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Chris Rogers

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Can U.S. Defend Drones Without Pakistani Consent?

Posted: 04/28/11 05:14 PM ET

Drones may be new, futuristic weapons, but the U.S. drone campaign in Pakistan raises the oldest of international legal questions: what gives one country the right to violate the sovereignty of another?

For years, it has been widely accepted that Pakistani officials had tacitly consented to drone strikes (despite public statements to the contrary) rendering this sovereignty concern moot.

But since the Raymond Davis fiasco and a March 17th drone strike that reportedly killed a large numbers of civilians, it is clear that Pakistani consent can no longer be assumed. In recent weeks, Pakistani officials, including powerful military and intelligence leaders, have voiced strong opposition to U.S. strikes and both publicly and privately demanded an end to U.S. drone strikes. Meanwhile, drone strikes have continued.

Much attention has been paid to the more Machiavellian nature of Pakistani officials' demands, from strengthening the country's hand for an endgame in Afghanistan to outflanking domestic political rivals. Others have focused on the civilian casualties and the popular backlash in Pakistan. With news of the deployment of drones in Libya, the debate has extended to the ethics and longer-term security implications of drone warfare.

But little attention has been paid to what is now the most obvious legal problem with the U.S. drone campaign: how can the U.S. justify violating the national sovereignty of Pakistan?

National sovereignty and the prohibition on the use of force are cornerstones of international law and enshrined in the U.N. charter. With officials in Pakistan now appearing to rescind any prior consent to drone strikes in their country, and without U.N. Security Council authorization, there is no clear legal basis for U.S. drone strikes in Pakistan.

Statements from U.S. officials suggest that they believe, even absent Pakistan's consent, the U.S. has the right to conduct such attacks as a matter of self-defense (Article 51 of the UN Charter makes self-defense an exception to the general prohibition on the use of force).

However, justifying the U.S. drone campaign on self-defense is not so straightforward. Self-defense is a narrow legal exception and the precise scope of Article 51, unsurprisingly, is subject to fierce debate. Among those aspects of Article 51 in dispute are what kinds of attacks trigger the right of self-defense, what is the permissible scope of response, and under what circumstances actions can be taken in violation of another state's sovereignty.

With the legality of intervention in Pakistan apparently resting on such narrow legal grounds, there are critical questions the U.S. must answer.

Who is the U.S. defending itself from?
Al-Qaeda is tiny fraction of the militants in Pakistan and the Taliban are really a myriad of militant organizations with crisscrossing alliances and objectives. The acts of one group cannot simply be attributed to all armed actors in northern Pakistan. Because drone strikes can only target combatants directly tied to past attacks and represent ongoing threats to the US., untangling organizational membership and responsibility is a complex yet legally necessary task.

Where can the U.S. act in self-defense?
Early on, the Obama administration rejected the "Global War on Terror" moniker established by President Bush. Yet it's unclear whether the administration believes its right to act in self-defense from militants in northern Pakistan is in fact confined to any geographic territory. Granted, a state of armed conflict could arguably be said to exist in the small tribal regions in Pakistan where drones strikes now occur -- but what about Lahore or Islamabad? What about other countries in the world? In other words, in so far as the U.S. is acting in self-defense against specific militant groups based in northern Pakistan, what are the boundaries of that battlefield?

What kind of response is justified?
Self-defense is invoked to protect states from future attacks and the response must be necessary and proportionate to that goal. Last year there were more than 100 drone strikes, with the vast majority of those attacks killing only low-level militants -- not high level commanders. Under President Obama, the drone program has evolved from a small-scale, targeted assassination program to a much broader military action that resembles a conventional bombing campaign. Particularly in light of the elevated risk to civilians and the sustained, prolonged nature of the drone campaign, the U.S. must demonstrate that the response was, and continues to be, appropriate and justified.

Under what specific circumstances can the U.S. violate Pakistani sovereignty?
The U.S. adheres to the view that violating sovereignty is permissible when the target state is either "unwilling or unable" to prevent attacks from its territory. Not only is this interpretation still subject to dispute, its unclear whether U.S. actions always meet even this standard. In areas like North Waziristan, where the U.S. conducts almost all of its strikes and Pakistan has refused to take action against militants, the U.S. could make a convincing case that this requirement is met. But this may not be the case everywhere the U.S. is conducting or seeking to conduct strikes.

The U.S. may in fact have answers to some or all of these questions. But thus far it has been content with say-so claims of legality and using anonymous leaks to represent its public position.

The U.S.'s silence on drones does not go unnoticed by the rest of the world. In Pakistan, that void is filled with conspiracy theories and opportunistic political rhetoric. Elsewhere, unfriendly regimes and leaders will be emboldened to conduct cross-border attacks and assassinations, comforted by the increasing legal ambiguity of such actions.

As opposition in Pakistan to drone strikes reaches new heights and the use of such weapons expands to other parts of the world, it's time for the US to bring drones out of the dark.

Clandestinely conducted and without UN authorization or Pakistani consent, the Obama administration's drone campaign continues without clear legal justification, in sharp contrast its stated commitment to the rule of law. If drone strikes in Pakistan are in fact legal and justified as a matter of self-defense, then it is time for U.S. officials to make the case.