Secret War: U.S. Drone Strikes in Pakistan

Since 9/11, the United States has continuously used unmanned drone strikes in counterterrorism efforts in Yemen, Somalia, Pakistan, and Afghanistan.[1] Drones have become a preferred weapon as they allow for military objectives to be fulfilled without placing soldiers in physical danger.[2] Drones also allow pilots to distance themselves from the violence they inflict and therefore reduce their risk of Post-Traumatic Stress Disorder or depression.[3] The first drone strikes were launched by the George W. Bush Administration under the “Global War on Terror,” but they dramatically increased under the Obama Administration.[4] President Barack Obama asserted that his campaign of drone strikes was a focused, targeted effort aimed at active terrorists.[5] He also stated that before employing a strike, there must be “near certainty that no civilians will be killed or injured.”[6] Narratives such as this have misled the American public. In reality, the lack of transparency, the debatable effectiveness, and the alarming number of civilian casualties demonstrate that the U.S. must reform its current approach to drone strikes.[7]

For example, from 2004 to 2018, the Bureau of Investigative Journalism reports that there were at least 430 confirmed U.S. drone strikes in Pakistan.[8] These drone strikes killed between 2,515 and 4,026 people. 424 to 969 of those individuals were civilians.[9] To make matters worse, 172 to 207 of those civilians killed were children.[10] When the U.S. invaded Afghanistan, Pakistan supported the U.S.[11] Initially, the U.S. military operations primarily took place in Afghanistan.[12] However, after a successful drone strike of a Taliban commander in Pakistan, the CIA launched a drone program in Pakistan’s Federally Administered Tribal Areas (“FATA”).[13] Although these strikes began during the George W. Bush Administration, the U.S. did not publicly acknowledge these air strikes until Barack Obama’s presidency.[14] The United States’ continued lack of transparency, accountability, and failure to establish a legal framework that justifies its use of drone strikes in Pakistan calls into question the legality of these attacks.[15]

This article argues that U.S. drone strikes in Pakistan violate international laws regarding a state’s right to use force against another. Next, this article will demonstrate that even if the force is justified, U.S. drone strikes violate international humanitarian law as well as the human rights of Pakistani civilians. Finally, this article will offer solutions to increase transparency and reduce the loss of innocent life that will inevitably result from the continued use of drone strikes by the United States.

International Law: The Use of Force

The U.N. Charter Article 2(4) contains the general prohibition on the use of force and is also accepted as customary international law.[16] This means that this prohibition is binding for member states.[17] Further, the prohibition on the use of force is viewed as an obligation that is inherent to all states to the extent that is considered a jus cogens norm,- fundamental principle from which no deviation is allowed.[18] The body of law governing the use of force is divided into two parts: jus ad bellum, which determines whether a state has the right to use force, and jus in bello, which regulates the methods by which a state may employ this force.[19]

A. Jus ad bellum

Within jus ad bellum, three legal paradigms exist: human rights, self-defense, or armed conflict.[20] During times of peace, states are only allowed to use law enforcement methods to maintain security in accordance with human rights law.[21] Article 6 of the International Covenant on Civil and Political Rights (ICCPR) primarily governs the use of force under human rights law.[22] When a state is acting under self-defense, the force is governed by Article 51 of the U.N. Charter.[23] Lastly, if the state is using force during armed conflict, it must act within the confines of international humanitarian law.[24] Ultimately, this means that if a state is acting outside of the context of armed conflict or self-defense and without authorization from the U.N. Security Council, the use of force is unlawful.[25]

In international law, there are two different approaches to a state’s right to self-defense.[26] Traditionally, for U.N. Member States, this right comes from Article 51 of the U.N. Charter.[27] Under this approach, the right to self-defense is restricted to situations in which self-defense is “necessary to prevent an imminent attack and proportionate to this purpose.”[28] Article 51 also requires that actions taken in self-defense “shall be immediately reported to the Security Council.”[29] The most debated element of self-defense is the “imminence” requirement.[30] The Caroline Incident of 1837 established that a threat was imminent and allowed for self-defense when the need “is instant, overwhelming, and leaving no choice of means and no moment of deliberation.”[31] However, some states interpret self-defense in Article 51 as including anticipatory self-defense.[32] Therefore, states can act in self-defense in response to an attack and if the state knows that there are more planned.[33]

