US drone attacks in pakistan
The Legality of U.S Drone Attacks in the Territory Of Pakistan under International Law
The cross-border incursions, especially the drone attacks, by the Afghanistan-based American forces in the Federally Administered Tribal Area (FATA) of the north-western Pakistan, ostensibly to annihilate or weaken the safe havens of the terrorists operating from Pakistan, have drawn a considerable debate not only among the policy-making circles of Pakistan and United States, but also among the International law experts. It is true that these operations are not of the same gravity and intensity as those undertaken in Afghanistan in 2001 and in Iraq in 2003, whose ultimate objective was to topple the respective governments on one pretext or other; but they equally entail serious questions related to International law, i.e., issues of sovereignty, territorial integrity, state responsibility, non-state actors, and the use of force and its exceptions under the United Nation’s charter etc. Moreover, one needs to be evaluate that whether the forces undertaking these cross-border forays are strictly adhering to the norms of International Humanitarian Law (IHL), if at all is applies to the instant situation; and lastly the questions related to the violation of the Human rights under International Human Rights Laws (IHRLs), i.e., right to protection of life and property, right to fair trial, etc need to be addressed.
Pakistan’s contention, on the one hand, has all along been that these drone attacks in particular and the cross-border incursions in general -- which are purportedly meant to target the non-state actors/terrorists operating from Pakistan, but are causing much collateral damage in the shape of loss of life and property of the innocent civilians --are not only in contravention of the general prohibition on the use of, or threat of use of, force under Article 2(4) of the United Nation’s Charter; but are also violating the sovereignty and territorial integrity of the state of Pakistan. Therefore, the argument goes, that the United States entail legal/state responsibility for this wanton loss of life and property under international law. United States, on the other hand, has been asserting that, apart from the general consent given by the government of Pakistan for such attacks, article 51 of the U.N Charter, which relates to self-defence, allows it to carry on these operations.
This essay elaborately discusses the nature of these cross-border incursions, with special reference to the attacks undertaken with the help of drones/Unmanned Aerial Vehicles (UAVs), from purely a legal standpoint, completely ignoring the political aspects of the relationship between Pakistan and United States, which has been, to say the least, turbulent since the inception of Pakistan in 1947– ranging from the warmth of the present ‘war on terror’ to the coldness in the aftermath of the afghan war of 1980s. The focus would be on appraising the legality of these cross-border operations under the jus ad bellum, meaning their consistency with the norms embodied in Articles 2(4) and 51 of the U.N. Charter. Furthermore, the essay would endeavor to briefly define the underlying concepts of International law, i.e., the concepts of state, sovereignty, territory, state responsibility, non-state actors etc, thereby making it convenient even for a layman to understand the instant discussion with considerable ease. Lastly, it must be remembered, that as there are factual controversies surrounding the U.S cross-border operations, such as the existence/non-existence of any binding agreement between Pakistan and United states, which authorizes these attacks, or the tacit support, or lack of it, of the militants by the Pakistani government and Army, the essay, at best, can come up with tentative legal conclusions of the international law issues at hand.
The north-western border of Pakistan with Afghanistan constitutes a semi-autonomous region known as Federally Administered Tribal Area (FATA), which is a loose conglomerate of seven tribal areas, called the agencies. This region was annexed by the British Empire in the nineteenth century, and acted as a buffer between the British Empire and Afghanistan. Though the British never completely succeeded in wielding absolute authority over FATA, they maintained considerable peace and calm in the area with the help of the tribal elders, coupled with the promulgation of the Frontier Crimes Regulation (FCR), which was premised on the inhuman and callous principle of collective punishment. In order to further give legitimacy to its hold over the FATA, and to define its boundaries alongside Afghanistan, the nineteenth century British Empire in sub-continent, demarcated the International border between their empire and Afghanistan in 1893 A.D, which is known as Durand Line. Pakistan, after independence, inherited this border, existence of which has all along been disputed by the Afghanistan on one premise or other, despite the internationally-accepted principle of uti possedetis juris, which holds that newly independent states formed out of colonies should have their boundaries conforming to those set down by the former colonial powers.
The semi-autonomous status of the tribal area and the non-interference by the federal government in the affairs of the region continued even after the partition of sub-continent and the formation of an independent state of Pakistan in 1947. However, the whole dynamics of the region vis-à-vis its relation with the federal government changed dramatically in the aftermath of the terrorist attacks on the soil of United States, which were allegedly perpetrated by terrorists operating from these tribal areas of Pakistan. Thereafter, Pakistani Army, on the behest of U.S, conducted many an operation in this area, in order to not only nab the terrorists involved in 9/11, but also to curb the cross-border activists of the militants from these areas into Afghanistan.
It is to be noted, that notwithstanding the existence of the demarcated International border, it has been a continuous practice of the Pashtuns and Balochs from both sides of the border to move back and forth across the border without any international travel documents, i.e., passport etc. --both governments have also never insisted on travel documents until today for this purpose. On the other hand, special passes are given to the members of families living on both sides of the border, who cross the border either to meet the family members, to study, or to engage in business or profession. Thus, the claim of the existence of a boundary dispute by the Afghan government.
This unchecked movement of people across the rugged border reached new heights during the ten years of Soviet intervention in Afghanistan, when the ‘Islamic’ fighters, who had gathered from all over the Muslim world in order to launch a ‘holy war’ against the ‘Russian infidels’, would infiltrate through the International border into Afghanistan to launch deadly attacks on the Soviet forces, only to come back to their hideouts in FATA to re-group -- this episode has been repeated currently in the region as well, when the Taliban fighters undertake these cross-border operations. Therefore, FATA and the international border between Afghanistan and Pakistan became the focus of ‘Jihadi’ activities, whereby ‘Islamic’ militants were recruited and trained in FATA with the active financial and administrative support of the Pakistani and American Intelligence agencies. It is pertinent to mention here that Osama Bin Laden and other prominent Al-Qaeda and Taliban militants, who now carry bounties of million of dollars, were also among these ‘Jihadis’ who were fighting a proxy war on the behest of United States, Pakistan, and Saudi Arabia etc..
As a result of these covert operations by CIA and ISI, the Soviet forces had to suffer the ignominy of defeat in 1989, when it left the region without achieving any of its declared or hidden objectives. On the other hand, United States, after the success against Soviet Union, left the region, and especially Pakistan, high and dry, which led to the growth and resurgence of these militant groups, who had now harboured ambitious designs not only to contest the claims of sovereignty over Afghanistan of the rival groups, but also to take on their erstwhile mentors in the name of Islam. Some of these militants established themselves in Pakistan – latter to be known as the ‘Pakistani Taliban’, and with the passage of time, started demanding the government to implement their interpretation of ‘Sharia’ in the country, and thus challenged the writ of the government on a number of occasions. Moreover, the affect of this war on Pakistan’s economy were enormous, as some 3.5 million Afghan refugees fled to Pakistan during and after the conflict, besides proliferation of sophisticated weapons, and the profusion of narcotics from Afghanistan to Pakistan.
