Targeted killings by drone
On the night of 5 August 2009, a US Predator 'drone' hovering high over Zanghara, a remote village in Pakistan's South Waziristan, sighted its prey, the Pakistani warlord Baitullah Mehsud, the head of the Tehrik-e-Taliban Pakistan (TTP). According to Pakistan's intelligence agencies, Baitullah was the man behind the assassination of Benazir Bhutto (an allegation that he had denied) as well as scores of deadly attacks on Pakistan's security forces. The drone's video footage showed Baitullah, who suffered from several ailments, on the roof of a house, lying on his back receiving an intravenous transfusion; his wife and father-in-law were also clearly visible, and all appeared to be completely oblivious to the drone's presence.
Within moments of making a positive identification, the drone's controllers, sitting somewhere in the United States, pressed a button, unleashing the drone's deadly cargo: air-to-ground missiles that hit the target with pinpoint accuracy. Baitullah Mehsud was instantly incinerated along with his wife, father-in-law, mother-in-law, seven bodyguards and an aide. In all, the attack resulted in 11 deaths other than that of the target – what the public is then asked to identity as collateral damage. At least three of those killed were non-combatants by any definition. Usually in such situations, the toll is even higher – a study by the Brookings Institute in 2009 had suggested that that roughly ten civilian deaths result from each 'target' killed in a drone attack. Further, this was not the first attack on Baitullah Mehsud – there had been some 15 prior attempts to eliminate him, resulting in an unknown number of casualties.
Since the first use of drone technology by the US in Pakistani territory, in June 2004, the frequency of these attacks has steadily increased. There was a marked increase in 2008 and again in 2010. To date this year there have been more than 70 drone attacks in Pakistan, killing more than 600 people. Most of the targets have been al-Qaeda fighters, mostly Arabs and other foreign militants. Nearly all of the 'collateral damage', of course, has been civilian citizens of Pakistan.
Unmanned Aerial Vehicles (UAVs) – powered, lightweight, unmanned, remotely controlled (usually from the ground) aircraft popularly called drones – have been around for decades. The technology was developed during the Second World War; and with advances in electronic and computer technologies, the drone has found increasing military use, first for target practice and later reconnaissance. For the latter, the US successfully deployed drone technology during the Vietnam conflict and later the wars in Iraq and the Balkans. For all practical purposes, the present-day drone is a robot used for missions considered too dangerous or otherwise unsuited for humans. The drones deployed by the US forces today can stay in the air for up to 24 hours, and can be controlled from anywhere in the world; they can also be made to operate for extended periods on their own.
As a small-scale spying device the drone seemed like a clever idea, and might well have remained non-controversial but for developments during the initial days of the US-led 'war on terror'. In fact, since the end of World War II military analysts had been predicting that future fighters and bombers might not have a human pilot. But such plans never become a reality, as the UAV were highly vulnerable against adversaries with sophisticated technologies. The equation changed dramatically at the turn of the century, when US forces were pitted against opponents with almost no high-tech weapons or capability whatsoever, in operations in Somalia and Afghanistan.
It was inevitable that, before long, an assortment of air-to-ground armaments would be installed on unmanned drones. The first drone attack occurred in 2002 in Yemen, when it managed to hit a moving vehicle, killing the target and five accompanying passengers. The then-UN special rapporteur on extrajudicial, summary or arbitrary killings, Asma Jehangir, sought information regarding the incident from both the US as well as the Yemeni government. The latter acknowledged the incident, giving names of all six individuals killed and claiming that were involved in acts of 'terrorism'. Jehangir commented that, if the information was correct, 'an alarming precedent might have been set for extra judicial execution by the consent of the Government', before concluding that the attack was 'a clear case of extrajudicial execution'.
Today, the US military is pursuing two drone programmes, one by the air force and the other its main intelligence agency, the CIA. In Pakistan, targeted killings by drones are conducted by the latter.
Targeting the law
International humanitarian law (IHL), commonly known as the 'laws of war', began with the Geneva Conventions and includes subsequent treaties governing the conduct of hostilities by both states and individuals. IHL places a number of restrictions on the belligerent's use of force, requiring soldiers to wear uniforms, to use only lawful weapons and ammunition, to avoid disproportionate or excessive use of force, to not fake surrender or use an enemy's uniforms, and to attack only combat targets (and not, for instance, surrendering or captive soldiers, or the sick or those receiving medical treatment). In armed conflict, both IHL and international human-rights law are applicable, though application of some rights, including the right to life, does attract additional exceptions and restrictions. In this situation, it becomes important to address the issue of whether an 'armed conflict' exists, especially when discussing issues whose legality is considered borderline – for instance, that of 'targeted killings'.
