Afghan War to Drone Attacks: Legality Under Ihl Essay

Introduction: Since the terrorist attacks of September 11, 2001,And American starting Global War on Terror and attacks on Afghanistan in persuit of AL-QAEDA and TALIBAN as they were alleged to be involved in attacks of 9/11.Pakistan being a neighboring state also got effected by this war and a series of Suicide bombing started due to Pakistan’s alliance with American as frontline strategic partner in this war .Similarly more dangerous area in Pakistan was Tribal Areas along Afghan boarder and many militants escaping from Afghanistan came to these areas and allegedly planed attacks on allies forces fighting in Afghanistan. So Americans expanded this war inside the Pakistani Boarder for attacking militants by Drone Attacks. Drone attacks in Pakistan are one of the most important and controversial aspects of the Bush as well as Obama Administration’s approach to fighting terrorism. The legality of drones has been questioned for a variety of reasons, some more grounded in fact than others, but in spite of these criticisms there is little question that the use of drones in surveillance and combat roles is on the rise international law has had to grapple with the fundamental challenges that large-scale violence carried out by non-State actors poses to the traditional inter-State orientation of international law. Questions related to the â€Å"adequacy† and â€Å"effectiveness† of international humanitarian law, international human rights law and the law related to the use of force have been particularly pronounced†¦ The first reported use of a â€Å"drone† was in 1919, when the inventor of autopilot technology and the gyroscope, Elmer Sperry, sunk a German battleship with a pilotless aircraft. The Vietnam War saw drones used for surveillance purposes. Drones have the advantage of being able to gather valuable intelligence without the inherent risk to human life that a traditional way by a piloted craft would pose. Base for the Use of Drones: Drones base can be found from the speech of American President Bush while he was addressing joint session of American Congress and House of Representstive shortly after 9/11 stating that â€Å"We will direct every resource at our command, every means of diplomacy, every tool of intelligence, every instrument of law enforcement, every financial influence, and every necessary weapon of war, to attack and to the defeat of the global terror network.† The Bush Administration found great value in drone technology and used attack drones against targets in several countries, including Afghanistan, Pakistan and Iraq.Under President Obama, the use of attack drones has notably accelerated. The Taliban, subdued but not defeated, has not become a non-violent political force in the new Afghanistan. Nature of Pak-Afghan Border , Its Effect: .The border between Afghanistan and Pakistan may separate two sovereign States as a matter of law, but the Durand Line rarely functions as such in practice. This is the Pakhtun heartland, a transnational tribal cultural geographical region with large populations of Pashtuns on either side of the border. It is because of this intermingling of culture and allegiance that the area is frequently referred to as â€Å"Pak-Afghan† It is here where Al Qaeda’s then first- and second-in-command, Osama bin Laden and Ayman al-Zawahiri, were generally believed to be hiding until bin Laden was killed in an American raid on May 1, 2011 in Abbottabad, Pakistan. So due to this close relationship between the residence of Pak Afghan boarder people use to come here and there acrose the border .So it becomes necessary for fighting terrorism to take actions on both sides of Pak Afghan border, But it does not mean that the forces acting in Afghanistan have free hand to attack even in the territory of Pakistan whenever and however they want. These attacks have to be in limitations of the rules of IHL. Drones, Importance in Targeting Terrorist: It is undeniable that American drone attacks in northwest Pakistan have had a significant impact in terms of deaths and injuries to civilians and damage to civilian objects. In light of the stated purpose of these attacks, to facilitate the defeat of the Taliban and its Al Qaeda allies, this quantum of harm may or may not be justifiable in terms of ’morality, ethics or policy, but these considerations are not, or are at least not wholly, considerations that determine ’the legal analysis.For example, it is possible to support the use of drone attacks, either in particular situations or entirely, as a matter of morality, ethics or policy, and still conclude that any attack is unlawful. The inverse position is also possible. whether or not drone attacks are legal under international law related to the use of force is not dispositive as to their legality under international humanitarian law. As with the juxtaposition of considerations of morality, ethics and policy, there need not be any correlation between ’the legal analysis under the law related to the use of force and’ the legal analysis under international humanitarian law. As a matter of law, these are completely separate analyses. The legal determination of what constitutes â€Å"the battlefield† has particular significance for the use of