The Illegality of US Drone Attacks in Pakistan

The Illegality of US Drone Attacks in Pakistan
Rai Muhammad Saleh Azam

Since June 2004, the United States has carried out 330 drone attacks in Pakistan, which have resulted in the deaths of approximately 3,337 people and injuries to approximately 1,500. According to a recent study jointly carried out by Stanford University and New York University titled “Living Under Drones”, only 2% of the victims of US drone attacks are high-ranking militants and only 1 in 50 (or 0.5%) of those killed are alleged terrorists. This means that the overwhelming majority of those killed by US drones in Pakistan are innocent civilians.

The summary, indiscriminate and ruthless nature of the US drone programme can be guaged by the fact that it assumes, as a matter of official policy, that all military-age men (i.e. aged 18 to 40 years) killed in a drone strike zone are deemed combatants “unless there is explicit intelligence posthumously proving them innocent.” Notwithstanding the outrageous premise upon which this assumption is based, it begs the following questions: (a) how does the US determine the age (or even gender) of those within a potential drone strike zone? and (b) what is the logic and purpose in determining the innocence of victims posthumously? In other words, the US considers drone victims guilty until proven innocent posthumously.

The increasing intensity of drone strikes in Pakistan can be guaged by the fact that under the Bush administration, there was a drone strike in Pakistan every 43 days whereas during the first two years of the Obama administration, there was a drone strike every four days.

US drone attacks in Pakistan are a violation of:

(i) the basic human right to life;
(ii) the principle of due process of law;
(iii) Pakistan’s state sovereignty
(iv) international law; and
(v) the municipal or state laws of Pakistan and the United States.

Below is a list of the national and international laws that are breached each time the US kills people through drone strikes in Pakistan:

1. Charter of the United Nations, 1945

Article 33 of the United Nations Charter states: “The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.”

US drone strikes are, therefore, in blatant violation of Article 33 of the UN Charter as the US is ignoring the mandatory mechanisms prescribed by the UN for the pacific settlement of disputes.

The right of self-defence conferred by Article 51 of the United Nations Charter is a narrow exception to the Charter’s general prohibition of the use of force to settle international disputes. Furthermore, under the 19th century formulation of customary international law known as the Caroline test, countries may engage in individual or collective pre-emptive self-defense when the necessity for preemptive self–defence is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation” (i.e. instant and ovewhelming necessity). The use of drones by the US to kill people in remote mountainous areas of Pakistan over 12,000 km from the US mainland fails to meet the criteria laid down by this test.

Notwithstanding Article 51, the predecessor of the International Court of Justice, namely the Permanent Court of International Justice, established a rule of customary international law in the Lotus Case (Case of the S.S. “Lotus” (France v. Turkey) of 1927 that “the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State.”

2. The Universal Declaration of Human Rights, 1948

The US drone attacks are a violation of the following Articles of the Universal Declaration of Human Rights:

(i) Article 3: Right to life
(ii) Article 5: Protection against cruel and inhuman punishment
(iii) Article 7: Equal protection of law
(iv) Article 10: Right to fair and public hearing
(v) Article 11: Presumption of innocence

3. Convention on the Prevention and Punishment of the Crime of Genocide, 1948

Drones are a violation of the Convention on the Prevention and Punishment of the Crime of Genocide, which prohibits killing members of a group and infliction of pain and suffering to the members of a group.

All US drone attacks are carried out in Pakistan’s Federally Administered Tribal Areas, specifically in a few tribal agencies in which the overwhelming majority of the population are ethnic Pakhtuns. Therefore, the US drones are specifically targetting Pakhtun tribes, which are a “group” under the 1948 Convention and the killing of a group is considered genocide under the 1948 Convention.

4. International Covenant on Civil and Political Rights, 1966

The United States has ratified the International Covenant on Civil and Political Rights (ICCPR), which states: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.” The ICCPR further guarantees an accused person the right to a presumption of innocence and a fair trial.

The US drone attacks are in breach of the following Articles of the International Covenant on Civil and Political Rights:

(i) Article 6: Pertains to right to life and further provides that the death penalty may only be allowed in very limited circumstances, but in no circumstances allowed to be imposed on persons below eighteen years of age or carried out on pregnant women.

