Drone strikes chal­lenge ‘ writ of int’l law’

Pakistan Observer - - EDITORIALS & COMMENTS - S Qa­mar Afzal Rizvi Email: rizvipeac­ere­searcher@ gmail. com

much light on the sub­ject.

The cor­rect le­gal cat­e­go­riza­tion of the con­flict ( keep­ing in view, the Law of Armed Con­flict) with AlQaeda is not ob­vi­ous. It is plainly not a civil war or other ‘ in­ter­nal’ armed con­flict, such as the con­flicts to which Ad­di­tional Pro­to­col II paradig­mat­i­cally ap­plies. It is also not an ‘ in­ter­na­tional’ armed con­flict in the sense of Com­mon Ar­ti­cle 2 of the Geneva Con­ven­tions, nor is it a ‘ war of na­tional lib­er­a­tion’ in the sense of Ad­di­tional Pro­to­col I. None­the­less, un­der the U. S. Supreme Court’s ‘ rul­ing in Ham­dan v. Rums­feld’, it is an armed con­flict ‘ not of an in­ter­na­tional char­ac­ter’ to which at least some el­e­ments of the LOAC ap­ply. It is as­sumed, then, that the con­flict is best de­scribed as a ‘ transna­tional’ one be­tween a ‘ na­tion state’ ( United States) and its al­lies, and a ‘ transna­tional ter­ror­ist group’( Al- Qaeda/ Daesh/ ISIS) and its non- state af­fil­i­ates.

The re­view by the Stim­son Cen­ter, a non­par­ti­san re­search or­ga­ni­za­tion, gives the Obama ad­min­is­tra­tion an ‘ F’ for fail­ing to pro­vide a clear le­gal jus­ti­fi­ca­tion for its use of drones to kill al Qaeda or Is­lamic State ex­trem­ists in coun­tries where the United States is not at war. And the ad­min­is­tra­tion also re­ceives an ‘ F’ for fail­ing to en­sure strong over­sight and ac­count­abil­ity for the secret pro­gram, which has be­come a sig­na­ture of Obama’s ten­ure. There are also ‘ Ds’ and ‘ un­known’ awarded to the White House on other as­pects of drone pro­gramme.

Ben Em­mer­son United Na­tions spe­cial rap­por­teur on hu­man rights and counter- ter­ror­ism, and an ex­pert on in­ter­na­tional law ac­knowl­edges: “….. there is “no clear in­ter­na­tional con­sen­sus” on the laws con­trol­ling the de­ploy­ment of drone strikes. The spe­cial rap­por­teur con­cludes by urg­ing: “the United States to fur­ther clar­ify its po­si­tion on the le­gal and fac­tual is­sues … to de­clas­sify, to the max­i­mum ex­tent pos­si­ble, in­for­ma­tion rel­e­vant to its lethal ex­trater­ri­to­rial counter- ter­ror­ism op­er­a­tions; and to re­lease its own data on the level of civil­ian ca­su­al­ties in­flicted through the use of re­motely pi­loted air­craft, to­gether with in­for­ma­tion on eval­u­a­tion method­ol­ogy used.”

As for the ma­jor­ity of in­ter­na­tional law ex­perts, the CIA- op­er­ated drone strikes are’ ul­tra vires’ since their op­er­a­tions cause ‘ le­gal mis­car­riages’. The con­cept of sig­na­ture strikes is not a le­gal term of art and risks cre­at­ing con­fu­sion by sug­gest­ing the pos­si­ble in­tro­duc­tion of a new ( le­gal) no­tion. The way in which this con­cept is used – i. e., in dis­tinc­tion to ‘ per­son­al­ity’ strikes – also er­ro­neously im­plies that tar­get­ing un­der IHL will only be law­ful if the iden­tity of the per­son tar­geted is known. This re­quire­ment is not an el­e­ment of the prin­ci­ple of dis­tinc­tion and would for the most part not be pos­si­ble to ful­fil in the re­al­ity of armed con­flict. If tar­get­ing on this ba­sis has been or is tak­ing place, it would be con­trary to the prin­ci­ple of dis­tinc­tion as the vicin­ity of a per­son to a par­tic­u­lar area, cou­pled with his age, can­not make him a ‘ mil­i­tary ob­jec­tive’.

The U. S. use of drones is fail­ing the rel­e­vant tests of the ‘ law­ful use of force’. It is fail­ing un­der Ar­ti­cle 51 of the UN’s char­ter; fail­ing un­der the prin­ci­ple of ‘ ne­ces­sity’ and fail­ing un­der the prin­ci­ple of ‘ pro­por­tion­al­ity’. The U. S.’ s use of drones in many cases does not meet these cri­te­ria. Professor Ken­neth An­der­son an ex­pert on in­ter­na­tional hu­man­i­tar­ian law cor­rectly con­cludes: “[ A] strate­gic cen­tre­piece of U. S. counter ter­ror­ism pol­icy rests upon le­gal grounds re­garded as deeply il­le­gal… by large and in­flu­en­tial parts of the in­ter­na­tional com­mu­nity’’. Maria LaHood, a se­nior staff at­tor­ney with the Cen­tre for Con­sti­tu­tional Rights said,” If the in­ter­pre- of in­ter­na­tional law were up to the U. S. and Is­rael, there would scarcely be any law left”.

Obama ad­min­is­tra­tion’s toxic strat­egy— of launch­ing drone strikes in So­ma­lia, Ye­men and Pak­istan( with­out ad­dress­ing the is­sue of le­gal­ity) — seems to have gravely ques­tioned the au­then­tic­ity of the doc­trines of ‘ self de­fence, pre- emp­tion, and hu­man­i­tar­ian in­ter­ven­tion’. The US drone legacy has posed great threat to the ‘ le­git­i­macy’ and ‘ ef­fi­cacy’ of in­ter­na­tional law, par­tic­u­larly with ref­er­ence to the Law of Armed Con­flict(‘ jus ad bel­lum’and’jus in bello’), In­ter­na­tional Hu­man­i­tar­ian Law( IHL) and In­ter­na­tional Hu­man Rights Law( IHRL). The para­dox of set­ting a dou­ble stan­dard in ‘ the­ory and prac­tice’ has cre­ated a ‘ le­gal apartheid’ re­gard­ing use of drone tech­nol­ogy vis- à- vis sovereignty, thereby mak­ing a mock­ery of in­ter­na­tional law, ar­gu­ing that sovereignty only be­longs to pow­er­ful states.

Islamabad can no more ig­nore this dis­crim­i­na­tory at­ti­tude which un­der­mines its ‘ sovereignty’. Based on Pak­istan’s ju­di­cious pol­icy as­ser­tion, drones can no longer fly out of Pak­istani bases and Pak­istan it­self should have an in­creased role in the de­ci­sion mak­ing over the strikes.

In a be­fit­ting state­ment given in re­sponse to US’s drone strike in Balochis­tan, the Pak army chief said such acts of sovereignty vi­o­la­tions are detri­men­tal to re­la­tions be­tween both coun­tries and are counter- pro­duc­tive for on­go­ing peace process for re­gional sta­bil­ity. “Pak­istan’s ef­forts, suc­cesses and sac­ri­fices in fight against ter­ror­ism have been un­par­al­leled,” Gen­eral Ra­heel added. What Amer­ica needs to­day is the strate­gic vi­sion of fol­low­ing uni­ver­sal stan­dards, not dou­ble stan­dard. — The writer is an in­de­pen­dent ‘ IR’ re­searcher based in Karachi.

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