In attempts to apply a legal framework, Harold Koh, who served as the U.S. Department of State Legal Advisor during the Obama Administration, justified U.S. drone strikes in Pakistan as acts of self-defense, yet simultaneously referred to the U.S. as being engaged in “armed conflict” with al-Qaeda and the Taliban.[34] Although the U.S. has attempted to categorize drone strikes in Pakistan as two of the three categories in which the use of force is permitted, these drone strikes do not meet the requirements for either paradigm.[35]

When applying the traditional approach, it is highly unlikely that each U.S. drone strike can be justified as responding to an imminent threat.[36] However, even anticipatory self-defense cannot justify U.S. drone strikes in Pakistan. First, U.S. drone strikes violate Pakistan’s political sovereignty.[37] Pakistan has not openly consented to these attacks and various Pakistani officials have declared the drone strikes as a violation of its sovereignty.[38] Additionally, Pakistan has not attacked the United States.[39] The notion that an armed attack must be attributed to a state is supported by International Court of Justice cases, such as Nicaragua v. The United States of America.[40] In this case, Nicaragua sued the U.S. for being involved in illegal military and paramilitary activities within its borders.[41] The U.S. claimed to be operating under self-defense. The court clarified that the armed attack that led to the need for self-defense must have been on behalf of a state.[42]

Next, since there is no agreed-upon definition of “terrorism,” scholars disagree on whether terrorism is organized crime or if terrorism must rise to the level of violence that allows a state to use force in self-defense under Article 51 of the U.N. Charter.[43] In this case, the U.S. is attempting to justify years of drone strikes in Pakistan on a tragic, yet isolated attack by a non-state actor.[44] If terrorist groups are considered to only commit organized crime, then the U.S.’s response is limited to law enforcement and diplomacy efforts rather than self-defense.[45] Although the United Nations Security Council resolutions 1368 and 1373 acknowledge the right to self-defense in the context of international terrorism, this authorization was focused on the war in Afghanistan and likely does not extend to the use of force in Pakistan.[46] Lastly, as noted above, Article 51 requires member states to report actions taken for self-defense to the U.N. Security Council.[47] Despite years of drone strikes, the U.S. has yet to report its uses of force in Pakistan.[48]

B. Jus in bello

The second way in which a state can legally use force against another is in the context of armed conflict, called jus in bello.[49] The law governing armed conflict is found in the Geneva Conventions and the Additional Protocols.[50] A non-international armed conflict that involves a state responding to violence by non-state actors is specifically regulated by Common Article 3 of the Geneva Conventions and Additional Protocol II.[51] The Additional Protocols emphasize the state’s duty to differentiate between civilians and combatants.[52] The U.S. has continuously neglected this duty through its use of signature strikes and double tap strikes against civilians.[53] Although there is debate about whether the U.S. was truly involved in an armed conflict according to international law, if its assertion of being in an armed conflict with terrorist groups is accepted, the international law applies.[54]

   “Signature strikes” make up most of the drone attacks by the U.S.[55] These strikes target individuals by matching their activity to established notions of what constitutes terrorist activity.[56] Essentially, if a person’s behavior is deemed to be similar enough to any terrorist, they could be killed.[57] Human rights groups have criticized this approach as targeting any military-aged man.[58] This approach to drone strikes violates the fundamental principle of international humanitarian law that requires states to differentiate between civilians and combatants.[59] States have a duty to minimize the chance of killing or injuring civilians, and by using signature strikes, the U.S. is using a risky strategy that does not minimize the loss of innocent life.[60] Another worrying aspect of signature drone strikes is the fact that there is no set degree of certainty that must be met to instigate a signature attack.[61] This opens the door to attacks on low- and middle-level militants who are not actively involved in hostilities.[62] Such attacks could be classified as illegal.[63]

