Analysis: The US is acting over and above the law

While drone attacks might have some tactical advantage against al Qaeda and its affiliates, as is being argued, they are against the UN Charter, the law of armed conflict and international human rights law.

Article 2(4) of the United Nations Charter prohibits the “threat or use of force” against another state. The Charter allows for the use of force in only one form, ie, under Article 42, wherein the Security Council may allow the use of force as an enforcement measure when all peaceful means are exhausted.

There, however, is one exception to this rule: States are allowed to use force in self-defence against an armed attack. This is a temporary right, ie, until the Security Council is activated to respond to an armed attack – an issue of international peace and security.

The US has traditionally relied on the argument of the right of self-defence. However, al Qaeda and its affiliates are non-state actors – hence three conditions must be satisfied before the use of force against them can be justified. The first condition is that there must be an ‘armed attack’ against the US which necessitates the use of force in self-defence. The key question here is: What constitutes an armed attack? The severity and scale of damage done by the attack of a non-state actor must be such that it would amount to an armed attack had it been carried out by the regular forces of a state. The second condition is that there must a link between the non-state actor and the host state. In Nicaragua v. USA, 1986, the International Court of Justice (ICJ) held that the host state must exercise an “effective control” over the non-state actor to trigger the right to use force in self-defence. The ICJ reaffirmed the test of “effective control” in Bosnia and Herzegovina v. Serbia and Montenegro 2007 (paragraphs 399 and 401). Article 8 of the 2001 International Law Commission’s Articles on the Responsibility of States for International Wrongful Acts, reflecting customary law, states that the “conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct”. The factual link between the host and non-state actor must be established before resorting to use force.

In addition, the host state shall either not be willing or unable to control the non-state actor. Once these two conditions are met, then proportionate use of force is permitted – which is the third condition.

Let us turn to the US claim of self-defence against al Qaeda and its affiliates in Pakistan. First, Pakistan does not have effective control over al Qaeda or its affiliates. On the contrary, al Qaeda and its affiliates, such as the Pakistani Taliban, are banned under the terrorism legislation in Pakistan. The security forces of Pakistan are actively engaged in fighting al Qaeda and its affiliates. Pakistan clearly does not have “effective control” over al Qaeda and its affiliates and their acts cannot be attributed to Pakistan. The argument that the Pakistan is not willing to do enough to suppress armed groups inside its borders is not convincing: Hundreds of Taliban fighters and Pakistani troops are killed in the ongoing armed conflict.

Evidence also suggests that, very often, civilians were killed and property destroyed in access of “concrete and direct military advantage”, i.e. violating the customary principle of proportionality. The law of armed conflict allows killing and being killed in the battlefield by combatants - but the CIA, a civilian organ of the state, targets individuals away from the battlefield who they regard either as terrorists or supporters of terrorism. The CIA has virtually become a judge, a jury and an executioner violating international human rights law.

Let there be no doubt: Drone attacks violate the UN Charter, the principle of proportionality and international human rights law.

The author is a Senior Lecturer in Law at the University of Hull, United Kingdom.

Published in The Express Tribune, February 1^st, 2012.