Drones and Pakistan, Consent and Sovereignty

This week, the U.N.’s Special Rapporteur for Human Rights and Counterterrorism Ben Emmerson, issued a statement concluding, “As a matter of international law the US drone campaign in Pakistan is . . . being conducted without the consent of the . . . legitimate Government of [Pakistan]. . . . and is therefore a violation of Pakistan’s sovereignty.”  Emmerson based his conclusion on meetings he held between March 11–13, 2013 with representatives of Pakistan’s government, as well as Pakistani civilians.  His lengthy statement includes a detailed summary of those conversations that elaborate the view of Pakistan’s government and is instructive because of its contradictions.  But I digress.

In so far as Pakistan does not consent to U.S. drone strikes, those strikes most certainly violate Pakistan’s sovereignty.  Whether they violate international law is a more difficult question.  Any discussion of the international law governing a state’s use of force must begin with the UN Charter, which occupies the field of modern jus ad bellum.  Article 2(4) of the UN Charter states:

All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

There are three exceptions to this blanket prohibition on the use of force between states: two found within the text of the UN Charter, and one found in the nature of states.  First, one or more states may use force when it is authorized by the U.N. Security Council under Chapter VII:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.  (Article 39) Should the Security Council consider that measures provided for in Article 41 [measures short of force] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.  (Article 42)

Second, Article 51 (also found in Chapter VII), preserves each state’s inherent right to self-defense in case of an armed attack:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Third, although not found in the UN Charter, state consent to use of force is a well-recognized principle of international law.  That is, State A may authorize State B to use force within State A’s territory.  Although State B is clearly violating the territorial integrity of State A by so using force, Article 20 of the Draft Articles of State Responsibility state that “[v]alid consent by a State to the commission of a given act by another State precludes the worngfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”  The continuing validity of consent in international law was affirmed by the International Court of Justice in Armed Activities on the Territory of the Congo. 

The U.N. Security Council has not authorized U.S. use of force within Pakistan so at least that justification for use of force is off the table.  However, with any given drone strike the United States may invoke consent or self-defense or both—the two justifications are not mutually exclusive. 

But the United States is clearly at least relying on consent to justify the lawfulness of its drone strikes in Pakistan.  An article in the Wall Street Journal in September described the evolution of the quantum of consent the United States has considered valid over the last several years.  David Sanger also explored Pakistani consent to US drone strikes in his excellent book Confront and Conceal. From these and other sources, it is apparent that Pakistan gave its consent to US drone strikes at some point.  The problem for both the United States and the Special Rapporteur is determining whether Pakistan continues to consent to those strikes and, if not, when did it revoke that consent. 

As the Draft Articles state, consent only precludes the wrongfulness of an act to the extent that act remains within the limits of the consent given.  Thus, if State A consents to force by State B in the northern half of A’s territory, any force used by B in the southern half of A would be wrongful whereas the same sort of force used in the northern half would lawful.  Similarly, consent to force tied to narrow objectives is only lawful in pursuit of those objective.  For example, if Pakistan were to authorize drone strikes targeting Tehrik-e-Taliban Pakistan but not Lashkar-e-Taiba, then any U.S. strike targeting LeT would be a violation of Pakistan’s consent and thus wrongful under international law.  Even after granting consent to use of force in it’s a territory, a state may subsequently revoke that consent, rendering any use of force by the outside state after the revocation of consent unlawful.  Such was the case of the Democratic Republic of the Congo and Uganda in Armed Activities on the Territory of the Congo. 

Public statements by Pakistani politicians and elected officials, and statements by officials from the Pakistani Ministry of Foreign Affairs and Defence on which Emmerson relies, seem to suggest that Pakistan has revoked its consent for U.S. drone strikes.  However, statements alone cannot be conclusive.  As Roberto Ago noted in his capacity as Special Rapporteur for State Responsibility, “like all manifestations of the state . . . consent can be expressed or tacit, explicit or implicit, provided, however, that it is clearly established.”  Obviously, observers’ lives are made easiest when consent is expressed and done so through some public, verifiable means as in a treaty.  Unfortunately consent is not always given in so accessible and identifiable a fashion.  Consider, for example, the consent given by former President Saleh to U.S. drone strikes in Yemen.  Reports of that consent indicate that it was broad consent to use of force given verbally and privately by President Saleh with the expectation that Saleh would claim any U.S. strikes were the work of Yemen’s airforce both in public and to Yemeni lawmakers.  In Yemen’s case, then, consent was clearly given by Yemen (or at least President Saleh) to the United States.  But the clarity of this consent let alone its very existence was secret and not accessible to observers.  Thus, it is not sufficient merely to look to public statements by a state’s political leadership for evidence of consent or its absence.  We must also consider the objective behavior of the state.

