SPY EYES

Innocent victims of drone strikes wait in vain for humanity to choose justice over lawlessness.

Ashraf, like his father, makes clay-pots for a paltry living in his village in North Waziristan. He has wrinkled skin, sun-scorched hands, and perpetually moist eyes; at least ever since his wife and two children were killed in a drone strike last year. Last week, during a discussion on the illegality of drone attacks, I had the opportunity to sit across the table from him.

Having listened to my initial discourse on the US’ obligations under international law and Pakistan’s responsibility to protect the constitutional rights of its citizens, Ashraf interrupted, “Can you tell me which book of law, what constitutional article, I could have used to swat the drone that killed my family?”

The room went silent.

“There is no such thing as the ‘law’,” he continued, speaking to a small discussion group organised by members of the Lahore Bar Association, “Because if there were, both Obama and Sharif would be convicted for the murder of my family.”

Drone attacks are a reality in the modern “war on terror”. While they have been successful in killing some terror suspects, they have also – indisputedly – resulted in the loss of innocent lives. And as much as some of us wish otherwise, drone strikes are not ending anytime soon.

But was Ashraf correct in his assessment: Is law, either by design or desire, impotent in the face of the drone doctrine? What law, if any, governs the US drone policy? Can the law be used as a shield against them? Or are we just fooling ourselves with this rhetoric of legal contours?

Legality of strikes

The first issue requiring analysis is whether unilateral drone strikes by the US amount to a violation of Pakistan’s sovereignty? In this regard, Article 2(4) of the UN Charter prohibits, “the threat or use of force” by one state against another.

Two exceptions, however, exist: If the host state consents; or, if the force is used in self-defence against an attack or imminent threat, and the host state is unwilling to take appropriate actions.

There is no confusion that, at least “officially”, the State of Pakistan does not consent to the use of drones. Also, having lost hundreds of soldiers in counter-terrorism operations, it cannot be claimed that Pakistan is “unwilling” to act against militants (even if such actions are deemed inadequate by the West).

Furthermore, at no point has the US demonstrated “imminent threat” that warrants any particular drone strike.

As a result, none of the exceptions of the UN charter are met, and the drone strikes unmistakably violate the sovereignty of Pakistan.

Even if the US rhetoric of acting in self-defence (during an armed conflict) were conceded, there would still be the minor inconvenience of complying with International Humanitarian Law (IHL). Specifically, the legality of drone strikes must be judged against the principles of “distinction” (between combatants and civilians) and “proportionality” (the quantum of force used).

Under IHL, force can only be used against “combatants” – individuals who “directly participate” in hostilities; mere membership in some armed group, or suspect behaviour, does not constitute direct participation. And even against combatants, only such force can be used as is (minimally) necessary to prevent further militancy.

Suspicious kill lists 

Applying these standards to drone strikes in Pakistan reveals palpable illegality. The US, according to its own claims, either uses the drones to target specific and known individuals on a “kill list”, or (more recently) carries out “signature strikes” – attacks on unidentified victims, whose appearance or behaviour seems suspicious.

Since the US has refused to disclose how a person is put on the kill list, or exactly what behaviour is “suspicious” enough to trigger a signature strike, there is absolutely no way of ensuring that only combatants are being targeted.

The nameless victims, of unknown culpability, are denied even the most basic tenants of natural justice: due-process of law, legal finding of fact, and right to a fair trial.

Also, with increasing reports of second missile strikes that target rescuers, there can be no dispute that the force used is far from being proportionate in nature.

Stripped of legal protection, and shrouded in a policy of non-disclosure, the US drone strikes are nothing more than a superpower violating another nation’s sovereignty and killing its people… simply because it can. In a sinister world of conflicting national interests, the drones set a deplorable precedent of target-killing, that can easily spill over to conflicts such as Israel and Palestine, and the Korean DMZ.

On the receiving end of Hellfire missiles, are the (frequently innocent) people of Pakistan – citizens of a sovereign country who, while unable to find protection under international law, are still afforded their domestic constitutional rights.

Specifically, the State of Pakistan is constitutionally obligated to protect the life (Article 9) and dignity (Article 14) of every individual within its realm.

Toothless ruling?

Accordingly, in April, the Peshawar High Court declared drone strikes to be a violation of international law and fundamental rights and, inter alia, ordered the government to shoot-down any drones over Pakistani airspace, along with considering cutting-off  “all ties” with the US. While Pakistan has flirted with the idea of protesting against drones by blocking the NATO supply lines to Afghanistan, implementing the High Court decision is a tall order; one that the government, either out of fear or compulsion, seems unable to do.

And this impotence on the part of the government of Pakistan to protect its people, leaves the hapless inhabitants of North Waziristan at the appalling mercy of drone operators sitting in their cubicles in Virginia.

A dispassionate assessment would thus reveal that Ashraf was right: There is no law that could have prevented the murder of his family, and there is none that can now bring the perpetrators to account.

Being a superpower affords US the privilege to stretch the law whenever suitable, or ignore it altogether when needed, without any real consequence, except muted criticism from distant corners of an irrelevant world. And the feeble State of Pakistan can do nothing more than stretch out its bloodstained hand for more aid dollars.

Without threat of consequences, there is no reason, in logic or law, for the US to discontinue or even reassess its drone policy.

Appeal to their better nature

But the empire of law governs through its moral authority. Unlike Hellfire missiles, law has no explosives in its arsenal. Its fragile dominion is held together by the fidelity of those who choose to submit to its majesty… not because they have to, but because they are free not to.

Ashraf, and others like him across forgotten corners of the world, have staked their lives on the promise that our humanity will choose justice over lawlessness; that the embrace of our collective conscience will mend their broken lives. That the light of law will vanquish the darkness of their days.

At the moment, though, we – all of us – are failing them.

By Saad Rasool

Saad Rasool is a lawyer based in Lahore. He has a masters in Constitutional Law from Harvard Law School.