Since times immemorial targeted killing has played a dominant role in shaping world history and destiny and while the legends of men and societies’ nomenclature hastily transferred from assassins to freedom fighters to founding fathers, the only change that the march of civilisation impressed upon the methodology was, ‘how to kill more effectively’. From a stone, to a club, to poison, to a blade, to a bullet then a bomb and now drones, the insatiable drive towards achieving objectives through targeted killing and by shedding human blood remains unabated.
Targeted killings have prompted the civilised world to refine the post-World War policy of “hot pursuit” to permit the unabashed violation of the sovereign domain of other states through a policy of “legitimate response to terrorism and asymmetric warfare” and in their justifications have undermined the immense post-Second World War process of laws and legalities that were put in place to ensure that the debacle arising from political word mongering and diplomatic doublespeak does not encourage war to rear its ugly head evermore. The net resultant of the justifications from their exercise is the effect of neutering and unfortunately ensuring “the blurring and expanding the boundaries of the applicable legal frameworks” (from Philip Alston in his Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, 2010) that were laid meticulously over many decades in the form of the UN Charter, the Laws of Armed Conflict,the Convention of Human Rights,the ICJ and the Geneva Convention amongst many others.
As Pakistan bears the brunt of targeted killings through drone strikes by foreign powers even as it publicly denounces the drone campaign upon its sovereign territory and integrity, public rumours abate of tacit understandings and the Wall Street Journal states as flimsy rationale the plea that “the US government interprets the Pakistani lack of response to a monthly memo informing them of the general locations of the planned drone strikes as tacit consent for the programme”.
This raises several legal questions, none framed better than by the highly respected Philip Alston, who is also Professor of Law and Director of the Center of Human Rights and Global Justice at the prestigious New York University and Special Adviser to the UN High Commissioner for Human Rights. Alston raised before the UN, the “legality of targeted killings under the laws of war, international human rights law, and the law applicable when States invoke their right to Self-Defence; the definition and scope of armed conflicts in which the laws of war apply; the definition of who may be targeted and killed, when, and by whom, in the context of armed conflict, the rules which govern the amount of force that may be used, the legality of drone killing in particular and the International law requirements of transparency and accountability”.
These then are the issues which must be pursued to logical conclusion if Pakistan desires to move to put to an end, our muted quandary and self-inflicted predicament. But world authorities do not cagily expound their obvious beliefs, they bellow from the closest lectern. Reproduced below are two such stalwarts, retorting upon claims of legitimacy by drone users intruding beyond the pale.
In 2011, the Special Rapporteur Christof Heyns reporting to the General Assembly stated “the current use of drones where there is not a recognised ‘armed conflict’, to kill an opponent, such as in Pakistan or Yemen, is highly problematic. While such operations may be designed to hit a particular target, civilian casualties remain, and it is used on such a large scale that it can hardly be described as targeted”.
In 2013 the Special Rapporteur to the UN Human Rights Commission, Ben Emerson, stated “the US’s ongoing drone campaign in Pakistan is a violation of the South Asian nation’s sovereignty, as it is being conducted without the consent of its elected representatives or that of the legitimate government”.
It is now self evident upon reading Alston, Heyns and Emerson that the CIA-led drone campaign may be unequivocally in violation of International law but it must also be recorded that the fabric of US nationhood prides itself in primarily upholding the rule of law. Picking up the thread, Alston warns that “the fact such enemies do not play by the rules does not mean that a government can cast those rules aside or UNILATERALLY reinterpret them. The credibility of any Government’s claim that it is fighting to uphold the rule of law depends on its willingness to disclose how it interprets and applies the law — and the actions it takes when the law is broken” as the US did in the case of a drone strike in Uruzgan, Afghanistan, and has sadly not deigned to do so in Pakistan. This leads Alston towards the unfortunate cynical reality in this region that “Intelligence agencies, which by definition are determined to remain unaccountable except to their own paymasters, have no place in running programmes that kill people in other countries”.
Today over 40 countries of the world are honing their drone capabilities many with missile-firing capacity, the ensuing flouted rules being passively accepted today shall in future be taken as granted as norms of behaviour. This, in turn, shall create precedents for the world tomorrow based on assertions of ever-expanding entitlements to targets around the world with an ill-defined licence to kill without accountability and scoring damage upon the carefully crafted rules designed to protect the ‘right to life’ and to prevent’ extrajudicial killings’.
Will Pakistan acquire the will to raise their undermined national rights and standing in the international community and understand that mere domestic grandstanding does not necessarily provide International understanding and recognition of issues and imperatives and that if practical results are desired, the right approach at several levels needs to be initiated. Simply put, recognise that only the voice of one Pakistan must emanate, and that the required relief be clearly defined after due deliberation and understanding of issues and must resonate through application of International Law. Then, the matter be pursued with relentless practicality through a chessmaster precision of a single entity, preferably of cabinet rank with the consensus of the cabinet, reporting only to the prime minister directly. There must be no named respondent, the law and its violations must be the consideration and our cause of action, drone attacks. The following tracks may be considered for approaching the venue for debate and rulings.
As a member of the board, Pakistan can then approach the Human Rights Council in Geneva and initiate a comprehensive debate on the international legal status of International drone attacks in areas not in armed conflict where no permission of the sovereign state has been obtained and its territorial integrity violated, and where innocent lives have been lost, without accountability. The resulting deliberation and preferably a substantial resolution should be sent to the ICJ (International Court of Justice) and the UN Security Council for further deliberations and settlement of the matter for posterity.
Pakistan can also move the ICJ independently or co-jointly through the human rights council to deliberate and review the question of the legitimacy of drone attacks violating the sovereignty and territorial integrity of an independent nation state under existing International laws.
As a member of the Security Council, Pakistan can move the Council to deliberate in open session and debate the question of legitimacy of drones being used in areas not in armed conflict in locations situated in third countries without sovereign sanction and if the perpetrators cite that the above-stated criteria are in compliance, force the lack of compliance upon accountability and the lack of aftermath reportage by the said states using drones, thereby initiating a process of accountability to be submitted for clearance before the Security Council on a regular basis. More substantially, it can move for strictures on violation of Article 51 of the UN Charter to consolidate interest in the above points and use it to obtain a detailed acceptable international settlement upon these outstanding issues. Even if any Permanent member of the UN vetoes any resolution, a fair evaluation shall emerge for the record and the resultant debate content may be used substantially as cause and grounds before the ICJ.
Targeted killings are a rapidly growing challenge to the International rule of law, and are increasingly used in circumstances which violate the relevant rules of International law. The International community needs to be more forceful in demanding accountability.
Published in The Express Tribune, July 25th, 2013.