The first done was developed with the help of DARPA (the Defense Advanced Research Projects Agency. The first drone was introduced in 1994 and the purpose was surveillance not killing terrorists, that came later on. The armed drone was called Predator and it came in the late 2000s on the command of Cofer Black, the head of the CIA’s Counterterrorism Center and Richard Clarke. Around this time, the CIA was already using unarmed Predators over Afghanistan from Uzbekistan in search of Osama Bin Laden. By February 2001 General Atomics added a laser technology to the Predator in response to spotting of Osama Bin Laden but the Predator could not kill him. The Predator now was equipped and was ready to be used in Afghanistan. At this point, there was uncertainty about the chain of command. The question like “who would take the shots and if American leaders were comfortable with CIA using this technology outside of military’s normal command and control?” All these questions did not get answered due to the events of 9/11; The Predator has put into use right away (Ahmed, 2017).
In the war against Al-Qaeda and other terrorists, unmanned aerial vehicles (drones) have increasingly become the United States' weapon of choice. In addition to the publicly acknowledged military drone programs in Iraq and Afghanistan, the CIA uses drones to target militants in the mountainous Federally Administered Tribal Area (FATA) of Pakistan along the Afghanistan border. Initiated during the second Bush administration, the CIA's drone program in Pakistan has expanded considerably since President Obama took office, and 2010 saw more than twice as many drones strikes on Pakistani soil as 2009. The Pakistani government has publicly denounced the attacks, but its intelligence service is cooperating with the CIA and has even selected some of the targets (Orr, 2011). Even though drones have been criticized by the Pakistani public and some leaders, to this day drones attacks are still happening. Pakistan’s stance has very unclear regarding drone strikes in the tribal region of Pakistan. “The government of Pakistan has always criticized this ground invasion by the U.S. and claimed that such invasions have been made without the permission of Pakistan’s government. But the case of drone attacks is quite unclear. These attacks are said to be conducted without the consent of Pakistan government but there are records of such strikes which have been carried out from Shamsi airbase in Balochistan” (Azhar, 2015). There are some major issues with why drone attacks are still happening even though International Law and according to the UN Charter, it does not qualify. First things first, arguments have been made that terrorism is not supposed to be handled by the military. “Terrorism is a law enforcement issue rather than a military matter (2011). Second, drone attacks violate the territorial sovereignty of Pakistan, a nation that is not involved in an "armed conflict" with the United States. The attacks do not meet the requirements for self-defense under the United Nations Charter (Charter) as interpreted by the International Court of Justice (ICJ)' and customary international law (Ahmed, 2017).
Drone Attacks under the UN Charter
In order to analyze if drone strikes in Pakistan are legal according to international law, the first international entity that has to be looked at is the United Nations. While looking at the UN Charter it is in the documents that excessive use of force is not allowed under the UN Charter but only under certain conditions. Article 2(4) of UN Charter disallows the use of force except under certain minimum level. “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations” (Azhar, 2015). Certain exemptions that allows the use of force are mentioned in chapter 7, article 51 of the UN Charter. One of the conditions, that the Security Council of the UN allows to use force is if there is threat to peace or international security. The second condition is that if an armed attack has taken place, the country can use force in response to self-defense until the Security Council has taken measures to maintain peace and international security (UN Charter). The United States have given justifications of aggressive drone strikes in Afghanistan and Pakistan’s tribal regions by using the principle of ‘Self Defense’ which is justified in light of Article 51. Along with that, there was the invention of a doctrine which is supposedly intended to prevent strikes to seek legitimacy for the use of force in accordance with this right. This approach which significantly evolved following the 9/11 attacks, was affirmed immediately by the resolutions 1368 and 1373 of the Security Council which says that the UN is “determined to combat by all means threats to international peace and security caused by terrorist acts” (United Nations, 2000).
Arguably there can be no US right of self defence; as in the Nicaragua case 1986, it was held that ‘right of self defence arises of direct attack’. The Court held that the United States violated its customary international law obligation not to use force against another State when it directly attacked Nicaragua. (Moore, 1987). Thus, any use of force not in relation to this is a clear violation of Art 2(4) of UN Charter (which declares the threat of use of force to be against the territorial integrity of a state). So, if any entity from Pakistan did not wage a direct attack on the US, how is the use of force in the Pakistani domain justified? There have been claims that Pakistan has been inviting the US for help though the invitations have not been publicly announced or officially made. In fact, according to Reuters news, Prime Minister Nawaz Sharif urged President Obama to end drone strikes in Pakistan to have a good diplomatic relationships between both countries. Even in Yemen, no assistance was demanded from U.S. Moreover, U.S. claims that the drone strikes are conducted in name preemptive self-defense (1987). Such a self-defense is supported neither in UN Charter nor in International Law.
