Drones over FATA – next year may be the last they are legal

October 23, 2013

Selective tweeting, selective outrage and selective media reporting – everyone has a view on drones. On one hand, the United States is accused of lying about civilian deaths in its drone strikes in Pakistan’s tribal areas, of human rights abuses, and of operating outside a transparent legal framework. On the other, many of those opposed to drones brook no nuance, reserve their outrage only for people killed by Americans  rather than by the Pakistan Army or the Taliban, and promote a dangerous ahistorical narrative that militants are the result rather than the cause of drone strikes.

The people who live in the Federally Administered Tribal Areas (FATA) don’t get much of a say at all. Used by Pakistan for decades as a deniable base for jihad, FATA has been deprived of full political and economic rights by the same country that protests loudly that drone strikes violate its sovereignty. The United States in turn has been able to exploit the ambiguous status of FATA to run a secret campaign whose precedent in international law is likely to haunt it as more and more countries acquire their own armed drones.

In the midst of all the polemics, two new reports, one by UN Special Rapporteur Ben Emmerson and the other by Amnesty International, have come as a breath of fresh air into the debate on drones. Relatively measured, they deserve to be read in full.

Both argue that the number of civilian casualties from drone strikes in FATA is greater than admitted by the United States – Amnesty by citing detailed case studies from field research and Emmerson by quoting the Pakistan government as saying that at least 400 civilians had been killed.

But neither rules out the use of drones altogether – Emmerson goes as far as to say that “if used in strict compliance with the principles of international humanitarian law, remotely piloted aircraft are capable of reducing the risk of civilian casualties in armed conflict by significantly improving the situational awareness of military commanders.”  That is a point lost on many anti-drone campaigners – Pakistan Air Force strikes and Pakistan Army shelling in FATA are also a form of remote killing without trial – but they are likely to kill even more civilians.

Amnesty, in its more detailed 61-page report, says that it “recognises that some U.S. drone strikes may not violate human rights or international humanitarian law”, while arguing that the secrecy around the programme makes this hard to assess.

To my mind, however, the most interesting issues raised in these two reports are not about whether drone strikes are a “lesser evil” compared to other weapons, or even about the exact number of casualties, but about whether they are legal.

Emmerson writes, for example, that while there was strong evidence drone strikes were conducted in the past with “the active consent and approval of senior members of the Pakistani military and intelligence service”, civilian politicians had passed a parliamentary resolution on April 12, 2012 demanding an immediate end to drone strikes. Many suspect the military, which dominates security policy, continues to give either tacit or explicit approval to drone strikes – an allegation the army denies. But according to Emmerson, it is the view of the civilian government which counts.

“Under the constitutional arrangements in force in Pakistan, the democratically elected government is the body responsible for Pakistani international relations and the sole entity able to express the will of the State in its international affairs. Suggestions of continued cooperation at the military or intelligence level do not affect the position in international law,” he says.

Without Pakistan’s support, the United States could argue the drone strikes are justified in self-defence as long as its troops remain in Afghanistan and continue to be attacked by Taliban fighters based in FATA. However, come the end of 2014 when U.S. combat troops are due to be withdrawn from Afghanistan, that argument will no longer apply.

The Amnesty International report points to a roughly similar conclusion – drone strikes in FATA could in theory be explained as self-defence given the presence of U.S. troops in Afghanistan but will become much harder to justify legally after end-2014.

Amnesty notes that a key uncertainty in assessing the legality of drone strikes is whether FATA counts as an area of armed conflict subject to the laws of war.

As a very rough summary, drone strikes outside of an area of armed conflict would be seen as extrajudicial executions and against international law. Drone strikes inside an area of conflict could in theory comply with the laws of war – provided these took adequate measures to protect civilians and targeted FATA-based Taliban and other fighters participating in the conflict in Afghanistan.

Amnesty quotes the International Committee of the Red Cross (ICRC) as saying that in defining participants in conflict, “measures preparatory to the execution of a specific act of direct participation in hostilities, as well as the deployment to and the return from the location of its execution, constitute an integral part of that act.”

However, Amnesty questions whether drone strikes can also be legally justified to protect western countries against plots by al Qaeda and its allies emanating from FATA.
“Amnesty International does not accept the USA’s view that international law allows it to engage in a global and pervasive armed conflict against a diffuse network of non-state actors or that it is lawful to kill individuals anywhere in the world at any time, whenever the USA deems appropriate. “To accept such a policy would be to endorse state practices that fundamentally undermine crucial human rights protections that have been painstakingly developed over more than a century of international law-making,” it says.



Assuming the two reports are correct in their assessment – and that will be for experts in international law to debate – it becomes increasingly hard to see what could legally justify continuing U.S. drone strikes in FATA after 2014.

Would, for example, Afghanistan be allowed to ask the United States to keep up drone strikes in FATA for its own protection rather than for U.S. troops? That seems highly unlikely given that any country could then invite the help of an ally with armed drones to strike targets across the border of an unfriendly neighbour.

Whether or not Pakistan has ceded control of parts of FATA to the Pakistani Taliban, al Qaeda and other foreign militants; whether or not it deprives people of FATA of full political rights, it remains sovereign Pakistani territory – a point the government continues to stress. And the Durand Line border between FATA and Afghanistan – which Kabul has never recognised – is nonetheless recognised by the United States.

Or to quote Emerson, the continued use of drones in FATA would be a “violation of Pakistani sovereignty, unless justified under the international law principle of self-defence.” He added that he welcomed comments from the United States that it had a timeline for ending drone strikes.

Ironically, the legality issue could eventually become a problem for Pakistan itself.

What if Pakistan itself were to realise that it could no longer contain the threat from al Qaeda and the Pakistani Taliban and – reversing its official public view – actually welcome U.S. drone strikes? After all, in the past drones strikes have also targetted Pakistani Taliban leaders in FATA, giving them the triple purpose of protecting U.S. forces in Afghanistan, disrupting plots against the west, and limiting the threat to Pakistan from militants whose declared aim is to impose their views across the country.

If Emmerson is correct, U.S. drone strikes in FATA could happen legally after 2014 only with the explicit agreement of the Pakistan civilian government. Yet the more threatening the Pakistani Taliban become to Pakistan, and the more they kill Pakistani politicians, the less likely any civilian government is to take the risk of publicly endorsing U.S. drones. (Even if Pakistan were to acquire its own drones, it would then need satellites to run these in FATA with  live transmission of images to a control room outside).

Trapped by its own rhetoric,  Pakistan after the end of 2014, might get what it wished for – or what it said it wished for – an end to drones.

Find me on Twitter @myraemacdonald

Read the reports at:

Interim report to the General Assembly by UN Rapporteur

Amnesty International report on drones: Will I Be Next?

For a leaked document giving Pakistan government estimates of civilian deaths, broken down by incident,  see this July 22, 2013 report in July by The Bureau of Investigative Journalism

Amnesty International 2012 report on human rights abuses by security forces and the Taliban in FATA.

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