US DRONE ATTACKS IN PAKISTAN – NATIONAL SECURITY CONCERNS AND INTERNATIOANL LAW

Dr. G. M. Chaudhry

Policy, Governance and National Security Analyst

Parliamentary Council and Legislative Draftsman

ISLAMABAD

E-mail: drgmchaudhryg@gmail.com

 

ABSTRACT:

Since the use of drones by USA as weapons of war had raised serious questions about their legality as the existing rules of international law are silent about legal status of drone attacks. First drone attack was launched in Pakistan’s geographically territory by USA in the year 2004 and since then there are more three hundred drone attacks killing more than 2800 persons and injuring hundreds in addition to loss of moveable and immoveable property worth millions of dollars. Pakistan had protested about violation of its geographical territory and sovereignty as these attacks are serious threat to its national security. However, the US governments rejected such protests under different pretexts and extending application of different principles of international law and UN Security Council and General Assembly Resolutions regarding terrorism and under extended apprehensions about its national security. However, use of armed drones in warfare particularly in war on terrorism in violation of state and territorial sovereignty is a serious research question and a real problem to be analysed within parameters of existing legal regime of international law ultimately leading to some formal and binding treaty relationships amongst the states of the world for maintaining international peace, order and security.

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Introduction

Use of drone for military purposes remained an unveiled fact as these unmanned combat aerial vehicles were knowingly used against Pakistan since the year 2004 killing innocent people and destroying properties as well. Since then with recent temporary halting or reduction in frequency of such drone attacks, the matter regarding drone attacks has been debated and dilated nationally and internationally examining different aspects of such attacks from legal and moral aspects. There are lengthy debates to assess implications of drone attacks according to international law as international law is only jurisprudence which may suitably answer about legality of drone strikes at some extent although being a new phenomenon there is need to expound new principles of international law keeping in view all aspects and implications faced due to drone attacks. Now drones are becoming ordinary weapons of destruction during war in US context particularly in its war on terrorism (WoT) which are also being used for the same purpose during peace time like any missile or fighting plane which is intruding in sovereign territorial limits of an independent sovereign state which also is a member of United Nations and subject to provisions of the Charter of the United Nations, international law, international humanitarian law as well as human rights laws.

It is also relevant to examine the nature of drones and particularly armed drones which are on warlike missions in territorial limits of another sovereign state. Unmanned Aerial Vehicles (UAV) commonly known as drone is an aircraft without a human pilot aboard. Its flight is controlled either autonomously by onboard computers or by the remote control of a pilot on the ground or in another vehicle and the typical launch and recovery method of an unmanned aircraft is by the function of an automatic system or an external operator on the ground.[1] There are different sizes, shapes, configurations and characteristics of drones being manufactured and designed by different aircraft-manufacturing companies. Originally, drones were meant for civilian purposes but they are usually deployed for military and special operations as well. These are also used for policing, fire-fighting, non-military security purposes such as surveillance of pipelines but are often preferred for missions that are too “dull, dirty or dangerous” i.e. 3Ds.[2] Drones are manufactured with different flying capabilities and particularly their flight durations which are from a few minutes to 336 hours and 22 minutes for Qineti Q Zephyr Solar Electric manufactured by a British firm.[3]

The drones, being like aeroplanes, can easily be categorised as planes and keeping in view their functional use may be civilian or military. By ordinary context and logic, if a drone is being used for civilian purposes, then rules regarding civil aircrafts should apply on it and if it is being used for armed or defence purposes, then rules regarding fighting jet planes should be applied. At the moment there is question regarding legal status of armed drones being used to achieve military targets, thus, law and rules regarding military operations or war will be applicable for such use of drones.

The first armed drone attack in Pakistan was conducted on the June 18, 2004, and since then armed drone attacks are continuing causing loss of lives between 2800 to 3600 in addition to injured also having conflicting numbers due to lack of authentic figures from reliable sources.[4] The last reported drone attack was on the January 22, 2016, in ShahindanoDhand, Kurram Agency, FATA, targeting a suspected militant hideouts wounding one unidentified suspected militant.[5]

Impact of drone attacks and national security concerns of Pakistan

There is a deep-rooted impact on national security of Pakistan due to drone attacks within territorial borders of Pakistan in violation of the Charter of the United Nations, principles of international law and international humanitarian law. However, before examining different legal and moral implications of drone attacks it looks expedient to give details of drone attacks since the year 2004 to 2016 although such statistics are not available from authentic sources except some websites of research and investigative organizations and news reports published in different newspapers nationally and internationally which are as under :–

 

Year	Attacks/Incidents	Deaths	Injured
2004	01	05	–
2005	02	07	–
2006	02	07	–
2007	04	77	15
2008	33	313	17
2009	55	724	75
2010	118	993	85
2011	59	548	52
2012	46	344	37
2013	26	137	24
2014	17	132	54
2015	14	85	15
2016	2	5	1
Total :	379	3377	375
The above are approximate figures as there were no authentic sources for gathering of data of deceased and injured persons and similarly total number of drone attacks is also a disputed question.[6]

 

The above information is till the January 22, 2016, which is taken from South Asia Terrorism Portal, The Bureau of Investigative Journalism and other websites with minor differences. It is also stated that now there are more than 400 drone strikes excluding some drone strikes which have hit Pakistani territories. However, Conflict Monitoring Centre[7] reported 352 drone attacks with 3049 persons killed till the month of September, 2012, but the number of drone attacks or number of dead or injured is not an important question in this research work.

