March 29, 2012
For years, Pakistani governments and its military have
publicly opposed U.S. drone strikes carried out within Pakistani
territory. Only last week, Pakistan's
an end to drone strikes that violate Pakistan's "sovereignty, independence and
territorial integrity" And why should they not be infuriated?
By most estimates drone strikes are alleged to have killed at least a few
hundred innocent Pakistani civilians, including children as young
as eight, and injured over a thousand others.
This begs the question: why, despite all the noise
about sovereignty in the eight years since the first drone strike in 2004, have
two successive Pakistani governments, military and civilian, failed to hire a
single lawyer to challenge drone strikes within the United Nations, a foreign
court or even a local Pakistani court? To be sure, the government could argue
that it is not completely ineffective against the drone attacks: it did
recently close Shamsi air base to protest
against the NATO strikes that killed Pakistani soldiers. It could also
provide a few superficial defenses to justify inaction: Pakistan is a poor
country and therefore cannot afford to engage international lawyers or
organizations or that any such action will be futile in the face of U.S.
hegemony. However, neither alibi can withstand scrutiny.
Pakistan has routinely employed resources on
international legal matters when there is political will to do so. In 1999,
Pakistan submitted a dispute to the International Court of Justice against
India regarding an airspace
incident. In 2009, Pakistan proposed a resolution at the U.N.
Human Rights Council to prevent "defamation
of religion" or blasphemy. Last year, Pakistan sought to
engage the International Court of Justice in another dispute
against India concerning water rights. And Pakistan, over the
years, has invested significant resources to highlight the Kashmir problem at
In fact, the Pakistani government does not even need to
expend much money to raise the issue of drone strikes. A number of Pakistani
lawyers are well versed in international law. Lawyers often take up cases pro
bono and submit amicus briefs in support of a country's case without charge. In
fact, international human rights NGO's working with local Pakistani lawyers;
most notably, the British charity Reprieve, has been providing legal
representation to civilian victims and commenced litigation against the British Foreign Secretary
for assisting drone strikes.
Similarly, the argument that international legal
discourse would be futile in constraining use of force by a superpower is equally
unpersuasive. Any minimally competent government knows how international law
can be utilized to decisively engage in "lawfare", that is to challenge
stronger opponents on the
basis of legal argument. In fact, the detainee scandal at Abu
Ghraib is a perfect example of how law and the media
was used by civil libertarians and human rights groups to embarrass an
administration that appeared otherwise unconstrained in absolute pursuit of
national security. In fact, history is replete with examples of powerful states
being persuaded to abandon uses of force even against their unambiguous
self-interest. At the turn of the 20th century, "gunboat diplomacy"
was frequently used by European powers to compel sovereign debt repayments from
Latin American debtor states. However, through the efforts of individuals such
as Luis Drago and Elihu Root in the Second Hague Peace Conference, these same
powers agreed to discourage force as a means to recover debt payments even
though this had hitherto proven itself a convenient mechanism.
Paradoxically, there appears to have been more meaningful
discourse and criticism concerning the legality of U.S. drone strikes within American
academia and policy circles in days than there has been in almost eight years
in Pakistan's corridors of power.
The point here is not that the U.S. would immediately
halt drone strikes if the Pakistani government challenged it through
international law. It would most likely not. Over time, however, legal action
would undoubtedly mobilize debate at the U.N., and most definitely reduce the
near unlimited autonomy that the U.S. enjoys at present - targeting decisions
may need to be better explained, evidentiary standards may need to be clearly
determined, compensation may need to be provided to victims and so on. Such
accountability would even provide valuable information to U.S. citizens
concerned about the actions of their executive branch when it acts under a
cloak of secrecy to target U.S. citizens such as Anwar al-Awlaki.
It is possible
that if such discourse were instigated, Pakistan may in due course decide that
some drone strikes are beneficial because they do not result in civilian
deaths, as the U.S. often claims, and therefore should be permitted. The goal is
not to achieve an "either-or" outcome that permits or disallows drone strikes
absolutely. Instead, it is to make such uses of force subject to a clearly
articulated, transparent, and democratic framework that promotes accountability
as to the legal and evidentiary basis on which each strike is carried out, so
as to minimize loss to innocent life and property.
However, the utter lack of any Pakistani legal challenge
whatsoever ensures that the United States need not worry. Successive U.S.
administrations can continue to assert the rather simple Thucydidean
justification of using force in another state's territory half-way across the
world whenever such a state is "unable
or unwilling" to suppress harm to the U.S in self-defense,
regardless of the costs this may impose on the targeted state's citizens. And
why should it not? Its political responsibility is limited to the national
security of its territory, not to Pakistanis and for all intents and purposes,
there are grounds to believe that Pakistani
leaders have not only consented to, but encouraged such strikes.
As it stands, because these drone strikes kill people in
regions that provide no political or economic capital to the Pakistan elite
residing in cities, the government can well afford to engage in cheap talk on national
sovereignty whilst doing nothing to uphold that sovereignty. Although Imran
change, for now, the Pakistani government quietly dodges its sovereign responsibility to protect its citizens and territory.
Dawood Ismail Ahmed is a Pakistani lawyer and doctoral
candidate in international law at the University of Chicago. He is also a
research associate at the Center on Law and Globalization.