Drone strike kills five in North Waziristan

Nine suspected militants killed in drone strike near Pak-Afghan border.

Such screaming headlines in Pakistani newspapers or TV channels meanwhile are part of the routine reporting. Its frequency in 2015 so far has gone down – say about seven such strikes in the border region. But the preceding years, particularly under the Obama administration witnessed an unusual surge, evident from the fact that

Total US strikes since 2004	415 (until February 10, 2015)
Total Obama administration strikes	364
Total reported killed	Between 2,452 to 3,957
Civilians reported killed	416-959 (until January 2015)
Children reported killed	168-204
Total reported injured	1,142

Strikes under Bush were nearly 50 but increased seven-fold under Obama. Despite repeated condemnation and protests, the CIA continued lobbing Hellfire missiles into targets in various parts of Federally Administered Tribal Areas (FATA).

Among those killed were seminary students, those attending funeral prayers, even an eight year old Nabeela (October 2012) who witnessed her grandmother turn to shreds while picking vegetables in Miranshah.

Victims’ Challenge to Drones

What does it mean for Pakistanis at large?

A petition filed through the Foundation for Fundamental Rights by many against the US and Pakistani governments with the Peshawar High Court in 2012 said that drone strikes in North Waziristan killed as many as 896 Pakistani civilians, until December 2012, among them only 47 foreigners (ca five percent). Similarly, in South Waziristan 70 drone strikes killed 553 local civilians.

The petitioners also contested the US labeling of these foreign elements as their enemy and pointed out that the ratio of the foreign elements killed in these strikes was negligible while local civilians, non-combatant casualties were shockingly high beside damage caused to the properties of the local population, their households and other moveable properties including cattle heads.

Eventually in its ruling on March 11, 2013 the Peshawar High Court declared that the United States’ drone strikes in Pakistan amounted to war crimes.

The Court ruled

That the drone strikes, carried out in the tribal areas (FATA) particularly North & South Waziristan by the CIA & US Authorities, are blatant violation of Basic Human Rights and are against the UN Charter, the UN General Assembly Resolution, adopted unanimously, the provision of Geneva Conventions thus, it is held to be a War Crime, cognizable by the International Court of Justice or Special Tribunal for War Crimes, constituted or to be constituted by the UNO for this purpose.

That the drone strikes carried out against a handful of alleged militants, who are not engaged in combat with the US Authorities or Forces, amounts to breach of International Law and Conventions on the subject matter, therefore, it is held that these are absolutely illegal & blatant violation of the Sovereignty of the State of Pakistan because frequent intrusion is made on its territory / airspace without its consent rather against its wishes as despite of the protests lodged by the Government of Pakistan with USA on the subject matter, these are being carried out with impunity.

That the US Government is bound to compensate all the victims’ families at the assessed rate of compensation in kind of US dollars.

The ruling also contained sections that many laughed off as “unrealistic” such as;

• The Government of Pakistan and its Security Forces to ensure that in future such drone strikes are not conducted & carried out within the sovereign territory of Pakistan. Proper warning be administered in this regard and if that does not work, the Government of Pakistan and State Institutions particularly the Security Forces shall have the right being under constitutional & legal obligations to shut down the drones, attacking Pakistani territories or when these enter the airspace of Pakistan Sovereign territory.
• The Government of Pakistan should take the matter seriously before the Security Council of the UNO and in case it does not succeed there if VETO power is unduly exercised by the US Authorities then, urgent meeting of the General Assembly be requisitioned through a written request to resolve this menace in an effective manner.
• That The Government of Pakistan shall also request the UN Secretary General to constitute an independent War Crime Tribunal to investigate & enquire into all these matters and to give a final verdict as to whether the same amounts to War Crime or not and in the former case to direct the US Authorities / Government to immediately stop the drone strikes within the airspace / territory of Pakistan and to immediately arrange for the complete & full compensation for the victims’ families of the civilians of Pakistan both for life & properties at the rate & ratio laid down under the international standards.

This ruling, however, had minimal impact on the drone strikes which continued unabated, except for a lull of a few months following requests by the Pakistani premier Nawaz Sharif in late 2013, when the government had wanted to engage militants in talks.

Let us see what the positions of the key stakeholders are!