Above table is although providing estimated details of casualties and injured but it is enough to assess that drone attacks caused huge loss of life and properties of innocent civilian people with claims of killing of Al-Qaeda, Taliban and other militant groups leaders with clearly stating that drone strikes were precisely monitored and executed to avoid civilian loss as well as to ordinary persons belonging to such terrorist outfits and their splinter groups.

In addition to deaths and injuries to civilian innocent population, drone attacks raised serious questions regarding violation of territorial sovereignty, commission of war crimes as well as violation of international law and international humanitarian law. Pakistan’s government and leaders expressed their concerns from time to time while sensitizing international community, human rights groups and international humanitarian organizations in addition to United Nations on the issue as the national security of Pakistan is being compromised and any other neighbourly country may also resort to drone attacks on similar reasons or contexts.

Prevailing bilateral relationship between Pakistan and United States is a true model of realist approach as imbalance of power is the actual cause behind armed drone attacks otherwise the US Government has to think so many times before uncontrolled use of armed drones not only killing thousands of civilians with loss of properties worth millions of dollars in addition to violation of international territorial borders of Pakistan which might not had occurred if there might had been a real balance of power which regulates and controls relations in international environment. However, there are conflicting views about positions taken by US and Pakistan Governments and even it is claimed that all that is going on with the consent of both the Governments. There are different treatments of both the situations according to well-recognized principles of International Law as the aggression or territorial violations without consent are falling in different category of actions whereas in case of all such strikes with consent there will be no question like that except questions of human rights violation of the individual victims suffering different kinds of losses to their lives and properties, etc.

Pakistan’s position regarding drone attacks

Mr. Khalil Hashmi,[8] Counsellor, Permanent Mission of Pakistan to the United Nations, New York, made a statement before the First Committee Thematic Debate on “Other disarmament measures and international security” during the 68^th Session of the United Nations General Assembly and some extracts from the said statement are as under :

“In our view, the use of armed drones especially against civilians constitutes a violation of international law, the UN Charter, international humanitarian as well as human rights laws. Their use contravenes State sovereignty and the UN Charter restrictions on legitimate use of force for self-defence, in the absence of imminent danger and without express permission from States in whose territory the armed drones are used. The established principles of distinction, proportionality and pre-caution are also violated when armed drones are employed.

The use of drones does not fulfil the criteriaof the zone of conflict as defined in International Law. As is well known, drones are being operated and used against civilians outside the conflict zone as defined by IHL.”.

The statement further declared that targeted “signature strikes” in the absence of credible information tantamount to extrajudicial killings since no due process of law is followed becoming counter-productive in fighting terrorism.[9]Pakistan is forcefully emphasizing its point of view at all levels and recently a Resolution supported, co-sponsored and presented by Pakistan has been approved by the United Nations Human Rights Council which is adopted by a vote of 27 states in favour to six against, with 14 abstentions at the 47-member Geneva-based Council wherein the United States, Britain and France voted against the said Resolution which urged to all states to ensure that any measures employed to counter-terrorism, including the use of remotely piloted aircraft or armed drones, comply with their obligations under international law…in particular the principles of precaution, distinction and proportionality.[10] This a formal beginning of debate and recognition of drone attacks as issue of international concern which may subvert international peace and security when used without norms of international law. However, there is still a long journey to travel till there are formal legal arrangement about use of unmanned armed drones for defence purposes as the United States is using these unmanned aerial vehicles or drones to kill innocent persons in Pakistan, Iraq, Somalia, Yemen and Afghanistan. However, there is worst and excessive use of drones for allegedly killing terrorists belonging to Al-Qaeda, Taliban and other militant groups warring against NATO forces led by the United States or the US forces stationed in different parts of Afghanistan.