drones, particularly armed drones. This is because â€Å"the battlefield† is used to effectively define the scope of IHL’s application. In situations outside the scope of IHL, international human rights law (IHRL) applies. Further IHL allows for lethal force to be employed based upon the status of the target. A member of the enemy’s forces may be targeted with lethal force based purely on his status as a member of those forces. That individual does not have to pose a current threat to friendly forces or civilians at the time of targeting. In contrast, IHRL permits lethal force only after a showing of dangerousness. Under IHRL, lethal force may only be employed if the individual poses an imminent threat to law enforcement officers attempting arrest or to other individuals. Further, IHRL requires that an opportunity to surrender be offered before lethal force is employed. Controversy Regarding Application of IHL on Drone Attacks: Before assessing the lawfulness of each American drone attack in northwest Pakistan under international humanitarian law, it is necessary to first draw the distinction in law between situations of violence and situations of armed conflict and then to understand how international humanitarian law classifies situations of armed conflict. International humanitarian law did not provide a clear definition of armed conflict, despite the fact that international humanitarian law’s application relies upon the existence of an armed conflict.None of the Four Geneva Conventions of1949, nor either of the two 1977 Additional Protocols to the Geneva Conventions define armed conflict, and the consensus view is that the existence of an armed conflict is determined on the basis of the particular facts and circumstances.Major Cause of this ambiguity is long Afghan War and its different phases having different legal scope. Changing Nature Of Afghan Conflict: The armed conflict in the land of Afghanistan is one of the longest conflicts in world history. The nature of the conflict has changed with the course of time. The war with spears, swords, cannons, guns and now the hottest; Drones. Simultaneously, the dynamics of humanitarian law cannot be ignored. The law of war was not that explicit in ancient times like the way they are now. We will assess the conflict status after 9/11 attack. The period since then can be divided into two phase: * 7th October 2001 to 19th June 2002 * June 2002 to present If we discard the armed conflict of Afghanistan post 9/11 then it will be hard to understand the changing trend. On 12th September 2001. A resolution no.1368 has been passed by Security Council which legalized the war (Operation enduring freedom) on terror by US in the land of Afghanistan. The contention from the side of US was right to self defense and collective rights. The intervention of such nature gives rise to following upshots: * The armed opposition on one side and the intervening state/states supporting the other side keeping the nature of the conflict as non-international armed conflict; The discrepancy in the warfare technology is one of the causes behind this. As US is equipped with high tech war machines while on the other hand the armed opposition are far more inferior. This led them to shift hostilities in a different level to cope up with the opponent. Hence, they have started targeting crowded areas among civilians. This finally resulted in a blur to apply the principle of distinction between the combatants and non combatant. In the same manner While there is some disagreement about whether â€Å"combatant status† should be recognized in non-international armed conflicts, that dispute is irrelevant when it comes to questions concerning the status of members of al-Qaeda or other terrorist organizations. Because combatant status is based upon membership in a group that organizationally enforces â€Å"compliance with the rules of international law applicable in armed conflict. Groups such as al-Qaeda, whose means and methods of warfare include deliberately targeting civilians, cannot claim combatant status for their members. It should be emphasized that the behavior of an individual al-Qaeda member cannot confer combatant status. No matter how strictly an individual member of a non-privileged group adheres to IHL or how scrupulously they distinguish between civilian and military targets, they are never entitled to the combatant’s privilege and may therefore be criminally liable for attacks on members of an opposing armed force. Al-Qaeda does not, as some have suggested, have a â€Å"basic right to engage in combat against us† in response to our attacks. If al-Qaeda members are not combatants, then what are they? Like all people, IHL treats them as being presumptively civilians who, as a general rule are immune from targeting. If they are civilians than how American Harold H. Koh, legal adviser to the United States State Department relied on the Art 51 of UN charter for justification of Drones in Pakistani territory. This in term of humanitarian law is known as â€Å"Asymmetric warfare†. On 5th December 2001, an accord was made, known as Bonn Agreement which formed a Transitional administration in Afghanistan. With this emergency Loya Jirga, the one year old international armed conflict terminated but the hostilities