Even War Has Limits

by Feisal H. Naqvi

Bradley Strawser’s much-disclaimered defense of the use of drones ultimately obscures more than it illuminates. That he chose to title his essay “More Heat than Light,” is thus unwittingly ironic.

Mr. Strawser defends the use of drones both as a matter of principle and as a matter of policy. He argues that the use of drones is neither immoral per se (unlike, for example, the use of nuclear weapons) nor is it immoral within the specific context of strikes by the United States in the Federally Administered Tribal Areas of Pakistan (FATA).

By making this argument, Mr. Strawser deliberately ducks the single most important issue with respect to drones – that is, the legality under international law of US drone strikes in FATA. This omission is curious because Mr. Strawser specifically notes in the first paragraph of his essay that the debate over drones is with respect to their “morality, legality and prudence.”

So far as I can see, Mr. Strawser’s failure to discuss “legality” is deliberate because US drone strikes in FATA are a gross violation of the law of nations. Mr. Strawser’s decision to ignore his nation’s illegalities and instead concentrate on either ab initio philosophical musings or a utilitarian calculus that devalues the rights of Pakistanis only underscores this point.

International law provides in categorical terms that no nation can violate the sovereignty of another except in certain limited circumstances (see Article 2(4) of the UN Charter). Given that US-operated machines are flying in Pakistani air space and killing Pakistani citizens, the first question that needs to be examined is whether the US has any legal basis for its violation of Pakistan’s sovereignty.

There are two relevant exceptions to Article 2(4) that the US can cite as justification. The first is the consent of the host state. The second is when the use of force is in self-defence (either in response to an armed attack or in response to an imminent threat) and where the host state is unwilling or unable to take appropriate action. Neither of these two exceptions is applicable to US drone strikes in Pakistan.

The most important point to note here is that the sovereign state of Pakistan has not consented to drone strikes. There is no formal public document in which the government of Pakistan has ever allowed the US to conduct drone strikes. And there are any number of occasions when the official representatives of the state of Pakistan – such as the Foreign Minister of Pakistan and the ambassador of Pakistan to the United States – have publicly condemned drone strikes and asked for them to be ended. As per the Wall Street Journal, the US argument is now that Pakistani consent must be presumed because prior to every drone strike, a fax message is sent to Pakistani officials who never respond.[1] By that token, if Hitler had received no response to a telegram sent a few hours before the Panzers started rolling, the Belgians too could have been deemed to have consented!

The most widely accepted analysis of drone strikes in Pakistan is that they have killed between 2640 and 3,474 (including between 473 and 893 civilians).[2] Is Mr. Strawser seriously arguing that the United States is entitled to kill thousands of people for the indefinite future simply because no reply has been received by the US to its various faxes? Silence is hardly ever considered to be consent under the law. If the government of Pakistan is silent on US drones strikes – and it most certainly has not been silent over the past few years – then the conclusion to be drawn is that the government of Pakistan does not consent to such strikes. Any other conclusion is a perversion of both law and logic.

The self-defence argument is equally insubstantial. To begin with, the issue of self-defence would only arise if Pakistan itself had shown no interest in attacking militants. However, Pakistan has lost thousands of people, not just civilians but also military personnel, in trying to combat terror. There is a huge difference between the allegation that Pakistan is indifferent to the problem of militancy and the allegation that Pakistan’s efforts are not enough to meet with US approbation. International law does not recognize any regime in which a more powerful state can simply run amok in the territory of another state merely because it thinks that other state should “do more.”

Even otherwise, international law only recognizes a right of pre-emptive self-defence when, as argued by US Secretary of State Daniel Webster in the Caroline case, the “necessity of self-defense [is] instant, overwhelming, leaving no choice of means, and no moment of deliberation.”[3] The recently released white paper issued by the US to justify the extrajudicial killing of its own citizens also talks about an “imminent danger.”[4] However, as has been generally noted, the mere fact that people are carrying out allegedly suspicious activities in remote parts of Pakistan can hardly be equated with any reasonable concept of imminence. This is entirely separate from the fact that the US often has very limited knowledge of what it is attacking. In the words of the New Yorker, “if there is one overriding factor in America’s secret wars—especially in its drone campaign—it’s that the U.S. is operating in an information black hole.[5]

Suppose we assume that Pakistan has tacitly consented. Even on that highly dubious basis the usage of drones by the United States remains illegal. Consent by Pakistan would, at best, allow the US to exercise the same rights with respect to Pakistanis that the state of Pakistan can exercise. In case Mr. Strawser hasn’t noticed, the state of Pakistan does not have the legal right to execute random people without due process.