International Law and drone attacks

Armed drones are war machines which serve as launch vehicles for delivering bombs and missiles in the same way and manner as are rocket launchers and bomber aircrafts, thus, drones are not different from other launch vehicles and being as such are weapons for military operations and not for policing operations.[11]The Charter of the UN provides clear guidelines for use of force during armed conflicts which should in any case be in self-defence keeping in view necessity and proportion but not excessive use of force like employing fighter jets, missiles or drones with weapons of mass destruction under Article 51 of the Charter.[12] Professor Mary Ellen O’Connell states thatin addition to the clear terms of the Charter, the International Court of Justice has also made it clear that the term “self-defence” is a term of art in international law. “Self-defence” is the right of a victim state to use offensive military force on the territory of a state legally responsible for a significant armed attack on the defending state and the armed attack giving rise to the right of “self-defence” must be an attack that involves significant force which must be more than a mere frontier incident, sporadic rocket fire across a border or a single terrorist attack.[13]Therefore, in the present case when the USA is using drones armed with lethal arms of mass destruction like Hellfire missiles or 500 pounds bombs, etc., it is very difficult to justify such strikes in “self-defence” which are otherwise serious threat to national security of Pakistan by all means and connotations. However, there is no justification for use of military force by USA after the year 2002 when there was formally established government in Afghanistan in place of Mullah Omar and his Taliban supporters who were formally disintegrated. The pretext of state invitation for protection of another member state of United Nations is not a recognised method of military intervention as it is always colourable exercise of state power merely to achieve vested interests based on some strategic policy of intervention at international level in violation of International Law. It is also worth-mentioning that Pakistan has never admitted in clear terms that it had ever invited to US forces to conduct military operations in different parts of Pakistan and particularly in Federally Administered Tribal Areas (FATA) which is the alleged home of Al-Qaeda leaders and persons, Taliban and other militant groups after their fleeing from Afghanistan.

However, to minutely examine different aspects of unmanned aerial vehicles or drones from different aspects it is necessary to first examine the provisions of the Charter of the United Nations about war and use of force as well as to analyze relevance of national security concerns of Pakistan in the given circumstances.

Concept of International Policing and Armed Drones

There is no concept of international policing developed so far in such terms as it is in vogue within governance functions of a state to maintain peace and order under the law and constitution of such state. Although there are instruments which provide for collaboration and cooperation for extradition and custody of persons required for their trial in different offences committed within state territory before their fleeing to other states. The pretext being employed by US government for targeting Al-Qaeda leaders, Taliban or other militant groups may also have its extended application for capturing alive or dead by use of armed drones within territorial borders of another state of a person which required in a state or had fled after commission of some offence. However, it will not be logically and legally sustainable that disproportionate force be used for arresting or targeting a person who is required to state authorities or fled after violation of law or commission of a crime. Throughout world there is no such example that some state might had used missiles or fighter jets for killing an ordinary criminal required under the law to be arrested or killed. Similarly, armed drones are not ordinary defence machines to be used by police authorities or other state agencies for countering terrorist attacks or breach of law and order by any individual or a group of individuals who had organized them in a formal group to challenge the writ of the state.

By no means or definition, the armed drones are falling in the category of machines or weaponry to be used by policing purpose by law-enforcement agencies instead of its use for purely military purpose for national defence comparable and at par with missiles, rockets or fighter jets. Therefore, use of armed drones is not justified under any existing law for the purposes of internal law and order but machinewhich is used for reconnaissance and intelligence purposes and even such use may possibly be within state borders for any suitable and convenient purposes if constitutional rights like privacy are not violated. However, use of drones outside territorial limits of a state is not justified under any existing legal instrument of international law as such violation of sovereignty and territorial limits may result in equal response from other state leading to a full scale war as the right of “self-defence” may be resorted by such state immediately before such reconnaissance, intelligence or armed drone may actually commit some further activity amounting to competitive response from other sovereign state. The famous incident regarding shooting down of U-2 Spy plane by the then Soviet Union authorities when it had violated airspace of then Union of Soviet Socialist Republics (USSR) while on a spying and surveillance mission after its flight from Badaber Air Base in Peshawar, Pakistan, and no doubt same principles of violation and intrusion in airspace and territorial sovereignty are applicable in case of drones, armed or for surveillance. A remotely controlled drone is not different from a fighter jet being flown by a pilotonboard. Thus, international law of war will be applicable on flights of armed drones while in violation of territorial sovereignty of any state.

UN Charter as instrument to regulate use of force by states

The Charter of the United Nations strictly prohibits use of military force except in self-defence under Article 51 when it is not possible instantly to report the matter to the United Nations for playing its role under the Charter. Paragraph 4 of Article 2 of the UN Charter also provides that all members shall refrain in their international relations from threatening or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.[14] However, still there are requirements of international law that force should be used under some necessity keeping in view principles of proportionality even in case of armed conflicts directly or unless there is some invitation from state facing armed conflict or hostilities. Attacking with other warring state with fighter planes, missiles, rockets or their latest substitutes i.e. drones, is only allowed under the principles of necessity and proportionality but not as are being used in territorial borders of Pakistan although there are allegations or statements from Al-Qaeda, Taliban and other militant groups from accepting responsibility of attacking on US forces as well as other targets in US territory but still the drones are not a comparable and necessary response when those are armed with lethal arms which cancause damage to armed personnel as well as properties within USA without suitably investigating and inquiring such confessionary statements and claims. The loss caused to property and innocent persons of a non-combatant state like Pakistan is disproportionate when it is providing all sort of cooperation for conduct of ground operations for arrest or killing of such targets and is a serious threat to its national security.

