Illegality of drones

Published Jul 20, 2012 09:04pm

TWO reports issued by United Nations special rapporteurs on extrajudicial, summary or arbitrary executions, one by Philip Alston on May 28, 2010 and the other by South African jurist Christof Heyns in June this year, contain severe censure of the United States’ drone attacks in Pakistan, Afghanistan, Yemen, Somalia and Iraq.

According to news agencies, Heyns called in his report for “prompt, thorough, effective and independent public investigation” of any violations of international law and human rights and noted that “there has been a dramatic increase in [drone attacks] over the past three years”. He quoted figures from the Human Rights Commission of Pakistan according to which drone strikes killed at least 957 people in Pakistan in 2010 and thousands in 300-plus strikes since 2004.

According to a story in The Guardian, at a related conference held in Geneva in June by the American Civil Liberties Union (ACLU), another UN rapporteur, Ben Emmerson QC, said he would be focusing on inquiries into drone attacks.

At the conference, “Heyns ridiculed the US suggestion that targeted [unmanned aerial vehicle] strikes on Al Qaeda or allied groups were a legitimate response to the 9/11 attacks. ‘It’s difficult to see how any killings carried out in 2012 can be justified as in response to [events] in 2001,’ he said. ‘Some states seem to want to invent new laws to justify new practices.

“‘The targeting is often operated by intelligence agencies which fall outside the scope of accountability. The term “targeted killing” is wrong because it suggests little violence has occurred. The collateral damage may be less than aerial bombardment, but because they eliminate the risk to soldiers they can be used more often.’”

Emmerson said “it was ‘for the UN itself to consider establishing an investigatory body. Drones attack by the US raise fundamental questions which are a direct consequence of my mandate.… If they don’t [investigate] themselves, we will do it for them.’” He added that “international law itself” was under attack.

The Pakistani ambassador to the UN in Geneva argued, according to The Guardian, that “Claims made by the US about the accuracy of drone strikes were ‘totally incorrect’… Victims who had tried to bring compensation claims through the Pakistani courts had been blocked by US refusals to respond to legal actions.” He pointed out that the use of drones “leads to greater levels of terror rather than reducing them”.

UN High Commissioner for Human Rights Navi Pillay said in a speech the same week that it was “unclear that all persons targeted are combatants or directly participating in hostilities”. And her remarks at a press conference in Islamabad on June 7, as reported in this newspaper, were also trenchant. “I see indiscriminate killing and injuring of innocent people as a clear violation of human rights. Drone attacks do raise serious questions about compliance with international law. The principle of distinction and proportionality and ensuring accountability for any failure to comply with international law is also difficult when drone attacks are conducted outside the military chain of command and beyond effective and transparent mechanisms of civilian or military control.

“I suggested to the government that they invite the UN special rapporteur on summary or arbitrary executions and he will be able to investigate some of the incidents.”

Figures vary. The ACLU estimates 4,000 total deaths in Pakistan, Yemen and Somalia since 2002. The New America Foundation claims that 307 drone attacks in Pakistan from June 2004 to June 2012 have killed 1,562 to 2,377 suspected militants with an estimated civilian casualty rate of 16 per cent. And according to a July report in Newsline, the Bureau of Investigation Journalism based in London says there have been 327 drone strikes in Pakistan since 2004 killing between 2,464 and 3,148 people — 482 to 830 of whom were civilians, including 175 children — and injuring around 1,200.

Heyns rightly characterised Alston’s report as “trail-blazing work”. Its 29 pages contain a rigorous study of the law and an exposure of its abuse. “Targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities,’” Alston writes, quoting international law. “In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimise harm to civilians. These standards apply regardless of whether the armed conflict is between states (an international armed conflict) or between a state and a non-state armed group (non-international armed conflict), including alleged terrorists. Reprisals or punitive attacks on civilians are prohibited.”