continued from the side of the Taliban and Al-Qaeda. This type, this puppet government was striving hard against this opposition. This has taken a new shape of a non international armed conflict. At this point the application of the article 3(common article) of Geneva Convention, 1949 was no more questionable. The gravity of the new form was so grave that even customary International customary humanitarian law cannot be set aside. Where IHL Applies? And Status of Drones In Pakistani Territory: But a question remains over the legality of the US support in afghan war because there are some criteria which are required to be fulfilled to justify the attacks. The criteria are: > The armed opposition should have control over the territories of that country; > They (armed opposition) must have carried out, sustained and concerted military Operations. They must have control over the civilians in certain territory of that state; > The AdPII is not binding on the states who haven’t ratified it; > Even if they (US) ratify, they are not bound because, the AdPII is applicable in the conflict between a state actor and the non sate actor of that country (Article 1(1) of AdPII). On the basis of same arguments as Drones are part of this War on Terror but their targets are in Pakistan are of more grave nature as Allies Armies are not fighting in Pakistan or against Pakistan nor Americans are doing so because they are not in Conflict With Pakistan but in saying They are strategic partner in this War. And importantly like armed conflict, non international Armed conflict also have no definition under International Law which can cover this War on Terror as international or internal armed conflict so it became controversial that either these Drone Attacks are subject to IHL or IHRL due to doubtful nature of this War specially its actions in Pakistani territory, Because IHL only applies in International Armed conflict and requires some qualifications to become a combatant which can be summed up as under: A combatant is: 1) a member of the armed forces of a Party to the conflict (who then has the obligation to distinguish himself/herself from the civilian population); or 2) a member of another armed group (militias, organized resistance movements,†¦) belonging to a Party to the conflict, provided that such group fulfills the following conditions: a. that of being commanded by a person responsible for his subordinates; b. that of having a fixed distinctive sign recognizable at a distance; c. that of carrying arms openly; d. that of conducting their operations in accordance with the laws and customs of war. As Al Qaeda and Taliban does not have character of distinct uniform but have a strong command as known by whole world similarly they have training centers as American alleges that they have safe havens in Pakistan for training but does it mean that if Al Qaeda and Taliban does not folow any law the Allies and American forces should not follow any rule while acting against them? Though Al Qaeda’s suicide attackers also attacks on civilian without any distinct uniform as part of Al Qaeda so the forces could not identify them but it does not mean that the forces can kill any time to any one just in doubt of suicide ? Similarly if the answer to these questions is not in affirmative than whether the right to self defense extends to the territory of other state who have not a party in conflict? as American Attacks are of on such grounds as expressed by Harold H. Koh, legal adviser to the United States State Department, delivered the keynote address to the American Society of International Law on On March 25,2012. Prof Koh argued that drone attacks meet the legal principles set out in the law of war because they fall under the larger doctrine of `self-defense` and stated: â€Å"In an ongoing armed conflict the United States has the right to use Force including lethal force to defend itself including by targeting Persons such as high-level Al Qaeda leaders who are planning attacks†. Harold H. Koh’s stance and its Legal Implications: Koh held that the attacks are legal because they meet the principles of both `distinction` in that they are designed to target specific individuals in response to intelligence and `proportionality` — that is, they do not cause excessive loss of life in relation to the military or strategic goals thatare sought to be achieved by them. In response to the critique that targeted killings are never legal Koh argued that no legal process is required to inform those planning attacks against the United States. But if we consider Mr. Koh’s stance valid than it gives raise to many questions. For example, if the targeting of individuals was considered prima facie valid simply under the basis of self-defense then the war in Gaza (documented in the Goldstone Report) and hostilities against civilians in Sri Lanka, Congo etc would not need to be discussed by the relevant UN bodies? Simply put, if all extra-judicial targeted killings were so easily justified based on the pr- emises of self-defense then any nation could be allowed under the flimsiest of pretexts to encroach on another`s territory to kill individuals they believed were involved in hostile acts against it. As this doubtful nature of these attacks is clear from this