The United States

As recently as February 6, in his national security strategy, which President Barack Obama sent to Congress on February 6, 2015, the president reiterated:

“We endeavor to detain, interrogate, and prosecute terrorists through law enforcement. However, when there is a continuing, imminent threat, and when capture or other actions to disrupt the threat are not feasible, we will not hesitate to take decisive action,” the president says, underscoring that the US would continue chasing whoever it perceives its enemy and wherever they are.

The American government views the drone program as one of its most effective weapons against al Qaeda and the Taliban, described by CIA director Leon Panetta as “the only game in town.”

The US invokes the notion of preemptive self-defense as a justification to ensure what it calls national security. This way it bends and challenges the national and international law – impinging on state sovereignty. Major casualty in the international context is state sovereignty because it has now avoided boots on ground.

• It is a circumvention of bilateral or multi-lateral consultative process, whereby the US uses Authorisation for Use of Military Force (AUMF) as a preamble to drone strikes (passed soon after Sep 2011 attacks)
• President Obama has assured greater cooperation with a renewed intention of using UAV’s, legally and proportionally. Has he not learnt from his history?
• The CIA claims the predators are precise but how does this reflect on the accuracy/precision side of things when up to 67 children are killed in one attack alone) or dozens others killed when attending funeral prayers?

Pakistan’s stance

Pakistan officially condemns and protests drone attacks. It insists that other bigger countries could also draw on the US justification and thus launch attacks on targets in neighboring countries under the pretext of national security.

The army spokesperson Maj. General Asim Bajwa reiterated on Feb 12 (at GHQ) before media that since the military has been conducting the Zarbe Azb operation since June, it thinks there is no need for drone attacks. Nor does Pakistan accept them as legitimate he said.

Imran Khan, the opposition leader, believes drone strikes fuel the rise of militancy in the FATA region.

Religious parties considered the death of Hakimullah Mehsud on November 1, 2013 a blow to the peace process. This positioning of the right-wing religious parties also stoked public sentiment.

As a whole, almost all major political parties publicly oppose and condemn Drone  and indeed this is what constituted the basis for the Peshawar High Court to declare drones as against Basic Human Rights and are against the UN Charter , the UN General Assembly Resolution, adopted unanimously, the provision of Geneva Conventions

UN and International Community

The de-jure and moral position of the UN-led international community draws on Geneva Conventions, which require any use of force, must conform to the principles of necessity, distinction and proportionality. Thus, theoretically

• ‘Signature strikes’ policy is indistinct.
• Disproportionate: Excessive collateral damage + constantly terrorizing the native population
• The CIA is not a legal armed force so its drone strikes should further tarnish the legality of these attacks.
• The UN and European Commission on Human Rights, watchdogs such as Amnesty International and Reprieve have repeatedly condemned these attacks on foreign sovereign lands, and published reports about the negative impact on human rights as a result of drone strikes.

But, unfortunately – geo-political considerations trump socio-political concerns. Individual citizens and states hardly matter for geo-politics.

This has entailed serious Socio-Political and Legal Implications

Legal

Drone strikes have never been explicitly authorized by the UN, nor formally owned by the US administration, nor has Pakistan officially invited or granted the US consent in any form to conduct these strikes: That means they violate the sovereignty and territorial integrity of Pakistan.

Ben Emmerson, the UN Special Rapporteur on Human Rights and Counterterrorism, in March 2013, confirmed this violation of national barriers after ascertaining that drones also caused innocent civilian deaths.

Such strikes are detrimental to the principle of rule of law also because Recognition of international law comes through national law. So far no compensatory mechanism has evolved because Pakistan does not officially consent to the drones, nor does it approve of these. Pakistan often condemns them.

If it were legal

• Apportioning responsibility would have been easier and
• a mechanism to compensate civilians would have evolved

Absence of transparency

Neither the public, nor the humanitarian watchdogs have access to official data of CIA drone operations.

Accountability

Because of the clandestine nature of the operations, as ex-UN rapporteur on human rights Philip Alston had also pointed out, fixing responsibility is extremely difficult, making accountability in case of collateral damage extremely complicated if not impossible.

 Democracy

Drones also feed into the anti-democracy narrative of terrorists/militants: Although, soon after the September 11 attacks and the war on terror, the United States has been promoting a model of rights based westernized democracy, this model is slowly and gradually becoming synonymous to symbols such as Drones, Gitmo, Abu Gharib and Bagram detention facilities. These symbols are now known more for violation of fundamental rights, and less for sincere concern for rule of law and human rights. So are drone strikes just technology that is a substitute to strategy?

