drone strikes -amneded .docx

7/25/2019 drone strikes -amneded .docx

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I. THE DRONE STRIKES: A LEGAL PERSPECTIVE

After the incident of September 11 2001, the collaboration between the

United States and Pakistan was critical in capture and elimination of terroristelements and their supporters; however, this commonality of capturin terrosrists

were overshadowed by the methodoloy!1 "rone strikes inside Pakistan#s

soverein territory$specifically %A&A to root out the terrorists $and the surical

strike aainst 'sama bin (aden in the arrison city of Abbottabad, remained a

controversial issues and resulted in stern local opposition! 2&he United States,

relyin on its success of weapon of war, considered drones as an effective

instrument aainst terrorism!)

*owever, their assumption reardin the use of drone as an effective

weapon of +'& left them in isolation as the critics aainst the use of this

weapon openly contradicted their claim! 'pposition to the drone strikes is not

limited to Pakistan! -n a recent survey conducted by the Pew .esearch /entre,

)1 out of ) countries oppose U!S! drone strikes!ven within the United States,

3uestions have been raised over the leality of its use and also called for the

4udicial investiation!5

1 Maria Syed, Drone Strikes: Developing an Accord, NewsInternational, November 13, 213, http://www.ipripk.org/drone-strikes-developing-an-accord/#sthash.S1zO5Kc5.dpuf!2 Air "ommodore #$alid %&bal, Drones 'nder (N Scr'tiny, %slamabad)olicy *esearc$ %nstit'te, December 2+, 213,http://ipripak.org/articles/latest/duus.pdf! arlier it -as pres'med t$at t$ea't$orities in )akistan $ad given tacit approval to drone strikes, b't o.late, )akistan $as s$ed its ambig'o's stance, and $as opposed t$esestrikes at every .or'm!3 /ames %goe 0als$, $e ectiveness o. Drone Strikes in

"o'nterins'rgency and "o'nterterrorism "ampaign, Strategic St'dies%nstit'te, September 213, ,http://www.strategicstudiesinstitute.arm.mil/pdffiles/!"11$%.pdf!4 5r'ce Drake, *eport 6'estions Drone (se, 0idely (npop'lar7lobally, 5't Not in t$e (!S!, )0 *esearc$ "enter, 8ctober 23, 213,http://www.pewresearch.org/fact-tank/&'1(/1'/&(/report-)uestions-drone-use-widel-

unpopular-glo*all-*ut-not-in-the-u-s/!9 Syed, Drone Strikes!
http://www.ipripk.org/drone-strikes-developing-an-accord/#sthash.S1zO5Kc5.dpufhttp://www.ipripk.org/drone-strikes-developing-an-accord/#sthash.S1zO5Kc5.dpufhttp://ipripak.org/articles/latest/duus.pdfhttp://www.strategicstudiesinstitute.army.mil/pdffiles/PUB1167.pdfhttp://www.pewresearch.org/fact-tank/2013/10/23/report-questions-drone-use-widely-unpopular-globally-but-not-in-the-u-s/http://www.pewresearch.org/fact-tank/2013/10/23/report-questions-drone-use-widely-unpopular-globally-but-not-in-the-u-s/http://ipripak.org/articles/latest/duus.pdfhttp://www.strategicstudiesinstitute.army.mil/pdffiles/PUB1167.pdfhttp://www.pewresearch.org/fact-tank/2013/10/23/report-questions-drone-use-widely-unpopular-globally-but-not-in-the-u-s/http://www.pewresearch.org/fact-tank/2013/10/23/report-questions-drone-use-widely-unpopular-globally-but-not-in-the-u-s/http://www.ipripk.org/drone-strikes-developing-an-accord/#sthash.S1zO5Kc5.dpufhttp://www.ipripk.org/drone-strikes-developing-an-accord/#sthash.S1zO5Kc5.dpuf


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A. THE HISTORICAL CONTEXT OF SLEF DEFENSE

Preemptive use of force in self defense has been in use even before the

adoption of the U6 charter in the twentieth century! 7-t e8isted in the customary

-nternational (aw before its adoption in the present form

9

! &he famous /arolineaffair:$a diplomatic episode that took place between the United States and

ritain in the nineteenth century $laid the roundwork of customary rules for

defense! &he name takes its

roots from a steam ship, the /aroline, which the ritish alleed was used by

Americans to help in insurency in /anada aainst the crown!


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stressin the need for the apoloy and compensation to the victims, but the

ritish stuck to teir roht of self defense for /anada!10

&he analoy of the /aroline case can be applied to the drone issue! &he

American supporters of the /anadian insurency represented ?+ood &aliban@ asthey created problems for the ritish mpire by supportin and harborin the

/anadian insurents! &he ritish, in this case, acted in self>defence by attackin

the /aroline in U!S! territorial waters! &he erstwhile carline case can be related to

present day drone strikes inside Pakistans territory!

-n the /aroline case, the United States contested that the 6ational (aw

was applicable to the /anadian -nsurents even if they were supported by the

United States! &he United States further arued that they should have been tried

in the U!S courts! &hey furthered their case by makin an arument that the

attack in self defense must not be used in the routine circumstances like defense

or retaliation! &hey arued that it should not be used as a shield to aument their

defense! 'n 'ne hand the ritish reretted e8ceedin into the U!S! territory, but

maintained that destruction of the /aroline was necessary as United States was

instiatin insurency in /anada and was instrumental in aidin the enemy!