U.S Drone Attacks Inside Pakistan
U.S Drone Attacks In Perspective
This situation of post-war anarchy continued in Afghanistan till 1996, when the Taliban, with the active help of Pakistan’s intelligence agencies, gained control of Afghanistan, and thus came into existence the Islamic empire of Afghanistan led by Mullah Umer. Pakistan, through out the six year when Taliban controlled Afghanistan, until U.S dethroned them in the wake of 9/11, had been providing financial and administrative assistance to Taliban; the ulterior motive had always been the pursuit of the ‘Strategic Depth’ vis-à-vis India.
It is this history of support of the Taliban regime that created suspicion in the minds of Bush administration about the commitment and sincerity of Pakistan, even after President Musharraf categorically pledged to help United States in defeating the Taliban regime in Afghanistan after 9/11. The drone attacks and other cross-border incursions by the U.S forces in to the Pakistani territory also prove that the U.S has its doubts about the earnestness and sincerity of the Pakistani government and Army in the on-going ‘war on terror’. In spite of all these uncertainties, the Musharraf regime decided, at least on the face of it, to co-operate with the U.S in the invasion against the Taliban regime in Afghanistan, which ultimately took place in October, 2001, and resulted in the topple of the Taliban government in Afghanistan.
As a consequence, a large number of Taliban and Al-Qaeda remnants were pushed into FATA through the porous border between Afghanistan and Pakistan, just as they had done during and after the Soviet invasion of Afghanistan during 1980s. Subsequently, these militants, in connivance with their sympathizers in Pakistan, established what the U.S calls safe havens in the region, which not only provided sanctuaries to them, but also gave a launching pad to them to attack the Coalition forces in Afghanistan. Osama Bin Laden and other top Al-Qaeda and Taliban operatives are also thought to be hiding in these safe havens, which are attacked, time and again, with the help of U.S Drone Attacks now a days.
This situation alarmed United States and the other allied countries that were operating in Afghanistan under the NATO-led International Security Assistance Force (ISAF). Therefore, Unites States, after having solicited the support of Pakistani government vis-à-vis the Taliban regime in Afghanistan, started pressing Pakistan to launch an all-out attack against the militant’s save havens in FATA. Pakistan had no other choice but to comply with the royal fiat of the Unites States to launch a military operation in the restive tribal areas of Pakistan. Thus the practice of non-interference in the affairs of FATA, long adhered to by the successive governments before and after the partition of sub-continent, was discontinued on the behest of United States.
The first such operation was conducted by the Pakistani Army in South Waziristan agency in the year 2003. Since than, these operations against the militant hideouts in FATA and the adjoining areas have been going on without any let and hindrance. For this purpose, Pakistan has deployed more than one lac para-military troops on its border with Afghanistan, which have succeeded, to a large extent, in stopping the cross-border infiltration of the militants, apart from attacking the safe havens of the militants. The successes have been colossal as far as killing and capturing the militants in concerned. According to the official website of Pakistani Army, since the launch of the first operation in FATA, Pakistani forces have carried out 161 major and minor operations against terrorists and have succeeded in killing over 3000 terrorists, apart from apprehending 4000. Moreover, according to the website, over 1400 officers and men of Pakistan Army and Frontier Corps have been martyred in these operations, which itself speaks volume about the commitment and sincerity of Pakistan and its security/intelligence agencies in the ‘war on terror’.
Pakistan has, furthermore, showing its sincerity in the ‘war on terror’, volunteered itself to mine and fence the porous border with Afghanistan, which would enable to stop the cross-border movement of the militants. But Afghanistan has shown its deepest concern on this option, as it would, according to it, legitimize the international border between the two countries – something which the Afghan government does not want, as mentioned earlier.
Moreover, Pakistan has faced the brunt of this ‘war on terror’ -- especially the military operations inside Pakistani territory -- with indiscriminate suicide attacks been the norm rather than an exception since the start of the military operations in the tribal areas. As a result of the military operations in the tribal areas, the back of the Pakistani Taliban, also referred to as ‘fake Taliban’ who are operating inside Pakistan, as against the ‘real’ Taliban who are operating inside Afghanistan against the coalition forces, has been badly broken. However, the cost of these operations has been enormous for the state and society of Pakistan, in terms of loss of life and property due the suicide attacks perpetrated by these Taliban, in which the multinational hotels and the law-enforcement agencies have been the prime targets. This unending spate of lethal suicide bombings across Pakistan has killed 465 people and injured 1121 in 36 attacks carried out by human bombs in the first six months of 2009 - between January 2 and July 2 - literally turning the country turned into the suicide bombing capital of the world.
Furthermore, when it seemed to Pakistan that the military option is not producing the desired results, it struck political deals with these militants, in order to stop them from attacking the security forces inside and across the border; but these deals have not worked, as they have, according to U.S, allowed the militants to regroup and attack back with more vigour and zeal.
Consequently, Pakistan Army has recently launched an all-out operation, called operation Rah-e-Raast, in the Malakand region of the North Western Frontier Province (N.W.F.P) – the first such operation in the settled areas of Pakistan, which has been appreciated by the U.S and the Coalition forces. The operation has met a lot of success, as in it has been able to decrease the militant activities across the border. However, this operation has resulted in the internal displacement of over 3 million Pakistanis, which has further tested the resolve and commitment of the government of Pakistan.
Notwithstanding all the afore-mentioned efforts on part of Pakistani government and Army, and the sacrifices by the rank and file of the people, the International community, especially U.S, has been urging Pakistan to ‘do more’ – an euphemism for the alleged double standards on part of Pakistan, among other things. The underlying assumption on part of the U.S has, firstly, been that some elements in the government and Army of Pakistan had still been supporting the militants, in pursuance of the policy of ‘strategic depth’ followed by Pakistan since the Soviet invasion of Afghanistan in 1979. In this regard, Inter Services Intelligence (ISI) – the premier intelligence agency of Pakistan – has come under a lot of criticism by the U.S and the western media.
Secondly, the U.S policy makers are of the view that the fear of retaliation by the militants in shape of suicide attacks, especially on the security forces of Pakistan, and the political pressure could also be the probable reasons for the Pakistani Army to go soft on the militants in FATA. Finally, the U.S administration believes that the Pakistani Army does not have enough capability and wherewithal to take on these militants, who apparently possess state-of-the-art weapons and gadgetry.
This lack of trust on part of U.S has infuriated the Pakistani government, which has, on a number of occasions, openly criticized US policy makers' penchant to blame Pakistan for all of the failures to date in relation to the 'war on terror' The contention of the Pakistan has been that it has done all that it could to stop the infiltration of the militants across the international border, apart from killing, maiming and arresting the most-wanted terrorists hiding in the region. It is in the backdrop of these allegations of lack of will and ability on part of the Pakistani government and Army, that the previous U.S government took on itself to launch cross-border attacks, especially the drone attacks, inside the Pakistani territory, in order to pound the militant safe havens in the restive tribal areas of Pakistan.
The Aftermath Of U.S Drone Attacks
According to Sean D. Murphy, U.S. cross-border operations into Pakistan so far have taken three different forms: drone strikes; ‘hot pursuits’ into Pakistani territory in immediate response to a cross-border raid from Pakistan; and ‘covert missions’ by special operations forces against militant targets located deeper in Pakistan. The number of incidents involving ‘hot pursuits’ of the militant hideouts inside the Pakistani territory have been very few, and hence have largely remained unnoticed. As far as the ‘covert missions’ are concerned, American forces, so far, have undertaken only one such mission on September 3, 2008 in Angor Adda in South Waziristan agency; but due to strong criticism by the Pakistani government, U.S has thenceforth refrained from repeating this episode.
