan becomes even murkier when one considers the Jus in Bello body of law that applies. Due to the fact that al-Qaeda and the Taliban are now considered non-state actors and the conflict is considered an armed conflict not of an international character, the only law that covers the employment of the drones is Common Article 3 and possibly Additional Protocol II. While the discussion and jurisprudence is expansive with regard to international armed conflict, codified jurisprudence regarding conflicts not of an international character is limited. Regardless of how it is characterized, a Department of Defense Directive specifically states that service members will comply with the Law of War during all armed conflicts and in all other military operations.
“On September 11, 2001, terrorists hijacked four planes, flew two of them into the twin towers of the World Trade Center, and one of them into the Pentagon, and crashed the fourth in a Pennsylvania field. More than 3,000 civilians from over eighty different nations died in the attack.” Following these attacks the United States government and the international community quickly worked to set up the proper authority for the United States to legally take action against the Taliban and al-Qaeda. In order for the use of force to be legal within the framework of the United States Constitution, there had to be both domestic and international legal support for the use of force. Furthermore, the domestic authority had to also comply with the War Powers Resolution.
The US Constitution explicitly gives Congress the power to declare war. Although Congress has only declared war five times, “that power comprehends not only the enactment of formal declarations of war, but also the authorization of uses of military force which are not intended to rise to the level of a war.” Furthermore, “as a State in the international community of States, the United States is subject to international law, the law that governs relations between the States.” In combination, these two requirements ensure that authorization of the use of force must be authorized not only domestically, but under international authority as well.
The domestic authority for the United States to engage in armed conflict in Afghanistan originated from the Joint Resolution of Congress Authorizing the Use of Military Force (“AUMF”). The passage of this resolution came one week after the events that transpired on 9/11. In the resolution section of the AUMF, Congress reiterated provisions found in the UNSCR 1368. Important provisions of the AUMF cite to the United States’ inherit right to self-defense. The AUMF also spoke about the United States’ national security and foreign policy, echoing the UNSCR language of “international peace and security.”
In Section 2 of the AUMF, specific provisions detail the scope of Congress’s intent pertaining to the authority given to the President. The AUMF grants the President broad powers to go after and pursue the terrorist organizations responsible for the 9/11 attacks in order to prevent future acts of terrorism against the United States. Furthermore, Section 2(b) of the AUMF acts as the trigger required to satisfy Congressional authorization in accordance with the War Powers Resolution.
Based upon the resolutions of both the United Nations Security Council and Congress, the United States took action and employed the doctrine of self-defense to use force against the terrorists responsible for 9/11. On September 20, 2001, President George Bush called on the Taliban to close terrorist training camps and turn over Osama bin Laden and his cohorts. The United States government and military then started to devise plans to “capture Osama bin Laden, destroy al-Qaeda in Afghanistan, and remove the Taliban regime.” On October 7, 2001, United States’ forces entered into Afghanistan and Operation Enduring Freedom started.
Early in the war effort, the Bush administration used drones and initiated cross border incursions into Pakistan. From its inception, the employment of drones has grown exponentially. The pace of these attacks dramatically increased in 2006 after it had “become clear that the terror group was reconstituting itself in Pakistan’s tribal regions.” “In July 2007, the 16 agencies that make up the U.S. intelligence community released a National Intelligence Estimate assessing that al-Qaeda was resurging and warning that it ‘has protected or regenerated key elements of its Homeland attack capability, including a safe haven in Pakistan’s Federally Administered Tribal Areas.’ This safe haven was particularly disturbing to officials in the Bush administration because evidence showed that al-Qaeda and its affiliates were using the FATA region in Pakistan to train Westerners for attacks on American and European targets.
The planning and training for numerous terrorist attacks originated in the FATA region including: the July 7, 2005 attacks in London. The plot to use liquid explosives to bring down passenger jets leaving Heathrow in 2006 and the plotters who planned on bombing the Rahmstein U.S. Air Force Base in Germany. In fact, the UK has alleged that Pakistan is linked to 75% of the terror plots in the UK. Furthermore, numerous top U.S. officials believe that Osama bin Laden and other top al-Qaeda officials are living in the region and that the tribal belt on Pakistan’s western border has become the “global headquarters” for al-Qaeda.