Boreover, the ritish concluded that the United States would have been unable

to take action aainst the rebels!11

&he aruments of the case perpetually transformed the riht of self>

defense from a ?political e8cuse to leal doctrine!@12 -t also established some

strict criteria for the claimC a state can e8ercise the riht of self>defense only if the

?necessity of that self>defense is instant, overwhelmin, and leavin no choice of

means and no moments for deliberation!@1)'ther than fulfillin this condition,the

sovereinty of the third state is considered to be inviolable! &he convenience of

1 Noyes, $e "aroline, 23+!11 %bid!12 *! ?! /ennings, $e "aroline and Mc;eod "ases,American Journalof International Law32, no!1 B/an'ary 13http://www.jstor.org/discover/10.2307/2190632?uid=3739560&uid=2129&uid=2&uid=70&uid=4&uid=3739256&sid=21105096705933http://www.jstor.org/discover/10.2307/2190632?uid=3739560&uid=2129&uid=2&uid=70&uid=4&uid=3739256&sid=21105096705933http://www.jstor.org/discover/10.2307/2190632?uid=3739560&uid=2129&uid=2&uid=70&uid=4&uid=3739256&sid=21105096705933http://www.jstor.org/discover/10.2307/2190632?uid=3739560&uid=2129&uid=2&uid=70&uid=4&uid=3739256&sid=21105096705933


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pre>emptive action to sustain a political or military e8cuse was not accepted as a

suitable reason to embark upon the concept of self defense!

1. Necessity, Immedicy, !d P"#$#"ti#!%ity

&he /aroline incident set the stae for determinin three primary factors to

establish the criteria for self>defenseC necessity, immediacy$commonly referred

to as imminence$and proportionality!1 6ecessity is the first of the three

fundamental factors considered for the use of self>defense !&o put it simply, a

state needs to determine that ?the use of force by the other state was imminent,

and that there was essentially nothin but forcible action that would forestall such

attack!@15Boreover, ?DnEecessity can only be meet the re3uired criteria only if all

peaceful alternative means have been e8hausted!@17

-t concludes that a statemust use all other alternative means before makin the necessity All other

practical measures must be taken and e8hausted before the necessity

re3uirement is fulfilled!

&he second re3uirement is the urency simply put it as -mmediacy that

has a substantial correlation with necessity! &he urency of the perceived threat

should be fairly established so that the action in self>defense becomes a

necessity! -n the conte8t of the /aroline case! &he act must pose a pressinthreat to trier the act of self defense, leavin no other recourse, that can be

adopted, to thwart the perceived threat! +oin by this analoy, the loner a

overnment takes to trier an action or a response, the less immediate the

threat becomes!19

14 ;o'is>)$ilippe *o'illard, $e "aroline "ase: Anticipatory Sel.>De.ense in "ontemporary %nternational ;a-, Miskolc Journal ofInternational law, 1, no! 2 B24C: 1412, http://www.uni-miskolc.hu/6wwwdrint/&''&rouillard1.htm!19 *o'illard, $e "aroline "ase, 1+!1Sikander A$med S$a$, 0ar on errorism: Sel. De.ense, 8perationnd'ring reedom, and t$e ;egality o. Drone Strikes inside )akistan,Washinton !niversit" #lo$al Studies Law %eview, no! 1 B21C: 3,http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi0

article31'1conte+t3glo*alstudies!1+ *o'illard, $e "aroline "ase!
http://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htmhttp://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htmhttp://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1041&context=globalstudieshttp://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1041&context=globalstudieshttp://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htmhttp://www.uni-miskolc.hu/~wwwdrint/20042rouillard1.htmhttp://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1041&context=globalstudieshttp://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=1041&context=globalstudies


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Proportionality is third in line to establish the re3uirement to e8ercise the

riht of self>defenseC -t says that the threat and the use of force should be

proportional to each other! -n simple terms the act of self defense should be

proportional to the suffered losses!1: .esponse by the attacker should be

proportional to the losses suffered; -t further e8plains that the 3uantum of force

that should be employed in e8ercisin the riht of self defense should not be

e8cessive!1 -n contemporary scenarios, out of these three primary factors,

determination and application of proportionality is the most critical and

complicated than necessity because the necessity is more tanible and can be

established with relative ease in the decision>makin process!20

&he riht$or the claim$of self>defense has been in use ,4udiciously and

e8cessively, many a times since the /aroline case; sometimes leitimately,

mostly as an e8cuse for aressive action like in the invasion of "enmark and

6orway durin the Second orld ar!21-n the initial days of the war, "enmark

and 6orway both declared their neutrality in the war, throuh a non>aression

pact; however, military necessity provided an e8cuse to e8ercise the riht of self

determination to +ermany; "enmark was invaded by +ermany!22-n the case of

6orway, +ermany claimed they acted in self defense for the fear of ritish and

%rench e8peditionary forces landin that violated 6orways neutrality! oth the

claims were re4ected by the tribunal investiatin the case!2)

Another impostant case in the use of self defense is the /orfu channel

case


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amounts to the violation of -nternational law!2&he Albanian overnment disputed

both chares, but the -nternational /ourt of Hustice


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After the nature of war transformed in the twenty first century, its first

visible effect came into the 2002 U!S! 6ational Security Stratey


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self>defense beins!) Article 51 states that, ?the inherent riht of individual or

collective self>defense if an armed attack occurs aainst a member of the United

6ations, until the Security /ouncil has taken measures necessary to maintain

international peace and security,@)5 posits a stron condition$armed attack$

before a state can act in self>defense! -n contrast, the /aroline case does not

place an underlyin condition of an armed attack on a state while it act in self>

defense!

