The quiet and secret killing by Drones: Why it violates the law
by Ramtanu Maitra on 15 Apr 2013 2 Comments

Since 2004 the international media has been reporting routine killings of “militants” and some civilians by missiles launched from US-triggered drones inside Pakistan’s tribal areas. Washington refused to acknowledge the attacks, despite the fact that a number of independent sources and some Pakistani Cabinet ministers repeatedly made “allegations” of their occurrence. Unwilling to admit to this aspect of the worldwide war on terror, declared unilaterally by the United States against those who continued to issue threats against America from distant places, the Bush and Obama administrations kept the drone attack-related killing issue out of the public domain.


That situation changed recently, and today the issue is openly discussed in the United States. On June 15, 2012, President Barak Obama publicly acknowledged that his administration was engaging in “direct action” in Yemen and Somalia, although the United States is not at war with either country. In recent weeks, the administration has been forced to give in on issues related to drones, including providing the legal justification for their use in tracking and killing terrorists. In particular, two US legislators, both belonging to the Republican Party, Sen. Lindsey Graham (R-South Carolina) and Sen. Rand Paul (R-Kentucky), have brought the issue to public attention more sharply than ever.


Graham and Paul told the American people that the Obama administration’s intelligence agency, CIA, is in charge of the drone-killing operation and has killed off many individuals. “We’ve killed 4,700. Sometimes you hit innocent people, and I hate that, but we’re at war, and we’ve taken out some very senior members of al-Qaeda,” Sen. Graham told his constituents at the Easley Rotary Club in Easley, S.C., in February. It was the first time a senior US senator publicly announced the number of victims of the expanded drone war. That number is not a firm figure and can be contested. (Sen. Graham is, incidentally, a fervent backer of drone killings of the “militants.”)


Senator Paul’s Questions


Then, on March 6, Sen. Paul made the drone operation the subject of a 13-hour televised filibuster speech in the US Senate in a futile effort to block the appointment of John Brennan as the new head of the CIA and, thus, controller of the drones. Unlike Sen. Graham, Sen. Paul questioned the merits of such killings in depth. What is also important to note is that while Sen. Graham did not address the issue of using drones to kill American and non-American citizens judged as militants by the administration, Sen. Paul raised a number of sticky questions around this issue for the administration to answer.


“It used to be monolithic that whoever is in the country that we think are bad, we call them enemy combatants and we lock them up and throw away the key,” he said. “That’s the caucus arguing against what I’m saying. But there’s a healthy debate and people are starting to understand that just by calling someone an enemy combatant doesn’t make them an enemy combatant.”


“Unlike those Washington conservatives who only object to centralized government power when the government is trying to regulate business or help the poor, Paul is reminding his fellow Republicans that the power to wage war is the most dangerous government power of all,” Peter Beinart writes in The Daily Beast. “He’s reminding Democrats that no president can be trusted with the unrestrained power to kill, not even one you like. And he’s reminding Americans that senators can still stand on principle, even when it costs them their sleep.”


But years before Sen. Graham and Sen. Paul addressed the issue, people across the world were dealing with the drone killings. They came to know about them from those who were around the victims in Pakistan, or Yemen, while the Obama administration kept a tight lid on that “secret.” Observers were also aided by some high-level Pakistani officials, including President Asif Ali Zardari, Interior Minister Rehman Malik and Foreign Minister Hina Rabbani Khar, among others, who repeatedly expressed their distress over drone attacks that killed Pakistani citizens. Their raised voices, however, remained mere “noise,” and the drone killings continued unabated.


Recently, Chief Justice Umar Ata Bandial of Pakistan’s Lahore High Court, while hearing a petition moved by a group, the Jamat ud-Dawa (JuD), remarked that the killing of innocent citizens including children and women in drone attacks is a violation of the fundamental rights of the people enshrined in the Constitution of Pakistan.


He asked Pakistan’s deputy attorney general, appearing on behalf of the federal government, whether such strikes were being made with the permission of the government and whether steps had been taken to stop the killing of innocents in these attacks. The court directed the federal government to submit the record of agreement, if any, between Pakistan and the United States on the drone attacks (The Express Tribune: Death of citizens by drone strikes against Constitution: LHC: By Rana Tanveer: February 22, 2013).


