Cyber Herald: Drones: war by assassination

Waziristanis call the drones as ‘shimathgaray’: backbiters. They are the prime victims of these unmanned aerial vehicle (UAV) lurking high in the sky or behind the clouds. This war by assassination is not a war of soldiers; it is a war of cowards. It is extrajudicial killing. It is death penalty without trial.
These drone strikes outside the established combat theater of Afghanistan have destroyed properties, homes and have killed or injured thousands of people without trial by the so-called champion of the due process of law.
The US President’s contention that they use drones where it is difficult, expensive or dangerous to send special operations forces or because local governments are weak is neither legal nor persuasive. The US Secretary of State Hillary Clinton may call it “smart power… a blend of principle and pragmatism … intelligent use of all means at our disposal.”
A soldier would consider it as initiation of an unfair fight; a breach of humane warfare; a cowardice act of shying away the glare of the enemy eyes. It would be termed as a war crime from legal and human right perspective.

These killer robots, loaded with Hellfire missiles, have become a radicalizing force in Muslim countries. The use of these unmanned aircraft to conduct lethal operations inside sovereign countries that are not at war with the United States raise contentious legal and moral questions.
It sets a dangerous precedent that empowers states to disregard
fundamental human rights protections and use deadly force outside the traditional bounds of an armed conflict.

One would analyze the issue in the light of international principles of consent, self-defense, distinction, military necessity and fundamental rights.

The U.N. Charter on Consent and Self-Defense

Article 2(4) of the U.N. Charter prohibits the threat or use of force by one state against another. The legality of the US targeted killing in Pakistan is to be judged in the light of two exceptions to the Article. (1) when the use of force is carried out with the consent of the host state; and (2) when the use of force is in self-defense in response to an armed attack or an imminent threat, and where the host state is unwilling or unable to take appropriate action.
Pakistan is under attack and the U.S. is the aggressor. Let us analyze whether these attacks violate Pakistan’s sovereignty or they have Pakistan’s consent; whether the U.S. is acting in self-defense or its acts are aggression.

Pakistani consent

A state is sovereign when it has the ability to guarantee the best interests of its own citizens. Pakistanis are being killed in those drone attacks by a foreign state. Is then Pakistan sovereign? Has Pakistan surrendered its sovereignty covertly for the ultimate interest of its citizens?
The U.S. drone strikes in Pakistan will be a violation of its sovereignty under international law if the strikes are without its consent. Pakistan has effectively, if not publicly, consented to drone strikes as it has shared, may still be sharing!, relevant intelligence with the US and even has allowed the drones to use Pakistani airfields. Pakistan’s failure to take the issue to the UN Security Council or other international forums constitutes consent to the strikes. It is has to be analyzed whether Pakistan’s actions or consent comport with all International Human Rights Law (IHRL) and International Humanitarian Law (IHL) articles concerning the use of force and are in the best interest of its citizens.

Pakistan’s Human Rights Obligations

If Pakistan has consented to such strikes, obviating concerns regarding national sovereignty, Pakistan still has a responsibility to respect and protect the human rights of its own citizens and other individuals within its territory.
Extrajudicial killing is prohibited under international law and Pakistan cannot support or even acquiesce in the extrajudicial killing of individuals within its territory by other states.
Pakistan is in a state of armed conflict with TTP and could legally target members of the group as combatants but it is not in a state of armed conflict with al-Qaeda and the Haqqani network. Pakistan is violating its obligations under (IHL) in consenting to the extrajudicial killing of members of such groups: such individuals should be arrested and tried in the court of law.

Interest of the state and its citizens

Pakistan has been in a state of turmoil since its inception but the current menace - Global War on Terror (GWOT) - is threatening it integration: both national and geographical. This episode of the state misery started with the start of the US invasion of Afghanistan. We were given only one choice: to be with the US in its war. We accepted it and the quagmire is slowly and gradually sucking us in.
We consented in the best interest of the state and its people but the war is destroying very fabric of the state: peace, stability, economy, development, institutions and even its existence. It is not in the best interest of the state and its people.