(ii) Article 14: Pertains to procedural justice and provides that every person has the right to be treated under the due process of law, which includes, without limitation, the presumption of innocence; the right to a hearing; the right to be informed of the charges leveled against him and the right to appeal.

5. Rome Statute of the International Criminal Court, 1998

Although the US is not a signatory to the Rome Statute of the International Criminal Court, US drone attacks fall under the definition of “war crimes” and “crimes against humanity” as defined in Articles 7 and 8 of the Rome Statute of the International Criminal Court, 1998 respectively.

6. United States Constitution, 1789

The Fifth, Sixth and Fourteenth Amendments to the US Constitution give the accused the right to a speedy and public trial and forbid the state from abridging or depriving a person of life without due process of law. The US drone attacks deny their victims each of these rights.

7. United States Federal Executive Orders (1976, 1978 and 1981)

The US drone attacks are in breach of three US Federal Executive Orders that are still in force:

In 1976, US President Gerald Ford issued Executive Order 11905, Section 5(g) of which reads: “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”

In 1978, US President Jimmy Carter issued Executive Order 12036, further strengthening and expanding Ford’s Executive Order 11905 by stating: “”No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” This expanded the prohibition on political assassination to any type of assassination.

In 1981, President Ronald Reagan issued Executive Order 12333, Section 2.11 of which states: “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.” Section 2.12 further reads: “Indirect participation. No agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order.” 8. Congressional Authorization for the Use of Military Force (2001) and the National Defense Authorization Act, 2012
The US Government justifies its drone policy with reference to the Authorization for the Use of Military Force (AUMF), which the US Congress passed in the immediate aftermath of the September 11 attacks. The AUMF authorized the use of force against groups and countries that supported the 9/11 attacks. However, Congress disallowed the Bush Administration’s request for carte blanche military authorization “to deter and preempt any future acts of terrorism or aggression against the United States.” The US drones are being employed as an instrument of deterrence and preemption against suspected militants, including civilians who happen to be in the target area, which is beyond the scope of authority granted by the AUMF. Furthermore, the US drone policy is being continued notwithstanding the National Defense Authorization Act, 2012 in which Congress specifically clarified that “Nothing in this section is intended to…expand the authority of the President or the scope of the Authorization for the Use of Military Force.”

9. International Conventions

The U.S. drone attacks in Pakistan violate the international law principles of proportionality and distinction. Proportionality means that an attack cannot be excessive in relation to the threat. Distinction requires that the attack be directed only at legitimate military targets. The US drone attacks fail on both these counts. 10. The Constitution of the Islamic Republic of Pakistan, 1973
The US drone attacks are in blatant violation of Articles 4, 9 and 10A of the Constitution of Pakistan, which provide that the life of all persons shall be protected and all persons shall be entitled to equal protection of the law, fair trial and due process.

11. Pakistan Penal Code, 1860

Any criminal activity that takes place on the soil of Pakistan, whether it originates from within Pakistan or without, attracts the applicable penal provisions of the Pakistan Penal Code.

The US drone attacks violate the applicable provisions of Chapter XVI (Offences Affecting the Human Body) of the Pakistan Penal Code, which make it a criminal offence to cause injury or death to persons residing in Pakistan.

12. Pakistan’s Code of Criminal Procedure, 1898

The US drone attacks are in breach of Pakistan’s Code of Criminal Procedure (“CrPC”), which lays down detailed mechanisms and procedures (i.e. due process) to be followed prior to punishing any person accused of a criminal offence. Therefore, the entire scheme of the CrPC is violated by US drone strikes.

It is clear from the above that all those killed by US drones in Pakistan are killed illegally and extra-judicially under Pakistani, US and international laws. Even if we assume that the tiny minority of those killed by US drones are indeed terrorists, they still have the right to a fair trial and due process of law, rather than summary execution without any trial, let alone a fair one. The killing of persons by US drones in Pakistan is nothing less than murder and those doing the killing should be treated as nothing less than those guilty of murder.

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