By Waris Husain

From Dawn.com | Original Article

Illustration by Faraz Aamer Khan

Last week, President Obama’s chief counterterrorism advisor admitted that the US is operating a drone program in the border region between Pakistan and Afghanistan. Many have commended the Obama administration for disclosing the existence of the drone program, while the president’s advisor, John Brennan, claimed that the program was “legal”, “necessary”, and “wise” under international law.  In many ways, his arguments mirrored the doctrine of necessity adopted by Pakistan’s Supreme Court justices in 1955, who claimed “that which is not legal, necessity can make legal.”  It took several generations of jurists to realise the fallacy of this doctrine, and it may take the United States just as long to realise the long-term negative implications of utilising the drone program as it currently stands.

Throughout Pakistan’s history, the Supreme Court has toyed with the doctrine of necessity, which is basically used to justify military coups. This doctrine was born out of the perception that the only institution capable of handling Pakistan’s complex problems is the military, and that the Army was a benevolent guardian of the state. What Pakistani jurists have come to understand over several decades is that the Constitution is the true guardian of the people, and the doctrine of necessity is an invalid violation of the democratic principles laid out in the Constitution.

While the Supreme Court has yet to declare the doctrine of necessity null and void, its practice will hopefully not return, considering its effects. By legally justifying coups and martial law under dictators, the doctrine of necessity showed the inability of the judiciary to confront the injustice of authoritarianism. Further, the doctrine allowed for the military to sabotage civilian ruling regimes in order to justify their unconstitutional coups, which has limited the stable democratic growth of the nation. Similarly, the use of drones threatens to limit the ability of the US to legally engage with the international community.

To begin any discussion on international law, one should recognise that the major powers control the application and interpretation of international law as they have funded and created all of its institutions and treaties. Therefore, it is no mistake that the international criminal court has exclusively prosecuted African leaders, with the exception of Yugoslavia, and failed to exercise its powers on any European or American wrongdoers.

Even still, with regards to Obama’s potential violation of international law through the drone program, one must understand that most international legal doctrines were created to maintain global peace and limit the use of force by states. It is no coincidence that the first line of the United Nation’s charter is that the purpose of the organisation is to “to maintain international peace and security,” it goes onto state later that “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.”

However, the international law does not bind the hands of nations facing attacks, whether by enemy-state actors or non-state actors, like terrorists.  Under the UN Charter Article 51, a nation is allowed to take measures to defend itself “if an armed attack occurs against” it. Several motions and resolutions passed by the UN identify al Qaeda and the Taliban as willful combatants engaged in armed hostilities against the US, which validates the use of force against them.

This legal reasoning allows for the US to utilise its drone program as a supplement to troops on the ground in areas like Afghanistan, but the international law has not developed a solid ruling on whether the same program can be used in Pakistan.  Pakistan does not have the same cooperation agreement with the US government as Afghanistan, and has not consented publically to the drone program, despite backdoor permission granted by General Kayani as revealed by Wikileaks. Therefore, unilateral action by the US using drones to kill militants and civilians alike without any due process in Pakistan is not as acceptable under international law as Mr. Brennan would have us believe.

The analysis of self-defense under international law is far more complex than merely accepting that nations can use any type of force against their enemies, even if those enemies do not respect borders and are attempting to fight a global jihad. The Caroline case limited the power of nations to use force only by “measures which are proportional to the armed attack and necessary to respond to it.”

It is interesting to note the facts of the Caroline case which dates back to 1837, when British naval officers shot down an American civilian ship without any provocation on American waters.  The officers targeted the civilian ship to punish the Americans, who had been supporting revolutionaries in Canada that were attempting to secede from the British Crown. Like Pakistan, the US was a developing power at the time and was suspected of funding an insurgency across its border.

On the other hand, the British were a superpower much like the US today, who attempted to justify their blatant aggression as self-defense, claiming that anyone who supported Canadian secessionists deserved to be attacked by the British Crown. The US argued for a narrow interpretation of self-defense at that time but now adopts the same legal defense of drones as their former colonial tormentors – claiming that a terrorist anywhere is eligible to be killed by unilateral decision by the US.

Many have made arguments that the drone program fails to satisfy the requirements of “necessity and proportionality.” Under the necessity requirement, a nation can only utilise force when it is necessary to avoid an attack against their citizens or soldiers.  Therefore, there are many scenarios where the US drone program has legally targeted individuals who were in fact actively engaged in a plot to target American soldiers or citizens abroad.  However, the secretive nature of the program belies the transparency required for human rights monitors to analyze each case of drone attacks to assess its necessity.

This leads to the second requirement that the use of force by a state must be proportional to the threat it faces. Katherine M. Loyal and Saad Gul argued in a 2006 law review article that the use of drones was like a farmer “burning the farm to roast the pig.” Or rather, the use of drones is not solving the problem of international terrorism, but making it worst by allowing extremists to gain more sympathisers. Unlike in Afghanistan, where troops on the ground can offer on-the-ground intelligence and take supplemental means to avoid civilian deaths, the US does not have a ground presence in Pakistan where it wishes to use drones.

Therefore, as terrorists travel with their lackeys and families embedding themselves in civilian-populated areas, they ensure that the US will face a public backlash from using a drone on them, as it will likely cost civilian lives. Pragmatically, the US is stuck between a rock and a hard place as its drone attacks have incensed the Pakistani public, who could have been an ally in a war on terror which has plagued most of the Pakistani populace in one way or another.

The secret and blanket drone policy enacted by the US military in Pakistan is unacceptable under international law because it fails to satisfy the necessity and proportionality requirements set forth in the doctrine of self defense. However, like Pakistan’s doctrine of necessity, it may take the US several generations to realise the error in attempting to manipulate the law in order to justify illegal military oppression and brutality.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.