Self-Defense

The U.S. do not consider the legality of the strikes to rest exclusively upon Pakistani consent; for them the 9/11 triggered the right of self-defense against al-Qaeda and the Taliban. They conceptualized a Global War on Terror (GWOT): a non-international armed conflict against non-state actors without any territorial boundaries virtually anywhere in the world. Christof Heyns, U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions, has questioned whether killings carried out in 2012 can be justified as in response to events in 2001.The US also justify these attacks as collective self-defense of its ally Afghanistan.
The US has been emphasizing that the drones are a weapon against al-Qaeda: less than 20% of the attacks were against al-Qaeda. The majority of the attacks targeted Tehrik-e-Taliban Pakistan (TTP), Afghan Taliban and the Haqqani network.
This self-defense justification, under international law, applies only to strikes against those individuals or groups sufficiently involved in operations in Afghanistan to deem them combatants—mere political support or affiliation is insufficient.
For the use of force to be lawful, the host state must also be shown to be unwilling or unable to take the appropriate steps against the non-state group. Pakistan has at times failed to act decisively against non-state groups, raising questions about its ability and willingness to take necessary steps. At others, however, it has also shown a willingness to take action. Any such action by Pakistan must, however, also agree with all IHRL and IHL concerning the use of force.
Anticipatory self-defense can be 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.

Distinction

The distinction between civilians and combatants in drone strikes is an undisputed requirement of international law. According to the International Committee of the Red Cross (ICRC) Interpretative Guidance on Direct Participation in Hostilities, criminal activity, political support, financial assistance, or indirect war supporting activities are not considered conducts that would constitute direct participation in hostilities, therefore such person cannot be targeted.
In Pakistan, this distinction is very difficult given societal and environmental factors such as the proliferation of weapons in tribal areas and mixing between civilian and combatant populations.
The U.S. has refused to clarify where it draws the line between civilians and combatants. It has targeted drug traffickers in Afghanistan; funerals and mosques in Pakistan. The targeting of unknown individuals based on “pattern of life” analysis also raises serious concerns over target selection process.
American drone attacks in Pakistan have killed more civilians than militants —an estimated 3,500 vs. 50 known militants. The British group, Bureau of Investigative Journalism, put the total toll since 2004 as 3533: of which 884 were civilians (including 197 children). The figure suggests that the US has grossly violated the principle of distinction.

Proportionality

Proportionality prohibits attacks that may be expected to cause incidental loss of civilian life that would be excessive in relation to the concrete and direct military advantage anticipated.
Lack of transparency and clear legal policy also prevents the public and international community from assessing the proportionality of drone strikes. Without more information on U.S. policy with respect to distinction or accurate estimates of civilian casualties, it is near impossible to assess the proportionality of U.S. strikes, bringing their legality further into doubt.

Military necessity

Any attack must serve a legitimate military objective, and the expected harm or risk to civilians must not outweigh the expected military objective. Majority of the attacks in Waziristan had no clear military necessity: they had political motives. The killing of Wali-ur-Rehman, immediately after the election, had political motives: he was inclined to dialogue with the new Pakistani government and the US was opposed to it-eliminated!

Fundamental Rights

The nature and effect of the US targeted killing policy violate many sections of the International Covenant on Civil and Political Rights (ICCPR), an international human rights treaty ratified by the US. Article 7 (prohibition on cruel, inhumane, and degrading treatment or punishment); Article 9.1 (right to liberty and security); Article 17 (right to freedom from arbitrary or unlawful interference with privacy, family, and home); Article 21 (right to peaceful assembly) and Article 22 (right to freedom of association). Articles 21 and 22, for example, might be violated where drone strike make individuals to fear assembling in groups out of concern that they might be assumed to be engaged in suspicious activity that might result in a signature strike.

Conclusion

Sovereignty is dear to Pakistanis. They consider the drone attacks as a dent in their sovereignty. It is very demoralizing for them that their state cannot defend its sovereignty. If the attacks are with the government’s approval then the government must explain to its people the rationale behind it: how they are in the interest of the state and its people.
Anticipatory self-defense can be invoked to prevent an attack that is instant, overwhelming, and leaving no choice of means, and no moment of deliberation: the US targeted killings in northwest Pakistan does not meet these standards.
The U.S is guilty of violating the International principles: consent, self-defense, distinction, military necessity and fundamental rights. U.S. practice may also establish potentially dangerous precedents regarding targeted killings and the scope of armed conflict.
Doubts over the legality of the drone strikes undermine the legitimacy of U.S. and Pakistani efforts against militancy. The U.S. and Pakistan must publicly explain the operation and scope of the drone program, investigate civilian casualties, adopt measures to ensure transparency and accountability, and provide clear legal rationales for their policies and actions.

The Assassinations Depicted

I have three children: I love them more than any thing.

I guess they have no children or they don't love them!