However, the cross-border strikes by the American forces through Unmanned Aerial Vehicles, commonly known as drones, have not only been continuing on regular intervals since 2004, but have also caused immense collateral damage in the shape of loss of life and property of innocent civilians. Between the year 2004 and 2007 – during the government of General Musharraf in Pakistan -- only 7 such attacks were carried out, but the quantity and intensity of the drone attacks has increased manifold since the installment of a democratic government in Pakistan in March, 2008. According to one estimate, from January 14, 2006 to April 8, 2009, 60 U.S. strikes against Pakistan killed 701 people, of which 14 were Al-Qaeda militants and 687 'innocent civilians' Of these attacks, two carried out in 2006 had killed 98 civilians while three attacks conducted in 2007 had slain 66 Pakistanis, yet none of the wanted al-Qaeda or Taliban leaders were killed. However, of the 50 drone attacks carried out between January 29, 2008 and April 8, 2009, 10 hit their targets and killed 14 wanted al-Qaeda operatives.
This higher rate of collateral damage is not only reprehensible but also exposes the faulty intelligence on part the American agencies. According to a recent report by the Brookings Institution on July 20, 2009, ten civilians die in the drone attacks for every militant killed. Pakistan has, therefore, strongly protested against these drone attacks, and argued that the US should not act unilaterally in utter disregard to the sovereignty and territorial integrity of an ally like Pakistan.
The government of Pakistan, has, time and again, asked U.S to share actionable intelligence with it, on the basis of which Pakistani forces will themselves pound the militant hideouts. But U.S administration, due to the lingering distrust between the two countries, has refused to share such intelligence with Paksitan, fearing that the ‘rogue’ elements in the government and Army of Paksitan might tip-off the potential targets. The argument from the Pakistani side has been that while the U.S may have the technology and the greater scope for gathering intelligence, Pakistani forces have the territorial knowledge and the forces that are equipped to act in the rugged and inhospitable tribal regions of the country..
Furthermore, Pakistan has also, on many occasions, asked the bush administration, and now Obama administration, to provide it with the drone technology, thereby enabling it to carry out the strikes on the militants more efficiently and effectively Firstly, the Pakistani Consul General to the US, one Aqil Nadeem, and than the President Zardari himself conveyed this message to U.S, but the idea was out rightly rejected by US policy makers.
Another potent angle of the whole debate surfaced in October 2008, when the leading newspaper of U.S reported the existence of an agreement between U.S and Pakistan that allows these drone attacks inside the territory of Pakistan. The report went on to say that as part of the agreement, Pakistan would publicly decry these drone attacks as being a gross violation of the recognition of its state sovereignty under international law. Such a view was further supported by a claim of a US senator Dianne Feinstein that the drone attacks occurring within the Pakistani territory are actually “flown out of a Pakistani base” . All of this has added a new dimension to the whole debate among the International law experts, who say that if there was such an agreement between the two countries, then the whole question of violation of the territorial sovereignty and integrity of Pakistan does not rise at all, and therefore, U.S would be justified in carrying out the drone attacks. This argument, along with the original legal argument of the U.S that it is acting in self-defence against the militants who attack the Afghanistan-based American forces from their sanctuaries in Pakistan, would be further discussed in the next section.
Non-legally speaking, however, it seems arguable that, whilst the Pakistani government seems willing to accept the US' participation in 'collective action', US forces have often elected to act unilaterally inside Pakistani territory with a view to furthering their own national policy goals regardless of the risk of contravening international law pertaining to the sovereignty, state responsibility, and use of force. etc – These topics of international law would be discussed briefly in the next section, before we go on to discuss the legality of the U.S drone attacks inside the sovereign territory of Pakistan.
The Legality Of U.S Drone Attacks Inside Pakistan: Some Important Topics Of International Law
State And Its Sovereignty
‘State’ is the most important and potent ‘subjects’ of International law. It is, therefore, imperative to find out when a particular entity fulfills the qualifications of a state. State, as a subject/person of international law, should possess the following qualifications: a) a permanent population; b) a defined territory; c) a government, and d) a capacity to enter into relations with other states. A state – for instance, Pakistan -- therefore, possessing these four qualities may well be called a ‘sovereign state’.
The concept of Sovereignty in international law is a bit more complicated; it has three major aspects: external, internal, territorial. The external sovereignty, also called independence, means that a state has a right to determine, without any dictates from another entity or state, its relations with other states. In the aftermath of 9/11, the U-turn in Pakistan’s relations with the Taliban regime on the behest of U.S is a classic example of interference in the external sovereignty of Pakistan by the U.S. The internal sovereignty, on the other hand, is a state’s exclusive right to determine the nature and character of its own institutions, to ensure and provide for their operation, to enact laws of its own choice and ensure their respect. World Bank or IMF exercise this kind of interference in the internal sovereignty of the states, when, as a quid pro quo of a loan, they direct the individual states to bring about fundamental changes in their administrative, legislative or judicial infrastructure. Finally, the territorial sovereignty is the complete and exclusive authority which a state exercises over all persons and things found on, under or above its territory. The cross-border raids, especially the Drone attacks, by the Afghanistan-based American forces in the tribal areas of Pakistan may well be an example of a gross violation of the territorial sovereignty of Pakistan.
Sovereignty as so defined is the most fundamental principle of international law because nearly all international relations are bound up with the sovereignty of states. Moreover, from this concept of sovereignty, a number of fundamental principles of international law flow, namely, the equality of states and the duty to refrain from interference in the external and internal affairs of other equally sovereign states.
The doctrine of equality of states, introduced into the theory of international law by the naturalist writers, means that every state is entitled to full respect as a sovereign state by other states. “A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom”. This principle of sovereign equality of states has found expression in the Charter of the United Nations, art 2(1) of which states: “The organization is based on the principle of the sovereign equality of all its Members”.
Certain practical consequences flow from the legal equality or independence of states: a) each state has prima facie exclusive jurisdiction over a territory and the permanent population living there; b) states have a duty of non-intervention in the area of exclusive jurisdiction of other states: “the first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state”.
Keeping all these principles of International law related to sovereignty and territorial integrity in mind, Pakistan argues that it is the duty of U.S, as of any other state, to refrain from the threat or use of force against the territorial integrity and political independence of Pakistan. The Drone attacks inside Pakistani territory, the contention goes, constitute the flagrant violation of the territorial sovereignty of the State of Pakistan by the American forces based in Afghanistan. On the other hand, administration in U.S says that they have a right to ‘self-defense’ against the cross-border incursions emanating from Pakistan. The argument goes to say that the right of self-defense is really a re-enforcement of the right to independence and sovereignty. Moreover, U.S bases its contention on the fact that neither the United Nations Charter nor customary International law can be said today to recognize the absolute sovereignty and absolute equality of states as inviolable tenants of International law. This is because:
“Static co-existence of sovereign entities in a state of splendid isolation would be incompatible with the dynamic character of international society, [Consequently] International law assists in a number of ways in making possible limitations of sovereignty. Rules of International customary law, general principles of law recognized by civilized nations, and above all treaties impose far-reaching limitations on the sovereignty of states”
State Responsibility And Non-State Actors
All legal systems provide for consequences arising from failure to observe obligations imposed by their rules. International law is no different in that every state which is in breach of the obligations imposed upon it by international law must bear responsibility for that breach. In other words, State responsibility occurs when a sate violates an international obligation owed to another state. This obligation may be derived from a treaty, convention, customary law, binding judicial decisions, resolutions of Security Council etc. In case of US drone attacks in Pakistani territory, Pakistan may claim that U.S is internationally responsible for contravening Pakistan’s territorial sovereignty. In the Spanish zones of Morocco Claims: Judge Hubert said that:
“Responsibility is the necessary corollary of a right. All rights of an international character involve international responsibility. If the obligation in question is not met, responsibility entails the duty to make reparations.”
