The obvious illegality of drones

Published: October 31, 2013
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The writer is an adjunct professor at the Howard University School of Law and holds a Juris Doctorate and LLM specialising in international law. He tweets @warishusain

The writer is an adjunct professor at the Howard University School of Law and holds a Juris Doctorate and LLM specialising in international law. He tweets @warishusain

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 1st, 2013.

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Reader Comments (15)

  • observer
    Nov 1, 2013 - 12:25AM

    The obvious illegality of drones

    Next Article in the Series- The Obvious Constitutionality of Non-state Actors?

    Recommend

  • Parvez
    Nov 1, 2013 - 1:01AM

    I have read quite a few pieces on this subject but none as clear simply worded and effective as this………that was an educational experience for me.

    Recommend

  • numbersnumbers
    Nov 1, 2013 - 1:57AM

    Also nowhere in the article is there any mention of the post 9/11 UN Security Council Resolution 1373, invoking chapter VII of the U.N. Charter, which changed international law by making it a SOVEREIGN OBLIGATION for member states to eliminate terrorist havens, terror financing, terrorist training camps from their territory! No action to do so then effectively nulls a nations Sovereignty claims!!!
    Drones are openly operating in the FATA region BECAUSE the government makes no attempt to clean out these world famous safe havens, thus violating the terms of UNR 1373!Recommend

  • unbelievable
    Nov 1, 2013 - 2:11AM

    Intellectual garbage – ignores one’s basic right to self defense. Pakistan knowingly provides de facto sanctuary to terrorist who use Pakistan as base to attack it’s neighbors and allies – those neighbors and allies have every right to attack those terrorist. Further – providing sanctuary to someone who is attacking your neighbors maybe an act of war. Lastly – one might argue that Pakistan doesn’t have sufficient control over the Tribal Territories to consider them part of Pakistan – for all practical purposes it’s controlled by the Taliban.

    Recommend

  • Rex Minor
    Nov 1, 2013 - 8:25AM

    Professor Hussain,
    Your article is an excellent piece of document and I am sure glad that your students are lucky to read it while the one who is violating the Imternational laws is also a former Professor of law from your institution. Now let me give you a bad news; the USA as a Super power has been operating outside the legal norms for a very long time in several areas including the latest discovedry on its spying activities of allies and adversaries alike, that Europe headed by Germany is just about to serve notice of cancelling several strategic contracts unless it rescinds its illegal pasture. The German as well as the European parlimentry deligation is currently in washington for clarification and resolution.
    You see Mr Obama has broken the 11th commandment of Not to get caught iin Lying. It is very sad to see so much of anti-americanism in the European press this week.

    Rex Minor

    Recommend

  • Arindom
    Nov 1, 2013 - 11:54AM

    ….and the not-so obvious legality of the terrorists they kill…

    Recommend

  • Avtar
    Nov 1, 2013 - 3:37PM

    I would argue if Pakistan army had access to drones it will be using it too! Compared to traditional methods of targeting terrorists or non-state actors (which Pakistan seems to have aplenty) drones are environment friendly. Traditionally, e.g. Swat, army moves several tanks, trucks, and other logistics support and sprays many kilograms of bombs and other dangerous stuff on its populace – the effect of which is long lasting on the environment.
    Do remember that most of the criticism of drones is coming from unaffected areas. Drone program will be ineffective if there is no local support to pinpoint the targets. Americans sitting in Colorado directing drones to target will have never heard of FATA or the lawless areas of the subcontinent.

    Recommend

  • rasgullah
    Nov 1, 2013 - 4:17PM

    The inability to control ones border leads to drones.

    Recommend

  • Gratgy
    Nov 1, 2013 - 7:31PM

    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.

    Now this is just wishful thinking. US is expanding the drone program to other countries such as Libya, Yemen and Somalia because of the obvious success of the program in Pakistan.

    the US can use drones anywhere in the world, regardless of the consent of the target’s host state.

    Legally yes, as long as the target’s host country provides sanctuary to the target who is a threat to international peace.

    This perpetual preference for killing terrorist suspects not only weakens the rule of law in developing countries

    Drone attacks are currently ocurring where there is no writ of law hence the possibility of weakening the law does not ariseRecommend

  • unbelievable
    Nov 1, 2013 - 8:27PM

    @Gratgy:

    Drone attacks are currently ocurring
    where there is no writ of law hence
    the possibility of weakening the law
    does not arise

    Well said and worth repeating.Recommend

  • Peter Pan
    Nov 1, 2013 - 9:06PM

    Let me propose some thing.
    If the US wants to pull out from Afghanistan safely and quickly, I suggest that they sub contract with the TTP (Pakistani Taliban) in Pakistan to escort their supplies to the port of Karachi.
    Surprised?
    The reason why I say this is that if the US thinks that the Government of Nawaz Sharif is capable of providing the necessary security then they are sadly mistaken. For one they do not have the capacity or the interest.
    Secondly, public opinion, led by people like Imran Khan and the Mullahs are with (not against the Taliban). In fact Nawaz Sharif and his party are also closet allies with the TTP.

    Then the TTP themselves are strictly pragmatic people.

    They would like to take over Pakistan as soon as possible.
    With the US exit from Afghanistan the drones will stop, the US having no residual interest in the area- despite what they say. This will give the TTP respite in Waziristan and FATA.

    Mullah Omar and his cohorts are reportedly living in Pakistan (Quetta) and are waiting to go into Afghanistan and take over as soon as the US departs.

    Therefore it is strictly in the interest of the TTP and the Taliban to help the US depart quickly.

    Now it does give them ( Taliban) some pleasure to make the US bleed a little- but just a little not too much lest they get real angry and want to stay behind longer to route the TTP completely.

    In these circumstances the US can reduce the damage on the exit routes by sub contracting the task to those very people from whom they fear the attacks!.

    The TTP are always prepared to make a buck. Be it in the form of drug money or kidnappings for transom or bank robberies. So they would in all likelihood be very interested in a lucrative contract from the US to guarantee the safe exit of their goods through Pakistan.

    One should remember that these guys change sides for a couple of dollars. They are strict business people and their value system is not cluttered with morality etc. like all good pirates!Recommend

  • Rex Minor
    Nov 1, 2013 - 9:28PM

    @unbelievable:
    And in areas where no civil aircrafts fly. The drone can be brought down by a hobby flyer or a para glider since it cannot defend itself. Altenatively a computer can at least try to make make the drone land without even damaging it.

    Rex MnorRecommend

  • Gratgy
    Nov 2, 2013 - 12:14AM

    @Rex Minor,
    *The drone can be brought down by a hobby flyer or a para glider since it cannot defend itself.*
    This is a bizarre statement. The Reaper flies at 300+ kmph at an operational altitude of 50,000 ft. Your paraglider will have to jump from the moon to reach that heightRecommend

  • Rex Minor
    Nov 2, 2013 - 3:17AM

    Have you ever piloted a glider or a small plane? If not then why speculate and comment?

    Rex Minor

    Recommend

  • Nov 2, 2013 - 3:38AM

    I feel this drone thing is going swimmingly well. Taliban dropping like flies. I hope this gets ramped up to an enjoyable level. Finally World Peace…

    Recommend

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