UN Charter provides exceptional use of force in the following circumstances,–

• firstly, use of force in self-defence under Article 51 if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security; and
• secondly, use of force after determination under Article 39, in terms of Articles 41 and 42.

Targeting the Al-Qaeda persons, Taliban or other militant groups require only police-like operations but not use of force as in the full scale war. It will be excessive use of force when instead of bullets Hellfire missiles or 500 pounds bombs, etc., will be used to enemy persons who are using innocent persons as shields or so mixed up in innocent people to separate them with difficulty.

Similarly, collateral damage is another important aspect which should not be ignored at any cost as collateral damage is always to innocent persons and to their properties which are not part of any armed conflict and combat.

Use of armed drones against innocent persons is in violation of guarantees contained in the Preamble of the UN Charter as well as guarantees about peace, justice, compliance of principle of international law, settlement of international disputes by peaceful means, achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, promotion and encouragement of respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion as provided in Article 1 of the Charter.[15] Similarly, Article 2 of the Charter provides for principle of sovereign equality of its members and settlement of international disputes by peaceful means and other such guarantees.[16] Other Articles of the UN Charter also provides about peace, security and peaceful settlement of international disputes which may result in breach of international peace and security, if not resolved. Therefore, only provisions of the Charter of the United Nations provide so much assurance in the light of which use of armed drones for killing innocent persons or alleged criminal without due process of law is the violation of such provisions. UN Charter is not recognizing use of force against individuals who are residing or allegedly harboured in a sovereign state by genocide without fair trial.Therefore, national security concerns and aspects of Pakistan are not misplaced or irrelevant.

Resolutions of the UN Security Council regarding terrorism

There are many Resolutions of UN Security Council regarding control of terrorism which are being used as an excuse while resorting to use of armed drones in violation of sovereignty as well as international borders by US Government causing serious concerns to national security of Pakistan. Though the United Nations had come into existence on theOctober 24, 1945, but the terrorism is too old as the human beings which is also changing its forms with changes in society and technological developments resulted due to different scientific inventions. However, since the incident of theSeptember 11, 2001, in USA, the terrorism is particularly focused as now there is a challenge to hegemony of a powerful state of the world and the said state is not willing to compromise said incident of individual or organizational terrorism which occurred withoutinvolvement of any state and in the instant case even without knowledge and information of Pakistan. The United Nations Security Council unanimously adopted the Resolution No. 57 of 1948 on theSeptember 18, 1948, in its 358^thmeeting in the third year of its formal establishment which was regarding tragic death of the United Nations Mediator in Palestine, Count Folke Bernadotte, as a result of cowardly act which was allegedly appeared to had been committed by a criminal group of terrorist in Jerusalem while he was fulfilling obligations of his peace-keeping mission in the Holy Land.[17] Thereafter, there are so many Resolutions adopted by the UN Security Council stressing the need for taking different measures regarding terrorism. However, the Resolutions 59, 618, 635, 638, 731, 748, 883, 1189, 1192, 1267, 1269, 1345, 1368, 1371, 1373, 1377, 1390, 1438, 1440, 1450, 1452, 1455, 1456, 1465, 1516, 1526, 1530, 1535, 1566, 1611, 1617, 1618, 1624, 1735, 1904, 1963, 1988 and 1989 in addition to other indirectly relevant Resolutions regarding terrorism and the contents of the said Resolutions are minutely and if carefully examined they will lead us towards contents of a formal convention about terrorism. Similarly, there are Resolutions of the Security Council which are regarding counter-terrorism and stating obligations of the member states during and after terrorist and counter-terrorist acts.

Resolution No. 1373 of 2001 adopted by the Security Council at its 4385^th meeting on the September 28, 2001, after the World Trade Centre destruction incident on the September 11, 2001,  and other terrorist attacks in USA unequivocally condemned terrorist attacks which took place in New York, Washington, D.C. and Pennsylvania. Resolution particularly provided about prevention and suppression of terrorist acts, criminalizing the wilful provision or collection, by any means, directly or indirectly, of funds which may be used for terrorist acts, prohibiting any persons or entities from supporting, actively or passively, to such persons or entities involved in terrorist acts as well as taking necessary steps for prevention of commission of terrorist acts.

The United Nations has also sponsored establishment of legal regimes to prevent and punish international terrorism and following Conventions and Protocols are dealing with different aspects of terrorist activities internationally, namely :–

• Convention on Offences and Certain Other Acts Committed On Board Aircraft (1963);
• Convention for the Suppression of Unlawful Seizure of Aircraft (1970);
• Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation (1971);
• Convention on the Physical Protection of Nuclear Material (1979);
• Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International Civil Aviation (1988);
• Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation (1988);
• Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Located on the Continental Shelf (1988);
• Convention on the Marking of Plastic Explosives for the Purpose of Identification (1991);
• International Convention for the Suppression of Terrorist Bombings (1997);
• International Convention for the Suppression of the Financing of Terrorism (1999); and
• International Convention for the Suppression of Acts of Nuclear Terrorism (2005).

