LAHORE: This is with reference to Neha Ansari’s article of July 24 titled “Drones not a violation of our sovereignty”.
US drone strikes in Pakistan breach the key humanitarian principle of distinguishing between combatants and civilians in times of armed conflict and have made a mockery of international law. Independent sources report that these strikes have killed as many as 3,549 people and that at least 197 of these were children. Even if we ignore the moral facet of this debate, there is much to say when we turn to the legal one.
Neither the Abbottabad Commission Report, nor cables leaked through WikiLeaks suggesting an agreement on the part of the Pakistan government towards drone strikes in private, prove that drones are not a violation of Pakistan’s territorial sovereignty. This is because of two reasons. Firstly, under international law, a state can never give open-ended consent to another state to attack its citizens, especially when such action is not approved by the UN Security Council, as per the requirement in Article 51 of the UN Charter concerning legitimate self-defence. This was clearly pointed out in the case “Democratic Republic of the Congo vs Uganda (Judgment, ICJ Reports 2005). Secondly, the fundamental rights guaranteed under the Constitution, and in particular, the ‘right to life’ is inviolable and cannot be taken away or contracted out to a foreign state by the sovereign. On this point, the Honourable Kaikus J in Government of Pakistan vs Akhlaq Hussain said, “Citizens of Pakistan cannot contract themselves out of the various fundamental rights which the Constitution grants them.”
On April 12, 2012, the Parliament’s Committee on National Security (PCNS) presented its guidelines to the government on matters of national security which were unanimously adopted by both houses of parliament. It says in its Clause 2 that “the Government needs to ensure that the principles of an independent foreign policy must be grounded in strict adherence to the Principles of Policy as stated in Article 40 of the Constitution of Pakistan, the UN Charter and observance of international law. The US footprint in Pakistan must be reviewed. This means 1) an immediate cessation of drone attacks inside the territorial borders of Pakistan, 2) the cessation of infiltration into Pakistani territory on any pretext, including hot pursuit; 3) Pakistani territory including its air space shall not be used for transportation of arms and ammunition to Afghanistan.”
One also cannot escape Article 2(4) of the United Nations Charter. On May 9, 2013, the Peshawar High Court in the case titled Foundation for Fundamental Rights vs Federation of Pakistan & four others, said that by repeatedly carrying out drone strikes within the sovereign territory of Pakistan resulting in the loss of lives and property, America was violating Pakistan’s territorial integrity which is a breach of Article 2(4) of the UN Charter amongst several other international conventions. Article 2(4) of the UN Charter states: “All Members shall refrain in their international relations from the threat 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.” Other conventions such as the United Nations Millennium Declaration, Resolution No 55/2 adopted by the UN General Assembly on September 18, 2000, and the UN General Assembly Resolution 2625 (XXV) “Declaration on Principles of International Law Concerning Friendly Relations” also clearly says the same thing with regard to sovereignty.
Undoubtedly, Pakistan needs to step up in regard to these illegal drone strikes, foremost, by implementing the significant PHC decision and taking the issue to the UN General Assembly and also by shooting down the drones in the face of continuation of these strikes. In Iran, a US RQ-170 Sentinel drone was brought down in December 2011 and there is no reason why the Pakistani armed forced should not follow suit in shooting down US drones which are taking Pakistani lives.
If it does not take these actions, the government can be held accountable for contempt of court and not protecting its own citizens from these drone strikes. But as far as the issue of sovereignty is concerned, it cannot be stated that the US is not blatantly flouting hundreds of years of international law in pelting Pakistani citizens with drone missiles in Pakistan’s own territory.
Published in The Express Tribune, July 28th, 2013.