Featured, World

The US Drone Policy under International Law

By Cholpon Orozobekova

The United States, in the framework of the “War on Terror,” adopted by the Bush administration in 2001, began conducting drone strikes in the territories of other states such as Pakistan, Yemen, and Somalia. After the terrorist attacks 9/11, the CIA and Joint Special Operations Command reportedly began targeted killing programmes aimed at eliminating leaders and high-value members of Al-Qaeda, the Taliban, and their associated forces.

For the first time ever, terrorism became the major threat to US national security and thus from year to year Al-Qaeda and its associated forces has remained the primary object of national security efforts. The US National Security Strategy 2010 includes a special section on how to disrupt, dismantle, and defeat Al-Qaeda, and adds that the United States is waging a global campaign against Al-Qaeda and its terrorist affiliates.”

Drones cross the borders of foreign countries and kill people, both alleged terrorists and innocent civilians. There is increasing international concern surrounding the issue in the context of international law. Moreover, the lack of transparency around civilian casualties and lack of accountability are causing tension among the populations of those countries on the soils of which drone attacks have been conducted.

In the last 10 years, US drone strikes have become a controversial issue, demanding transparency, accountability, and clarifications from the US authorities. On March 2014, the UN Human Rights Council adopted a resolution drafted by Pakistan and co-sponsored by Yemen and Switzerland urging UN member states using drones to ensure that “the use of armed drones comply with their obligations under international law, including the UN Charter, human rights law and international humanitarian law (IHL), in particular the principles of distinction and proportionality.

There are indeed successful cases when drone strikes killed “high value” targets. In August 2009, the CIA killed the leader of TTP Baitullah Mehsud in a drone strike. His death also marked a stunning strike for America’s hi-tech, low-risk war in Pakistan’s tribal belt. The next concern about drones is their rapid proliferation. Currently, about 87 countries in the world possess different types of UAVs. The US, Britain, and Israel are the only states to have fired missiles from UAVs. China uses drones to spy on Japan near disputed islands, while Turkey uses them to eyeball Kurdish activities in northern Iraq.

US have conducted drone strikes in Pakistani territory despite the fact that Pakistan is not in an armed conflict with the US. Pakistan’s PM Sharif has repeatedly urged an end to the strikes. He has stated that the use of drones is not only a violation of Pakistan’s territorial integrity, but also detrimental to the country’s resolve and efforts to eliminate terrorism. It is also important to mention that on 9 May 2013, the Peshawar High Court issued a verdict against drone strikes by CIA-operated spy planes, saying, “the drone attacks are illegal, inhumane, and violate the UN Charter on human rights and constitute a war crime.

Most drone attacks occur in the north-western region of Pakistan, which borders Afghanistan. The main target is the FATA, a border region governed by Pakistan’s federal govt but not effectively controlled because of its mountains and lack of roads, which makes it easier for terrorist groups to cross the border from Afghanistan and use it as a safe haven. Every attack in Pakistan causing large-scale civilian casualties puts the reputation of the US at stake in the international arena, especially in the Muslim world. It is stated in a BIJ report that of all drone attack victims since 2004 only 1.5 per cent have been high-profile targets, that is, leaders or high value members of Al-Qaeda or the Taliban.

Lack of transparency has further complicated the issue, as it is not possible to obtain exact data on civilian casualties. The numbers coming from different sources vary from 2,000 to 4,000. Human Rights Watch and the International Human Rights Clinic published their joint report on drone operations titled “Losing Humanity” in 2012, where the two organizations stated that drones create a “responsibility gap,” and urged that the military commanders who deploy such weapons should be held responsible for civilian casualties. Amnesty International has also published a report on drone strikes in Pakistan. The report refers to drone strikes as “unlawful killings:”

There is no comprehensive official document on how the US describes the legal framework which it applies to drone attacks. President Obama said that the US does not order drone strikes when it has the ability to capture terrorists. But according to The New York Times analyst Mark Mazzetti, “both the Bush and Obama administrations have determined that Pakistan’s tribal areas are areas where capture is not possible. Not only are Pakistanis opposed to American ‘boots on the ground,’ but the writ of the Pakistani govt does not extend to the FATA. As a result, there have been hundreds of drone strikes in Pakistan and only a very small number of capture operations. United States has confidently put forward this argument that Pakistan is not effectively controlling its own territory and is allowing terrorists to use it as a safe haven.

The US justifies its drone attacks in the territory of other states as national self-defence against an imminent threat. The argument that US drone strikes are directed only against Taliban and Al-Qaeda hideouts in the territory of Pakistan is debatable and raises many legal questions under the UN Charter. Any use of force within the sovereign territory of another state is prohibited by international law. Article 2(4) of the UN Charter prohibits the threat or use of force by one state against another.

However, neither the Bush administration nor the Obama administration has sought UN Security Council authorization in order to conduct drone operations in Pakistani territory. There is no official evidence that the PM of Pakistan has given such consent. To the contrary, the Pakistani govt has harshly criticized the drone strikes. The main point is that the US drone attacks in Pakistan is the US failure to meet international norms on the prohibition of the use of force. Drone attacks are a form of military force and constitute a military attack, causing dozens of casualties including civilians. Pakistan itself is not responsible for the 9/11 attacks or other terrorist attacks, and the United States is acting unlawfully in resorting to military force against Pakistan.