There are two kinds of State responsibilities. It may either be invoked by direct violation of an international right of a state; or by a wrongful act or omission which causes injury to an alien or his property. In the latter case, the responsibility is to the state of which is alien is a national. In this section, we would only discuss the former kind of state responsibility with reference to the U.S drone attacks and the responsibility they entail to the state of Pakistan.
The topic of state responsibility has been greatly clarified and developed by the International Law Commission (ILC). The final text of the “Draft Articles on Responsibility of States for Internationally Wrongful Acts” was approved in August 2001 in its 53rd session. The Draft Articles are a combination of codification and progressive development, and have been cited by the International Court of Justice on a number of occasions. On 12 December 2001, the United Nations General Assembly adopted Resolution 56/83, which "commended [the articles] to the attention of Governments without prejudice to the question of their future adoption or other appropriate action.
According to the Art.2 of the draft articles, “there is an internationally wrongful act of a State, when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.” This clearly implies that responsibility comprises two elements: there must be an unlawful act or omission by or on behalf of one state against another; and the unlawful act or omission must be attributable/imputable to the former state. Many writers assert that the there is another element of state responsibility as well: the fault or intention of the offending state in committing the wrongful act.
Wrongful Act or Omission
Firstly, as apparent from the wordings of Article 2, internationally wrongful act of a State may consist in one or more actions or omissions or a combination of both. Therefore, state responsibility is engaged not only by the ‘wrongful acts’ of states, but also by their ‘wrongful omissions’, along with a combination of both. An example of such an act could be when a state illegally uses its military force against a neighboring state – Pakistan may argue, that the Drone attacks by US constitute this ‘act’, and thus entail state responsibility on behalf of US towards Pakistan.
An omission, on the other hand, could be when a state fails to prevent autonomous armed groups from using its territory as a base for unlawful attacks against the neighboring state – US could argue that the state of Pakistan is internationally responsible for failing to prevent the Taliban/terrorists from using the territory of Pakistan for launching attacks against coalition forces in Afghanistan. The case of ‘omission’ is discussed in the United States Diplomatic and Consular Staff in Tehran, Judgment, which says that a receiving State is not responsible, as such, for the acts of private individuals in seizing an embassy, but it will be responsible if it fails to take all necessary steps to protect the embassy from seizure, or to regain control over it. This duality of acts and omissions is not only stipulated in Art. 2 of the ILC Draft Articles, but also founds support from several judicial decisions.
The second element of state responsibility is ‘attributability’ – not only there be a wrongful act, but it must also be attributable to the offending state. It is a fundamental matter of responsibility, therefore, to distinguish those acts that are attributable to a state from those which are not. Attribution has the effect of indicating that the act in question is an act of the state concerned; on the other hand, if an act cannot be attributed to a state, it would be considered an act of ‘non-state actors’. As Articles 4 to 11 of the draft articles clearly indicate that:
a) the acts/omissions of the organs of the state and its officials, whether acting in legislative, executive, judicial or any other capacity, and whether done in excess of authority or contravention of instructions on behalf of these officials, are attributable to the state itself. (It is clear that no state organ or its officials are involved in attacking the coalition forces in Afghanistan; hence no question of Pakistan’s responsibility towards US in this regard.)
b) the acts of private persons or groups could be attributable to the state, if they are in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct; or if their conduct is otherwise not attributable to the state, but the state acknowledges and adopts the conduct in question as its own. (The question is whether the militant outfits operating from FATA against the coalition forces in Afghanistan are acting on the instructions of, or under the direction or control of, the Pakistani government or its Army? If yes, then the U.S has every right to self-defence in shape of Drone attacks, or otherwise, to attack the hideouts of these militants inside Pakistani territory; else if these groups are not controlled by Pakistan – they are non-state actors, then US has no right to attacks these groups inside Pakistani territory.)
c) the acts of insurrectionaries does not impute themselves to the state.
Circumstances precluding wrongfulness (Valid Defences)
Finally, a state may be able to avoid responsibility, if it raises a valid defence, known in the draft articles as ‘circumstances precluding wrongfulness’ – consent, self-defence, legitimate countermeasure, force majeure, and distress etc. U.S raises the defence of ‘consent’, when Pakistan holds it responsible for the violating its territorial sovereignty. According to U.S, Pakistani government has, under an agreement, allowed U.S to attack the ‘safe havens’ of the militants inside Pakistani territory. Pakistan, on the other hand, out rightly denies the existence of any such agreement.
Consequences of State responsibility
In the absence of any of these defences, the consequence of responsibility is a liability to make reparation and/or suffer the consequences of being internationally responsible. The term “international responsibility” covers the new legal relations which arise under international law by reason of the internationally wrongful act of a State. Every internationally wrongful act of a State entails the international responsibility of that State, and thus gives rise to new international legal relations additional to those which existed before the act took place.
The draft articles (Article 30-41) mention the consequences of any such international breach on behalf of a state. The first obligation on an offending state would be that of “Cessation and non-repetition” of the wrongful act or omission. After that the responsible state would be under an obligation to make full reparation – in the form of restitution, compensation and/or satisfaction – for the injury caused by its internationally wrongful act or omission. Moreover, Article 40 & 41 relate to the consequences of a breach arising under a peremptory norm of general international law. In particular, all States in such cases have obligations to cooperate to bring the breach arising under a peremptory norm of general international law to an end; not to recognize as lawful the situation created by the breach and not to render aid or assistance to the responsible State in maintaining the situation so created.
Concept Of Use Of Force (Ius Ad Bellum) And Its Exceptions Under The UN’S Charter
The recourse to war, or more precisely use of force, has been considered one of the most potent and effective instruments for implementing a state’s foreign policy since the time immemorial. However, the law regulating ‘use of force’ has undergone a considerable change since the early days of International law, when the ‘Just war doctrine’ was in vogue. Thereafter, the governing doctrine of ‘use of force’ transitioned to ‘sovereign right to resort to war’ until before the formation of the League of Nations in 1919; League of Nations, imposed certain restrictions on ‘sovereign right to resort to war”; then General Treaty for the Renunciation of war, otherwise known as the Kellogg-Briand Pact put a total prohibition on war, as opposed to ‘use of force’; and finally the U.N Charter puts a total and absolute ban on ‘use of force’, with some exceptions stipulated therein.