Since there are no international guidelines for targeting unknown individuals – and the United States government has not been transparent with its standard – it is hard to determine what findings are being used to justify signature strikes.[64] The little that can be gleaned paints a worrying picture about the quality of intelligence being used.[65] The reliability of U.S. Central Intelligence Agency (“CIA”) intelligence specifically is questionable since there are multiple cases in which the same militant has been reported dead after two different drone strikes.[66] Faulty intelligence like this has led to only 2% of militant casualties from 2004 to 2012 being actual high-value targets.[67] In 2013, a report that cited classified documents stated that one in four Pakistanis killed by drone strikes in September and October of 2011 were considered “other militants” by the CIA.[68] In other words, the CIA was not able to determine the affiliation those individuals had to terrorist groups. Strikes based on weak data demonstrate that the U.S. has violated international humanitarian law.[69] Unsuccessful drone strikes also harm civilians.[70] In a 2009 drone strike in Pakistan, a fourteen-year-old boy named Fahim Qureshi lost an eye and had multiple injuries.[71] Another attack later that year led to fifteen-year-old Sadaullah Wazir losing his legs and an eye.[72]

The U.S. has also failed its duty to differentiate between combatants and civilians through its use of double tap strikes.[73] A double tap strike is the launching of a set of drone strikes with one strike being deliberately delayed.[74] The second-strike targets rescuers and first responders who come to help those injured by the first strike.[75] As a result, rescuers hesitate to assist those injured by a strike due to the fear of a second attack.[76] Double tap strikes therefore violate protections for medical and humanitarian workers in addition to constituting a possible war crime, as described by the UN.[77] Drone strikes not only instill a constant fear within a community but also violate individual human rights.[78]

Violation of Human Rights

Signatory states to the International Covenant on Civil and Political Rights (“ICCPR”) states are bound by Article 1 that states “no one shall be arbitrarily deprived of his life.”[79] A state’s duty to respect this right is also considered an erga omnes duty, which is an obligation owed to all states by all states.[80] The U.S. has ratified the ICCPR and should be committed to protecting those rights.[81] The U.N. Human Rights Committee condemned targeted drone strikes as a violation of Article 6 of the ICCPR which protects the right to life.[82] Further, drone strikes that kill someone who is not the target, such as a family member or people standing nearby, are arbitrarily depriving those individuals of their lives.[83]

The ICCPR also protects the freedom of religion and assembly.[84] Pakistanis living under the threat of drone strikes cannot exercise these rights due to the fear that a strike can occur at any moment.[85] This further impacts their willingness to participate in social gatherings, funerals, and educational programs.[86] Consequently, drone strikes infringe on their right to peacefully assemble.[87] By targeting funerals and disrupting religious practices, the U.S. violates these individuals’ freedom of religion as protected by the ICCPR.[88] Relatives of those who have been killed are denied the ability to bury their relatives and perform religious rituals associated with death.[89] The U.S. must take steps to ensure that drone strikes do not violate the human rights of Pakistanis.

Solutions

The U.S. should take steps to increase transparency surrounding drone strikes in Pakistan. In the future, the U.S. must follow Article 51 of the U.N. Charter and notify the U.N. Security Council of its use of force and what legal paradigm it is using as a justification.[90] This allows for greater transparency regarding what evidence is being used to target individuals and who is being targeted.[91] Further, this increases accountability because the U.S. will have to operate under one legal paradigm, and the outer limits of what is allowed will be more clear.[92] This increased clarity will allow for mainstream media to provide accurate information to the American public rather than downplaying the human cost of drones.[93] Further, this will prevent the media from spreading misinformation about the effectiveness of drones.[94] The U.S. must end double tap strikes to ensure that immediate assistance is always available to injured civilians.[95] It is time for the U.S. to end illegal drone strikes. This will truly allow for “near certainty that no civilians will be killed or injured.”[96]