Reports indicated that the Pakistan government had made peace agreements with the Taliban in the FATA region in 2005 and 2006. This allowed militants to stage attacks from Pakistan and the attacks were increasing at a dramatic rate. After waiting for the Pakistani government to respond to the incursions into Afghanistan, President Bush finally sent in a Special Operations team on the ground to capture high value al-Qaeda targets. The Pakistani government vehemently protested the presence of American troops on the ground and argued that it violated their sovereignty. “In the face of the intense opposition to American boots on the ground, the Bush administration chose to rely on drones to target suspected militants. After President Bush left office, President Obama has continued, and even expanded on the drone program and cross-border incursions into Pakistan. Even prior to assuming office, then candidate Obama criticized the Bush administration for not “acting aggressively enough to go after all al-Qaeda’s leadership.” He went on further to say, “I would be clear that if Pakistan cannot or will not take out al-Qaeda leadership when we have actionable intelligence about their whereabouts, we will act to protect the American people. There can be no safe haven for al-Qaeda terrorists who killed thousands of Americans and threaten our homeland today.” Three days into President Obama’s term, drones struck the FATA area destroying two compounds, killing numerous people, and possibly killing a high value target.
ARGUMENTS RELATED TO THE USE OF DRONES IN PAKISTAN: INTERNATIONAL LAW
A review of possible legal justifications arguing why the United States is able to use drones to carry out cross-border incursions into Pakistan underscores the complexity of the issue. Though there are a plethora of possible justifications, each carries its own caveat. The first, and primary justification, is that Pakistan has either authorized, or has acquiesced to the incursions. The proposition that a State may consent to the use of force on its sovereign territory by another State is not legally controversial. Even if Pakistan has not authorized such incursions, the United States could argue inherit right to self-defense, both as commonly defined by the international community and possibly by using anticipatory self-defense. Moreover, on a strict case-by-case review that is closely associated with self-defense, one could use the theory of Hot Pursuit to justify the incursions. Regardless of the basic legal foundation for the incursions into sovereign territory of another country, the final argument for the incursions into the FATA region of Pakistan is that the area is “ungoverned territory”, which would result in an argument that no legal justification has to be made as there is no sovereign State involved and therefore no “incursion.” We will not go into whether Pakistan has allowed US to make use of Drones in their territory but rather focus on the inherent right of Self-Defense of US and Anticipatory Self Defense.
If the United States does not have the consent of the Pakistani Government to use drones in order to conduct cross-border incursions, then the legality should be based on the inherent right of self-defense. Some legal scholars have argued that the applicable law in “special, sometimes covert, operations outside of traditional zones of armed conflict” is controlled by the customary international law of self-defense, rather than the narrow Law of Armed conflict. This cannot and should not be the U.S. position. Mr. Harold Koh, the United States legal advisor to the Department of State, has publically stated that the legal justification for the use of drones is based on the asserted right of self-defense. Mr. Koh has however gone one step further and also stated that the use of drones complies with the Law of War. Basing the legality of the cross-border incursions on the concept of self-defense is specifically backed by the United Nations in UNSCR 1368 and the Joint Resolution of Congress. Requiring the United States to follow the Law of War is a fundamental duty.
The language of UNSCR 1368 appears to give the United States broad authority to defend itself. The UNSCR states in its “Determined” clause that the United Nations, and by implication the United States, must “combat by all means threats to international peace and security caused by terrorist acts. The UNSCR then goes on to recognize the inherent right of self-defense of the United States. The UNSCR also reaffirms the principles and purpose of the UN Charter and “expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001.” The plain reading of the Resolution gives the
United States and other member states the authority to pursue those responsible for 9/11 in accordance with the UN Charter. Absent any further resolution from the UN Security Council, when applying international law, it would appear as though the United States is within its authority to use the drones to attack al-Qaeda inside Pakistan, since they are the ones responsible for international terrorism and 9/11 and the inherit right to self-defense still applies. The President is also within his authority to seek out the Taliban in Pakistan under the UNSCR since the Taliban had originally harbored al-Qaeda. Furthermore, the United States may interpret the third clause of the UNSCR to authorize attacking al-Qaeda with drones due to what it sees as an inability of the Pakistanis to bring the terrorists in their borders to justice, and in a sense harboring the terrorists by omission.
