The legality of US drone strikes against terrorists in Pakistan and Yemen according to international law.

Introduction

The US drone programme has its roots in the Vietnam War when the Pentagon tested unmanned and unarmed aerial vehicles for intelligence, surveillance and reconnaissance missions[1]. After the 9/11 terror attacks, the incumbent President of the US, George W. Bush, ordered US drones equipped with missiles to seek and kill Al Qaeda leaders[2], setting in motion their present day use. Today, the US owns more than 7,000 drones[3] and the Central Intelligence Agency (CIA) operates a large number of these drones in Pakistan and Yemen for strictly covert operations. According to statistical data compiled by The New America Foundation, there have been a total of 422 drone strikes in Pakistan and Yemen from 2004 to 2013 (approximately 351 strikes in Pakistan and 72 strikes in Yemen), leading to an estimated total mortality count of 2,426-3969[4]. Given the dramatic increase in drone strikes under the Obama administration and the relatively high, yet unaccounted for death toll, it has become essential to discuss the legal and strategic ramifications of the drone operations. This paper will discuss the possible legal violations under the rules of the use of force and conduct of hostilities and the respective defences involved. It will conclude that the drone strikes legally breach domestic laws but still fall within the legal ambit of international law. It will also conclude that there are severe human rights violations involved. Similarly, this paper will deliberate over the strategic consequences of the drone strikes, and conclude that the strikes are strategically counter-productive and unwise.

Legal Ramifications: International Law

In essence, the drone operations conducted by the CIA target terror suspects based in Pakistan and Yemen. The drones are controlled by reachback operators in the US who, using joysticks reminiscent of those used in video games, zoom in on targets in sovereign foreign countries that the US is not at war with[5], and fire missiles at them[6]. The principal ramification of drone strikes is that they seemingly violate the territorial sovereignty of Pakistan and Yemen. Article 2(1) of the UN Charter provides for the sovereign equality of all UN members[7] and, therefore, unauthorised drone strikes by the US could constitute a breach of Article 2(4) of the Charter, which prohibits the use of force by a state against the territorial integrity of another state. The targeted attacks carried out by the US in Pakistan and Yemen could be lawful, however, if they correspond to one of the two exceptions: if the host state consents to the use of force[8] or if the use of force is employed in self-defence in response to an armed attack, whereby the host state is unwilling or unable to take appropriate action[9].

As far as Pakistan is concerned, recently released Wikileaks clearly establish that the Pakistan government tacitly approved of the US drone operations[10], despite disapproving of them publicly. Pakistan’s former Prime Minister, Yusouf Gilani, was quoted as saying, ‘I don’t care if they do it as long as they get the right people. We’ll protest in the National Assembly and then ignore it.’[11] Given the fact that some of the drone strikes are conducted from the Shamsi airbase in Baluchistan[12], the argument that Pakistan tacitly approves of the operations seems convincing. Moreover, very recently, Pakistan’s former President, Pervez Musharraf, has admitted openly to consenting to drone strikes[13]. Even though he claims that he only consented to a few risk-free strikes, this statement confirms beyond doubt that his express consent was given and therefore Pakistan’s sovereignty was not breached.

In the recent times, Pakistan officials have shown stronger opposition to drone strikes, leading to a sharp decline in the number of drone strikes in the country. Compared to the 122 strikes in 2010, there were only 48 in 2012 and merely six in 2013[14]. One reason cited for this decline was that Pakistan had withdrawn support for these strikes[15]. It can be concluded that the US is violating the UN Charter by its continued use of force despite the withdrawal of consent. However, it is essential to remember that consent need not be constant and can be expressed at different points in the time continuum, insofar as it is proven to be genuine[16].

In the case of Yemen, the evidence is clear enough to constitute consent to the US drone operations. Documents released by Wikileaks reveal that Yemen’s President had told General David Petraeus, then the head of CENTCOM, ‘We’ll continue saying the bombs are ours, not yours.’[17] Yemen’s President, Abed Rabbo Mansour Hadi, publicly supported the employment of drones in his widely reported September 2012[18] speech at the Woodrow Wilson Center. Al Qa