International Law and Drone Strikes in Pakistan

The Legal and Socio-political Aspects

Sikander Ahmed Shah

• Editorial: Routledge
• Año: 2014
• ISBN:
  9781134074341
• Edición: 1
• Categoría: Derecho
• Categoría: Derecho internacional

While conventional warfare has an established body of legal precedence, the legality of drone strikes by the United States in Pakistan and elsewhere remains ambiguous. This book explores the legal and political issues surrounding the use of drones in Pakistan. Drawing from international treaty law, customary international law, and statistical data on the impact of the strikes, Sikander Ahmed Shah asks whether drone strikes by the United States in Pakistan are in compliance with international humanitarian law. The book questions how international law views the giving of consent between States for military action, and explores what this means for the interaction between sovereignty and consent.

The book goes on to look at the socio-political realities of drone strikes in Pakistan, scrutinizing the impact of drone strikes on both Pakistani politics and US-Pakistan relationships. Topics include the Pakistan army-government relationship, the evolution of international institutions as a result of drone strikes, and the geopolitical dynamics affecting the region.

As a detailed and critical examination of the legal and political challenges presented by drone strikes, this book will be essential to scholars and students of the law of armed conflict, security studies, political science and international relations.

1 Legality of drone strikes^†

Introduction and historical background

Few would deny the fact that Pakistan faces a contemporary existential threat.¹ The writ of the federal government in various parts of the country is becoming increasingly non-existent.² The inception of parallel judicial systems³ coupled with the materialization of accords between the federal government and Pakistan-based Taliban militias responsible for heinous crimes and acts of terrorism is alarming.⁴ Equally distressing is the determination that these accords are, in actuality, acts of desperation on behalf of the government that further dilute effective control over national territory.⁵ From a human rights perspective, the government is condoning reprehensible and criminal modes of conduct in the heartland of Pakistan by bowing down to radicals, who subscribe to a contorted and purist version of religious law and belief system. Such outsourcing of judicial function, executive authority, and enforcement is in complete contravention of the Constitution of Pakistan and classical Shariah (Islamic) law.⁶

There are doctrinal complexities concerning jurisdiction and sovereignty in the volatile frontier region of Pakistan that borders Afghanistan, as a sizeable parcel of the territory is semi-autonomous as affirmed under the 1973 Constitution of Pakistan.⁷ Numerous Pashtun tribes retain administrative control of this territory and matters have historically been regulated under the Pashtunwali Code,⁸ which has been affected by the Salafi,⁹ Wahhabi,¹⁰ and Deobandi¹¹ revivalist movements. This phenomenon, coupled with a lack of sustainable development, is directly responsible for the current and horrible repression of civilians, the perpetuation of intolerance, and the fostering of militancy in the region.

Historical contingencies are also to blame for the radicalization process that has continued unabated in the tribal belt. The Soviet invasion of Afghanistan during the height of the Cold War turned into a proxy war fought between the two world superpowers,¹² resulting in massive flows of money and modern weaponry into Pakistan and Afghanistan without any real accountability.¹³ Subsequent to the Soviet war, Afghanistan was plagued with incessant civil unrest and turmoil, a constant state of political instability, and a complete absence of law and order.¹⁴ The United States, after accomplishing its objective of driving the Soviets out of Afghanistan, completely withdrew all support and aid to Afghanistan, and consequently, necessary international assistance for development and rebuilding the devastated war-torn nation did not materialize.¹⁵ Afghanistan’s neighbors actively intruded in its internal affairs to pursue their own objectives.¹⁶ Such intrusion often proved detrimental for Afghanistan and was primarily a product of regional power dynamics. For instance, the Shia community, other ethnic minorities, and Persian speakers in Afghanistan enjoyed the patronage of Iran,¹⁷ whereas Pakistan, along with Saudi Arabia, backed the majority Pashtun community of Afghanistan.¹⁸ The Pashtuns primarily adhere to a conservative version of the Sunni faith and also compose the second largest ethnic group in Pakistan.¹⁹