On the domestic angle of the President’s power to use drones to attack the Taliban and al-Qaeda, the answer seems to be clearer. As with the UNSCR, the AUMF invokes the right of self-defense. Furthermore, in the “Whereas” section of the resolution, one clause states that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.” This statement, in conjunction with the self-defense statement, infers that the AUMF may not even be necessary, and that the Constitution by itself authorizes the President to go after international terrorism under the right of self-defense. Regardless, Congress still issued the AUMF, and it clearly states that the President may use “necessary and appropriate force” (i.e. the use of drones), and does not appear to place territorial limitations on his ability to use force, whether it be Afghanistan, Pakistan, or some other country. There is also another important aspect of the domestic legality of the President’s actions. In this situation, if the AUMF does not have territorial limitations, the President would wield the greatest authority under the holding set forth in Youngstown Sheet & Tube Co. v. Sawyer.Youngstown was a case dealing with the President’s executive power to seize private property during the Korean War. In an attempt to stop a steel strike, President Truman used an Executive Order to seize steel mills. President Truman cited Article II executive power as authority to do this, even though Congress had passed the Taft-Hartley Act which laid out what the President may do in such circumstances. This clash led to the concurrence of Justice Jackson, which has held great weight in determining the extent of the President’s power in relation to the laws duly enacted by Congress. With Congress addressing the problem of terrorism in the wake of the 9/11 attacks with the AUMF, and the President following the AUMF, a Youngstown analysis would allow the President’s authority to be “at its maximum.” Without a territorial limitation set forth in the AUMF, the President is not required to limit himself to any geographical jurisdiction. Had Congress been more precise in geographical jurisdiction, the President would have been bound by those limitations.
Although there is justification to propose that self-defense does not have territorial limitations, there is a counter argument. The Constitution provides that treaties are to be considered the supreme law of the land. The U.S. Constitution also provides that the President “shall take Care that the Laws be faithfully executed.” Due to this limitation, the President is bound by Article 2 of the UN Charter which requires member states uphold certain purposes and principles, including that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.
Although the United Nations passed UNSCR 1368 calling the member States to bring the terrorists responsible for the 9/11 attacks to justice, it may be considered a leap of logic to apply this UNSCR, with regard to the use of force, within the sovereign territory of Pakistan. The language in the UNSCR is broad but was “widely viewed as confirming the right to use force in self-defense against al-Qaeda in Afghanistan.” If this is so, this would negate the expansive interpretation of the UNSCR self-defense justification which gives the United States legal authority to use the drones as an extension of the war fighting effort and violate the territorial integrity of Pakistan. However, the UNSCR specifically stressed that it would go after “those responsible for aiding, supporting or harbouring the perpetrators.” While this clause seems to imply that a State must knowingly aid, support or harbor the terrorists in order for another State to use force against them under the guise of self-defense, some believe “it is a ‘fair inference’ today that self-defense may be invoked against non-state actors.”
If Article 51 self-defense cannot be used to justify cross-border incursions, the analysis must then include an extension to the inherent right of self-defense known as anticipatory self-defense. “Some States embrace an interpretation of the UN Charter that extends beyond the black letter language of Article 51, under the principle of ‘anticipatory self-defense.’ Unlike Article 51, which triggers individual or collective self-defense based upon the prerequisite that one must first be attacked, the Customary International Law approach of anticipatory self-defense “justifies using force in anticipation of an ‘imminent’ armed attack.”
The standard for what is an imminent armed attack dates back to the 1837 Caroline case. In correspondence between then Secretary of State Daniel Webster and Lord Ashburn, the idea that a State does not actually need to be attacked in order to defend itself was discussed. The correspondence details the preconditions for using armed response which would result in anticipatory self-defense and has become the standard in Customary International Law. Specifically, States “may engage in anticipatory self-defense if the circumstances leading to the use of force are ‘instantaneous, overwhelming, and leaving no choice of means and no moment for deliberation.’ What this means is that a State has to show “necessity.” In addition to showing necessity, a State also has to show proportionality in that the actions are not “unreasonable or excessive.