&he U6 charter throuh Article 51 provides a clear route, but it also

e8poses a sliht nonconformity from the customary riht of anticipatory self>

defense! &he diverence relates to the precision, in eneral and precise

comprehension of ?determinin the scope of the riht to use force in self>

defense@ by customary international law and the U6 /harter, respectively! &his

departure of interpretation has clearly bifurcated the e8perts! &he first roup, the

so>called@ destructionists@, claims that, ?the Article 51 was aimed at e8plicitly to

limit the use of force in self>defense to those situations in which an armed attack

has actually occurred!@ &his view would put the receiver at a disadvantae

whereby he can only react in self>defense only if an actual assault or attack has

taken place meanin thereby that the initiative lies with the aressor!! )7

34 Article 91 states t$at Not$ing in t$e present "$arter s$all impairt$e in$erent rig$t o. individ'al or collective sel.>de.ense i. an armedattack occ'rs against a Member o. t$e (nited Nations, 'ntil t$eSec'rity "o'ncil $as taken meas'res necessary to maintaininternational peace and sec'rity! Meas'res taken by Members in t$eeJercise o. t$is rig$t o. sel.>de.ense s$all be immediately reported tot$e Sec'rity "o'ncil and s$all not in any -ay aect t$e a't$ority andresponsibility o. t$e Sec'rity "o'ncil 'nder t$e present "$arter to takeat any time s'c$ action as it deems necessary in order to maintain orrestore international peace and sec'rity! Mentioned in "$apter K%% o.

t$e (N "$arter: Actions -it$ *espect to )eace, 5reac$es o. t$e )eace,and Acts o. Aggression, http://www.un.org/en/documents/charter/chapter%.shtml!39 *o'illard, $e "aroline "ase, 1111!3 Arend, %nternational ;a-, 2@ #enney, $e National Sec'rityStrategy, 9@ "orinne ;e-is, DonHt Stop No-: $e Development o. t$e%nternational ;a-, *ig$t to 'se orce in Sel.>De.ense,Journal ofInternational Law Polic"%K, no! 1 B/'ne 2+C: +,https://www.law.upenn.edu/4ournals/4il/4ilp/articles/-1,ewis,;orinne.pdf!
http://www.un.org/en/documents/charter/chapter7.shtmlhttps://www.law.upenn.edu/journals/jil/jilp/articles/4-1_Lewis_Corinne.pdfhttp://www.un.org/en/documents/charter/chapter7.shtmlhttps://www.law.upenn.edu/journals/jil/jilp/articles/4-1_Lewis_Corinne.pdf


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&he second roup$ ?counter>destructionists@$of scholars, however,

re4ects this narrow interpretation! As per their interpretation, Article 51 is a

continuation of the previous acceptable international laws and it did not prohibit

or restrict the riht of self defense or anticipatory self defense! Accordin to their

comprehension of the law , they arued that condition of armed attack by an

aressor is 4ust one of the many situations in which the riht of self defense can

be e8ercised and it is not the only option where this option can be e8ercised!)9

&he ush "octrine obviously followed the counter>destructionist standpoint and,

in fact, nudes it further to include the issue of harborin non>state actors!

&he bone of contention between the two school of thouhts is the riht of

self defense and anticipatory self defense which does not put any condition of of

immediacy! oth interpretations are widely reconiFed to be rationale but the

latter has some comprehension issues! &he Un charter however clearly provide

two instances where this riht can be e8ercised! Article 51 provides the space for

the use of force when an armed attack has taken place and Article 2 provides

the maneuverin space for e8ercisin this riht for the restoration of peace and

security throuh collective action and measures! *owever, there are instances

where states havin their own interpretation of the law use their perceived riht of

anticipatory self defense to prevent an armed attack!):

-. THE .S. PERSPECTIVE

-n aftermath of the J11 incident, then>President +eore ! ush

declaredC Ke will make no distinction between the terrorists who committed

these acts and those who harbor them!@)&his statement became part of the

foundation of the ush "octrine! &he ush "octrine resides on four

fundamentals themesC 1= ?&ake the fiht to the enemy overseas before they can

attack us aain here at home@; 2= ?/onfront threats before they fully materialiFe@;

)= ?Advance liberty and hope as an alternative to the enemys ideoloy of

3+ %bid!3< *o'illard, $e "aroline "ase, 114!3 rontline Sta, $e vol'tion o. t$e 5's$ doctrine, Frontline,23, http://www.p*s.org/wg*h/pages/frontline/shows/ira)/etc/cron.html!
http://www.pbs.org/wgbh/pages/frontline/shows/iraq/etc/cron.htmlhttp://www.pbs.org/wgbh/pages/frontline/shows/iraq/etc/cron.html


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repression and fear@; and = ?Bake no distinction between terrorists and the

nations that harbor them, and hold both to account!@0&hese uidelines provided

the re3uired ?leality@ to conduct pre>emptive and retaliatory strikes as part of the

anticipatory self defense and self defense in Afhanistan and tribal Areas of

Pakistan commonly referred to as %A&A!!

/ontinuin with the interpretation of the ush ra, 'bama administration

defended their riht of self defense aruinC ?&he condition that operational

leaders present an imminent threat of violent attack aainst the United States

does not re3uire the United States to have clear evidence that a specific attack

on U!S! persons and interests will take place in the immediate future!@1

/onse3uently, the present administration still tows the line of ush era and still

uses drones to kill suspected terrorists on forein soil ?who continue to remain an

impendin threat to the American people!@2&he chane however was observed

in the methodoloy in which these matters were handed over to "o" from /-A!

&he 'bama Administration arues that Pakistan has some state actors, althouh there is a lack of evidence

for authoriFin the non state actors to conduct the operations! ) &he 'bama

Administration continues to believe that cross>border aression aainst its

forces, with support of -S-, are conducted by &aliban and al>Laeda, who en4oy

safe havens inside Pakistani territory!