Socio-political implications in Pakistan

Drone strikes have resulted in political polarization within the country with pro and contra stakeholders fighting it out. The biggest casualty of the UAV strikes is the violation of Part II of Pakistani constitution outlining fundamental rights and the protection of those rights by the State. Erosion of common peoples’ trust in national and foreign governments has serious implications for the rule of law.  Drone strikes have not only proven to be ineffective, but are also acting as means of de facto extrajudicial killings.  (Moreover, in Hakimllah Mehsud’s case, it took sixteen strikes, fourteen months and between 207 and 321 additional deaths to finally kill him).

Unfortunately, US justifications for “action in self-defense” are not internationally and formally contested. Self-defense is usually taken when threat becomes imminent like a physical attack by a person, individuals or a militia force. Whoever you can follow you does not warrant as imminent threat.

Consequences

The biggest casualty is the Fundamental Rights enshrined in Chapter 2 of the Pakistani constitution. Civilian harm is much more than it appears: nobody knows how many legitimate targets out of the 3900 or so killed so far. Entire civilian community is exposed to death because of an ill-perceived propagated notion of self-defense against immediate threat. FATA residents are totally exposed to external aggression in the absence of fundamental rights (since Pak law doesn’t apply there).

These Strikes are counter-productive because they are de-facto extra-judicial killing and thus serve as oxygen to the anti-government and anti-US militants who use these attacks to justify their terrorist activities. There is No accountability because of absence of transparency.

Most importantly, the US represents the western rights-based democracy anchored in fundamental rights – but drones / Abu Ghraib, Gitmo, Bagram have become synonymous with this ideal of democracy. Thus whatever the US and allies may propagate about rule of law or respect for international humanitarian law loses weight because of violations they themselves are committing.

Psychological impact on native people

As reported (Express Tribune, January 22, 2015), People coming to Peshawar from FATA are suffering from Post-Traumatic Disorder Syndrome and anxiety disorders.

Along with Peshawar and its surrounding areas, places like North Waziristan and Khyber Agency have seen a lot of trauma, too, over the years, given that the entire region has been dealing with varying forms of militancy and is burdened by both local and foreign threats of violence.

What can be done?

Sustained pressure has worked in the past forcing the US to be more forthright about its drone program in Pakistan. But crucially this pressure has emanated from various international human rights NGOs like Amnesty, Human Rights Watch, Reprieve etc. and not from the Pakistani state. Driven by geopolitical realities, Pakistan’s own narrative on drones, has also been quasi incoherent and ambiguous, most probably because of its limitations as an embattled state.

Assuming that geo-politics – guided by the overarching by US and European corporate sector’s interest – will always trump the international and national humanitarian law, and that the US will continue killing people in the dark and eventually killing many civilians inside Pakistan, in the name of national security, one can only hope and urge that the Pakistani state would have to rise and demand that every strike must be vetted by an independent body of Pakistani and US legislators. Absence of transparency would mean more continued damage to civilians’ i.e. negative impact.

That means all stakeholders and the extended global community must press for accountability and work for an international UN-led transparency mechanism that obligates users of drones and other lethal weapons of war to ensure as much transparency as possible.

The proposed legal mechanism can, for instance, ask the CIA as to bring out details of all strikes in the past, present it to an independent forum comprising Pakistan as a prime stakeholder and independent national/international organisations working on the issue. The forum should hold a public inquiry into the harm that has been caused to civilian lives.

The international legal framework should also enforce a compensation mechanism for civilian victims as per the findings of this independent multi-lateral tribunal or committee.

Countries such as Pakistan can at least push for international oversight and investigation. They can diplomatically engage with all ‘friendly countries’ to politically and morally pressurize the US for optimal compliance with the IHL principles contained in Geneva Conventions.

This lobbying could possibly include contacts with cross-cutting forums such as SCO, ASEAN, BRICS – beside more spirited efforts at the UN General Assembly in New York and the UN Human Rights Council in Geneva. All must aim to draft and push a ‘soft law’ resolution to this effect.

Finally, Islamabad bears the responsibility not only to pursue the case against drone strikes at international level, as directed by the Peshawar High Court but also need to remove ambiguity over its complicity in the drones.

(Imtiaz Gul gave this presentation at an international conference organized by the Global Network on Rights and Development (GNRD), Geneva, February 16-17, 2015. Data based on reports of The Bureau of Investigative Journalism, London, CRSS archives and national newspaper sources. Detailed paper submitted with the GNRD)