In Armed Activities on the Territory of the Congo, the ICJ was forced to consider when the Democratic Republic of the Congo withdrew its consent to the presence of Uganda armed forces on its territory.  The Court considered the arguments of both sides but concluded that, when Congo President Kabila declared the presence of Ugandan forces in the DRC to be an invasion, consent for their presence had been revoked.  Although his statement is similar to accusations from Pakistani officials that the United States is violating its sovereignty, one must recall that Kabila’s statement was paired with Congolese actions.  Within two weeks of declaring that Uganda’s presence constituted an invasion of the DRC, Kabila had enlisted the armed support of Namibia, Zimbabwe, and Angola to oust both Uganda and Rwanda’s forces from the territory of the Congo. 

It is worth noting that Pakistan has taken no similar, concrete steps to demonstrate its revocation of consent to U.S. drone strikes.  This is not to say that Pakistan need pair its verbal protests with a direct assault on U.S. or coalition troops operating in Afghanistan to make a revocation of consent operative.  But Pakistan’s behavior in general has been at best ambiguous.  Despite having the capacity to “‘trace and detect any aircraft’” operating near its border with Pakistan and (apparently) the ability to shoot such aircraft down, there have never been reports of Pakistan shooting down a U.S. drone.  Although the absence of public reports of such downings is not dispositive, the fact that U.S. drones carry out any strikes even though they are slow moving, are not maneuverable, and carry no air defense countermeasures, strongly suggests that Pakistan is choosing not to interdict drones.  Additionally, Pakistan has a modern air force that is at least as capable as the Iranian air force but, while Iran has chased a number of U.S. air force drones over the Persian Gulf in recent months, there have never been any similar reports from Pakistan.  Finally, and perhaps most tellingly, Pakistan has not taken the sort of concrete steps vis-à-vis the United States for drone strikes as it has for other violations of Pakistani sovereignty.  For example, in November 2011, a frontier incident between U.S. and Pakistani troops (that resulted in the death of 26 Pakistanis), led Pakistan to both close its border with Afghanistan to NATO convoys and to kick U.S. drones out from their Pakistani bases.  Pakistan also upgraded its Afghan-border air defense systems.  Similarly, after a CIA contractor killed two Pakistanis in January 2011, Pakistan ousted all CIA contractors and reduced the number of U.S. special operators allowed in Pakistan for training missions from 120 to 39.  Not only has Pakistan not taken such steps in response to U.S. drone strikes, at least until the Wall Street Journal report at the end of September 2012, Pakistan  continued to clear the parts of its air space in which the CIA indicated it would conduct drone strikes.  That is to say, not only is Pakistan not intervening to prevent drone strikes, it is taking affirmative steps to facilitate those strikes.  Thus, Pakistan’s behavior at least renders its public statement ambiguous and, more likely, supersedes those statements altogether.  Again, consent must be clearly stated but clearly stated to the recipient of that consent not the outside world.

If the United States is operating without Pakistan’s consent within Pakistan, it is violating Pakistan’s sovereignty—and it may be violating international law.  However, Emmerson’s conclusion notwithstanding, it is far from clear that, as a matter of international law, the United States is violating Pakistani sovereignty.  

Uniting for Peace

As UN Security Council action on Syria founders on the usual rocks of the veto-wielding permanent members, David Bosco has posted a series of entries on his Multilateralist blog at FP discussing the veto power and ways around it (Bosco posits shame). What he hasn’t included is a discussion of the “Uniting for Peace” resolution, the most direct (if esoteric) way around Russia’s veto obstruction.