Use Of Force Under Article 2(4) Of The U.N Charter
The most important purpose of United Nations is “to maintain International peace and security” by repressing “acts of aggression or other breaches of the peace”. Article 2 (4) of the United Nations Charter, which has been described as ‘the corner-stone of the Charter system’, gives substance to this statement of intent in the following way:-
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations .”
Since the coming into force of the UN Charter, there have been considerable debates about the exact definition of ‘use of force’, and the precise circumstances in which ‘use of force’ could be employed by a state. In general terms, these debates ‘about use of force’ and its exceptions – to be discussed later – focus on ‘permissive’ and ‘restrictive’ interpretation of the relevant laws. The permissive school takes the general view that the customary law survives the U.N Charter; while the restrictive school takes the view that the customary law has not survived the U.N Charter, which supersedes the former.
As far as the precise definition of the term ‘use of force’, as envisaged by the afore-said article, is concerned, it is to be noted that it does not include particular forms of conduct, such as severe coercion or actions short of actual use of military force; low-level military violence; or indirect forms of aggression like economic coercion or propaganda. On the other hand, it is only the military force that comes within the purview of the term ‘use of force’ as envisaged by the article 2(4) of the UN Charter.
The debates involving the precise circumstances in which force could be used necessarily entail the question that whether the prohibition on ‘use of force’ is absolute or not. In this regard, the permissive school believes that the prohibition on ‘use of force’ is not absolute. To support its argument is says that the phrase: “against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes’ of the United Nations’ should be construed to mean that use of force may be allowed provided that the aim was not to overthrow the government or seize the territory of the state and provided that actions were consistent with the purpose of U.N. . Therefore, according to this interpretation, the use of force is not prohibited in case of ‘humanitarian intervention’, to rescue nationals abroad, to restore or further democracy by removing oppressive or terrorist-like regimes, or to further the right of self-determination etc.
The proponents of restrictive view, however, believe that article 2(4) of the Charter puts a total and absolute ban on the ‘use of force’, until and unless some specific exceptions permit it. They hold that ‘territorial integrity’ and ‘political independence’ comprise all that a state is; they do not afford loophole for action against that state – and thus all kind of force is prohibited under the charter. Moreover, since 1945, the principle of article 2(4) has been reaffirmed many times, most notably in a number of United Nation General Assembly’s resolutions;and International Court of Justice’s judgments, like Palestinian Wall Advisor Opinion; Corfu Channel Case, and :Nicaragua Case.
In the light of the above discussion, there is no doubt that a consensus exists between the international community that article 2(4) envisages a total ban on the use of force, unless other provisions of charter create some exceptions to it. Moreover, as emphasized by the International Court of Justice in the above-mentioned Nicaragua case, the primary obligation not to use force has attained the status of jus cogens. Hence the views of the permissive school of thought with regard to qualified ban on the use of force do not hold any water in the contemporary International law related to ‘use of force’. Therefore, if the U.S decides to take the permissive view on the right to ‘use of force’ with regards to its drone attacks on Pakistani territory, such view would be liable to be dismissed straight away.
Exceptions To Absolute Ban On ‘ Use Of Force’
After putting a total and absolute ban on the use of all kind of force under article 2(4), the U.N Charter provides two exceptions, whereby a state, or a group of states, can have a resort to ‘use of force’. First exception is the right of collective self-defence, which is a ‘force’ used by a competent international organization, such as UN. Second exception is the right of an individual states or group of states, acting on their own initiative, to use ‘unilateral’ force against an erring state – unilateral self-defence .
First exception is provided under chapter VII of the U.N Charter by virtue of which the Security Council may authorize collective action against a state to maintain or enforce international peace and security. This is commonly referred to as ‘collective’ use of force, because it results from collective decision by a duly authorized body. Usually, this type of armed action will involve a number of states, as with the multinational action against Iraq in 1992 following its invasion of Kuwait, but the essence is that force is used on behalf of all states in support of community goals. As far as the US drone attacks on the territory of Pakistan are concerned, no such Security Council’s resolution permitting an attack inside Pakistani territory has been approved as yet. So there arises no question of Security Council-backed collective action inside Pakistan.
The second exception is provided in article 51, which states that:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
United States, inter alia, invokes this ‘individual right of self-defence’, when Pakistan asserts that US Drone attacks inside Pakistan’s territory violate its territorial sovereignty. Pakistan, to the contrary, contends that the cross-border militant activity from the territory of Pakistan originates from non-state actors, and thus no right of self defence accrues to US to attack these militants in the Pakistan territory. Now there are two questions. First, as the collective system and norms have largely evolved in the context of state-to-state conflict across national borders, can a right of self-defence be exercised against non-state actors? And secondly, can a right of self-defence be exercised against a state that is not legally responsible for a terrorist attack emanating from its surface? Both these questions will be answered in the next section, when we would be elaborating on the right of self-defence available to U.S.
The terms ‘inherent right’, ‘self-defence’, or ‘armed attack’ employed by Article 51 are, however, not defined by the Charter, the intention being that the Security Council would interpret them in light of contemporary circumstances. This lack of proper definition has created ambiguity about the scope of these undefined concepts in a number of issues, including the instant case of U.S drone attacks inside the territory of Pakistan. The question is whether the Bush’s doctrine of Pre-emptive strikes, intervention in rescue of nationals living abroad, reprisals, hot pursuits, and above all response to terrorist attacks or attacks by non-state actors come with in the scope of ‘ inherent right of individual or collective self-defence , if an armed attack occurs’ as envisaged by the art. 51 of the Charter or not?
The phrase ‘inherent right of self defence’ has caused considerable debates among the International law experts. First debate has been related to ‘pre-emptive strikes’. The proponent of these strikes – the permissive view, like America, Israel, and South Africa etc, hold that customary law, developed in the famous ‘Caroline case’, survives Art. 51 of the Charter, and thus pre-emptive strikes are permissible; while the those holding the restrictive view say that the customary law is superseded by the Charter, and hence the right to self-defence is only restricted to the situation when an armed attack ‘occurs’, and not in any other case. Now whether U.S can conduct anticipatory drone attacks on the surface of Pakistan or not is a question that merits discussion in the next section.
Another debate involves what constitutes an armed attack; and against which targets could a right of self-defence be exercised under article 51 of the Charter? Does the provision of finance, training facilities, weapons and general encouragement to non-state actors operating in other state’s territory constitute an ‘armed attack’ by the first state? Secondly, in case of an attack by non-state actors, what degree of involvement of the state from where the non-state actors are operating is necessary for the attack to be called an ‘armed attack’? The International Court of Justice, in its decision in the Nicaragua case, found that sending ‘by or on behalf of a state’ of armed bands or mercenaries into the territory of another state, ‘which carry out acts of armed force against another State of such gravity as to amount to an actual armed attack conducted by regular forces’, constituted an armed attack; while supply of arms or logistical support by itself did not amount to an armed attack. This decision read with the concept of state responsibility and the General Assembly’s resolution on definition of aggression clearly vindicates Pakistan’s point of view, if it is able to prove that it has got nothing to do with the militants operating from the territory of Pakistan, who are a law unto themselves.