Alston makes another important point. “Because operators are based thousands of miles away from the battlefield, and undertake operations entirely through computer screens and remote audio feed, there is a risk of developing a ‘Playstation’ mentality to killing. States must ensure that training programs for drone operators who have never been subjected to the risks and rigours of battle instil respect for [international humanitarian law] and adequate safeguards for compliance with it.

“Outside the context of armed conflict, the use of drones for targeted killing is almost never likely to be legal.”

There has been another dangerous development recently. Attacks are based on perceived ‘patterns of behaviour’ near the target. The abuse is growing. It calls for an organised campaign against it by jurists, writers, artists and scholars.

The writer is an author and lawyer based in Mumbai.

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Comments (12) (Closed)


Shahid Shakur
Jul 21, 2012 12:29pm
To expect due regard and respect for the international law and its norms; humankind need true Statements - not opportunistic leaders - aggression and particularly, if it is ill-directed by any country that will always be a loser – perhaps that fact is not recognised in the short term but it becomes abundantly evident in not too distant future. This is a natural fact whether or not we accept it - USA needs to review its terms of global engagement and if it were to continue to resort to use of force it could adversely and substantially impact on its own internal and external interests: political, social, economic and freedom and justice. Madam Madeleine Albright in her “Memo to the President” has rightly noted “Although democratic idealism was summoned to explain why we found ourselves in Iraq, it did not lead us there in the first place. The prevailing dynamic was neither idealism nor realism, but incompetence”.
Syed
Jul 21, 2012 11:31am
What did you have to say, Sir?
Esssjay
Jul 21, 2012 10:16am
Here is why no country speaks against drone strikes. 1. Drones don't target civilians. 2. Its the terrorists who use civilians as human shield by mixing up with civilians. 3. The country from whose land terrorists operate has been incompetent or unwilling to eliminate the terrorists despite the passage of eleven years and tens of billion of dollars in aid. 4. The miniscule number of groups that oppose use of drones do not propose any alternative approach to the curse of terrorists. 5. The terrorists are not supported by the people; that is why the terrorist choose violence against civilians than participate in elections to achieve their political and geopolitical objectives.
FcatCheck
Jul 21, 2012 10:09am
How can it be illegal when Pakistani government agreed to it? It may be Musharaff, it may be Zardari government. As is always the case with Pakistan, one government agrees to treaty or an agreement, the next one coming behind it says it is not legal.
Mahavir
Jul 21, 2012 03:44am
Does countries who have terror as a state policy can complain about illegality of drone strikes?
Dr.H.C Upadhyay
Jul 21, 2012 06:38am
The author seems to be playing the Brutus ! He is a well-educated person practising law and residing at Mumbai which has seen the worst terrorist-attacks. Still, he advocates protests from the intelligentia ! Perhaps, he forgets that all is well in love and war. And the situation being war-like, the war against terrorism all the methoda, including the use of "Drones" are okay.
Dr.H.C Upadhyay
Jul 21, 2012 06:42am
Dear Editor Sir, If you are not partisan, and I believe you are not, and believe in freedom of expression, you should carry my comments which may not be palatable to some. Thanks.
Zubair
Jul 22, 2012 12:15am
Please write another article...'Illegality of terrorism' !
Romi
Jul 22, 2012 12:20am
The problem with non-democratic governments is that their treaties and agreements have no legitimacy in their people's eyes. Clearly the drone attacks are being carried out with the Pakistani government's blessings. But they are too insecure to admit it to their people.
krishnan
Jul 22, 2012 01:05am
AG Noorani is an Indian.Just because it is a Pakistani target,you cannot overlook an illegality.Young operators at the controls could get carried away and bomb away as if it is a video game.There has to be some accountability/verification of hit lists...
Kris
Jul 22, 2012 02:22am
The rate at which the warloads and splinter fundamentalist leaders are coming up in Pakistan, the dones will have to fly like crows over Pakistan sky (really in those numbers! ).. still I doubt these people can be eliminated in the western border..
Kris
Jul 22, 2012 02:28am
well said!