Since the Caroline case, and after 9/11, the Bush administration attempted to expand the meaning of imminent use of force in relation to anticipatory self-defense. In The National Security Strategy of the United States of America of 2002161 and 2006 (“NSS”), President Bush put forth what is known as the “Bush Doctrine.” In discussing the need to address an expanded version of the imminent use of force, the NSS concluded that “the greater the threat, the greater is the risk of inaction and the more compelling the case for taking action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack.” In order to quantify a standard for this new version of imminent use of force, some have suggested that a State may use force when evidence shows that an aggressor has committed itself to an armed attack and delaying a response would hinder the defender’s ability to mount a meaningful defense.
Anticipatory self-defense whether the traditional version or the expanded version, can be used to justify the legality for cross-border incursions into Pakistan. It should be noted that there is significant controversy regarding even the employment of the traditional doctrine of anticipatory self-defense. Moreover, while there may be occasions where the United States may be justified using anticipatory self-defense for the employment of drones, it is hard to imagine that the continued use of drone attacks fall within this category. In order for the United States to satisfy the standard for traditional anticipatory self-defense, it would need show that the circumstances leading to the use of force are “instantaneous, overwhelming, and leaving no choice of means and no moment for deliberation.” To justify force under this rather limited standard is fact specific, and for the United States’ to attempt to justify every attack with the imminent use of force test is highly unlikely. Furthermore, if the employment of the traditional use of anticipatory self-defense is viewed as controversial, the expanded notion under the Bush Doctrine is generally seen as too expansive Obviously, under the Bush Doctrine, with the looser definition of imminent use of force, it would be easier to justify the legality of cross-border incursions. However, this looser definition does not enable a “dead-lever” approach that swallows all circumstances.
The use of drones in combat is evolutionary, not revolutionary. The employment of unmanned vehicles on the battlefield is not as different from the use of manned vehicles as to cause a disconnect between the use of drones and their legality. Drones must be used in accordance with national and international law, to specifically include the Law of War. Once it is determined there is a legal justification for an attack, the conduct of the attack must comply with the Law of War. Some critics may argue that there is a lack of transparency concerning the United States, the War on Terror, and the use of drones to respond to an asymmetrical battlefield, however, lack of transparency does not equate to lack of legality. With that said the lack of transparency does give critics of the United States the leeway to engage in circumspection. The United States can employ drones and conduct cross-border incursions if the incursions are legal. There are several legal justifications for cross-border incursions.
Clearly, the least controversial would be founded on the consent of the sovereign. The reality however is that Pakistan will probably never publically announce that they have consented to the incursions.
Relying on self-defense, both traditional and anticipatory, is factually driven and may not provide continued support simply based upon the events of 9/11. Hot Pursuit is another avenue that can be used to justify the incursions, but it is only a derivative of self -defense and, as such, is factually driven. Finally, categorizing the FATA region as “ungoverned territory” would not require legal justification because there would be no real border and thus no incursion. However, the realities and politics prohibit the use of this avenue of approach. The legality of cross-border incursions should not be viewed as a static response.
Working with our partners to respond to the War on Terror requires a dynamic thought process. The use of force must be decisive, but it also must be legal. The United States is not conducting operations in a vacuum, and actions taken by the United States have repercussions. Obtaining consent from the country where force is to be used should be the goal because consent allows for a synergy of effort and focus on a common enemy. The lack of consent amplifies the impact of all issues, from geo-political aspects, to the negative aspects of collateral damage. As a cautionary note, although the use of force should lack trepidation, the United States could win the battle and lose the war if consent is not obtained.
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 Justice Jackson’s concurrence established a framework to determine the scope of Presidential power. It is a
three tiered analysis:
When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. . .
When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . .
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.
Youngstown, 343 U.S. 579 at
U.S. Const. art. VI, S. 2.
U.S. Const. art. II, S. 3.
 U.N. Charter art 2.,para. 4.
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Michael Schmitt, Preemptive Strategies in International Law, 24 Mich. J. Int’l L. 513, 534 (2003).