Pervez Hoodbhoy has lost all credibility as a political commentator -- left, liberal, progressive or otherwise. He has ceased to be relevant, except as a promoter of imperialist warfare. He is the only person amused by his clever comparison of suicide bombers to drones, but really this comparison, and his recent essay in general, is detached from the discourse on the illegality of drones that human rights activists and legal academics should righteously be engaged in. He is someone we once respected as an anti nuclear activist; we rushed when he spoke on campuses and placed him second tier only to the likes of Eqbal Ahmed and Edward Said. And so for him to so brazenly support drone attacks as a necessary evil is not simply unconscionable, it is a betrayal to his own values as a peace activist.
Read at your own risk.
Of course, even more shameful, is that Znet a progressive website published his piece. For this they owe people interested in justice and human rights a public apology.
Intuitively, drone attacks seem like they would violate international law. They are indiscriminate, disproportionate, imprecise (despite tall claims to the contrary), violent – for the simple fact that they result in high civilian casualties – the number of which remains elusive and varies depending on the study, and do not make the world a safer place. Moreover, drones are currently being tested on one of the world’s poorest people – not Londoners or Parisians – people who do not have on the ground advocates for their human rights or access to international courts, or even the platform to broadcast their humanity.
Usually actions that seem intuitively and morally wrong should not be justifiable in law either. If this were the case, then law would cease to be a source of justice and peace for all, and would be a malleable tool for the powerful nations to justify the use of sophisticated weaponry against the rural poor. These are some of the issues that I can identify as preliminaries to show drones are an illegal use of force.
1. Article 51 of the UN Charter allows a country to use force for self-defense – and sometimes this force can be used against a state before a country suffers an actual armed attack as long as they fear one. Pakistan has not attacked the U.S., and there are no grounds for self-defense. The area of law covering use of force against non state actors is controversial and murky. And thus the US uses preemptive, preventive or anticipatory force against the Taliban or the Tehrik-i-Taliban (TTP), a non state actor, in North and South Waziristan is the starting point for any discussion on the legality of drone strikes.
2. Now if the work of non state actors like the TTP is attributable to the state, or the TTP are a de facto regime, or if Pakistan gives consent and subverts its sovereignty by providing logistical support to the US to launch drones, then arguably there is a case, albeit weak, for use of drones. But there are several arguments to refute that. Does the Pakistani state have the moral or legal right to subvert its sovereignty? Interestingly, in his defense of the use of drones earlier this year, State Department’s legal advisor, Harold Koh, did not mention that legality emerges from state consent, and understandably. It would expose the criminally parasitic relationship of the Pakistani military to the U.S. defense apparatus. But more importantly, for the American media, the Pakistani state lacks all credibility, and the military plays double games, and their consent is non meaningful.
Moreover, the military as an institution has controlled civilian democracy, and has historically aligned itself with the interests of the United States for its own selfish economic sustenance. Most commanders are trained in anti revolutionary and anti people thinking in U.S. military academies, and consider themselves “junior partners” of the American military. The state’s consent to bomb an area where its own writ is doubtful is another reason to suspect the subversion of state sovereignty. The state has a legacy of oppressive rule in FATA, not limited to the use of colonial era measures and laws such as the Frontier Crime Regulation, and an absolute neglect to social development. And lastly, a subversion of sovereignty cannot be legitimate given the secrecy and dearth of information about whether these drones have contributed to peace and security in the region, how many civilians have been killed, and the exact nature and involvement of all the actors – militants and the local military.
3. Next, even if Pakistan has permitted drone attacks, the grounds for their use for self defense are dubious. What armed attack poses as a pretext for drones? Faisal Shahzad’s failed attempts aside, 9-11 was allegedly caused by non-state actors; but it happened a long time ago. Law professor Markus Krajewski argues for limitations on the use of force as self-defense in response to an armed attack by a non state actor. “Trans-boundary use of force by non-State actors should only be considered an armed attack if the acts reach a certain scale and quality.”
Even if 9-11 was of the requisite scale and quality, in 2010 that incident is too remote, and attributable to a specific organization that may or may not have linkages to TTP. It is no longer adequate grounds for generalized and continuing warfare at the peril of civilians. The U.S. must not be allowed to unilaterally reformulate the parameters of international legal norms as they have done in the wars on Afghanistan, Iraq and now Af-Pak, and engage in preemptive strikes the world over.
Moreover, Krajewski presents that self-defense may be used if it eventually maximizes peace and security, and minimizes the use of force. Where is the empirical data that the area has become more peaceful and secure since the US started using drones in 2004 – or that Americans have become safer from future armed attacks? Americans in fact have become more impoverished and financially vulnerable as their government has spent over $1.1 trillion to fund wars in Iraq, Afghanistan and Pakistan; and of course ordinary Pakistanis suffer suicide missions and drones almost daily.