In May 2010, Philip Alston, the new UN special rapporteur on extrajudicial killings, issued a report on 'targeted killings'. In this, he defined the term as 'intentional, premeditated and deliberate use of lethal force, by states under the colour of law, or by an organised armed group in armed conflict against a specific individual who is not in the physical custody of the perpetuator'. Alston points out that targeted killing might be justified in some circumstances in an armed conflict (as the person might be a military target), but in non-armed conflict situations killing is only justified 'if required to protect life and there is no other means such as capture or none legal incapacitation'. In that case, he writes, 'targeted killing in the sense of intentional, premeditated and deliberate killing by law enforcement officials cannot be legal because it can never be permissible for killing to be the sole objective of the operation.'
The ongoing drone attacks in Pakistan raise a number of troublesome legal issues, most importantly in relation to whether there is an 'armed conflict' which would allow exceptional attacks on a military target. First is the simple fact that the US is not at war with Pakistan. Further, it is not clear that all drones are controlled by the military. Some, if not most, appear to be operated by personnel who, according to Mary Ellen O'Connell of the University of Notre Dame, are 'not bound by the Uniform Code of Military Justice to respect the laws and customs of war', meaning that they are being operated by intelligence agencies. She elaborates that 'under the laws of armed conflict only lawful combatants have the right to use force. Lawful combatants are the State's armed forces.' Attacks by drones might also violate IHL principles of 'distinction' (between military and civilian targets) and 'proportionality', which requires that the 'imminence and the danger of threat' should justify resorting to the use of lethal force.
To go back to the strike on Baitullah Mehsud, it is clear that the drone's attack on him activated a long list of concerns about US drone attacks in Pakistan generally. Baitullah was not illegally in Pakistan, nor was there evidence that he had ever crossed the border to join the fray in Afghanistan. At the time of the attack, he was also receiving medical treatment. If the attack on him alone could not be justified under IHL, obviously there is no ground for the killing of the others, either.
Heated perceptions
Drone attacks are viewed differently in different places. This is a change in perspective that seems to come about neither out of any great concern for the victims of such violence nor for the principles of international humanitarian law, but rather due to political views and, more often than not, a concern on the part of those carrying out or authorising the attacks. Beginning in the US, the drone attacks, at least in government circles, are regarded as the only effective means of hitting targets in Pakistan's tribal areas that the Islamabad government is, for a host of reasons, either unwilling or otherwise unable to 'get'. In Europe the tone changes a bit, with concerns being more widely expressed for human rights – especially if a European were to find him- or herself at the receiving end of a drone attack.
In Karachi and Lahore, Pakistan's two political nerve centres, the tenor changes considerably. Here, activists both on the left and right argue loudly about US violations of Pakistan's airspace (and sovereignty), and about the resulting 'collateral damage'. So intense has been the noise that both President Asif Ali Zardari and Prime Minister Yusuf Raza Gillani have been forced to demand the transfer of control of the drones and the military operations themselves to the Pakistani military. But will the illegality of the attacks be obviated if the drones fly the Pakistan flag, or are controlled from within Pakistan?
The answer is not nearly as clear-cut as one would think, particularly in terms of perceptions outside of the urban centres. There, local communities are forced to deal not only with drone attacks, but also with the militants the drones are attacking. As soon as one reaches Khyber-Pakhtunkhwah (the erstwhile NWFP), the province that has had the most painful experience with Pakistan's recent militant activity, one actually finds a sharp increase in the proportion of Pakistanis who favour the drone attacks, though again the debate is sharp and divided. Similar is the case in the tribal agencies, which are likewise affected both by militant activity and drone attacks. There is also scepticism expressed about the sovereignty issue, with many questioning why the issue is not raised when a group of heavily armed militants illegally cross the border into Pakistan's tribal areas and try to establish a parallel state. Why, they ask, does this only become important when a US plane pursues those militants into Pakistan – and is this really about sovereignty at all?
The support for drone attacks in the affected area has clear rationale, as the militants are particular brutal when it comes to dealing with differences of opinion. The slightest hint of opposition to either their ideology or method is typically met with swift death, usually with a videotaped beheading, the copies of which are then circulated to create further fear. Those who choose to live under the militant's 'peace' have to either provide conscripts or pay a heavy tax. Until 2004, militants in the tribal areas were said to have been living in the midst of local communities, with local influential people having rented them houses at exorbitant rent. Rent in the tribal area for outsiders, particularly those who considered dangerous or pursue dangerous occupations (such as drugs trafficking), tends to be high as it comes with a guarantee of protection from the landlord. After the drone attacks started, these communities forced the local 'hosts' to take the 'guests' out to the periphery of the villages. Thus, the collateral damage from drone attacks these days is more likely to be the militant, their support staff and their immediate families rather than innocent neighbourhood Pakistanis.