From the above international instruments it is easy to deduce principles regarding regulation of use of armed drones for military purposes or other purposes like target-killing of required persons who are involved in illegal and terrorist activities. Such regime may also determine conditions for use of armed drones against terrorists in territories of other sovereign states which will really be a difficult question to be solved by experts of international law as the use of armed drones having no distinction from use of missiles, rockets and fighter jets and no sovereign state is allowing violation of its territorial borders by other states on the pretext of hot pursuit of criminals or terrorists as it will destroy the sanctity of international borders. It will also be an important question to be answered as proliferation of drone technology of which will become a gigantic problems for the states as there will be a possibility that terrorist, individually or while working in organized groups, or non-State actors, may use such technology to achieve their terrorist aims and objectives within territorial limits as well as outside territorial borders of the state whose citizens are of such persons. There will also be a possibility that non-State actors while using the territories of other states may target their objectives in bordering areas of other states or even state agencies may use such armed drones without permission and authority of the state against other states to create conflicting situation at international borders. Due to these reasons the concerns and apprehensions raised by Pakistan about its national security cannot be disregarded as such concerns and apprehensions are, in fact, serious questions of international law which should be replied and precautionary measures be devised for use of armed drone when there are serious concerns of national security by any state.

Use of force for suppression of terrorist bombings

There is not a single state of world which had not become victim of terrorism since last ten years or after the incident of 9/11 in the United States of America. However, terrorist attacks are not categorized as armed conflicts in “self-defence” under Article 51 of the UN Charter as these are mere criminal acts and being sporadic in nature, there is no responsibility of the state wherefrom such terrorist attacks are launched or planned by their perpetrators.

Article 2 of the International Convention for the Suppression of Terrorist Bombings (1998), provided that if any person commits an offence within the meaning of the Convention or unlawfully and intentionally delivers, places, discharge or detonates an explosive or other lethal device in, into or against a place of public use, as State or government facility, a public transportation system or an infrastructure facility with the intent to cause death or serious bodily injury; or with the intent to cause extensive destruction of such a place, facility or system where such destruction results in or is likely to result in major economic loss.[18]Similarly, the Article 2 of the Convention also provides for participants as accomplices in anoffence or organizers or directors of such offences in violation of the Convention. Articles 5, 6, 10 and 11 of the Convention impose obligations on concerned states that they should take necessary measures as may be necessary for trial and punishment of terrorist offences, assistance in investigations or criminal or extradition proceedings as well as other necessary requirements for such culprits who had bombed in territories of other states.

Even in the light of the International Convention for the Suppression of Terrorist Bombings (1998), there is no authority available to US government to directly carry out military operations within territorial limits of Pakistan in violation of provisions of the UN Charter by using excessive and disproportionate force while targeting and decimating Al-Qaeda, Taliban and other militant groups or persons blamed for conducting terrorist bombings or other activities against the involved persons when it is also a serious threat to national security of Pakistan when Pakistan is providing all necessary facilities and cooperation for the purpose.

The arguments relied upon by the US regarding punishing of members of Al-Qaeda known for plotting to attack the United States and then killing wherever they are found under the pretext of right of “self-defence” is also defective as well as weak as the law of right of “self-defence” does not permit states to attack before they possess evidence of an armed attack occurring with complete evidence of such plot’s occurrence. It also does not allow attacks on individuals and small groups lacking state sponsorship even if they are carrying out actual attacks.[19] There may be questions about legality and morality of armed drones for killing innocent persons in violation of territorial borders as well as sovereignty of a state and such questions will require serious consideration where there will be balance of power between two such states. For example, India will never be allowed to use such armed drones for hot pursuit of terrorists within territorial borders of Pakistan on the pretext of US drone attacks in FATAand any such attempt will certainly result to awar, limited or full scale. Similarly, such intrusion will not be tolerated by USA within its territorial borders from any state of the world.

Therefore, the issue of use of armed drones for countering terrorism or targeting terrorists within territorial borders of other sovereign states have serious implications for international peace and security and is required to be addressed instantly in the form of an international convention which should be ratified by all member states of the United Nations.

