The legality of drone strikes in Pakistan – an act of self defense?
A state’s right to use force is set out in the United Nations Charter, the rules of customary international law, and in general principles of international law – collectively ‘jus ad bellum’. Below I very briefly summarize how these are relevant to U.S. drone strikes in Pakistan.
Jus ad bellum
Initially, when the U.S. began its drone campaign in Pakistan in 2004, it provided no legal justifications for the strikes, and ironically perhaps, Pakistan claimed responsibility for the first attacks. It wasn’t until March 2010 that Harold Koh, Legal Adviser of the Department of State, set out a legal justification (for more ‘on the record speeches’ on the legality of the drone wars see here). Koh argued that:
(1) The U.S. may use force under its inherent right to self defense, under international law.
(2) The U.S. is engaged in a continuous armed conflict with al-Qa’ida and associated forces.
(3) Individuals part of this armed group are belligerents and therefore lawful targets
(4) Congress authorized the use of all necessary force in the 2001 AUMF
(5) Practices for targeting are extremely robust
The drone strikes are conducted in Pakistan’s sovereign territory, thus, the question is whether the U.S. has a right to use force against Pakistan. Article 2(4) of the UN Charter prohibits the use of force between member states unless (a) the Security Council authorizes it to restore international peace and security (b) a state may respond in self-defense if an armed attack occurs.
Yet according to Article 51, acts of self-defense must be reported to the Security Council. This has not occurred. And neither has Pakistan attacked the U.S.
For the Afghanistan invasion of 2001, the Taliban was treated as the de facto ruling government of the state, and directly harbored al-Qa’ida. Thus the alliance between state and non-state actor was sufficient under international law to legitimate the U.S. to use force against Afghanistan. The situation in Pakistan is markedly different. The government routinely condemns militants and has previously been at war with them, as in the case of the Swat offensive of 2009. Likewise, the Pakistani Taliban has frequently retaliated against Pakistan’s law enforcement, killing military personnel by the thousands.
Security Council resolution 1368 stated that the September 11, 2001 attacks granted the U.S. the right to self-defense. However, it was not determined who was responsible for the attacks; moreover, none of the individuals involved in those terrorist attacks were Pakistani or of Pakistani origin. Pakistan has never attacked the U.S.
If there was an imminent threat emanating from Pakistan it would be down to the Pakistani government to eliminate it. If not, the U.S. could act in self-defense so long as met the conditions of the ‘Caroline Principle’, part of international customary law. The Caroline incident of 1837 established that there must be a “necessity of self-defense, instant, overwhelming, leaving no choice of means and no moment for deliberation”. The use of force in pre-emptive defense must also be proportional. Targets in Pakistan are often chosen well in advance, and are scrutinized by all kinds of bureaucrats. This casts severe doubt on how ‘necessary’, ‘instant’ and ‘overwhelming’ the use of pre-emptive force is.
Conclusion: the U.S. does not have a right to use force against Pakistan, either under the UN Charter or international customary law.
Armed Conflict with al-Qa’ida?
Al-Qa’ida certainly uses force. But it is not a state (nor a ‘liberation movement’), and has a global geography of adherents that are not easily identifiable. Under current international law and current legal frameworks, a state cannot therefore engage in an armed conflict with al-Qa’ida. Failure to satisfy this condition explains why the CIA is in control of drone strikes in Pakistan, since it removes American military personnel from direct legal responsibility. Outside of an armed conflict, peacetime criminal law should prevail. Human rights remain constant at all times.
Authorization for the Use of Military Force (AUMF)
U.S. domestic law has no bearings on assessing the legality of the strikes under international law.