part of my assignment . Answer to these questions are necessary before commenting on illegality of Drone Attacks because it will give us clear view that under which law these should be dealt IHL or IHRL? Drones ,A matter of IHL: Though some people think Drone just as a subject of IHRL but its not so simle to say this .Many interpretation of International Law by ICJ, ICTY, ICC ,most Importantly U.S Supreme Court as well as Israelian Court’s comments and Judgement clearly put this War in the ambit of IHL. Transnational Armed Conflict and Drones: But along this another term is of Transnational Armed Conflict which is more relevant to the nature of these attacks because The problem with these definitions of international and non-international armed conflict is that collectively they did not describe all the types of armed conflicts that might exist. It was possible for an armed conflict to satisfy neither of these definitions. The United States’ conflict with al-Qaeda could not be an international armed conflict because al-Qaeda was not a â€Å"High Contracting Party† to the Geneva Conventions. Yet it was also clearly not a non-international armed conflict as defined above because it was not internal to the United States. The existence of this purported â€Å"gap† in IHL’s coverage was felt most immediately by detainees in the conflict between al-Qaeda and the United States. Similarly An illustration of why this distinction between internal civil wars and transnational armed conflicts must be maintained. In a recent lawsuit brought by the ACLU against the Obama Administration. The ACLU attempted to enjoin drone strikes directed against Anwar al-Aulaqi, a prominent member of al-Qaeda in the Arabian Peninsula. Although the ACLU conceded that strikes targeting al-Aulaqi would be governed by IHL if they were conducted in Af- ghanistan, they maintained that such strikes would be occurring â€Å"outside the context of armed conflict† if they were directed against al-Aulaqi in Yemen. Using the reasoning that underlies the strict geographical limitations on the scope of IHL described above, the ACLU argued that the absence of an armed conflict in Yemen foreclosed the application of IHL to anyone in Yemeni territory. Instead, the use of lethal force was governed by IHRL and might only be employed when al-Aulaqi presented a â€Å"concrete, specific, and imminent threat of death or serious physical injury† to others. Because the ACLU conceded that al-Aulaqi was targetable under IHL in Afghanistan, the legal basis for their claim was based upon where al-Aulaqi was rather than upon who he was. Similarly Israel’s Supreme Court put situation under IHL, where a state is fighting against a non state actor, the Israeli Supreme Court was tasked with assessing the lawfulness of Israel’s policy of targeted killings in the West Bank and Gaza. Between the outbreak of the Second Intifada in 2000 and 2005, Israel’s targeted killing policy resulted in the death of nearly 300 suspected terrorists, over 100 civilian deaths and hundreds of injuries. The most famous example of this policy was the 2004 attack on Sheikh Ahmed Yassin, founding member of Hamas, when an Israeli helicopter gunship killed him in Gaza. In discussing whether an armed conflict paradigm applied to Israel’s targeted killing policy, the court boldly stated that â€Å"there is no doubt today that an armed conflict may take place between a state and groups or organizations that are not states, inter alia because of the military abilities and weapons in the possession of such organizations and their willingness to use them.† The court was also clearly influenced by the State Attorney Office’s argument that Israel had suffered proportionately a much greater loss in terms of terrorism victims during the period under review than the United States had on September 11, and that these attacks were in the nature of an â€Å"‘unceasing, continuous and murderous barrage of attacks, which are directed against Israelis wherever they are, without any distinction between soldiers and civilians or between men, women and children.† Thus, Targeted Killings’ main contribution to the discussion lies in its focus on the willing use of violence on a significant scale by an organized group. The Tadic Case: Application of IHL on non state actors in Transnational Conflict: In Tadic’s Case The ICTY acknowledged this â€Å"overlap† understanding of armed conflict in its 1999 Tadic’s judgment when it stated: It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alter- natively if (ii) some of the participants in the internal armed conflict act on behalf of that other State. This concept was further developed it in Boskoski, where it determined that fighting between Macedonian security forces and the Albanian National Liberation Army constituted an armed conflict. The test consists of two prongs: (1) the intensity of the conflict, and (2) the organization of the parties thereto. In addition, the Boskoski court laid out factors relevant to the satisfaction of each prong in a lengthy opinion that sheds light on the highly fact-specific nature of the inquiry, particularly where one of the parties is a non-state actor. Under the Boskoski analysis, fighting between al Qaeda and the United States constitutes an armed