The final point in Article 51 is that it is mandatory for a state resorting to self-defence to report the matter to Security Council, after which the latter will take actions to control the situation. Now it is apparent that U.S has not fulfilled this duty under art. 51, after it resorted to what it calls self-defence against the terrorists operating from inside Pakistan.
Article 51 also envisages a paradigm for collective self-defence – use of force in self-defence by two or more states. Collective self-defence will be lawful in the same circumstances as individual self-defence, like when an armed attack occurs or, if customary law survives, in the wider situations. Moreover, the measures taken in self-defence will have to be reported to Security Council, as indicated above. The attack by western powers against Iraq, when the latter attacked Kuwait is a classic example of collective self-defence. Moreover, the military alliances like NATO are also based on the premise of collective self-defence.
Finally, there are some controversial instances of ‘self-defence’, like reprisals and hot pursuits, which need to be discussed briefly, as U.S has often resorted to them in response to Pakistan’s allegations of violation of its sovereignty. On the face of it, both these concepts seem to be punitive rather than in self-defence.
Reprisals consist of action in response to a prior unlawful military attack, aimed not at defending oneself against an attack as it happens, but rather at delivering a message of deterrence against the initial attack being repeated. Under customary International law, reprisals were lawful if certain criteria were met. The U.N Charter, on the other hand, has prohibited all kind of ‘use of force’, including reprisals, illegal. Moreover, The Declaration on Principles of International Law of 1970--a General Assembly resolution, which is widely considered to be the interpretation of the general international law, asserted that ‘states have a duty to refrain from acts of reprisal involving the use of force’. Keeping all this in mind, the plea of U.S that it is acting in reprisals, if it ever took it, is not based on any legal basis.
The plea hot pursuits, on the other hand, had been surely taken by U.S on a number of occasions. The question is whether the Afghanistan-based armed forces of U.S may cross the frontier into Pakistan, without permission, in order to pursue and capture AlQaeda/Taliban militants who have attacked, or who are about to attack, coalition forces inside Afghanistan?? International law, as apparent from the condemnation of Security Council in Rhodesia v Mozambique case, is clear in this regard that the concept of ‘hot pursuit’ exists only under the law of the sea, and in the absence of an agreement between the states concerned permitting such action, there can be no right of hot pursuit across land borders. Now whether such agreement exists or not is a matter of controversy, as indicated elsewhere.
International Humanitarian Law (Ihl)
According to International Committee of the Red Cross (ICRC), “International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict . It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. International humanitarian law is also known as the law of war or the law of armed conflict. “ It is, therefore, apparent, that IHL does not deal with whether a armed conflict is ‘just’ or not; on the other hand, its operations start only after a an armed conflict has started.
The above definition also makes it apparent that International humanitarian law, also called ‘law of armed conflict’, covers two areas: a) the protection of those who are not, or no longer, taking part in fighting; b) restrictions on the means of warfare – in particular weapons – and the methods of warfare, such as military tactics.
Moreover, International humanitarian law only applies to where there is an international armed conflict, which is that conflicts in which at least two states are involved. Non-international armed conflicts, on the other hand, are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. In case of non-international armed conflicts, the municipal human right laws as well as a body or corpus of International Human rights laws (IHRL) – described in next sub-section – apply.
Now the question is: firstly is the war on terror an armed conflict or not? If it is one, whether it is an international one or a non-international one? Or more precisely, do the U.S drone attacks against militants hiding inside Pakistani territory involve an armed conflict or not? And if they do, is it an international armed conflict or a non-international one?
The United States has made the unilateral determination that an armed conflict exists, a view challenged by the UN Working Group on Arbitrary Detention which argues that international terrorism is not an armed conflict for the purposes of the application of IHL. United States stance necessarily implies that a terrorist attack by a national of a State A against State B is tantamount to an attack by State A against State B, irrespective of the fact whether the concerned national of State A is a non-state actor or not. Therefore, the argument goes, State B is justified in attacking State A, and thus International Humanitarian law comes in to play – as the conflict is between two states.
The traditional concept of State Responsibility, however, negates this stance of United States, for a state could be only held responsible for the acts which are taken by it or on its behalf. In this case, a non-state actor is attacking State A, who is retaliating – implying thereby that the conflict is between a non-state actor and a State. This necessarily implies that an international armed conflict does not exist, and hence IHL does not apply.
International Human Rights Laws (Ihrls)
International Human Rights Laws is a body of human right laws, made up of various International human right instruments, which are binding on the states that have ratified them. In principle, the states that ratify these instruments commit themselves to enact domestic human rights legislations. Various Human right instruments include ‘Universal Declaration of Human Rights(UDHR)’, the International Covenant on Civil and Political Rights(ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Since the adoption of the last two Covenants a number of other treaties (pieces of legislation) have been adopted at the international level. They are generally known as human rights instruments . Some of the most significant include: Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1984), Convention on the Rights of the Child (CRC), International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families etc.
It is important to differentiate between international humanitarian law and human rights law. While some of their rules are similar, these two bodies of law have developed separately and are contained in different treaties. In particular, human rights law – unlike international humanitarian law – applies in peacetime, and many of its provisions may be suspended during an armed conflict.
Therefore, the body of law that constitutes International Human Rights Law will be only applicable in peace times, and in case of non-international armed conflicts. So, if the U.S drone attacks does not come in the definition of armed conflict, or more specifically an international armed conflict, then the IHRL, or domestic human rights law, will apply; else IHL will apply.
The Legality Of U.S Drone Attacks Inside Pakistan: The Defences Available To The United States
‘Aggressor’ state usually tries to mask its aggression by pleading a claim of right such as: self defence, multilateral authorization, or legal invitation. ‘Self-defence’ and ‘multilateral authorization’, known as unilateral self-defence and collective self-defence respectively, are covered by article 51 of the U.N Charter. As already noted elsewhere, no multilateral authorization is available to U.S to carry on drone attacks inside the territory of Pakistan, so no plea of collective self-defence, if at all taken by U.S, can hold ground. The plea of unilateral self-defence on part of U.S, on the other hand, merits deep discussion, which will be undertaken in this section. Secondly, the contention of the U.S that it has a ‘legal invitation’ by the government of Pakistan in shape of an agreement between the two countries, whereby Pakistan has authorized U.S to undertake drone attacks inside the territory of Pakistan would be discussed elaborately in this section.. Finally, a brief discussion would be undertaken about the legal consequences of the state responsibility on behalf of Pakistan or/and U.S vis-à-vis the drone attacks.
The Plea Of Unilateral Self-Defence On Part Of U.S
This subsection will discuss whether or not the plea of ‘unilateral self-defence’ on part of US, whereby it has been conducting cross-border drone attacks on the Pakistan-based militants who attack collation forces in Afghanistan, is within the ambit of article 51 of UN Charter and other relevant legal international law concepts, resolutions and instruments. For this defence of U.S to attack inside the territory of Pakistan to perfect, either the regular armed forces of Pakistan should attack the coalition forces inside Afghanistan, or the conduct of the militants should be somehow attributed to the State of Pakistan. This necessarily means that the raids on coalition forces inside Afghanistan should be conducted by or on behalf of the State of Pakistan or any of its state organs, as per the concept of state responsibility contained in the draft articles of ILC, read with the Resolution 3314 of United Nations General Assembly.. According to these instruments, the right of self-defence is only perfected when an act of force/aggression is carried out by or on behest of one state against the territorial sovereignty of another state, and in no other case. It is clear, however, that the regular armed forces of Pakistan are not, at all, involved in the whole scenario, so thereby no question of state responsibility on behalf of Pakistan in this regard.
