THE use of drones that administer lethal force could radically alter our ideas about sovereignty. Drones allow the integration of territory into spheres of influence through the exercise of surveillance and punishment.
By normalising intervention and war, they undermine the principles of non-intervention and the prohibition of the use of force under the UN Charter. They threaten to create a world that is divided into closed spaces where lethal drones are prohibited, and open spaces where their use is tolerated.
Drone strikes are being used as an alternative to exercising criminal jurisdiction. Saxby Chambliss, the top Republican on the Senate Intelligence Committee, said: “Their policy is to take out high-value targets, versus capturing high-value targets. They are not going to advertise that, but that’s what they are doing.”
This displacement of existing legal systems reverses the presumption of innocence. The securitisation of new spaces comes at the cost of the life and liberty of others, redefining vast swathes of territory as areas that are beyond the law.
The fact that drones only became a political issue in the US Congress because of the targeting of American citizens betrays a racialised and selective application of human rights.
Whilst drones are seen as threatening the “right to privacy” in the developed world, their lethal use elsewhere is tolerated without regard for the “right to life” of others.
Drones challenge the traditional framework regulating the use of force. All states possess full sovereignty over the airspace above their territory. Article 2(4) of the UN Charter prohibits the use of force against the “territorial integrity or political independence of any state”, whilst the principle of non-intervention is part of customary international law.
The repeated use of drones in international conflict, outside the exceptions of self-defence and Security Council authorisation, constitutes an armed attack in breach of the Charter.
The fact that drones may be operated from multiple locations, by competing state or private actors, or could one day become completely automated creates the potential for increasingly de-territorialised and dehumanised forms of warfare, making it difficult to fix responsibility on any one state or institution.
There is an inconsistency in the arguments put forward for the use of drones in Pakistan. The argument of self-defence implies conflict of an international character, while the argument of consent implies invitation to assist the government in a non-international armed conflict.
A state acting in self-defence does not ask permission from the state it is purporting to defend itself against. Moreover, self-defence counters an armed attack that has already occurred or is ‘imminent’.
An imminent attack is defined by the Caroline affair (1837) as “instant, overwhelming, and leaving no choice of means, and no moment for deliberation”. The implication of urgency is absent because hostile forces that pose a foreign threat can be apprehended by Pakistan itself.
The argument of consent is more interesting. The joint resolution of May 14, 2011 made it clear that Pakistan’s parliament considers drones to be unlawful, yet under Article 247 of the Constitution, Fata is subject to presidential executive authority.
However, the president’s authority in the tribal areas is restricted to creating “regulations for peace and good governance”. Authorising drone strikes is not conducive to peace and fails to uphold the human rights of the people of Fata.
Secondly, there are certain principles in international law known as peremptory norms considered so fundamental to the international community that they can never be breached, such as aggression, genocide, crimes against humanity, war crimes, colonialism, slavery and torture.
The killing of a large number of Pakistanis, including many civilians, contravenes several of these norms. Treaties that violate peremptory norms are void under Article 53 of the Vienna Convention on the Law of Treaties 1969; therefore any consent, even if given, would be invalid.
Akbar Ahmed, in his recent book The Thistle and the Drone, points out how the majority of drone strikes target remote tribal areas in Pakistan, Somalia, Yemen, and Afghanistan which are themselves in conflict with central government. In instances of civil war, drones have the prospect of becoming instruments of authoritarian state terror against indigenous peoples and ethnic secessionist groups.
It is difficult to imagine any developed state permitting such violations of their airspace, let alone the use of lethal force; yet in the aforementioned countries, both are becoming routine.
International lawyers are today struggling to construct a test of last resort when it is permissible to use drones, such as when a state is ‘unwilling or unable’ to capture or kill designated ‘non-state actors’. But this test only operates in one direction — by strong developed states against weaker developing states.
Such a division, with certain states classified as ‘unwilling or unable’, is reminiscent of the civilised/uncivilised distinction created in the 19th century as a result of technological advances in the West. This first denied the sovereignty of societies outside Europe and America, and then legalised the annexation of their territory.
During the scramble for Africa, numerous treaties were signed with tribal chiefs or sovereigns, ceding land or placing themselves under the ‘protection’ of foreign empires.
There is a danger of a similar scramble for the skies, in which weaker governments give consent to the use of drones through executive orders and memoranda of understanding without parliamentary scrutiny.
The recent decision by Chief Justice Dost Muhammad Khan in the Peshawar High Court on the criminal illegality of drone strikes is a step in the right direction, but Pakistan’s new government needs to be unambiguous. In the words of Thomas Paine, “He that would make his own liberty secure must guard even his enemy from oppression.”
The writer is a teaching fellow and PhD candidate at SOAS, University of London.