  1. Martin Khor, Drone Strikes Very Much a Human Rights Issue, Global Research (Aug. 9, 2012) https://www.globalresearch.ca/drone-strikes-very-much-a-human-rights-issue/32281.
  2. Drones Will Make Wars More Common—Here’s Why, FPYC (Apr. 12, 2022) https://fpyouthcollab.org/our-content/international-works/drones-will-make-wars-more-common-heres-why/.
  3. Id.
  4. Micah Zenko, Obama’s Embrace of Drone Strikes Will Be a Lasting Legacy, NY Times, (Jan. 12, 2016) www.nytimes.com/roomfordebate/2016/01/12/reflecting-on-obamas-presidency/obamas-embrace-of-drone-strikes-will-be-a-lasting-legacy.
  5. No Drone Strikes without ‘near Certainty’ of No Civilian Casualties: Obama, Dawn( May 23, 2013), http://beta.dawn.com/news/1013289/no-drone-strikes-without-near-certainty-of-no-civilian-casualties-obama.
  6. Id.
  7. US Drone Strikes in Pakistan: Ineffective and Illegitimate, Open Briefing (Oct. 24, 2013). https://www.openbriefing.org/publications/report-and-articles/us-drone-strikes-in-pakistan/.
  8. Drone Strikes in Pakistan, The Bureau of Investigative Journalism, https://www.thebureauinvestigates.com/projects/drone-war/charts?show_casualties=1&show_injuries=1&show_strikes=1&location=pakistan&from=2004-1-1&to=now.
  9. Id.
  10. Id.
  11. Shahid Ali & Amjad Khan, Drone Strikes, Logic of Self-Defense and Violation of State Sovereignty, Pak. J. of Hist. and Culture (Jan. 1, 2017).
  12. Id.
  13. Id.
  14. 500 Percent Increase in Drone Strikes Under Obama, The Single Standard (Dec. 3, 2012) https://singlestandard.com/2012/12/03/500-percent-increase-in-drone-strikes-under-obama/.
  15. US Drone Strikes in Pakistan: Ineffective and Illegitimate, Open Briefing, Oct. 24, 2013. https://www.openbriefing.org/publications/report-and-articles/us-drone-strikes-in-pakistan/.
  16. U.N. Charter art. 2, ¶ 4.; Molly McNab & Megan Matthews, Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law, 39 Denv. J. Int’l L. & Pol’y 661 (Jan. 2011).
  17. Id.
  18. McNab & Matthews, supra note 14.
  19. Id.
  20. Id.
  21. Id.
  22. Id.
  23. Id.
  24. Id.
  25. Id.
  26. Id.
  27. U.N. Charter art. 51.
  28. Molly McNab & Megan Matthews, Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law, 39 Denv. J. Int’l L. & Pol’y 661 (Jan. 2011).
  29. Shahid Ali & Amjad Khan, Drone Strikes, Logic of Self-Defense and Violation of State Sovereignty, Pak. J. of Hist. and Culture (Jan. 1, 2017).
  30. McNab & Matthews, supra note 26.
  31. Id. (non-state actors in the U.S. assisted an armed insurrection taking place in Canada and the U.S. was neutral. However, Britain, Canada’s sovereign, responded by using force in U.S. waters and claimed self-defense. Letters from Secretary of State, Daniel Webster, argued that self defense should be in response to a threat that is “instant, overwhelming, and leaving no choice of means, and no moment of deliberation.”)
  32. Id.
  33. Id.
  34. Id.
  35. Shahid Ali & Amjad Khan, supra note 26.
  36. Aditya Singh, United States (U.S.) Policy on Use of Drones in Pakistan: Sometimes the Policy Is Lawful but Awful, Virtual Centre of International Law, http://publicinternationallaw.in/node/113.
  37. Shahid Ali & Amjad Khan, Drone Strikes, Logic of Self-Defense and Violation of State Sovereignty, Pak. J. of Hist. and Culture (Jan. 1, 2017).
  38. International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan, (Sept. 2012).
  39. Id.
  40. Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. at ¶195 (June 27)
  41. Id.
  42. Id.
  43. McNab & Matthews, supra note 27.
  44. The Obama Administration and International Law, U.S. Dept. of State, (Mar. 25, 2010) https://2009-2017.state.gov/s/l/releases/remarks/139119.htm
  45. Id.
  46. S.C. Res. 1368 (Sept. 12, 2001); S.C. Res. 1373 (Sept. 28, 2001); Shahid Ali & Amjad Khan, Drone Strikes, Logic of Self-Defense and Violation of State Sovereignty, Pak. J. of Hist. and Culture (Jan. 1, 2017)
  47. U.N. Charter art. 51.