As far as these militants operating on behalf of Pakistan -- or in the language of the draft articles, acting on the instructions of, or under the direction or control of Pakistan – are concerned, there are two possibilities in which Pakistan could be held liable for the activities of the militants, and hence U.S could legally resort to the right of ‘self-defence’ against the state of Pakistan. First possibility arises when Pakistan by its ‘act’ controls or gives directions to these militants to carry out cross-border attacks; and secondly, when Pakistan, claiming that it has got nothing to do with these militants, is unwilling to stop them from operating from inside Pakistani territory – ‘omission’ on part of Pakistan. If, on the other hand, Pakistan comes out clean from both these possibilities, then U.S does not have an ‘inherent’ right to self-defence against the militants inside Pakistani territory.
Now both of these possibilities rest on factual controversies. U.S, on the one hand, has been, until the recent all-out attack by the Pakistan forces against the militants in swat and tribal areas, urging Pakistan to ‘do more’ in order to eradicate the hideouts of the terrorists operating from Pakistan. The basis of this ‘do more’ argument has been that some how the act of these militants could be attributed to the State of Pakistan or any of its organs including ISI, given the history of honeymoon between Pakistan and the Taliban in the past. Pakistan, on the other hand, has been arguing that firstly it is, not at all, supporting these militants; and secondly, it is doing all it could to eradicate their infrastructure inside Pakistan.
In support of this argument, Pakistan says that it has employed a contingent of over one lac army personnel in order to not only extirpate the militant hideouts, but also to stop them from infiltrating across the border inside Afghanistan. Moreover, the argument goes, that the militants are acting against the interests of Pakistan itself when they indiscriminately kill civilians as well as government officials through massive suicide attacks; therefore, in no way would Pakistan support them, or not want to eradicate them. Besides, Pakistan has captured a number of most-wanted terrorists in the recent past.
Therefore, the answer to the legal question whether U.S could have a resort to ‘self-defence’ lies in sorting the factual controversies, and not in the legal arguments, which are crystal clear from the very start. If U.S is able to prove that the acts of the militants are attributable to Pakistan, than it has a right to ‘self-defence’ against the state of Pakistan. On the other hand, if the Pakistan proves that these acts of terrorist are not imputable to itself, then U.S would have no right to attack militant hideouts inside Pakistan, either through drone attacks or by any other way; and if in the latter case, if U.S continues to undertake drone attacks inside Pakistani territory, this would not only amount to the violation of the territorial sovereignty of Pakistan, but would also warrant ‘self-defence’ on part of Pakistan against the American forces. Moreover, as mentioned in Article 4(f) of General Assembly’s resolution on the ‘definition of aggression”, Pakistan, in this scenario, would also reserve its right of self-defence against Afghanistan, which would be allowing its territory to be used by American forces stationed in Afghanistan for perpetrating acts of aggression against Pakistan.
Notwithstanding the afore-said arguments, some writers have come up with a rather unique argument, which says that in case of an armed attack on a State by non-state actors operating from another State, former can have a resort to ‘self-defence’ against latter, irrespective of the fact whether the latter has any link or involvement with the non-state actors or not. These writers hold that as ‘host’ state is unwilling or unable to prevent such attacks, the victim state has the ‘inherent’ right – taking the words from the article 51 of the U.N Charter -- to defend itself against the territory of that host state, quite independently of whether it has breached international law or not. This rather weird argument, however, does not hold any ground in the light of the afore-mentioned discussion involving the concept of state responsibility.
Another argument which the U.S could come with is that though militants are not operating on behalf of the State of Pakistan, but the latter provides finance, training facilities, weapons and general encouragement to these non-state actors operating. Now the question is that whether this case instigates the right of ‘self-defence’ on part of U.S or not. The answer lies in the discussion undertaken elsewhere about what constitutes an ‘armed attack’ under article 51 of the U.N Charter.
Finally, we need to see that whether the measures taken by U.S in self-defence – if at all this plea on behalf of U.S is accepted -- are proportional or they involve wanton destruction of life and property of innocent civilians. The record of U.S in this regard, to say the least, is dismal, as mentioned elsewhere in the report. Secondly, we need to know whether U.S reports to the Security Council after undertaking every drone attack, as required by the latter part of the article 51 of the U.N Charter or not. So far, no such report has come to light, meaning thereby that the U.S has not been fulfilling its duties under article 51 of the U.N Charter, even if we admit, for the argument sake, that U.S has the right to self-defence.
The long and short of it is that until and unless the correct facts are gleaned out of mere controversies, no final conclusions with regard to the legality U.S’s right to self-defence can be arrived at.
The Plea Of‘Legal Invitation’On Part Of Us
One of the pleas taken by US is that there exists an agreement between the governments of Pakistan and U.S, whereby the former has allowed the latter to undertake drone attacks on its territory in order to eradicate the militants’ ‘safe havens’. This assertion was further highlighted when recently an American newspaper claimed that the drone attacks were actually operating from a military base inside Pakistan. The government of Pakistan, on the other hand, denies the existence of any such contract or agreement, and continues to take the principles stance that these attacks constitute a circumvention of the territorial sovereignty and integrity of the state of Pakistan. This ‘legal invitation’ or ‘consent’ will be legally analyzed in this section in the light of the general norms of international law, with special reference to the articles related to the plea of consent in the ILC draft articles., without going into the factual controversy of the existence or non-existence of such an agreement.
One of the circumstances precluding wrongfulness of a state is ‘consent’, which is defined in Article 20 of the draft articles as follow:-
“Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”
Three Conditions for a valid consent
This article, along with other established principles of law, holds that for a plea of ‘consent’ be valid following three conditions should be fulfilled:-
There must be a proper authorization of the consent
The consent must be actually expressed
The consent should be a ‘free consent’.
Now let us assume that there exists an agreement between Pakistan and US authorizing the latter to carry on the drone attacks inside its territory. The next question would be, whether this agreement of consent fulfill the afore-mentioned conditions or not.
The first condition stipulates that it needs to be seen whether the agent or person who gave the consent was authorized to do so on behalf of the State or not; and if not, whether the lack of that authority was known or ought to have been known to the acting State. Pakistan could argue, that the alleged authorization was given by a military dictator, who had usurped the office of the president, without any due and proper consultation with the elected parliament. Therefore, General Musharraf was not authorized to enter into any agreement on behalf of the government of Pakistan with any other government, including U.S. However, all these are internal arrangements of Pakistan, of which any other state may not be cognizant of. Besides, there could be arguments that Musharraf got himself elected through a referendum, wherein more than 95 % votes were casted in his favour. Therefore, legally speaking, General Musharraf was authorized to enter into any such agreement with U.S.
Secondly, as per the conditions stipulated above, any such consent by the government of Pakistan must be actually expressed to U.S, rather than merely presumed on the basis that Pakistan would have consented if it had been asked. Now unless U.S comes up with any such valid and express agreement, this condition of a valid consent would not be fulfilled. The burden of proof, in this case, would lie on Pakistan to prove that the agreement was not entered into of its free consent – which is the last condition that needs to be fulfilled in order for a valid consent on part of Pakistan.