Mr. Strawser may protest that the US cannot be bound to the same standard as a civilian government but the fact remains there are standards that govern the actions of countries at war. And by those standards, what the US is doing is manifestly immoral.

Before I continue further, it is worth noting what drone warfare entails. In brief, the US utilizes drones for two types of strikes: personality strikes and signature strikes. In the first case, the person is known by name to the US and someone, somewhere has decided that this person should die. In the second case, the names are unknown as are the faces. All that the death sentence is based on is a resemblance to the everyday activity of militants. There are also multiple reliable reports that the US carries out “double-tap strikes”, i.e. strikes aimed at people who respond and help at the site of a drone strike.[6]

The modern foundations of the “law and customs of war” are normally traced back to the first Geneva Convention of 1864. Article 5 of the first Geneva Convention states that “Inhabitants of the country who bring help to the wounded shall be respected and shall remain free.” Aiming at people trying to rescue and help their wounded is therefore utterly and completely illegal and has been recognized as such since the beginning of modern times.

Leaving aside “double-tap” strikes, even normal drone strikes need to be recognized as simple extra-judicial executions. And such executions are not a new phenomenon. On 1 February 1968, General Loan of the South Vietnam Police executed a prisoner in front of photographer Eddie Adams. That image subsequently won a Pulitzer Prize and for the past four decades has remained a symbol of war’s horrors. So far as I know, there has been no moral revolution since in favour of extrajudicial killings. The only difference is that drone strikes take place far away from cameras.

Let me repeat this point. Mr. Strawser takes pains to present the morality of drone strikes as a new problem in the history of the world, one that requires analysis on the basis of first principles. This is not true. The only difference between what the US is doing and what the world has condemned for centuries is that the killing of people (both suspects and people admittedly innocent of any crime) is now happening via remote control. If we exclude that technological detail, invading armies have always been faced with the problem of insurgent combatants and have always had the option to respond via indiscriminate murder. Genghis Khan, for example, is still remembered for his tactic of piling up pyramids of skulls outside besieged cities. That tactic may well have been effective in persuading cities to surrender but the world has long since decided that the killing of people without trial and on the basis of mere suspicion is not acceptable.[7] That debate does not need to be reopened nor has Mr. Strawser presented any compelling reason in favour of it.

In any event, the same conclusion flows even if one argues on the basis of first principles. Mr. Strawser contends that drones are moral because they are not indiscriminate like nuclear weapons. This is a misleading argument. The world rejects torture even in wartime not because it is indiscriminate and not because it is ineffective. Instead, all civilized nations reject torture because it denies the fundamental dignity of humankind. Similarly, extrajudicial killings have been consistently rejected on the basis of what the International Court of Justice has called “elementary considerations of humanity.”[8] Just because it is convenient for the US to pass judgment from 10,000 feet does not mean that it is either just or humane to do so.

Imagine if we lived in a world where the use of drones was available to all parties, not just the US. Suppose if Al Qaeda was to attack innocent Americans using airborne weapons. Would Mr. Strawser then talk about issues of proportionality or would he say that such killings are inherently unacceptable? I hope we never find out. But I have little doubt that Mr. Strawser’s tune would change considerably if he and his fellow citizens were also under the threat of indiscriminate airborne attack.

One additional point to note regarding the morality of drones strikes is the physical context. The US likes to draw a direct line between its drone strikes and the events of 9/11. However, that justification is overwrought. The Taliban government of Afghanistan that in turn hosted Osama Bin Laden is long gone, replaced by a new regime in 2002. The people who are now fighting the US in Afghanistan are, for the most part, those aggrieved by the US presence there. And the government that the US is choosing to defend via drone strikes in FATA is a regime that the US itself believes to be fundamentally corrupt and illegitimate.