4 0as$ington )ost Sta, Decision )oints, by )res! 7eorge 0! 5's$:on oreign )olicy, Washinton Post, December 21, 2,http://www.ontheissues.org/rchive/2ecision,!oints,


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1. P"e'em$ti#! !d P"ee!ti#!: T*e -/s* D#ct"i!e

&he 2002 6SS document is considered as the main policy directive that

revolves around the concept of prevention and pre emption in the twenty first

century! -t has also evolved sinificantly since its implementation in the lastdecade!5 -nitially it revolves around the deterrence, seconded by the policy of

containment, and concludin at strikin preemptively aainst the roue states

and terrorists!7-t primarily focused aainst mitiatin the threat! &he concept

emanates from a basic idea that asserts that ?DtEhe reater the threat, the reater

is the risk of inaction$and the more compellin the case for takin anticipatory

action to defend ourselves, even if uncertainty remains as to the time and place

of the enemys attack!@9 &he stratey inherently focused at determinin the

intentions of states and non>state actors$unilaterally$makin it convenient for

the use of force before these states and non state actors can act aainst the

United States!:

&he 2002 6SS stated that due to chane in the ways the modern wars are

fouht and treated by other states, there was a need to redefine the concept of

imminent threat so as to afford more fle8ibility in actin to prevent a potential and

disastrous threat, specially those sponsored by roue states or non>state actors!

&he stratey fundamentally ave way to the prevention with pre>emption at the

second stae! &his stratey paper focused the limitation of the Article 51 that

posed restriction and limitation at the use of force! -nterestinly , the stratey

conveniently step aside the basic re3uirements re3uired under Article 51 of U6

49 Ne- ?ork imes Sta, A.termat$@ t$e 5's$ Doctrine, New .ork

/imes,April 13, 23, http://www.ntimes.com/&''(/'/1(/opinion/aftermath-the-*ush-doctrine.html!4 "$ris /! Dolan, $e 5's$ Doctrine and (!S! %ntervention, oreignServices Dispatc$es and )eriodic *eports on t$e (!S! Diplomacy, /'ne24, http://www.unc.edu/depts/diplomat/archives,roll/&'','-'$/dolan,*ush/dolan,*ush.html!4+ Arend, %nternational ;a-,


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/harter makin it easier for them to use force without oin into the procedural

roove!!

&he distinuishin aspect of the "octrine is its releation of an important

factor of necessity aainst potential threats to periphery! &he 2002 6SSspecifically adhered to the concept of imminent threat by statinC ?e must adapt

the concept of imminent threat to the capabilities and ob4ectives of todays

adversaries!@ -n other words, the administration tilted the interpretation the law

accordin to its re3uirement tailored in a way that eliminates the basic factor of

necessity !the administration considered that new form of warfare suest that

establishin the re3uirement of necessity would render the response late and

would result in e8cessive losses at the hands of an invisible enemy!!50

*owever, a wide circle of intellectuals and international scholars of the

-nternational (aw disareed to this ne w phenomenon! Arend aruedC ?Althouh

traditional international law would not re3uire certainty reardin time and place,

it would suest near certainty! -f an attack is imminent, it is almost certain that

the attack will occur,@ concludin that ush "octrine is tanent to the

-nternational (aw!51

&he fundamental issue revolves around the perception and establishin

the re3uirement of imminent threat and preemptive strike with the advent of this

new form of warfare! &he presence of al>Laeda, with a track record of attacks

aainst the United States provide leverae in establishin imminence! &he

terrorists due to their inherent ability in initiatin the strike at the time and place of

their own choosin! *owever, accordin to ush "octrine, ?America is not oin

to wait until the last minute before actin, but rather would neutraliFe threats well

before they became imminent!@ &he United States decided to follow the standard

4 /he National Securit" Strate" of the !nited States )**)@ ritF,%mminent $reat, Darling, Special Analysis!9/he National Securit" Strate", Septem$er )**)@ Arc$ives, )revent8'r nemies .rom $reatening (s, 8'r Allies, and 8'r riends -it$0eapons o. Mass Destr'ction, (!S! Department o. State, 22,http://georgew*ush-whitehouse.archives.gov/nsc/nss/&''&/nss5.html!91 Arend, %nternational ;a-, +!
http://georgewbush-whitehouse.archives.gov/nsc/nss/2002/nss5.htmlhttp://georgewbush-whitehouse.archives.gov/nsc/nss/2002/nss5.html


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self>defense rules aainst any threat bankin on preemption instead of

prevention and containment!52

After the implementation of the ush "octrine, the United States has used

preemptive force without followin a standard procedure under the U6 /harter,includin air strikes aainst (ibya and missile strikes aainst l>Shifa chemical

plants in Sudan, mistakenly tareted as a weapons factory, that violated

-nternational law! &he perception of imminence and preemption is aravatin

the the problem when the aression has not taken place and there is a

probability that action can take place! -n this scenario, the law does not provide

any tanible initiative to the states to undertake preemptive strikes aainst a

likely aressor! &his undefined state is yet to be addressed by the -nternational

(aw!5)

&. .S. D#mestic L0

&he U!S! constitution provide the initiative to undertake pre>emptive strike

on forein soil! &he president en4oys substantial authority on the use of force

throuh Article -- of the U!S! /onstitution!5 Boreover, a 4oint resolution$the

AUB%$passed shortly after the J11terror attacks,55authoriFes the president, as

commander>in>chief, ?to use all necessary and appropriate force aainst thosenations, oraniFations, or persons he determines planned, authoriFed,

committed, or aided the terrorist attacks that occurred on September 11, 2001, or

92 Dore 7old, (!S! )olicy on )reventive Military Action against %ran,Jerusalem (enter for Pu$lic A0airs12, no! 3 BMarc$ 212C,

http://4cpa.org/article/u-s-polic-on-preventive-militar-action-against-iran/@ Arend,%nternational ;a-,