conflict, permi-tting the United States to conduct targeted killings of al Qaeda fighters. Similarly U.S Supreme Court in some judgements relating to Afghan war also declared this as an Armed conflict The Federal court on enforcement says that the US government considers itself in war with Afghanistan. The efforts from the executive branch have always been to portray the situation in Afghanistan asan armed conflict. This statement has also been supported by the congress. The standpoint over the detention of the terrorists has been endorsed by US courts also its judgements linked with issues arising from Afghan. Consent of Pakistani Gov’t And Its Effect On Legal Status of Drones: Another argument is most commonly given that all the attacks are with the consent of Pakistani Gov’t but if its so than what is proof ,is there any treaty in this regard? If its only verbal than its existence is doubtful at all .Another main thing which contradict existence of any understanding on these attacks is the statements of Pakistani Officials including P.M , Foreign Minister and many others condemning these attacks publically as well as officially so no Question of Consent remains valid. Specifically It is also worth mentioning in this context that Pakistani Minister of State for Foreign Affairs Hina Rabbani Khar’s condemnation of American drone attacks in northwest Pakistan on March 17, 2011 was phrased in the language of armed conflict: such strikes constitute a matter of serious concern and raise issues regarding respect for human rights and humanitarian law. Irresponsible and unlawf ul conduct cannot be justified on any grounds’. Admittedly, the Minister of State’s statement was not particularly clear in recognizing that the United States was engaged in an armed conflict with the Taliban and its Al Qaeda allies on the Pakistani side of the Durand Line, but it is a legally significant admission that contributes to the case for the existence of an armed conflict in northwest Pakistan , Proceeding from the position that the situation of violence that the United States is engaged in War with the Taliban and its Al Qaeda allies in northwest Pakistan amounts to an armed conflict, international humanitarian law would be the appropriate legal frame of reference for assessing the lawfulness of individual drone attacks in northwest Pakistan. Is Pakistan’s Inability to Trace and Attack Militants Justifies Drone Attacks? Now the next argument is for the justification of these drones is that Pakistan do not have ability to tackle these terrorist so that’s why American are intervening for striking them .Is it not a violation of the rights of a sovereign state to have respect of his territorial area by non-interference by others without due process of law .This view is clearly upheld by ICJ in case of In Democratic Republic of Congo case, the retaliation from the side of Uganda due to the previous intrusion of Congo raised the issue to armed conflict. It was held that Congo’s inability to take any action against the militant does not give any right to Uganda to commit an act of incursion and attack the group themselves. Victims of Drones under IHL: Though the purpose of drone is to counter terrorist but statistics shows that among them there are many civilians, A study at Stanford and New York University titled ‘Living Under Drones’ claimed that only two percent of drone strike casualties in Pakistan are top militants, and that the large number of related civilian deaths turn Pakistanis against the US. The study revealed that number of casualties among Pakistani civilians was far higher than the US acknowledged. The NAF report covers the period between 2004 and February 24, 2010, its date of publication. Particularly striking is that the number of drone attacks that took place during the first fifty-five days of 2010 were, at eighteen, exactly twice the number of drone attacks that took place during the entire four years from 2004 to 2007. Overall, during the almost six years and two months covered by the study, the United States carried out 114 drone attacks, resulting in between 830 and 1,210 total deaths, with between 550 and 850 of the dead being militants. This means that slightly more than 30% of deaths from drone attacks in the study were civilian deaths, with the percentage dropping to slightly less than 25% if one focuses only on 2009, the most active year covered by the study. Basic Principles of IHL and Their Observance In Drone Attacks: As its clear that Drones are subject to follow the IHL. But if we examine their style of attacking and their targets and effectees as mentioned in previous heading we can say that Drones are even violating the fundamental principles of IHL Principal of proportionality and Distinction: Given that the United States has conducted almost 300 drone attacks in northwest Pakistan in recent years and that international humanitarian law would require an exacting and individualized assessment for each of these attacks, space constraints preclude broad and sweeping generalizations about the compliance of each of these attacks under this branch of law. International humanitarian law is extraordinarily fact intensive, and the meaning attached to many of its key principles, in particular the principle of