  48. Id.
  49. Molly McNab & Megan Matthews, Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law, 39 Denv. J. Int’l L. & Pol’y 661 (Jan. 2011).
  50. Id.
  51. Id.
  52. Protocols I and II Additional to the Geneva Conventions, ICRC (Jan. 1, 2009), https://www.icrc.org/en/doc/resources/documents/misc/additional-protocols-1977.htm.
  53. Scott Englund, What’s Wrong with ‘Signature Strikes’?, Global-E Journal (Dec. 28, 2016), https://globalejournal.org/global-e/december-2016/whats-wrong-signature-strikes.
  54. Id. (the legality of the U.S. engaging in hostilities outside of active war zones has been questioned and criticized).
  55. Peggy McInerny, U.S. Drone Signature Strikes: An Often Illegal ‘Killing Machine, UCLA Asia Pacific Center (Apr. 9, 2013), https://www.international.ucla.edu/asia/article/131351.
  56. Id.
  57. Spencer Ackerman, US to Continue ‘signature Strikes’ on People Suspected of Terrorist Links, The Guardian, (July 1, 2016) https://www.theguardian.com/us-news/2016/jul/01/obama-continue-signature-strikes-drones-civilian-deaths.
  58. Id.
  59. Englund, supra note 50.
  60. Id.
  61. McInerny, supra note 52.
  62. Id.
  63. Id.
  64. US Drone Strikes in Pakistan: Ineffective and Illegitimate, Open Briefing (Oct. 24, 2013). https://www.openbriefing.org/publications/report-and-articles/us-drone-strikes-in-pakistan/.
  65. Id.
  66. Id.
  67. Id.
  68. Id.
  69. Peggy McInerny, U.S. Drone Signature Strikes: An Often Illegal ‘Killing Machine, UCLA Asia Pacific Center (Apr. 9, 2013), https://www.international.ucla.edu/asia/article/131351.
  70. US Drone Strikes in Pakistan: Ineffective and Illegitimate, supra note 52.
  71. Id.
  72. Id.
  73. Joe Wolverton, Double-Tap Drone Strikes: Kill Them All, Don’t Bother Sorting Them Out, The New American (Oct. 3, 2012) https://thenewamerican.com/double-tap-drone-strikes-kill-them-all-dont-bother-sorting-them-out/.
  74. Id.
  75. Id.
  76. Id.
  77. Id.
  78. Alfred De Zayas & Adriel Kasonta, US Drone Strikes’ Errors and the Cost in Human Life, Asia Times, (Oct. 20, 2021), https://asiatimes.com/2021/10/us-drone-strikes-errors-and-the-cost-in-human-life/.
  79. Molly McNab & Megan Matthews, Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law, 39 Denv. J. Int’l L. & Pol’y 661 (Jan. 2011).
  80. Id.
  81. FAQ: The Covenant on Civil & Political Rights (ICCPR), American Civil Liberties Union (Apr. 2019), https://www.aclu.org/other/faq-covenant-civil-political-rights-iccpr.
  82. Alfred De Zayas & Adriel Kasonta, US Drone Strikes’ Errors and the Cost in Human Life, Asia Times, (Oct. 20, 2021), https://asiatimes.com/2021/10/us-drone-strikes-errors-and-the-cost-in-human-life/.
  83. Id.
  84. International Covenant on Civil and Political Rights, OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights.
  85. International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (Sept. 2012).
  86. Id.
  87. Id.
  88. International Covenant on Civil and Political Rights, supra note 56.
  89. Joe Wolverton, Double-Tap Drone Strikes: Kill Them All, Don’t Bother Sorting Them Out, The New American, (Oct. 3, 2012) https://thenewamerican.com/double-tap-drone-strikes-kill-them-all-dont-bother-sorting-them-out/.
  90. Molly McNab & Megan Matthews, Clarifying the Law Relating to Unmanned Drones and the Use of Force: The Relationships between Human Rights, Self-Defense, Armed Conflict, and International Humanitarian Law, 39 Denv. J. Int’l L. & Pol’y 661 (Jan. 2011).
  91. Alfred De Zayas & Adriel Kasonta, US Drone Strikes’ Errors and the Cost in Human Life, Asia Times, (Oct. 20, 2021), https://asiatimes.com/2021/10/us-drone-strikes-errors-and-the-cost-in-human-life/.
  92. Id.
  93. Id.
  94. Id.
  95. Id.
  96. No Drone Strikes Without ‘Near Certainty’ of No Civilian Casualties: Obama, Dawn (May 23, 2013), http://beta.dawn.com/news/1013289/no-drone-strikes-without-near-certainty-of-no-civilian-casualties-obama.