Drone Attacks under Jurisdiction of ICJ
To use ‘force’, according to International Law, it has to be proportion to the attack in response of which force is being used. The proportionality and intensity of action taken in the name of self-defense is not discussed in the UN Charter. However, the International Court of Justice has discussed about it during the Nuclear Weapon case that the self-defense must be in proportion to the armed attack. It is a well-established rule in the International Customary Law Ahmed, 2017). The International Court of Justice declared by unanimous vote that “Any use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful” (UN Charter).
In 1986, Nicaragua incident occurred between U.S. and Nicaragua. The International Court of Justice took Nicaragua’s when U.S. used force in the name of self-defense. At that time, International Court of Justice also clearly stated that an act which led to usage of force for self-defense must be itself accounted as armed attack (Moore, 1987). It means that states can use force for a defensive purpose in reference to self-defense and also the state against which the force is used must be legally responsible for the armed attack (Connell, 2010). As far as the crossing the border is concerned, the case of Congo vs. Uganda is important in which ICJ gave ruling in support of Congo. The matter was such that there was an armed group in Congo acting against Uganda and Uganda responded to that group by entering the territory of Congo. According to International Court of Justice Uganda violated the Article 2(4) of UN Charter Ahmed, 2017). Defensive actions could only be taken by Uganda by staying within its own territories not by attacking the Congolese territory. This concludes that a state must not be attacked or its territory must not be violated if the state is not declared to be involved with the armed groups. In terms of Pakistani drones strikes, Pakistan was clearly not involved 9/11. None of the terrorists were from Pakistan so drone strikes in Pakistan are unlawful.
Drone Attacks under International Human Rights Law & Humanitarian Law
International Human Rights Law also does not allow the use of force even by the government against a specific armed group. The military force of state can be used only in that case if the use of force is significant by that armed group. According to Murphy (2009), even a state seeks help from any other state on any International Organization, the helping state or organization is subject to use only that much force as that much allowed to the state itself. International Human Rights Law applies in all armed conflicts. International Human Rights Law Standards for the Law Enforcement allows the use of firearms in case of self-defense is required, prevention from a serious threat to life or arresting of a person who may pose such a threat, subject to the condition that in all these cases less extreme measures have been proved insufficient. If the events are still unavoidable, intentional use of lethal firearms can be made.
According to New America Foundation, on average the drone strikes in Pakistan killed approximately 9 people per strike in 2008 and 12 per strike in 2009. Civilian Casualties: According to NGO and Pakistan government sources the US has launched some 330 to 374 drone strikes in Pakistan between 2004 and September 2013. Amnesty International is not in a position to endorse these figures, but according to these sources, between 400 and 900 civilians have been killed in these attacks and at least 600 people seriously injured. These numbers are a serious crisis for International Human Rights Law.
International Human Rights Law focuses on two major aspects: i. The Right to life & ii. The Right to Not Be subjected to Cruel, Inhuman Or Degrading Treatment. (IBA, 2017).This has been interpreted by the UN Human Rights Committee as requiring that force used is proportionate and necessary; proportionate to the threat the target represents; and necessary as the only available means to stop the threat (Ahmed, 2017). Therefore, though the use of drone strikes to kill outside of an armed conflict are likely be unlawful under IHRL, their use would potentially be lawful if other lives were at stake and the urgency of the situation did not leave any other choice for methods of stopping the terrorist attacks (IBA, 2017). The use of drones for the targeted killing of specific individuals, a key theme of the US drone programme, will most likely be unlawful under IHRL if undertaken outside the context of an armed conflict. This is because the prior identification of an individual on the basis of acts previously performed, or their position in an organisation, is contrary to the requirements of necessity and proportionality.