Opinions of International Court of Justice

As far as the UN Charter is concerned its different provisions have been interpreted by the International Court of Justice (ICJ) in various cases, directly and indirectly, stating the scope and extent of right of “self-defence” under Article 51 of the Charter. In Congo  v.  Uganda,[20] the ICJ decided that Congo’s failure or inability to take action against persons entering through border incursions into Uganda did not give rise to any right to Uganda to order its forces to cross into Congo and attack the terrorist groups in violation of Article 2(4) of the UN Charter for attacks on Congolese territory and suggesting that the Congo should take defensive measures in its own territory. There are also similar opinions of the International Court of Justice in similar other cases and such opinions and interpretations may be stretched and made applicable on use of armed drones which are performing functions of an ordinary spy or fighter plane by all reasons and contexts irrespective of its control which certainly are in the hands of enemy entity unless it is with the consent of the other state as otherwise these are direct threat to national security and sovereignty of a sovereign state.

Drones and International Human Rights Law

There is no doubt that different Conventions and Treaties, etc., regarding international human rights are always giving preference to human rights of individuals even during the war times and particularly the rights of children, women, infirm and other such individuals who cannot become the part of active war or any kind of terrorist activities by terrorists. Any collateral damage resulting in loss of life and injury to person as well as loss of property other than terrorists is not recognized by any human rights law as it is always disproportionate and unnecessary. As far as proportionality is concerned, it is believed and justified that the CIA is working from a “kill list” associating most of strikes with someone whose name is appearing in the said “kill list”. Yet every strike kills a number of persons making it difficult to believe killing of more than such person is justified alongwith many innocent persons.[21] Therefore, it may categorically be said that drone strikes of US within territorial borders of Pakistan are unlawful and those could not be made legal in terms of language of force, power and being as a sole super power in today’s world as same principles regarding national security are applicable in case of Pakistan as are applicable in case of USA.

In depth analysis of implications of drone attacks reveal different aspects which are directly in conflict with internationally recognized human rights in different instruments sponsored and ratified under the aegis of the United Nations as these are particularly affecting right of life, right of peaceful living, right of fair trial, political freedom, etc. The United Nations has sponsored the following Conventions, Declarations, Charters, Protocols, etc., which are providing different rights and assurances which are being violated or abridged by use of brute military might by armed drone attacks which are targeting individuals with Hellfire Missiles, 500 pound bombs or other such destructive weaponry which is only meant for war purpose, namely :–

• Human Rights and State Sovereignty-related Clauses of the United Nations Charter;
• Convention on the Prevention and Punishment of the Crime of Genocide (1948);
• Universal Declaration of Human Rights (1948);
• Convention on the Political Rights of Women (1952);
• Declaration on the Rights of the Child (1959);
• United Nations Declaration on the Elimination of All Forms of Racial Discrimination (1963);
• International Convention on the Elimination of All Forms of Racial Discrimination (1966);
• International Covenant on Civil and Political Rights (1966);
• Optional Protocol to the International Covenant on Civil and Political Rights (1966);
• International Covenant on Economic, Social and Cultural Rights (1966);
• Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (1981);
• Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984);
• Convention on the Rights of the Child (1989); and
• other related Resolutions, etc.

It is not possible to point out each and every provision of the above-mentioned instruments which is being affected due to use of armed drones against targeted persons belonging to Al-Qaeda, Taliban or other militant groups, etc. However, it is appropriate to mention a few provisions of the Universal Declaration of Human Rights (1948), which provides in its Article 3 about right of life, liberty and the security of person; Article 5 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment; Article 8 provides for right of effective remedy before the competent national tribunals for acts violating the fundamental rights granted by the constitution or by law; Article 10 provides for full equality to a fair and public hearing by an independent and impartial tribunal and similarly there are other rights which are being violated by armed drone attacks on proclaimed persons or indirectly suffering civilians during such strikes.[22] The concept of national security of any state is directly linked with such rights as state cannot be separated from its citizens or subjects. Thus, national security concerns of Pakistan are not unfounded or unrealistic.

Provisions of International Humanitarian Law (IHL)

The Geneva Conventions of August 12, 1949[23], and Protocols Additional to the Geneva Conventions of August 12, 1949, are principal international instruments dealing with international humanitarian law. However, the most relevant instrument in case of armed drone attacks by US forces and CIA is the Geneva Convention relative to the Protection of Civil Persons in Time of War, of August 12, 1949, as per US declaration of War Against Terrorism, although it is not a war by all well-recognized definitions of international law, the civilians, children and women as well as old and infirm or sick persons are entitled for same rights and treatment as guaranteed by Geneva Convention relative to the Protection of Civil Persons in Time of War particularly in addition to rights guaranteed under other international laws. Therefore, it is obligatory on US drone operators to take care of civilians as well as collateral damage during drone strikes as during most of the strikes victims are innocent women, children, old, sick or infirm persons. Simultaneously, there is tremendous loss of property to such civilians who are died or wounded during armed drone strikes. How the Pakistan can tolerate such losses of human lives which are making national security of Pakistan questionable and unbelievable.