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harbored such oraniFations or persons!@57&he hite *ouse arues that the

ABU%, backed by the U!S! /onstitution 4ustifies drone strikes on forein soil!59

-n the wake of the newest form of warfare the U!S! officials maintain that

the fiht in the +'& is not aainst al Laeda, but all the affiliated roups thatsupport them$associated forces$all around the lobe, whenever they emre or

even try to commit an act of aression aainst the United States!5: &his

linuistic used in the ABU% suests that leally the United States can strike

aainst Al Laeda, and its affiliates like &aliban who committed terrorist acts

aainst U!S! interests and personnel! &he larin e8amples of the act of terro

inscribed in this interoperation of the U!S! law are orld &rade /enter attack in

1), suicide bombin of the U!S! embassies in Menya, &anFania, and 6airobi in

1:, the attack on the USS /ole in 2000, and the J11 attacks on the twin

towers!5 *owever, the Pakistani &aliban and *a33ani network are not the

associated forces because they are not involved in any of these attacks, directly

or indirectly ! Net they are tareted throuh drone strikes which even by AUB%

yardstick are considered e8cessive and overstepped reaction!70

&he AUB% does not limit the power throuh time constraints! -n other

words, it provides endless powers to continue an endless war aainst an enemy!

&his also provide the 4ustification to continue DmisEuse of leal authority for

9 A't$oriFation o. (se o. Military orce, )'b!;!No! 1+4, 2BaC, 119stat! 224, 224 BSeptember 1


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e8ecutives to kill by kidnap and torture! arbara (ee, a conresswoman, the

AUB% is ?a blank check for endless war I that ives any president the nearly

unlimited authority to wae limitless war at anytime, anywhere, for any reason, in

perpetuity,@ and recommend a check and balance system to keep a check on

these discretionary powers that has not been done as yet! 71

-n a later time frame when al>Laeda will be deraded to a level where it

will not pose any real threat to the United States, responsibility would pass from

the military to other law enforcement aencies!72&he authorities vested in the

president by the AUB% throuh /onress will no loner be applicable to 4ustify

the use of force! Heh Hohnson, then senior lawyer in the 'bama Administration,

has stated that the United States ?will not be able to say !!! that our efforts should

no loner be considered an armed conflict aainst al>Laeda and its affiliates!K7)

6o one is able to predict when that is oin to happen althouh the U!S! has

claimed many a times that Al>Laeda has been deraded to the e8tent of

ineffectiveness!7

Another anle of this discussion is the covert operations bein conducted

the /-A inside the Pakistani territory to help identify tarets and suest the

preemptive strikes! hether the /-A can operate beyond the parameters of

conressional authority is still aruable; however, with the AUB% in place, the

?President has the authority to issue findins to authoriFe /-A action beyond the

parameters of /onressional authoriFation as lon as such action does not

1 "redo Sta, ell "ongress: No 5lank "$eck .or ndless 0ar,"*D8 Action, 214, http://act.credoaction.com/sign/lee,aumf,&'1/!2 Nick, =opkins, (!S! $eading .or )oint -$en Military )'rs'it o. al>6aida S$o'ld nd, #uardian, November 3, 212,http://www.theguardian.com/world/&'1&/nov/('/us-war-against-al-)aida!3 %bid!4 7reg Miller, Al>6aeda argets D-indle as 7ro'p S$rinks,Washinton Post, November 22, 211,http://www.washingtonpost.com/world/national-securit/al-)aeda-targets-dwindle-as-group-shrinks/&'11/11/&&/gC?*E=FmF,stor.html@ A5" Ne-s Sta, So'rces:Al 6aeda ract'red, %neective,A-( News, http://a*cnews.go.com/"S/stor0id3'$$&!
http://act.credoaction.com/sign/lee_aumf_2014/http://www.theguardian.com/world/2012/nov/30/us-war-against-al-qaidahttp://www.washingtonpost.com/world/national-security/al-qaeda-targets-dwindle-as-group-shrinks/2011/11/22/gIQAbXJNmN_story.htmlhttp://www.washingtonpost.com/world/national-security/al-qaeda-targets-dwindle-as-group-shrinks/2011/11/22/gIQAbXJNmN_story.htmlhttp://abcnews.go.com/US/story?id=90662http://abcnews.go.com/US/story?id=90662http://act.credoaction.com/sign/lee_aumf_2014/http://www.theguardian.com/world/2012/nov/30/us-war-against-al-qaidahttp://www.washingtonpost.com/world/national-security/al-qaeda-targets-dwindle-as-group-shrinks/2011/11/22/gIQAbXJNmN_story.htmlhttp://www.washingtonpost.com/world/national-security/al-qaeda-targets-dwindle-as-group-shrinks/2011/11/22/gIQAbXJNmN_story.htmlhttp://abcnews.go.com/US/story?id=90662http://abcnews.go.com/US/story?id=90662


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otherwise violate domestic law!@75&he United States should provide leal basis

for such actions because ?individual strikes could constitute acts of illeal e8tra

4udicial assassination, and assassinations have lon been condemned in the

US!@77 *owever, accordin to the white paper issued by the "epartment of

Hustice, ?DaE lawful killin in self defense is not an assassination,@ as it would not

violate the assassination ban!79

C. THE INTERNATIONAL LA: ANOTHER PERSPECTIVE

&he third perspective of the e8istin law relates to the -nternational (aw as

perceived by countries other than those who plan preemptive strikes inside

another states! 'ne e8ample is Pakistan who neither has the capacity nor the

intention to attack the United States directly or indirectly! Pakistan certainly is notat war with the United States! &hus, by the standards of international law, the

United States can not conduct preemptive strikes inside the Pakistani territory ,

both of which will be considered unlawful and deemed to committed violation in

accordance with the -nternational (aw!