As of this writing, Islamabad has not responded to that court order. Pakistan’s general elections are around the corner, and it is likely that the Zardari administration may choose not to create political uncertainty by unveiling what actually transpired between Washington and Islamabad that led to the decision to put to death thousands of Pakistan’s least-cared-for citizens in non-navigable terrain.


Pakistan’s Undefined Role


It is interesting to note that last April the Pakistani media reported a meeting in Islamabad between President Asif Ali Zardari and then-United States Special Envoy to Afghanistan and Pakistan Ambassador Marc Grossman. According to the media, in that meeting President Zardari termed the drone attacks counterproductive in the fight against militancy and in the battle to win hearts. It is difficult to fathom what Grossman’s reaction might have been, since at the time Washington did not admit that it was carrying out those drone strikes at all. Yet no denial by Grossman was reported either.


Last October, Pakistan Interior Minister Rehman Malik told the media that the majority of people killed by the drone-launched missiles were innocents. He even went on to claim that if the Americans hand over the drone technology, Pakistan would do a better job. Malik is really endorsing the drone attacks; but he wishes they were handled by Islamabad, not Washington.


In mid-March of this year, Ben Emmerson, the United Nations special rapporteur on human rights and counterterrorism, went on a “secret” visit to Pakistan as the head of a team investigating the alleged drone attacks by the US in Pakistan. Emmerson e-mailed the Associated Press that the Pakistan government told him it has confirmed at least 400 civilian deaths by US drones on its territory. Imtiaz Gul, an expert on Pakistani militancy who was reportedly helping Emmerson’s team, told the AP that during the visit his organization, the Centre for Research and Security Studies, handed over to the UN investigator case studies on 25 strikes that allegedly killed some 200 civilians (UN says US drones violate Pakistan’s sovereignty: By Sebastian Abbot, Associated Press: March 15 2013).


From these admissions and “evidence,” by no means wholly reliable, one can still draw a few conclusions. First, the United States has been carrying out drone attacks in Pakistan’s tribal areas for years. Second, despite denials by the Pakistani authorities at various levels, it is likely that Washington had, indeed, received some sort of blanket approval from Islamabad/Rawalpindi to hit whenever and wherever inside Pakistan’s tribal areas to weed out the “militants.” A problem, however, lies with the question of who these “militants” were, and whether the CIA, who identified them as “militants,” let Pakistani authorities know of their decisions in advance. It is fair to assume that Pakistan may have handed over to Washington, a foreign body, the authority of a jury, judge and executioner to get rid of its own “undesirable” citizens.


Yet Ben Emmerson says that the drone campaign in Pakistan’s tribal areas is being carried out without Pakistan’s approval, and that it “involves the use of force on the territory of another state without its consent and is therefore a violation of Pakistan’s sovereignty” (UN says US drones violate Pakistan's sovereignty: By Sebastian Abbot, Associated Press: March 15 2013).


This brings to the fore a few other difficult issues. To begin with, a number of independent investigative groups, perhaps motivated by their liberal instincts or anti-US proclivities, have claimed over the years that the American drones were killing quite a few innocent civilians. The numbers they put forward are inconsistent because these were based on hearsay. It is fair to assume that these investigators were not present when each and every drone strike occurred. It is not altogether unlikely that the number of civilian deaths is less than these NGOs claim.


There are good reasons to question these numbers, the Oslo-based Pakistani analyst Farhat Taj points out. A native of the border area with Afghanistan who has lived almost all of her life in that area, she says that the drone attacks are popular in the region and the reports about large-scale civilian casualties are baseless. She provides some evidence in support of her argument and cautions researchers against uncritical acceptance of the notion that the drone attacks are unpopular or have killed civilians.


Ms. Taj says there is no information on how Pakistani authorities collected the figures they give out. The authorities have no writ over Waziristan, which is under the control of the militants. Moreover, the authorities fail to provide any evidence in terms of names or place of residence of the victims (The year of the drone misinformation: Farhat Taj: Centre for Gender Research, University of Oslo, Norway and Aryana Institute for Regional Research and Advocacy, AIRRA, Islamabad, Pakistan: 17 Sep 2010).


No doubt, Ms. Taj puts a damper on the high number of civilian deaths claimed by some Pakistani authorities and some motivated NGOs. But, it still leaves us with many disturbing questions. The most difficult to answer is the one that Sen. Paul raised during his 13-hour speech.


