The September 2012 report called ‘Living Under Drones‘ by Stanford Law School and NYU School of Law devotes a chapter to exploring whether or not the CIA’s program of targeted killings in the tribal areas of Pakistan is legal. Below is a summary of some of the key points that arise from their analysis.
The legal issues the report tackles are as follows:
1. Whether the use of ‘force’ in Pakistan violates Pakistan’s sovereignty in contravention of the UN Charter (jus ad bellum ‘right to war’ – the law concerning the recourse to force). At stake is whether or not Pakistan consents, and whether or not the U.S. is lawfully acting in self-defense.
2. How individuals are lawfully targeted, and how whether this conduct adheres to international human rights law (IHRL) or international humanitarian law (IHL) (i.e jus in bello). The difference between the two bodies of law is that the latter covers wartime, whereas IHRL is meant to regulate the relationship between government and society at all times [see International Committee of the Red Cross].
3. Whether or not the U.S. operates transparently.
4. Whether current drone policy violates U.S. domestic law.
1. Does the U.S. use of force in Pakistan violate Pakistan’s sovereignty?
Background. Article 2(4) of the U.N. Charter prohibits the use of force by one state against another. There are two exceptions – (1) when force is carried out with consent of the host state; (2) when the use of force is an act of 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.
Analysis. (1) Pakistan does not consent to the attacks. While ‘revelations’ in WikiLeaks seemingly showed the ‘duplicity’ of the Pakistani government, repeated public outcries by top Pakistani officials state unequivocally that the strikes ‘violate the country’s sovereignty’ and that Pakistan does not consent to the strikes. (2) According to the current UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, there is some doubt as to whether an act committed in 2001 is enough to justify the drone program in 2012. What’s more, placing an individual on a ‘kill-list’ for months on end shows that the ‘self-defense’ clause is loosely interpreted. And Pakistan has shown, at numerous times, it can take the necessary action against militants (in Swat for example).
2. Circumstances in which individuals may be lawfully targeted.
Background. Does an armed conflict exist? U.S. officials have been quick to state it does, and therefore invoke IHL (and the self-defense clause). Yet there is some doubt – the lack of centralized leadership in non-state groups and the existence of sporadic and isolated attacks complicates what counts as an ‘armed conflict’ in Pakistan.
Analysis. If there is an armed conflict, any drone strike must be evaluated within the remit of IHL, including the fundamental principles of,
(a) Distinction. This is difficult in FATA due to the ‘intermingling’ of fighters and civilians. ‘Direct participation in hostilities’ is a vital requisite – and requires participation that adversely and directly affects the opposing party in a concrete manner. It is centered on concrete acts rather than membership or indirect forms of support. The ICRC has further distinguished between civilians who participate in specific acts and those that are involved in a ‘continuous combat function’. Even so, the other core requirements must be met, especially that the attack serve a legitimate military objective.
(b) Proportionality. Individual strikes have targeted population centers including mosques, schools, and jirgas where large number of civilians are present. This raises questions concerning whether the strike was proportional to a concrete military objective. Signature strikes raise questions over whether or not safeguards where put in place to ensure the targets were lawful.
(c) Humanity. Strikes on rescuers and first responders may violate principle of distinction and hors de combat. ‘Guilt by association’ and defining all military-age males as militants are worrying trends.
(d) Military necessary. Drone strikes are often ‘timed’ in relation to wider political events, such as the Raymond Davis event, and the killing of 24 Pakistani soldiers. This suggest that the timing and intensity of the attacks is not always driven by necessity – it can be influenced by political concerns.
For more on this, see an earlier post on ‘distinction’ and ‘proportionality’.
In the absence of armed conflict, only IHRL applies.
IHRL permits lethal force only when necessary and proportionate. Targeted killings are unlawful under IHRL, because it only permits lethal force when necessary to protect against a threat to life, and where there are no other means, such as capture or preventing that threat to life. Indeed, much evidence, including signature strikes, strikes on rescuers, the administrations’ definition of militant, and the lack of evidence of an ‘immanent threat’ suggest otherwise.
4. U.S. domestic law.
Background. Strictly speaking, U.S. domestic law is irrelevant to the international context, and irrelevant to whether or not the U.S. violates Pakistani sovereignty.
The 2001 ‘Authorization to Use Military Force’ AUMF permits the President to use ‘all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons’. Strikes against those not involved in 9/11, such as the Haqqani Network and TTP would appear outside of this authorization.
Analysis. The CIA is able to take action against those it deems in an immanent threat without first obtaining Congressional approval. While all US presidents have embraced Gerald Ford’s 1976 executive prohibition against assassination, at least two presidents have reportedly relied on classified legal memoranda to conclude that ‘executive orders banning assassination do not prevent the president from lawfully singling out a terrorist for death by covert action’.
Although the CIA operates under a different section of the U.S. code (Title 50) than the armed forces (Title 10) it must still adhere to the Constitution ‘OR ANY STATUTE OF THE UNITED STATES’ (50 USC. §. This means that covert action must adhere to the same kinds of domestic law as other armed forces, including the ban on assassinations. 413b(a)(5) (2006)
4. Accountability and Transparency
Background. International law requires states to ensure basic transparency and accountability, and must investigate war crime allegations, and prosecute where appropriate. This requirement is intensified where civilians are concerned, or where there is an alleged violation of the norms banning extrajudicial executions.
Analysis. The U.S. has failed to adequately account for the CIA’s drone program. Even though it frequently invokes the ‘inherent right to self defence’ under Article 51 of the UN Charter, the U.S. has also failed to report to the Security Council – a legal requirement.
As former U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions Professor Philip Alston concluded
“Assertions by Obama administration officials, as well as by scholars, that these
operations comply with international standards are undermined by the total absence of any forms of credible transparency or verifiable accountability. The CIA’s internal control mechanisms, including the Inspector-General, have had no discernible impact; executive control mechanisms have either not been activated at all or have ignored the issue; congressional oversight has given a ‘free pass’ to the CIA; judicial review has been effectively precluded; and external oversight has been reduced to media coverage which is all too often dependent on information leaked by the CIA itself”
Given this brief review, it appears that the U.S. drone program is in violation of several basic tenets of international humanitarian law and international human rights law and is in clear of Pakistan’s sovereignty. In particular, the U.S. executive continues to define its use of force as an act of ‘self defense’ without inviting any kind of national or international public scrutiny. This jus ad bellum violation is matched by a series of jus in bello violations, centered of the targeting of ‘first responders’ and civilians in the tribal areas.
[EDIT: The Obama administration has previously not explicitly sought the detention of those killed in drone strikes. The lawful killing of belligerents is of course permissible under international humanitarian law in areas of armed conflict. In the absence of an established zone of armed conflict however, international humanitarian law is not applicable, and to classify drone targets as belligerents (legal or illegal) does not apply. This means that using drones is Pakistan unlawful. No matter how accurate or precise the technology, the targets killed are unlawful. The involvement of the CIA is likewise unlawful. They are not lawful combatants under traditional IHL rules, and are considered civilians. Civilians do not have the right to use force.]