Both yes and no are legal

Published Feb 11, 2013 08:21am

Moreover, a lethal operation in a foreign nation would be consistent with international legal principles of sovereignty and neutrality if it were conducted, for example, with the consent of the host nation's government or after a determination that the host nation is unable or unwilling to suppress the threat posed by the individual targeted.

-Extract from US justice department white paper that justifies the killing of American nationals associated with al Qaeda or associates in a foreign nation.

A debate is raging in the United States about the legality of assassinating American citizens overseas if they are associated with the al Qaeda terrorist group, or any of its affiliates.

The publication by NBC News of a memo from the US justice department has revealed the legal spin Washington is prepared to use to justify its ongoing policies of targeted killings of individuals who “pose” a threat to the United States.

But while the US debates the correctness of such operations, the current contours of the discussion focus on the killings of American citizens associated with this extremist terror grouping and its associates.

What about the sovereignty of States where these killings are being conducted? Or the sovereignty of States where such operations may be conducted in the future?

In a bizarre and mind-boggling explanation contained in the extract above, the memo argues that consent of a host nation would make the killing legal, but if approval for the assassination were refused even then the operation would be legal!

If, tomorrow, the US were to target American al Qaeda operatives on Indian or Chinese soil, would that not violate the sovereignty of these countries? How would these countries react?

Are American drone strikes and intelligence so precise that they are able to tell the nationality of the person being targeted? And, what if non-Americans are also killed in such an attack? Would that be simply explained away by terming them collateral damage?

Rosa Brooks, professor of law at Brown University, argues:

...  Using force inside the borders of a foreign sovereign state is acceptable if the foreign state consents. If the state doesn't consent to a US strike but "an informed, high level official" of the US government believes an individual in the non-consenting state poses an imminent threat of violent attack, then – by definition! – the foreign sovereign state can be deemed "unwilling or unable" to suppress the threat itself, in which case, you guessed it, the use of force is also acceptable.

So, if the government of Pakistan hasn’t “consented” to the drone strikes on its territory, it is then deemed “unwilling or unable” to deal with the threat of the al Qaeda and, so, the killings of Americans and Pakistanis and Afghan nationals on Pakistani soil is then lawful.

So, as the US justice department memo holds, if “an informed, high-level official of the US government has determined that the targeted individual poses an imminent threat of violent attack against the United States” then the assassination is permissible. And, of course, it should be beyond the pale of feasibility to “capture” the target and the operation should be within the ambit of “war principles” (whatever these might be according to the Obama administration!).

But, as Rosa Brooks points out, there are many questions which the American government must answer:

Tell me if this shadow war has any limits, and how those limits will be enforced. Tell me what safeguards there are against abuse. Tell me how I can be confident that the targeted killing process isn't rife with error and abuse. Tell me how many targeted killings equal a war. Tell me if we'll be expanding our shadow war into additional foreign states. Tell me if there's any limit at all on who we can target, and when, and where. Tell me our objectives in this shadowy war. Ending the operational effectiveness of al Qaeda? Ending terrorism? Reducing anti-American violence? Tell me how we'll know if we're achieving our objectives. Tell me if our shadow war is making us safer, or just making our world less stable.

As this is being written, I see an Associated Press story on that tells me that as many as 110 Afghan children were killed and 68 wounded in air strikes by international and Afghan forces in 2011.

These were not American nationals, did not pose any threats – imminent or otherwise – to the power, glory and security of the American nation or people.

They were simply kids.


Amit Baruah is an independent, Delhi-based journalist. He is the author of Dateline Islamabad and reported for The Hindu newspaper from Pakistan.


The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.

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Amit Baruah is an independent, Delhi-based journalist. He is the author of Dateline Islamabad and reported for The Hindu newspaper from Pakistan. He tweets @abaruah64.

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.

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Comments (11) (Closed)

Feb 11, 2013 06:42pm
One of the best reads on this subject so far. Liked the way you explained it.
Feb 12, 2013 10:51am
This is the law of nature. Weren't there endless invasions of the Indian sub-continent with the principle of "might is right" remaining supreme? Some nations need to be thankful, that the US is at least trying to be surgically precise in eliminating targets that the states have reared and grown to the extent of being unmanageable. Forget sovereignty. Do you really think that the Chinese or Indian army or rulers will invite the USA to bomb or drone inside for money? Nope.
umesh bhagwat
Feb 12, 2013 04:16am
The American doctrine has been that killings of Asians is justified because they are terrorists and it is necessary to uphold democracy while any retaliation is an attack on liberty!
Feb 12, 2013 04:12am
What an lousy article.. what this guy wants to say except for that he wants to write something that would sound nice to anti american ears.... this is the fact even in small conflicts you let the other party help get rid of the troublemaker and if you dont get help you simple go ahead and do it yourself... where is the issue.... you can not give example of china and india in the same bracket cause these countries would surely do the needful without being warned of interference...
Feb 12, 2013 02:14am
The writer asks some valid questions. But the fact remains that such debates occur in an open society. Pakistan, where the drones are mostly deployed, has neither the forum for open debates, nor the means to extract answers from the ISI, Pak Army and others who tacitly provided support to such drone activity while openly (duplicitously) denying it, and sometimes even decrying it. Clearly, left with no alternatives, the US has been employing drones, especially when the Pak military is neither willing nor able to control the menace they craeted - i.e. the Taliban.
Feb 12, 2013 12:17am
Also tell me if tha same principle is justified if the United States is the nation at the receiving end!
Feb 11, 2013 10:24pm
Just imagine that tye non americans killed by these strikes are not even the point of discussion mainly. Alas
Feb 11, 2013 10:06pm
No matter how one justifies it, it violates the very basic principle: Innocent until proven guilty.
Feb 11, 2013 05:12pm
Asalamo Alyka, Thank you for standing up for these kids, even if they are Muslims, thank you once again. Wsalam.
Feb 11, 2013 06:53pm
According to the law , it is illegal for the US govt to kill american citizens on a foreign soil, without trial. But it is completely legal to kill non-americans if the host nation is unable or unwilling to suppress the threat posed by the individual targeted. In India's case it will be legal to kill Hafiz saeed in a covert operation in Pakistan but illegal to dawood ibrahim in Pakistan, if ever letter of marque and reprisal is introduced in India.
Feb 11, 2013 02:11pm
Perhaps the USA should state the obvious. Pakistan does not actually control the tribal territories and therefore it's sovereignty argument is spurious. The World should not be held captive over a ludicrous argument that your rights are being violated when the Taliban actually control the territory. It's time for Pakistan to step up to the plate and take control over all it's territory of acknowledge that it's no longer part of Pakistan.