Interpretation of customary International law of war and drones

Customary law of war is still applicable in all such circumstances which are suitably addressed under different international instruments in force under the aegis of the United Nations. Clandestine strikes or attacks are part of war strategy since centuries but all those are applicable during a declared and recognized war but not like the so-called War against Terrorism which is not a war under the international law of war. Killing and injuring innocent persons with huge collateral damage was never recognized under customary law of war whereas the Hague Conventions of 1899 and 1907 are suitably providing principles for conduct of a war and pacific settlement of international or bilateral disputes during or after the war.[24] Customary law as well as modern instruments of war recognizes that there should be no harm to innocents and non-combatants even to combatant persons who surrender during war as prisoners of war. However, the US War against Terrorism is not a war in any context and particularly the use of armed drones seems unjustified in the light principles of ancient warfare as well as modern strategies of war and peace as well as hot pursuit.Can the Pakistan also emphasize for such rights also keeping in view its national security?

Historical perspective of war and use of force and available means

War and art of war is as old as human beings on this earth as history of humanity is also a history of warfare. Since centuries, there were efforts to define and regulate the conduct of individuals, nations and other agents in war and to mitigate the worst effects of war and the earliest known instances for such conduct of war and necessary principle of war are found in Mahabharata and the Hebrew Bible (Old Testament).[25]Mahabharta provided following code of conduct of war :

“One should not attack chariots with cavalry; chariot warriors should attack chariots. One should not assail someone in distress, neither to scare him nor to defeat him…War should be waged for the sake of conquest; one should not be enraged toward an enemy who is not trying to kill him.”.

Similarly, Kautiliya in his famous book had also written basic principles about conduct of war although convincingly promoted treachery but still provided respectful treatment for children, women, sick and infirm and to avoid collateral damage to crops and other properties.[26] But in the case of US armed drone attacks on Pakistan there is no exception for any one.

All the religions have provided code of conduct for war and treatment with children, women, sick and infirm as well as for avoidance of loss to crops, water courses and other means of human consumption except which are the part of warfare.

However, the US War against Terrorism is violating all codes of conduct, historical or modern, religious or secular as well as humanitarian or otherwise, particularly with reference to use of armed drones except the might is right. In the absence of balance of power, armed drones are proving modern means of human treachery in a gamming manner without assessing implications of such means of warfare. Thus, threat to national security, international peace and harmony at the same time.

Pakistan and drone attacks in violation of territorial sovereignty

Pakistan is a typical case in the present circumstances wherein all guarantees and rights, being an independent and sovereign state, have been violated by armed drone strikes involving violation of rights of the state as well as citizens of the state. There are so many instruments of international law as well as practices under customary international law which dilate upon such circumstances. Therefore, Pakistan is facing serious threats to its sovereignty and territorial integrity as precedent set by US government is not only bad and unacceptable as a sovereign state but also equally bad for all member states of the United Nations. Therefore, it is the responsibility of international community and the United Nations to come up with a workable solution for use of armed drones before there is serious breach of peace, order and security of states in international political environment. Thus, armed drone attacks by USA are direct threat to national security of Pakistan and Pakistan has all rights to respond, if possible. At least vulnerability of Pakistan is realizing Pakistan to enhance its defence capability to ensure defence of national security and sovereignty of Pakistan. It is noteworthy that Pakistan has already developed its own drones at least to respond threats to its national security emanating from neighbouring states which is only the result of absence of legal regime for drone attacks. Similarly, other nations may also follow the way.

Conclusion

International law like all other national and international legal regimes is developing slowly and there is need for development of a consensus international legal regime to regulate unmanned aerial vehicles for war purposes or armed drones before the use of such armed drones result into a large scale international conflict or war shattering international peace and security maintained under the Charter of the United Nations. Although it is also well-established fact that all the inventions were either initially researched and invented for war purposes or ultimately used as weapons of war. Use of armed drones for war purposes is not an exception to this rule and the existing principles and rules of international law can sufficiently and reasonably be stretched to regulate and limit use of armed drones for war purposes. However, there is a need for development of a comprehensive legal regime after increased useof unmanned aerial vehicles as defence machines of warfare under the auspicious of the United Nations and infrastructure available at its disposal for conducting research in international law like International Law Commission for developing a convention for the purpose of encompassing all necessary and ancillary details and code of conduct for use of armed drones because their uncontrolled use may also result into an uncontrolled armed conflict among states due to violation of territorial borders by such unmanned aerial vehicles either for war or peaceful purposes. Similarly, Pakistan’s national security is dependent on a suitable response to armed drone attacks or such like threats.

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Author

Dr. G. Chaudhry, Policy, Governance and National Security Analyst, Parliamentary Council and Legislative Draftsman. He is based in Islamabad and heading a Research and Consultancy Firm namely Chaudhry and Chaudhry Associates, Islamabad.He is the author of more than two dozen Books in the field of Law, Legislative Drafting and Process in Pakistan, Intellectual Property Rights, Military Laws and Constitution of Pakistan in addition to a collection of essays on Law, Justice, Human Rights and Legal System. He also worked as Legislative Adviser/Draftsman in the Ministry of Law, Justice and Human Rights and participated in drafting of hundreds of laws.  His books titled “Practical Approach to Legislative Drafting” and “Legislative Process in Pakistan” are like text-books in the field of legislative drafting and law-making process and working of Parliament in Pakistan. “Essays on Law, Justice, Human Rights and Legal System” is a collection of essays on different topics as apparent from the title. Presently, he is heading a firm which is providing consultancy services and dealing with matters relating to Law, Governance, Management, Legislative and Parliamentary Drafting and Counselship in addition to delivering lectures as a Visiting Faculty Member in different Colleges and Universities.