Define the “Militant” Who Needs to Be Eliminated


Sen. Paul raised this question: Where does one draw the proverbial line in separating an individual who is a “militant” worth killing from one who is a “militant-of-a-sort” but is not worth the expenditure of another drone missile? For instance, a meeting of the “militants” might be taking place at a house where family members are present. One analyst has asked in print: “How many bystanders constitute ‘acceptable’ collateral damage? What if the bystanders are children? What about neighbors?”


According to Chris Rogers, who writes for Huffington Post, “while the distinction between civilians and combatants in drone strikes is an undisputed requirement of international law, it is not so clear who counts as a civilian, or to be more legally precise, a non-combatant.” He adds: “The difficulty lies in distinguishing when a non-combatant civilian crosses the line into direct participation with or membership of an armed group, thereby becoming a potential target. In Pakistan, this distinction is even more difficult given societal and environmental factors such as the proliferation of weapons in tribal areas and mixing between civilian and combatant populations” (US Drones in Pakistan – more harm than good? Voice of Russia: Yulia Zamanskaya: Nov 2, 2012).


Apart from the lack of transparency about who is being targeted and the violation of sovereign rights of other nation-states, the drone-led killings raise other questions. While it is accepted that targeted killings have been done before, the question that Christof Heynes and Sarah Knuckey, UN special rapporteurs on extrajudicial, summary or arbitrary executions, raise in their article, “Explain the Drone Attacks” (2013 January-February issue of C4ISR Journal), is worth noting. The authors point out: “What is new is the rapid development and proliferation, and increasing deployment, of technologies that permit such killings to be carried out with greater ease and with little immediate risk to one side’s citizens, together with concerted efforts by some to offer general legal justifications for current targeted killings practices, and, in some cases, to attempt to redefine existing legal frameworks to expand the circumstances in which such killings may be carried out ‘lawfully’.”


Then, what remains under wraps is the issue of the nature of the “threats” that these “militants” pose. That has not been quantified. In another section of their article, Heynes and Knuckey ask that question: “What about new threats? While states may engage in self-defense against truly imminent attacks, there is little available evidence to suggest that all of those individuals targeted by drone attacks would meet this requirement. The premeditated nature of targeted killings means that, in many cases, claims of imminence ring hollow. The reported presence for long periods of time of the names of those on ‘kill lists,’ for example, undermines claims of such an imminent threat.”


Other Quandaries


In addition, there is the quandary about what the United States would do if other nations take it upon themselves to launch their own drone killings to deal with such threats. More permissive standards of “pre-emptive strike,” without a clear basis in the UN Charter, are being advanced in support of what would normally be regarded as acts of aggression. If one government is allowed to use force whenever it is of the opinion that there is some perceived danger that may be realized at some point, with no transparency or accountability, there is no basis on which to hold others back from doing the same.


Take, for instance, what Sarah Holewinski, executive director of the Center for Civilians in Conflict at Columbia Law School in New York points out. She told the Christian Science Monitor that India has recently purchased armed drones. “Might it now begin using them in neighboring Pakistan for its own military purposes, arguing that if the United States does it, why shouldn’t others? With two nuclear-armed states, the consequences could be dire.” Says Holewinski: “India isn’t going to want the United States to say, ‘No, no, you can’t use these in Pakistan, just because we did.’ There’s going to be a really tough argument for the United States to make for how other nations use these drones” (Drone warfare: top 3 reasons it could be dangerous for US: Anna Mulrine, Staff writer: Christian Science Monitor: October 2, 2012).


Another question to answer is whether the drone attacks are unilateral actions by the US president that undermine US Congress’ authority. Heynes and Knuckey point out that the administration justifies its use of armed drones with reference to the Authorization for the Use of Military Force (AUMF) that Congress passed just days after the 9/11attacks. “In the AUMF, Congress authorized force against groups and countries that had supported the terrorist strikes. But Congress rejected the Bush administration’s request for open-ended military authority ‘to deter and preempt any future acts of terrorism or aggression against the United States.’”


Yet, “deterrence and preemption are exactly what Obama is trying to accomplish by sending robots to kill ‘suspected militants’ or those who happen to be present in an area where suspicious activity has taken place,” Heynes and Knuckey continue. Moreover, they make the point saying in the National Defense Authorization Act of 2012, Congress specifically declared: “Nothing in this section is intended to...expand the authority of the President or the scope of the Authorization for the Use of Military Force [of September 2001].”

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