&akin the -nternational (aw perspective into account, Pakistan has raised

various issues raises several issuesC violation of its territorial interity; the

3uestion of 4us ad bellum; the lawful and unlawful taretin of individuals


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-n the Nicaragua vs. U.S. defense aainst 6icaraua for its alleed support of the

insurents in l Salvador! "espite the evidence of @state support@ aainst

6icaraua, the -/H ruled in favor of 6icaraua for the reason that the sabotae

acts can not be attributed to the state as they are independent and individual! 90

&he 4udment e8plicitly stated that the evidence in e8tension of support to

insurents does not sum up to authoriFe the armed attack aainst 6icaraua! 91

&he -/H held that ?for a state to be responsible for the activities of contras Dnon>

state actorsE, it would have to be proved that state had effective control of the

military or paramilitary operations in the course of which the alleed violations

were committed!@92 Applyin the same analoy in the drone stirkes inside

Pakistani territory, the United States, far from frEOom establishin the direct or

indirect acts of terrorism throuh *a33ani network by Pakistan ,has been

conductin the drone strikes inside the soverein territory of Pakistan which is

clearly the violation of the international laws and norms! Pakistans role can be

3uestioned reardin the ?state tolerance@ of the &aliban, but the issue of

?effective control,@ as stated in the 6icaraua case, cannot be made with any

authenticity!

&he second case is the Prosecutor vs. Tadiccase! "usko &adic was a

osnian Serb, a paramilitary official who committed e8treme crimes aainst

humanity at Pre4idor and detention camps in osnia! &he tribunal declared that

his criminal acts were ?acts of de facto state orans reardless of any specific

instruction by the state,@ as the court focused on the ?subordination of the roup

to the overall control of the state!@9)&he court held that ?to be a de facto oran of

+ "ase "oncerning Military and )aramilitary Activities in and against

Nicarag'a BNicarag'a v! (!SC, %nternational "o'rt o. /'stice B/'dgmento. /'ne 2+, 1


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the state, overall control over such outfit would suffice!@9 Pakistan does not

e8ercise ?overall control@ of the *a33ani and &aliban network, the fact that is

also supported and maintained by U!S! President 'bama, former Secretary of

State *illary /linton, and Admiral Bike Bullen! Althouh the United States state

that it has evidence suestin that Pakistan have some contacts with the

personnel related to &aliban network but it does not have sufficient evidence that

displays that Pakistan has ever authoriFed or approved any unlawful action ! 95

&he third case elaborates the Uandan attack on /ono! Uanda

conducted the attacks on the basis if information that rebels based inside the

/ono had carried out armed attacks inside Uandan territory! &he -/H opined

that a state cannot carry out an armed attack in self>defense aainst non>state

actors by violatin the territorial interity of another state! -t further e8plained that

lack if evidence does not suest that /ono as state was involved in carryin

out attack inside the Uandan territory!97

&he three cases discussed above provide an insiht into two main

considerationsC maintainin contacts with non>state actors and nationality! -n the

6icaraua and /ono cases, ?maintainin contacts@ does not form part of the

state domain, so if the United States 4ustifies its armed preemption it is

committin an unlawful act that violates international law! Additionally, nationality

cannot be made the basis of state responsibility$international law$unless the

unlawful acts of that particular national points to the involvement of the state itself

as in the &adic case! Applyin the same analoy in Pakistan scenario, &aliban

are neither the aent nor affiliated with Pakistan +overnment in any form! y this

analoy the U!S! drone strikes in self>defense are difficult to 4ustify the conte8t of

-nternational (aw!99

&wo e8ceptions in Article 2


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use of force is carried out with the consent of host state,@ and, second, the use of

force is allowed ?where the host state is unwillin or unable to take appropriate

action!@ As reards the first point, some analysts suspect that Pakistani

authorities had tacitly supported the drone strikes! *owever, repeated public

statements by the overnment officials about the illeality of the U!S! drone

strikes cast doubt on the issue of consent notwithstandin the political

e8pediency involved in it! As reards the second point, Pakistan has a mi8ed

record of response! At times, leaders have turned a blind eye to violent non>state

actors, but at times took out *G&s like Mhalid Sheikh Buhammad!9:

&he caveats in international law of ?state consent and unwillinness@ do

not rise to the level of state support for non>state actors as brouht out in the

related three cases decided by the -/H! *owever, they provide sufficient leal

cover to the drone strikes!

&. C#%%te"% Dm)e !d T")eted Ki%%i!)s: A Di%emm

"rones rely on intellience, which at times can be flawed! /onse3uently,

drone strikes have resulted in much hiher numbers of civilian casualties than

the militants! &areted killins within the conte8t of an armed conflict or outside

armed conflict have leal implications! "ue to the involvement of non>stateactors, the United States claims it as a noninternational armed conflict overned

by -*(, without meetin the leal criteria!9 -nterestinly, in the absence of an

armed conflict, only -*.( applies! &areted killins are not lawful under -*.(

+


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because durin armed conflict, -*( defense! Under these restrictions ?individuals cannot be

tareted for lethal attack merely because of past unlawful behavior, but only for

imminent or other rave threats to life when arrest is not a reasonable

possibility!@:1 -n Pakistan, the drone strikes are contested because ?they are

unnecessary, as other, peaceful means of facin the threat have not been

e8hausted iven the time parameters involved!@:2

-f there is an armed conflict$which the United States claims to be a non>

international armed conflict$then the drone strikes are evaluated in accordance

with -*(! &he U!S! administration has arued that tareted killins are 4ustified as

a self>defense measure; the application of -*( is adhered to in principle, which

should be determined on a case>by>case basis under varyin circumstances!