The Pakistani establishment, including its armed forces and intelligence agencies, strongly supported conservative Sunni radicals and the Taliban movement to gain putative strategic depth through a subordinated Afghanistan and by pre-empting the formation of a hostile Indian–Afghanistan consortium.²⁰ The Taliban movement was also seen as a weapon that, if effectively utilized, would bleed India in the troubled Kashmir region located a few hundred kilometers from Afghanistan, where India was committing grave human rights violations in quelling a genuine freedom struggle of independence for the Kashmiri people.²¹ The Taliban movement itself was conceived in the frontier regions of Pakistan and Afghanistan in mushrooming religious schools originally funded by the United States to fight the Soviet invasion of Afghanistan.²² These madaris (schools) proved attractive for destitute, impressionable young men because they were provided with basic sustenance, but they were also unfortunately indoctrinated with fanatical ideologies premised on scriptural literalism that transformed many of them into radicals and extremists.²³

Soon civil war engulfed Afghanistan, and eventually the Taliban established effective control over most of the country.²⁴ Initially, they were welcomed by the majority of Afghans because they were able to provide some level of stability and security to the country.²⁵ However, this regime became increasingly repressive and fascist as it systematically violated all norms of universal human rights.²⁶ Yet, in effect, the Taliban regime was condoned and tolerated by the majority of the international community and especially by the United States.²⁷ It was only subsequent to the events of 11 September 2001, once the United States embarked on the War on Terror, that the averred heroic freedom-fighting Mujahedeen, credited for defeating the Soviet Union and triggering its disintegration, became formally reclassified by the United States and many Western nations as an integral component of the global terrorist network and the new enemy of the twenty-first century.²⁸

The advent of the US War on Terror in Afghanistan brought an end to the Taliban regime, but not to the movement.²⁹ As a consequence, Afghanistan returned to a state of anarchy with the authority of the American-instituted Afghan government primarily limited to the capital city of Kabul.³⁰ US and NATO forces have not been successful in controlling any part of Afghanistan.³¹ The region has been flooded with thousands of radical fighters from Central Asia, the Middle East, and other diverse parts of the world that see the region as a religious battlefield and cherish the opportunity to battle the West.³² Given the porous border between Pakistan and Afghanistan, the United States asserts that many such fighters routinely flee into the frontier region of Pakistan where they are provided a safe haven by the local tribal communities.³³ There are also claims that many local fighters from the tribal areas of Pakistan engage with US forces in Afghanistan.³⁴ The veracity of these claims is contestable to some, but irrespective of that determination, one thing is for certain: the fight against terrorism has spilled into Pakistan.³⁵ The outcome of this ideological battle between state and non-state actors has resulted in more radicalization, civilian deaths, and suffering, and in turn threatens fragmentation of a nuclear Pakistan that is also battling an economic meltdown, religious fanaticism, sectarian violence, and secessionist movements.³⁶ The concern therefore, that an implosion of Pakistan threatens international peace and security, is a serious one.

One must analyze the significance and legality of US drone attacks in Pakistan in light of these circumstances. It is quite troubling to witness the United States consistently use force against and disregard the territorial sovereignty of a nation that it officially proclaims to be an important ally in its declared fight against global terrorism,³⁷ especially when the Government of Pakistan has explicitly and repeatedly condemned such US attacks as a violation of its territorial sovereignty and as a serious undermining of its own fight against curbing terrorism emanating from Pakistan.³⁸

A diversity of views is presented upon analyzing the reasons behind such unilateral acts of aggression committed against Pakistan by US forces stationed in a foreign country neighboring Pakistan. Vocal critics of US foreign policy maintain, at the risk of oversimplification, that the US attacks on Pakistan are consistent with its past policy and practice of routinely disregarding norms of international law,³⁹ including disrespecting the sovereignty of relatively weak nations when in pursuit of its varied, vague, and hegemonic objectives.⁴⁰ They also assert that the United States has systematically exhibited impatience in having grievances and disputes address...