It is one of the fundamentals the contract act all over the world, that any contract or agreement executed without free consent of any party would render the whole contract voidable at the option of the party pleading lack of free consent. Free consent means that the agreement must be entered into without coercion, fraud, undue influence and misrepresentation on part of any party to the agreement. Pakistan, in this regard, can plead that any such agreement was executed after U.S exerted severe coercion or undue influence on Pakistan. The famous phone call by the American Secretary of State, Collin Powel, to the General Musharraf of Pakistan, wherein the former asked (rather exercised undue influence of a mighty superpower) for unqualified support of Pakistan, could well prove to a strong evidence in this regard that Pakistan could put in any international forum.
Actual Conduct to be within the four-corners of the terms of the agreement
After fulfilling these three pre-conditions of a valid consent, U.S would need to prove that the actual conduct of targeting the militants through drone attacks falls with in the four-corners of the actual consent that was given by Pakistan, if at all given. For example, consent to over flight by commercial aircraft of another State would not preclude the wrongfulness of over flight by aircraft transporting troops and military equipment. Similarly, consent to the stationing of foreign troops for a specific period would not preclude the wrongfulness of the stationing of such troops beyond that period. The contention of Pakistan could be that the alleged agreement only allowed targeting the militants, and not the civilian population. Killing and maiming the latter, therefore, is not according to the agreement and amounts to, what in Criminal law is called, Trespass ab-initio.
Consent in case of obligations arising under a preemptory norm of general International law.
Finally, and this is very important, we need to see whether the U.S drone attacks inside the Pakistani territory fall within the ambit of the instance mentioned in article 20 of the draft articles, whereby, despite resorting to a defence precluding wrongfulness, nothing would preclude “the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law.”
In accordance with article 53 of the 1969 Vienna Convention, a peremptory norm of general international law is one which is accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.
The criteria for identifying peremptory norms of general international law are stringent. Therefore, until now relatively few peremptory norms have been recognized as such. But various tribunals, national and international, have affirmed the idea of peremptory norms in contexts not limited to the validity of treaties.Those peremptory norms that are clearly accepted and recognized include the prohibitions of aggression, genocide, slavery, racial discrimination, crimes against humanity and torture, and the right to self-determination.
Among these prohibitions, it is generally agreed that the prohibition of aggression is to be regarded as peremptory. Therefore, and this is the conclusion of this section, any agreement allowing U.S to employ ‘use of force’ inside Pakistan’s territory would be against the preemptory norm of not to use aggression against any state in any circumstance, except for the exceptions allowed therein. Therefore, the plea of the U.S that it is undertaking drone attacks inside Pakistan on Pakistan’s invitation does not hold any ground.
Consequences Of State Responsibility
The discussion so far, clearly brings out the fact that the “international responsibility” of Pakistan would lie in the case where the acts of the non-state actors operating from inside Pakistan could be attributed to the state of Pakistan. On the other hand, the ‘international responsibility’ of U.S would entail if it continues to attack the territorial sovereignty of Pakistan through drone, even after it is established that the state of Pakistan has got nothing to do with the non-state actors who are conducting operations on the Coalition forces in Afghanistan. The consequences of both these scenarios will be briefly discussed hereinafter, in the light of the discussion of the consequences of the state responsibility undertaken in the previous section.
According to the Article 43 of the draft articles, Pakistan or U.S, whoever is the injured state, can invoke the responsibility of the other state by giving a notice of its claim, which should specify, the conduct that the responsible state should take in order to cease the wrongful act, if it is continuing; and what form of reparation -- compensation, restitution, and / or satisfaction -- does it want. As per article 44, if the claims is not brought forward in accordance with any applicable rule relating to the nationality of claims; or the claim is one to which the rule of exhaustion of local remedies applies and any available and effective local remedy has not been exhausted, than no state responsibility could be invoked.
In case of Pakistan's responsibility, it would first be required to stop instructing, aiding, or controlling the non-state actors who are attacking the NATO forces inside Afghanistan. Secondly, Pakistan would be required to make a solemn promises that it would not repeat this wrongful act in future. Furthermore, the coalition forces reserve the right to ask for reparation in the shape of restitution, compensation or/and restitution from Pakistan for the injuries to the lives and properties of their personnels.
On the other hand, If U.S is held internationally liable for breaching the territorial sovereignty of Pakistan thought continuous and incessant drone attacks inside its territory, it would have to stop these cross-border incursions, followed by a solemn undertaking that it will not undertake these attacks in future. Moreover, Pakistan has every right to ask for reparation from the America for the loss of life and property of the innocent civilians who are killed by these drone attacks .
So far so good, but U.S has a very strong point in shape of Article 45 (b) of the draft articles, which says that the responsibility of the a state may not be invoked if the injured state is to be considered as having by reason of its conduct, validly acquiesced in the lapse of the claim. The Obama administration may say that even if U.S entails state responsibility for illegally attacking inside the Pakistani territory, Pakistan has, by its conduct, whereby it has not given any notice of claim to U.S or any other multilateral organization including U.N, has acquiesced its right to invoke state responsibility of U.S. This is a very strong argument, and would require equally strong legal answers by Pakistan in order for it to build a strong case against the U.S drone attacks.
The long and short of the whole discussion is that if U.S can present irrefutable evidence of Pakistan's involvement with the non-state actors operating from the tribal areas of Pakistan, only then the plea of self-defence on its behalf can have legal legs to stand. The plea of U.S that it has entered into an agreement to attack inside Pakistani territory does not hold in the light of the discussion held earlier. On the other hand, if Pakistan proves that it is not supporting, instructing or controlling these non-state actors -- either by way of its acts or omissions or a combination of both, then it would not have any state responsibility; and in this case, if U.S attacks inside Pakistan, it would be breaching the territorial sovereignty of Pakistan.
Now what may happen, if the Pakistan does not have the necessary ability and wherewithal to pound and eradicate the terrorists' hideouts in the tribal areas of Pakistan, despite all the sincerity of purpose and tenacity on its part? The answer is: as the Pakistan is doing all it could, there would be no state responsibility on part of Pakistan. Thus US cannot resort to self-defence inside Pakistani territory, only on the premise that Pakistan forces, with all their might and ability, have not been able to stop the cross-border activities of the militants. The solution is that US should make Pakistan able by providing technology, especially drones, train forces, and share intelligence, with the help of which Pakistani forces will themselves attack these militants. In any case, US would not be legally allowed to attack them, because it would mean violation of the territorial sovereignty of Pakistan.
To conclude, it must be said that most of the current international law related cases have not been solved due to lack of correct information about the actual facts, and not due to some deficiency in the international law regime. Same is the case in the instant matter, whereby both the countries, U.S and Pakistan, have their own set of facts on which they base their legal arguments. It is ironic to say that both countries are holding correct legal positions with regard to the facts they present. So until and unless an objective fact-finding mission is undertaken by U.N or any other multilateral organ, we may not be able to ascertain the actual facts; and it is axiomatic that until and unless the correct facts are known, no judge in the world can arrive at a final and correct decision in any dispute.
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