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[1] Wikipedia, Unmanned Aerial Vehicle,  accessed at http://en.wikipedia.org/wiki/, retrieved on March 28, 2014.

[2] Wikipedia, Unmanned Aerial Vehicle,  accessed at http://en.wikipedia.org/wiki/, retrieved on March 28, 2014.

[3] Wikipedia, Unmanned Aerial Vehicle,  accessed at http://en.wikipedia.org/wiki/, retrieved on March 28, 2014.

[4] Wikipedia, Drone Attacks in Pakistan,  accessed at http://en.wikipedia.org/wiki/, retrieved on March 28, 2014.

[5]Drone attack in Pakistan : 2005-2016, accessed at http://www.satp.org/satporgtp/countries/database/Droneattack.htm, retrieved on March 30, 2016.

[6]South Asia Terrorism Portal accessed at http://satp.org/satporgtp/site.htm retrieved on March 30, 2014, at 7.40 p.m. and the Bureau of Investigative Journalism accessed at http://thebureauinvestes.com/2014/10/16 retrieved on October, 2014, at 12.50 p.m.

[7] Drone Attacks in Pakistan, Conflict Monitoring Centre, accessed at http://cmcpk.wordpress.com/drone-attacks-in-pakistan/, retrieved on March 30, 2014.

[8] Mr. Khalid Hashmi, Statement at the First Committee Thematic Debate, 68^th Session of the UNGA, New York, October 30, 2013, p. 1.

[9]Ibid., p. 1.

[10]Dawn, Islamabad, Drone use must comply with law, says UN panel, March 29, 2014, p. 1.

[11]Mary Ellen O’Connell, Robert and Marion Short, Drones under International Law, International Debate Series, Whitney R. Harris World Law Institute, Washington University Law, Washington, USA, October 8, 2010, p. 1.

[12] Article 51, Charter of the United Nations, UN Department of Public Information, New York, USA, DPI/511, Reprint, October 1997, pp. 32.

[13]Mary Ellen O’Connell, Robert and Marion Short, Drones under International Law, International Debate Series, Whitney R. Harris World Law Institute, Washington University Law, Washington, USA, October 8, 2010, p. 4.

[14] Article 2, Charter of the United Nations, UN Department of Public Information, New York, USA, DPI/511, Reprint, October 1997, p. 6.

[15] Article 1, Charter of the United Nations, UN Department of Public Information, New York, USA, DPI/511, Reprint, October 1997, pp. 1-2.

[16] Article 2, Charter of the United Nations, UN Department of Public Information, New York, USA, DPI/511, Reprint, October 1997, pp. 6-7.

[17]UN Resolution No. 57 of 1948 adopted on 18^th September, 1948.

[18]Article 2, International Convention for the Suppression of Terrorist Bombings (1998), Blackstone’s International Law Documents, 4^th Edition, edited by Malcolm D. Evans, Blackstone Press Ltd., Glasgow, UK, p. 432.

[19]Mary Ellen O’Connell, Robert and Marion Short, Drones under International Law, International Debate Series, Whitney R. Harris World Law Institute, Washington University Law, Washington, USA, October 8, 2010, p. 7.

[20]Armed Activities on the Territory of the Congo (Congo  v.  Uganda), 2005 I.C.J. 301 (Dec. 19).

[21]Mary Ellen O’Connell, Robert and Marion Short, Drones under International Law, International Debate Series, Whitney R. Harris World Law Institute, Washington University Law, Washington, USA, October 8, 2010, pp. 7-8.

[22] P. R. Ghandhi, Editor, Universal Declaration of Human Rights (1948), Blackstone’s International Human Rights Documents, 1^st Edition, 1995, Blackstone Press Limited, London W12 8AW, UK, pp. 21-22.

[23]Texts of the Geneva Conventions of August 12, 1949, International Committee of the Red Cross (ICRC), Geneva, Switzerland.

[24]Laws of War, Wikipedia, accessed at http://en.wikipedia.org/wiki/Laws_of_war, on March 29, 2014.

[25] Early Sources and History, Laws of War, Wikipedia, accessed at http://en.wikipedia.org/wiki/Laws_of_war, on March 29, 2014.

[26]Kautiliya who is also known as Chanakaya, The KautiliyaArthasastra translated by Sham Shastri, Texas Printers, University Road, Karachi, February, 1991.