4. The case for immediate cessation of drone strikes becomes even stronger as the US has not provided an accurate account of the number of civilian casualties. Philip Alston, a professor of law at NYU and UN Rapporteur who stated that drones violate international law, argued that without such an accounting, we can’t even be begin to discuss legality. He says, “Now, so far, the United States has failed to provide any evidence that it is systematically reviewing the efficacy of its practices in that regard….I don’t think the United States is ever going to provide access to all of the information relating to these killings. But until it starts to provide at least some access, we will not be able to conclude that the United States is in fact complying with the law...”
Under international humanitarian Law, civilians or civilian objects must not be attacked, and the use of force must be proportional. This means any incidental loss of civilian life must be proportional to the military advantage. Without an accurate estimate of civilian deaths, drone strikes contravene international humanitarian and human rights law.
According to the New America Foundation, approximately 28% of those killed in drone strikes since 2004 are civilians. This is likely a gross under estimate.
In 2009, counterinsurgency experts David Kilcullen and Andrew Exum, calling for a moratorium on drones, wrote that, according to a Pakistani study, 50 civilians were killed for every militant and a hit rate of 2 percent. Thus 98% of those killed in drone attacks were civilians. They compared these to French aerial bombardment in rural Algeria in the 1950s, and to the “air control” methods employed by the British in what are now the Pakistani tribal areas in the 1920s.
Suppose a true, complete, and scientific account demonstrated that 90% or more of the people killed in drone attacks were civilians – then wouldn’t that be a moral and legal imperative to halt drone strikes immediately before there is further irreparable and irremediable harm to innocent life and damage to property?
Without first supplying essential statistics, the drone strike bypass process with terrible consequences. In March 2010, Harold Koh offered no valid citations in case law or international statutes. He stated, “But a state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets or legal process before the state may use lethal force. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.”
As Chris Rogers argues in the Huffington Post, the myth of precision harms civilians even more. “Somewhat perversely, the drones' widely-flouted precision actually adds to their burden. When drones miss their mark, innocent victims must also fight to clear their name and convince others that they were unjustly targeted.”
What we are complicit in is a large scale profiling of an entire region and a people. Hoodbhoy’s hyperventilation about beheadings and school bombings and Farhat Taj’s controversial premise that the drones are welcomed by villagers also do not provide legal or moral grounds for drone attacks.
So to date, we have no legitimate arguments – just anecdotes, hysteria, inane analogies to suicide bombers, flawed research, and from the U.S. conclusory statements that implicitly suggest that we accept U.S. military hegemony, and trust their judgment.
5. Ironically the testing ground for drones is Pakistan – a state with a compromised elected government perpetually at the mercy of the military, a less than robust judiciary, and legal institutions, which despite a lawyer’s movement, are not resourceful enough to challenge the abuse of the doctrine of use of force in international courts. The Human Rights Commission of Pakistan has offered a timid statement against the drones that pretty much mirrors the U.N. Rapporteur’s words – and offers neither local depth nor insight into their illegality, and lacks the passion that should be forthcoming from a human rights watchdog.
This perhaps reflects why people, secular activists, are not on the street every single day protesting illegal drones. Our legal and human rights institutions have not yet launched a country wide debate (outrage) on this issue. That, and the fact that most Pakistanis are crippled by rising costs of living and stagnant wages – to the point – where life goes on without so much as a day’s pause after a suicide bomb in center city.
However, the American Civil Liberties Union has filed a challenge to the use of drones. According to the ACLU, the lawsuit asks for information on when, where and against whom drone strikes can be authorized, the number and rate of civilian casualties and other information.
Pakistani human rights groups should seek similar challenges in other jurisdictions, both local and international – and offer amicus curiae briefs to bolster ACLU’s case. Law students in Pakistani institutions should be holding seminars and writing legal papers on this issue. How are we allowing the use of new weaponry on our people? How many Fallujah like scenarios are unfolding in FATA every month? Shouldn't the use of new weaponry be cause for alarm regardless of black letter legality?
6. Only a lawful combatant may carry out the use of killing with combat drones argues Mary Ellen O'Connell, a professor from the University of Notre Dame law school. "The CIA and civilian contractors have no right to do so. They do not wear uniforms, and they are not in the chain of command. And most importantly, they are not trained in the law of armed conflict." Alston argues that a different set of rules apply to the CIA. Even if the U.S. met all legal demands, can the CIA do this? Doubtful.
You want to be good on the law. Show that for starters drones are legal under the law of self defense, international humanitarian law; show that they work and are not in fact counterproductive; show that the effects of civilians are minimal and proportional; show that all civilians are compensated according to tort law for wrongful death. Expose the exact nature of this war.
All else is hyperbole.