*owever, the definition of associated forces and the leal points are not clarified

by the U!S! administration, underminin the -nternational leal framework!:)

&he killin of Anwar al>Awlaki, a U!S! citiFen of Nemen descent, in

September 2011, is a case in point! *e was never chared with any crime, but

the U!S! administration claimed that he was al>Laedas international

propaandist and operation planner!:ein a propaandist is not a valid chare,

but bein an operation planner 3ualifies Awlaki as a military taret only if he was


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implicated in the past with the same chare! :5&he rationale behind the attack is

still not clear! &he application of -*( dictates the leality of drone strikes throuh

the principles of distinction and proportionality!:7

&he U!S! administration arues that drones only taret the members ofarmed roups throuh sinature strikes!:9 ut the data collected by a non>

overnmental oraniFation and Pakistani sources show that the United States

carried out )00)9 strikes between 200 and 2012! &he tally of deaths of

innocents rane from 00 to 00, with an additional 700 people seriously

in4ured!:: &hese deaths occurred because of drone strikes taretin social

atherins; noncombatants who had come to the aid of survivors would be

enaed aain with the second drone strike presumin them to be terrorists

helpin terrorists!

Article 59 of the additional protocol to the +eneva /onvention reflects on

the ?precautions in attack and specifies that the civilian population shall not be

the ob4ect of attack!@:&he -nternational /ommittee of the .ed /ross has made a

clean distinction between civilians who participate in unambiuous activity and

those who keep a continuous combatant function; however, concerns about the

strikes safeuard remain an issue in view of back>to>back strikes with no

confirmation whether the taret is leitimate or otherwise!0

Accordin to ureau of -nvestiative Hournalism, ?the /-A#s drone

campain in Pakistan has killed doFens of civilians who had one to help rescue

victims I specifically at least 50 civilians were killed in follow>up strikes when


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they had one to help victims!@1&o this end, /hristof *eyns states, ?-f civilians

Qrescuers are indeed bein intentionally tareted, there is no doubt about the lawC

those strikes are war crimes!@2 ut, in the tribal environment of Pakistan,

distinction between an innocent and a terrorist is a complicated and challenin

issue, makin it difficult for sinature strikes!)Bilitants seekin refue in tribal

areas do not wear any kind of uniform that make them discernible! Boreover, in

tribal culture everyone carries a weapon, which makes it difficult for the drones to

distinuish between the innocents and militants!

&hus, it becomes an issue of proportionality! "rone operations are also in

violation to Article 51 of the additional protocol re3uirin ?the protection of civilian

population!@ vidence suests that mostly the civilian rescue workers,

marriae ceremonies, and reliious places are tareted! 5ven if the leitimate

taret is identified, the lare presence of innocent civilians in such a space

makes the strike disproportionate!7 -f these civilians are intentionally tareted,

the strikes leally constitute war crimes!

1 7len 7reen-ald, (!S! Drone Strikes arget *esc'ers in )akistan and t$e 0est Stays Silent, #uardian, A'g'st 2, 212,http://www.theguardian.com/commentisfree/&'1&/aug/&'/us-drones-strikes-target-

rescuers-pakistan!2 /ack Serle, (!N! Jpert ;abels "%A actic Jposed by 5'rea' Ga 0ar"rimeH, -ureau of Investiative Journalism, /'ne 21, 212,http://www.the*ureauinvestigates.com/&'1&/'$/&1/un-e+pert-la*els-cia-tactic-e+posed-*-*ureau-a-war-crime/!3;iving (nder Drones, 112!4 %nternational "ommittee o. t$e *ed "ross, )rotocol additional to t$e7eneva "onvention o. 12 A'g'st 14, and relating to t$e )rotectiono. Kictims o. %nternational Armed "onOicts B)rotocol 1C, /'ne e* 8G/%'-%5''$5!9 "$ris 0oods and "$ristina ;amb, "%A actics in )akistan incl'de

argeting *esc'ers and 'nerals, /he -ureau of InvestiativeJournalism, ebr'ary 4, 212,http://www.the*ureauinvestigates.com/&'1&/'&/'/o*ama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/! Daily imes Sta, (N calls .or Drone Strikes to "omply -it$%nternational ;a-s, 'ail" /imes, December 2, 213,http://www.dailtimes.com.pk/foreign/&'-2ec-&'1(/un-calls-for-drone-strikes-to-compl-with-international-laws!
http://www.theguardian.com/commentisfree/2012/aug/20/us-drones-strikes-target-rescuers-pakistanhttp://www.theguardian.com/commentisfree/2012/aug/20/us-drones-strikes-target-rescuers-pakistanhttp://www.thebureauinvestigates.com/2012/06/21/un-expert-labels-cia-tactic-exposed-by-bureau-a-war-crime/http://www.thebureauinvestigates.com/2012/06/21/un-expert-labels-cia-tactic-exposed-by-bureau-a-war-crime/http://www.icrc.org/ihl/Web%20ART/470-750065http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/http://www.dailytimes.com.pk/foreign/20-Dec-2013/un-calls-for-drone-strikes-to-comply-with-international-lawshttp://www.dailytimes.com.pk/foreign/20-Dec-2013/un-calls-for-drone-strikes-to-comply-with-international-lawshttp://www.theguardian.com/commentisfree/2012/aug/20/us-drones-strikes-target-rescuers-pakistanhttp://www.theguardian.com/commentisfree/2012/aug/20/us-drones-strikes-target-rescuers-pakistanhttp://www.thebureauinvestigates.com/2012/06/21/un-expert-labels-cia-tactic-exposed-by-bureau-a-war-crime/http://www.thebureauinvestigates.com/2012/06/21/un-expert-labels-cia-tactic-exposed-by-bureau-a-war-crime/http://www.icrc.org/ihl/Web%20ART/470-750065http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/http://www.dailytimes.com.pk/foreign/20-Dec-2013/un-calls-for-drone-strikes-to-comply-with-international-lawshttp://www.dailytimes.com.pk/foreign/20-Dec-2013/un-calls-for-drone-strikes-to-comply-with-international-laws


