An independent think-tank

A session on “legal status of U.S. drone strikes inside Pakistan”

The international law allows the civilian victims of U.S. drone strikes in Pakistan to take the matter to the court of law. If the drone strikes are proven unlawful by the U.N., international court of justice or the U.S. Supreme Court, the U.S. will be required to stop such attacks, reassure Pakistan of not repeating them and also provide compensations to the families of the innocent victims. Although, the international laws of war permit the nations to use force in self-defense, but the principles of distinction and proportionality can never be overlooked. These views were expressed by Dr. Niaz A. Shah, an expert on international law and terrorism and Robert P. Barnidge, a lecturer at the University of Reading. Speaking at the informative session titled “Assessing the legality of pilotless drone attacks under international humanitarian law and human rights law,” organized at Pak Institute for Peace Studies (PIPS) on 14 December 2010, Muhammad Amir Rana, Director PIPS remarked ever since Obama administration held office the U.S. drone attacks inside Pakistan have escalated. With such unprecedented increase the issue of the legality of drone strikes has also assumed significant importance. Dr. Shah opined that the U.S. relies on the article 51 of UN charter to justify the use of drones inside Pakistan. “However, this particular article can only be implemented if one state has attacked another state or a state maintains an effective control over the non-state actors, which intend or have attacked the other state.” Ironically in case of Pakistan, the state does not effectively control but is engaged in fighting with the groups (Tehrik-e-Taliban Pakistan and al-Qaeda), which are being targeted through drones.

Robert P. Barnidge explained the legality of U.S. Drone attacks by looking into the level and the typologies of conflict given under the articles of Geneva Conventions and the United Nations Security Council Charter. He was of the view that “Without determining the nature of conflict in Pakistan in light of international law, legal status of CIA-operated drones strikes can not to be established”. However, even if the Pakistani government has consented or tacitly approved U.S. drone strikes in Pakistan, each attack needs to be assessed separately on the principles of distinction, intensity and proportionality. Despite unconventional nature of the conflict and seemingly invisible nature of the enemy, International Law and International Humanitarian Law are still applicable. He maintained the question of drone strikes’ efficacy becomes irrelevant if proven unlawful, in the light of international law.

The presentations were followed by an interactive discussion. Zafar Jespal, Professor of International Relations at the Quid-e-Azam University, commented that the U.S. drone strikes in Pakistan are illegal from every angle of international law or according to the Just War Theory. Cyril Almeida, a senior reporter of daily Dawn, maintained that due to the lack of access to the strike-zones and opaque nature of drone strikes in Pakistan the efficacy of such attacks and the accurate number of civilian casualties cannot be determined. He said despite the unconventional nature of the conflict a distinction between military and civilian object is necessary. Ms. Chameela, the Asia Team Leader of the Safer World, UK raised the query about the standard definition of terrorism as per given by any of the Conventions in which this War on Terror can be justified. Dr. Robert admitted the conceptual, legal and technical limitations in defining terrorism. While answering her question he clearly mentioned that the understanding of the Armed Conflict must be built according to Martin’s Clause protocol 1, Article 1 and 2 of Geneva Convention 1997.

The participants emphasized the need of a comprehensive and mutually agreed definition of the fundamental issues related to war on terror. The speakers suggested authentic fact finding and mutual assessments of legality of the drone attacks by the Pakistan and U.S. governments to remove ambiguities over this critical issue.