proportionality, is often contested and prone to political manipulation. First, although international humanitarian law recognizes that it is unable to eliminate the scourge of war .and instead endeavours to master it and mitigate its effects, the principle of proportionality does not forbid collateral damage when such damage is outweighed by a particular Attacks concrete and direct military advantage anticipated. Of course, international humanitarian law does prohibit disproportionate attacks. The principle of distinction and the underlying principle of proportionality are the most fundamental principles of humanitarian law. The principle of distinction embodies the concept that the effects of war must be limited to combatants and military objectives as much as is feasible. Civilians and civilian objects should be spared and may not be targeted. However, it is clear that collateral damage as such is not necessarily unlawful under international humanitarian law and that proportionality is a calculus of intangibles that balances military and civilian concerns. Proportionality must be assessed within the context of particular facts and circumstances, and conclusions of law cannot be drawn in abstracto. With this understanding of the international humanitarian law principle of proportionality, one can begin to assess the legal implications of the drone attack that killed Baitullah Mehsud. When Hellfire missiles from an American Predator drone killed Mehsud in South Waziristan, it was reported that he perished along with his wife, his mother- and father-in law, seven bodyguards and a TTP lieutenant. Though in present circumstances, and involvement of international politics its difficult to solve the problems peacefully specially terrorism .But it does not mean this necessity gives free hand to fight war without any rules As there is customary law of war in shape of conventions, and necessity of war is also there subject to rule of Distinction which provides that during war distinction must be kept in mind between military targets and civilian objects .So attacks on Masajid,Madaris Houses as well as on wedding ceremonies are illegal under the rule of Distinction. IHL does not declares war as illegal but accepts the military necessity and regulate the use of force by providing that only military object should be targets even though some civilians also get effect from it. But should be minute, this lose in language of IHL is known as collateral damagebut the rule of customary law applies on all states regardless of their ratification by that state. In short if we examine the causalities of Drone Attacks a huge number of Civil Victims are there. Similarly many attacks have destroyed houses Masajid and Madaris which is against the rules of IHL dealing with lawful targets. As the General Rule is that the benefit of doubt will go to the accused ,the same principle is adopted in IHL prohibiting attacks on such targets about which you are having a doubt that it have some civilian nature.Though its difficult to draw line distinction .r Proportionality but maximum care must be taken.But in Drones it was also not observed. Even against enemies only such amount of force or wapon can be used which only compels him to accept defeat ,and the purpose of war is to overtake opponent and not its extermination. Conclusion: Drone Attacks along Pak-Afghan Border inside the territory of Pakistan are important in a way that they developed some new concepts in International Law ,especially in IHL. If we see from the perspective of Americans and their Ally’s view it seems that The drone campaign raises fundamental questions of the acceptability of violence as a form of conflict resolution. Further the confusing nature of Afghan Issue also stops the way to argue from one legal angle to discuss validity of drones. A question can be raised that Drones are being used in Pakistan than why a detailed discussion on Afghan War given? But in reality World has become a global village so no one can be assessed in isolation specially Pak-Afghan area ,having strong ties in all dimensions of Life International Relations. As here Drones were discussed under IHL but if there is some doubt about the application of IHL than necessarily IHRL will apply and assessment under UDHR also invalidates the application of Drones violating fundamental rights like Right to Fair Trail, Representation by Counsel, Right to Life and Freedom Of Movement, etc .But it’s a separate detailed discussion. Even with full opposition by International Community having knowledge of IHL continuous and non stop use of Drones is showing Practical Example of â€Å"Might Is Right†. BIBLIOGRAPHY * Ahmad, Muhammad Mushtaq. Jihad,Mazahmat Aur Baghawat:Islami Shari’at Aur Bain al Aqwami Qanun Ki Roshni Men†,Gujranwala:Al-Shari’ah Accademy,2008 * Gabor,Rona.†Interesting Times for International Humanitarian Law: Challenges from the â€Å"War on Terror†Ã¢â‚¬ , The Fletcher Forum Of World Affairs,27(2007) * Barindge,Robert.†A Qualified Defense Of Drone Attacks In Northwest Pakistan Under International Humanitarian Law†Boston University International Law Review.30(2012) * Evans,Malcolm D.International Law.Oxford:Oxford University Press,2003. * Starke,J.G. 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