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+. T*e N Pe"s$ectie

Article 2de.ense,Journal ofInternational Law Polic"%K, B2+C: +,https://www.law.upenn.edu/4ournals/4il/4ilp/articles/-1,ewis,;orinne.pdf!1 )$ilip Alston, St'dy on argeted #illings, Special *apporte'r, May2


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-nitially, Pakistan had an ambiuous stance on drones, and used to

celebrate the killins of *G&s!101 ut this stance chaned over time due to

internal political dynamics of the country! -n 201) the Prime Binister of Pakistan

6awaF Sharif discussed the drone issue with President 'bama as a violation of

?territorial interity, and a ma4or irritant in DmutualE relations!@102 ven in the

presence of consent, international law should not be used to evade human

rihts!10)

Pakistan has apprehended *G&s, includin Mhalid Sheikh Bohammad and

Abu Rubaydah, in the past, and also continues to help the United States by

providin actionable intellience!10&he thorny issue is of inability, where the

arument of a weak state comes up! -n the article ?Adaptin Americans Security

Paradim and Security Aenda,@ the author writes, ?Some states are weak

because they cannot control parts of their territories!@105&houh it is true that

Pakistan still faces problems in its tribal areas, some 150,000 troops have been

deployed to control the situation!1076onetheless, the inability of a state raises

serious 3uestions about the irreular forces$non>state actors$usin its territory

aainst another state! &heresa .einold states that ?the criteria for enain non>

state actors on forein soil must reconcile the victim states vital security interests

11 Amnesty %nternational *eport, 0ill % be t$e NeJt: (!S! DroneStrikes in )akistan!12 AyaF 7'l, )akistani )M (rges Stop to (!S! Drone Strikes, 5oice ofAmerica, 8ctober 22, 213, http://www.voanews.com/content/us-accused-of-unlawful-killings-pakistan-drone-strikes/1%%&%$.html!13 As$ley S! Deeks, "onsent to t$e (se o. orce and %nternational;a- S'premacy, &arvard International Law Journal 94, no 1 Bebr'ary213C, http://www.harvardil4.org/wp-content/uploads/&'1(/'(/7C1'1.pdf!14 *ory Mc"art$y and /ason 5'rke, op P11 S'spect SeiFed in)akistan, #uardian and 6$server, Marc$ 1, 23,

http://www.theguardian.com/world/&''(/mar/'&/al)aida.terrorism!19 National Strategy %n.ormation "enter, Adopting AmericanHsSec'rity )aradigm and Sec'rity Agenda, 21, 2,http://www.strategcenter.org/wp-content/uploads/&'11/'1/adapting,the,paradigm.pdf!1 Q'lL&ar Ali 5$atti, $e )akistan ArmyHs 8perations in t$e ribalAreas, %nternational %nstit'te .or Strategic St'dies B%%SSC, ebr'ary 1,214, $ttp:PP---!iiss!orgPenPeventsPeventsParc$iveP214>.13P.ebr'ary>e1cPoperations>in>t$e>tribal>areas>.1!
http://www.voanews.com/content/us-accused-of-unlawful-killings-pakistan-drone-strikes/1774276.htmlhttp://www.voanews.com/content/us-accused-of-unlawful-killings-pakistan-drone-strikes/1774276.htmlhttp://www.harvardilj.org/wp-content/uploads/2013/03/HLI101.pdfhttp://www.theguardian.com/world/2003/mar/02/alqaida.terrorismhttp://www.strategycenter.org/wp-content/uploads/2011/01/adapting_the_paradigm.pdfhttp://www.voanews.com/content/us-accused-of-unlawful-killings-pakistan-drone-strikes/1774276.htmlhttp://www.voanews.com/content/us-accused-of-unlawful-killings-pakistan-drone-strikes/1774276.htmlhttp://www.harvardilj.org/wp-content/uploads/2013/03/HLI101.pdfhttp://www.theguardian.com/world/2003/mar/02/alqaida.terrorismhttp://www.strategycenter.org/wp-content/uploads/2011/01/adapting_the_paradigm.pdf


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with the harborin states sovereinty!@109 Boreover, she further arues that ?the

notion that sovereinty implies responsibility for effective territorial control has

been used to support a more e8pansive interpretation of the riht to self>defense

in response to irreular warfare!@10:

&he United States has refused accountability and transparency on its

policies of tareted killins, which is in violation of the international leal

framework!10 -n his famous ?cross roads@ speech, President 'bama defined a

time>bound policy for finishin the weapon>related employment of drones, and,

thereafter would restrict drone usae to surveillance!110 +iven the diverent

national security interests of both countries, it seems unlikely that the United

States would re>evaluate its drone policies!

1+ *einold, State 0eakness, 249!1< %bid!, 24!1 %bid!, 122!11 ;'cy Madison, 8bama: America at "ross *oads in ig$tingerrorism, (-S News, May 23, 213, http://www.c*snews.com/news/o*ama-america-at-a-crossroads-in-fighting-terrorism/!
http://www.cbsnews.com/news/obama-america-at-a-crossroads-in-fighting-terrorism/http://www.cbsnews.com/news/obama-america-at-a-crossroads-in-fighting-terrorism/http://www.cbsnews.com/news/obama-america-at-a-crossroads-in-fighting-terrorism/http://www.cbsnews.com/news/obama-america-at-a-crossroads-in-fighting-terrorism/

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