Others support the drone attacks for purely practical reasons, as the best of the limited options available. Indeed, under current circumstances, the only other option – a full-scale military attack – strikes many as far worse for the damage it would cause. As we have seen with military operations elsewhere in Pakistan, particularly in Swat district, the Pakistani military relies on bombardment with heavy guns that are far less accurate and cause far more human and material 'collateral damage'. Such operations also lead to displacement of literally hundreds of thousands of individuals. Drone attacks do not cause communities to flee their homes in panic – moving a high-calibre artillery launcher within the range of a village does. A US drone lurking high in the sky does terrorise local communities, but not like the alternatives that are usually adopted. The accuracy of drone attacks – although certainly not perfect – is also widely acknowledged by the local populations, even those who are particularly concerned about 'collateral damage'.
Accountability void
Another hotly contested issue is the Islamabad government's authorisation for the US's use of drones. US officials maintain that there is at least tacit approval of the programme from the government. Some have even claimed that some attacks have been by drones actually operating from air bases inside Pakistan, a suggestion that Islamabad strongly refutes. In fact, Pakistani official maintain that the attacks have no approval or support from the government at any level, and Prime Minister Gillani has gone to the extent of publicly demanding an end to the drone attacks. But to sceptics, this demand looked more like a sad commentary on the sorry state of Pakistan's politics than any serious move by the government to end the attacks, as the demands are neither consistent nor backed by any action. Further, news is surfacing that the US shares its drone-attack footage with Pakistani officials.
Counter-terrorism experts insist that the drone attacks in Pakistan's tribal areas have decimated the mid-level al-Qaeda leadership. The almost continuous attacks, the suggestion continues, have also kept al-Qaeda and other militant groups on the run, thus diminishing their operational capacity to such an extent that they are said to be considering shifting their operation from Pakistan to Somalia or Yemen. Citing cases of militants killing 'spies' amongst their own ranks (for passing on information to the US about possible drone targets), it is also claimed that the militants are turning on themselves. There are also several stories doing the rounds about US spies amongst the militants who place a computer chip that help the drones to zero in on their target. Experts say that the drones do not rely on such technology, but the rumours are nevertheless said to be adding to the militants' sense of vulnerability.
Even among the counter-terrorism experts there are dissenting opinions regarding the short- and long-term benefits of drone attacks in Pakistan. Some believe that the use of drones has had no major impact on the operational capabilities of the militant groups, and that pursuing the drone programme might actually be counter-productive, as it alienates the local population and provide more volunteers to the militants. In his report, UN Rapporteur Philip Alston criticised the programme as it risks developing a videogame-type mentality: as the person with the finger on the trigger is sitting so far away, and has a complete disconnect with the combat situation, the operator is less likely to show restraint for collateral damage.
Drone attacks have been justified as being an extremely effective, if not the only, means to combat militants in Pakistan (and elsewhere) today. Yet to present either effectiveness or the 'lack' of other options as a justification for drone attacks is to miss the point altogether. Alston maintains that targeted killings might be legal only in very narrow circumstances, within a situation of armed conflict; he further states that there can be no fixed criterion for judging the legality of the killings, as each must be judged on its own. Either way, Alston clearly states that, today, attacks in Pakistan are being carried out in an 'accountability void'. Though his report stops just short of terming the attacks illegal, it does contain elaborate recommendations for a more thorough and transparent international-law regime on determining the legality of target killings.
In the particularly complicated context of the conflict in the tribal areas, the targeted killings by US drones might appear to many (particularly in defence and counter-terrorism circles) as a better alternative to a conventional military operation. Nonetheless, targeted killings, by their very nature, will always remain at base an execution. And for this reason alone they might never become an accepted part of international humanitarian law, whatever its use and however the collateral damage might be lessened.
In the end, then, the issue is rather simple. Al-Qaeda and the other militant groups operating in Pakistan and Afghanistan today do not respect human rights, they do not follow international law, and they do not abide by the laws of war. States, however, do. There might be other ways to counter militant threat. The dilution of the principles of international humanitarian law – just as we are entering the era of international accountability for war times, when the principles of immunity are giving way to international justice and ideas of universal jurisdiction for torture and war crimes – is beginning to appeal to many countries. As for the drone, it has not yet lived up to its earlier promise, that of a pilotless warrior in hostile skies; for the moment, it would appear, the drone has evolved for a spy into an assassin, without ever becoming a soldier.