Mr. Strawser’s final argument in favour of drones is that they cause less damage than any of the available alternatives, namely either a ground attack by US forces or a ground attack by Pakistani forces. Mr. Strawser recognizes the argument that drone strikes may cause increased resentment against the US but he dismisses it on the basis that he does not have sufficient data to make an informed judgment.

To begin with, let us be clear that the reason why drone strikes are shrouded in mystery is because the US chooses not to reveal any details. Defenders of drone strikes cannot rely on that lack of data to support their arguments because the burden of proof to justify killing people is on the US. If the US does not have data to actively justify its contention that drone strikes are the best way to combat global terrorism, then it is the US that should desist from killing (not the other way round). In any event, there is a plethora of data to suggest that drone strikes only increase anti-US sentiment.[9] And since Mr. Strawser prefers to argue on the basis of first principles, he should note the advice given by Seneca 2,000 years ago in De Clementia: “Repeated punishment, while it crushes the hatred of a few, stirs the hatred of all . . . just as trees that have been trimmed throw out again countless branches.”

There is no doubt in my mind that Al Qaeda and their supporters in the Taliban need to be fought. As a Pakistani who has seen up close the death and destruction rained upon my country by delusional fanatics, I perhaps have a better understanding of the human cost involved than those safely ensconced in East Coast universities. At the same time, I do not want to fight evil with evil because that will only lead to a hollow victory – indeed if it will lead to any victory at all. There is a fundamental difference between a mistake made in the heat of battle by combatants and a cold-blooded policy of indiscriminate murder. It is precisely because of that difference that civilized nations declared more than a century ago that “the right of belligerents to adopt means of injuring the enemy is not unlimited.”[10] I see no reason why the US has chosen to unlearn that lesson now.

There is a war that needs to be fought against people who seek to kill in the name of their religion. But we cannot afford to fight that war at the expense of our souls.

[1] “US unease over drone strikes,” Wall Street Journal, 26 September 2012

[2] See figures at http://www.thebureauinvestigates.com/category/projects/drones/ It should also be noted that as per the New York Times, the US counts every military age male as a militant unless proven (posthumously) to the contrary. http://www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda.html

[3] Note dated 24 April 1841. Available at http://avalon.law.yale.edu/19th_century

[5] Dexter Filkins, “What we don’t know about drones,” New Yorker, 7 February 2013.

[6] See eg, Chris Woods, “A question of legality”, http://www.thebureauinvestigates.com/2012/02/04/a-question-of-legality/; “Predator Drone ‘Double-Taps’ Highlight Possible War Crimes by Obama,” http://www.policymic.com/articles/21070/predator-drone-double-taps-highlight-possible-war-crimes-by-obama ; Chris Woods and Christina Lamb, “Obama terror drones: CIA tactics in Pakistan include targeting rescuers and funerals”, 4 February 2012, available at http://www.thebureauinvestigates.com/2012/02/04/obama-terror-drones-cia-tactics-in-pakistan-include-targeting-rescuers-and-funerals/

[7] For a more detailed examination of this point, see the 2010 report to the UN by the Special Rapporteur on extrajudicial, summary or arbitrary executions (available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf )

[8] Corfu Channel, Merits, I.C.J. Reports 1949, p. 22; paragraph 21 5 (available at http://www.icj-cij.org/docket/files/1/1645.pdf )

[9] See e.g., Report titled “Living Under Drones: Death, Injury and Trauma to Civilians from US Drone Practices in Pakistan.” The full text of the report is available at http://livingunderdrones.org/report/ Specific reference may be made to the section titled “Strategic Considerations” available at http://livingunderdrones.org/report-strategy/

[10] Article 22, 1907 Hague Convention, Regulations relating to “The Laws and Customs of War on Land.” http://avalon.law.yale.edu/20th_century/hague04.asp

Feisal H. Naqvi is a partner at the law firm Bhandari, Naqvi & Riaz and an advocate of the Supreme Court of Pakistan, as well as a columnist for The Express Tribune.

To leave a comment, please see the introduction to the DAG-3QD Peace and Justice Symposia, of which this essay is a part, here.