The obvious illegality of drones

Preference for killing terror suspects not only weakens rule of law in countries, it challenges law foundations in US.

From UN Special Rapporteurs to Amnesty International, to countries like Brazil and China, the US government is facing a deluge of criticism for its drone programme. As expected, the response from the Obama Administration has been dismissive, claiming that the use of drones in Pakistan and Yemen is necessary and just. However, it seems that the international browbeating may have forced the US into a corner, where it may avoid using drones without the express consent of the host state. Therefore, the future of drone programmes around the world will depend on the cost of consent, which requires a more holistic analysis than the piecemeal perspective of the Obama Administration.

While international human rights law generally prohibits the use of force, the UN Charter allows for a country to use self-defence in response to an ‘armed attack’. Under this principle, the US argued that it was at war with al Qaeda after its attacks on 9/11, which is why the international community supported the war in Afghanistan and the toppling of the Taliban government.

The US has attempted to stretch self-defense beyond its limits by further arguing that since al Qaeda is a geographically diffused organisation, the US can use drones anywhere in the world, regardless of the consent of the target’s host state. The Global War paradigm has been rejected by international law scholars and the UN Special Rapporteur on Terrorism, Ben Emmerson. This means that non-consensual drone attacks may amount to a violation of the target nation’s sovereignty and an act of aggression prohibited by international law.

In order to continue using drones around the globe, the US will need an alternative legal cover, which may come in the form of collective self-defence. This principle allows for the US to attack the enemies of an ally that has requested assistance and granted consent for the use of force on its behalf. A solid example for this would be the Yemeni military and government requesting assistance from the US in the form of drone strikes against militants.

However, a closer examination of the costs of this consent is important. While there are international terrorists planning attacks on US interests in Yemen, the Yemeni government has leveraged its consent for drones in exchange for the US eliminating opposing civil war forces that have no relation to international terrorism.  Use of force against such targets violates US domestic law which grants the president limited powers to use force against the perpetrators of 9/11 and their affiliates, not members of an anti-government faction having no relation to international terrorism.

As international terrorists flock to civil war zones like Yemen or Syria, the US will need to engage in barters-for-consent that will likely pull the US further into civil conflicts. This could mean allying with and strengthening repressive regimes, which generally embrace extrajudicial killing, and thereby have no qualms about allowing the US to kill targets on its soil. In some cases, these same regimes will commit massive human rights abuses and atrocities.  All this could be could be difficult to sell to an increasingly war-weary US public and is likely untenable under US law.

Secondly, the nature of the consenters for drone attacks is also important when one considers Pakistan. After the release of The Washington Post memos, it seems that there was a tacit arrangement between the White House and the Pakistani establishment to allow drone attacks. Pakistan has always publicly denounced such an agreement and fostered an anti-drone protest, leaving the US holding the bag in exchange for back door consent.

This is problematic for many reasons, the most important of which is that the US is well aware that the civilian government of Pakistan is the only constitutionally recognised authority to conduct foreign affairs and grant such consent. While Pakistan’s parliament has passed several declarations against the use of drones, the US asserts that its back door deal — which was put in place when Pervez Musharraf was army chief — provides legal cover under the collective self-defence doctrine. However, Emmerson points out that circumventing the democratic institutions of a country to gain consent does not justify the use of collective self-defence.

Third, the cost of consent can often mean circumventing not only the democratic power-brokers of the country, but also circumventing the rule of law, which requires the arrest and prosecution of a suspect. The US often bemoans that countries with hotbeds of terrorism are either unwilling or unable to prosecute suspects, which justifies the US remotely killing the suspect without trial. However, by pandering for consent amongst authoritarian forces in countries, the US is perpetuating the underlying problems that cause countries to fail in their duty to prosecute terrorists. The most significant of such problems relates to the way in which military or authoritarian regimes disregard prosecution, preferring instead just to kill suspects without trial.

This perpetual preference for killing terrorist suspects not only weakens the rule of law in developing countries, but also challenges the foundation of law in the US. If unarmed drones were instead used to provide surveillance and evidence to prosecutors in countries afflicted with terrorism, the underlying problem of lawlessness could be confronted for the long-term. However, if the US wishes to maintain the targeting killing programme as a preferred counterterrorism method, it will need to engage in self-defeating deals-with-devils in exchange for legal cover through consent.

Published in The Express Tribune, November 1^st, 2013.

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