In addition to the right to life, the right not to be subjected to cruel, inhuman or degrading treatment can be impacted by drone strikes. This is due to the psychological impact of the presence of drones upon those who live beneath them. Life in a region in which drones are regularly operated has been described as hell on earth. These drones tend to leave psychological scars which is inhumane according to the International Human Rights Law (IBA, 2017)
One major concern that is brought up in the international community is that causes civilian casualties. Much of the controversy surrounding the legality of drone strikes, particularly, the killing of civilians, is tied up with the question of whether the law of war also known as the law of armed conflict, or LOAC, and international humanitarian law applies. The LOAC is the body of law, including the Geneva Conventions, other treaties, and customary law that applies to the conduct of war (Brooks, 2004). The LOAC requires four main principles to be followed when targeting individuals: (1) military necessity, which requires that the use of military force (including all measures needed to defeat the enemy as quickly and efficiently as possible, which are not forbidden by the law of war) be directed at accomplishing a valid military purpose; (2) humanity, which forbids the unnecessary infliction of suffering, injury, or destruction; (3) distinction, which requires that only lawful targets such as combatants and other military objectives be intentionally targeted; and (4) proportionality, which requires that the anticipated collateral damage of an attack not be excessive in relation to the anticipated concrete and direct military advantage from the attack (2004). The LOAC includes specific rules on targeting individuals that are intended to protect civilians. Those rules may be summarized as only permitting the targeting of combatants or civilians who are directly participating in hostilities. Targeting of other civilians is prohibited and may constitute a war crime.
Thus, all drone strikes since 2009 carried out as part of the war against Al Qaeda had to meet the basic principles of the LOAC—military necessity, humanity, distinction, and proportionality. In addition, the specific targeting requirements protecting civilians applied to all the drone strikes.
In evaluating whether civilian deaths in drone strikes were a violation of the law, it is these standards which require the targeting of combatants, prohibit the targeting of noncombatants, but also allow the possibility of innocent civilian bystanders being killed that must be applied. The majority of the strikes that have been carried out were during the government of Pakistan Peoples Party between 2008 and 2012. According National Counter Terrorism Authority (Nacta) reported by Dawn News Pakistan, recently shared details, claiming that the period saw 336 aerial attacks, in which 2,282 people lost their lives and 658 received injuries. As mentioned previously, drone strikes causes casualties which according to the LOAC is illegal; massive civilian casualties should be prohibited.
Violation of Pakistan’s Sovereignty
International Law’s main focus is always protecting the sovereignty of states. When it comes to drones strikes, these attacks are a major violation of Pakistan’s sovereignty. In March 2009, Pakistan’s Foreign Ministry declared the strikes "a violation of Pakistan’s sovereignty" that are "counterproductive" (Council on Foreign Relations). Violation of Pakistan’s sovereignty is the important concern for the critics of drone attacks led by U.S. in Pakistan. These attacks are said to be constantly violating the territorial sovereignty of Pakistan under the International Law. International Law defines sovereignty of a country and also states that “State has sovereignty over its territory and the invasion into its territory by the armed forces of any other State without permission is considered as breach of international law” (Shaw). International Law disallows the use of force against any other state subject to the conditions that the attacked state has given its consent or the attacking state is responding in case of self-defense.
According to Dawn News Pk, in 2016, Pakistan urged the UN Human Rights Council to respond to loss of lives, human rights violations and breach of its territorial sovereignty because of drone attacks. Pakistan’s permanent representative, Tehmina Janjua spoke at the meeting of the Council in Geneva. She claimed that drone strikes not only a violation of sovereignty as well as a violation of the UN charter and international law, including human rights and humanitarian law. She also urged the international community to take notice of human rights violations taking place as a result of illegal drone strikes in the country (Dawn, 2016).
In addition to the ‘self defense’ justification, US provides a rationale that American drone strikes also do not violate Pakistani sovereignty because Pakistan is unable or unwilling to prevent al Qaeda fighters from hiding and planning future attacks within its borders (Orr, 2011). Primarily, US rationale of the drone strikes in Pakistan’s tribal areas is attributed to its claim of ‘self defence’ but US plays the incapability of Pakistani military card as well.
China’s Stance on Drone Strikes
Though China seems to not meddle between Pakistan-US relationships but China does defend Pakistan internationally. China has major investments in Pakistan and have been allies with Pakistan for a long period. It was reported in This Week in Asia, a day after India and the US asked Islamabad to rein in cross-border terror, China put up a strong defence of its all-weather ally. “Pakistan stands at the front lines of the international counterterrorism fight and has been making efforts in this regard,” said Lu Kang, China’s foreign ministry spokesman. “The international community should give full recognition and affirmation to Pakistan’s efforts” (This Week in Asia, 2017). China has also signed a new armed deal with Pakistan which will provide Pakistan with its own drone technology to combat terrorism. “Pakistan Aeronautical Complex Kamra and the Aviation Industry Corporation of China's Chengdu Aircraft Industrial (Group) Company will jointly manufacture 48 Wing Loong II drones. This will be China's largest drone deal of its kind” (Global Times, 2018). China tends to help to Pakistan in times of crises however, Chinese government has not made official statements regarding the legality or illegality of US drone strikes.