Resolution 377 A—the so-called Uniting for Peace resolution—was adopted by the General Assembly in 1950 in response to Soviet veto obstructionism (the more things change?). At the time, the Soviet Union was preventing further UN Security Council action on the crisis in Korea after it ended its boycott of the Security Council. The text of the resolution reads in part:

Reaffirming the importance of the exercise by the Security Council of its primary responsibility for the maintenance of international peace and security, and the duty of the permanent members to seek unanimity and to exercise restraint in the use of the veto,
 . . .
 Conscious that failure of the Security Council to discharge its responsibilities on behalf of all the Member States, particularly those responsibilities referred to in the two preceding paragraphs, does not relieve Member States of their obligations or the United Nations of its responsibility under the Charter to maintain international peace and security,
 Recognizing in particular that such failure does not deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security,
 Recognizing that discharge by the General Assembly of its responsibilities in these respects calls . . . for the existence of armed forces which could be used collectively . . .
 1. Resolves that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security. . . .

The Uniting for Peace resolution has been invoked on several occasions to circumvent a deadlocked Security Council in the face of a threat or breach of international peace and security. These occasions have included the United States’ invocation of Uniting for Peace during the Suez Crisis.

In theory, the Uniting for Peace resolution offers a path around the Security Council for Western actors that seek to intervene in Syria. Although it does not authorize military action under Chapter VII, as a Security Council resolution may, it may call for collective military action. Thus, the General Assembly could not invoke, as could the Security Council, endorse the Arab League plan for Syria under Chapter VII authority, which would compel Syria to follow that plan or face international force. But, Uniting for Peace, could be used to call on members of the international community to intervene in Syria because of its failure to carry out the Arab League plan (or because Syria’s actions are a threat to or breach of international peace and security). In the wake of intervention, it would then be up to the ICJ to determine whether such intervention under the guise of Uniting for Peace was wrongful.

Of course, like so many other technical devices, once used in this manner it can never be unused. The prospect of taking internationally sanctioned uses of force out of the hands of the Security Council and, implicitly, the hands of the permanent members thereof is the very reason this route is unlikely. Much like the elevation of R2P to the level of customary international law or (even less likely) jus cogens, this would represent a radical alteration in the power dynamics of the current international system.

Fact Check: Nancy Youssef

What’s with Nancy Youssef’s overly pessimisticreport about the Libyan intervention on NPR’s On Point today? During her appearance, wherein she was nominally supposed to update listeners on the status of the Libyan intervention 100 days on:

Youssef: The rebels are trying to hold on to the ground they’ve gained. Interestingly they have less ground than they did a hundred days ago . . . .

Gjelten: The rebels have less ground, they’re actually losing ground? I thought the rebels have been making a little bit of progrees.

Youssef: They have. But if you look at how much land they hand—especially in the east—from, compared to where they were when this began. Remember, they had all the way to Bin Jawad when this began and now they’re not able to take Brega which is about a 100 kilometers east of Bin Jawad . . . .

After challenging her once, Gjelten allows this assertion to go. But Ms. Youssef is flatly mistaken. The Libyan rebels had pushed to Bin Jawad on March 6, 2011—some two weeks before the Libyan intervention began. The rebels were quickly pushed out of Bin Jawad and by March 7, Qaddafi’s forces had reestablished control over Bin Jawad. At that point, Qaddafi’s counteroffensive against the rebels was in full swing and, between then and March 19, 2011, his forces moved east all the way to Benghazi, where Qaddafi’stanks were stopped in their tracks by NATO airstrikes. Subsequent NATO air support for the rebels have allowed Libya’s rebels to push Qaddafi’s forces back to Brega and fight Qaddafi to a stalemate in the east while—as Youssef admits—gaining ground in the west. Notably, rebels did advance all the way back toBin Jawad on March 27—some 8 days after the intervention began—but were pushed back to Brega.

Despite Ms. Youssef’s flawed report, it is clear, as this blog has repeatedly noted, that the Libyan rebels are making slow and steady progress to liberate their country.

George Will: Deeply Unserious on Foreign Policy

Sunday, George Will’s column will include this passage (h/t Mike Allen):

America's intervention in Libya's civil war, the most protracted and least surreptitious assassination attempt in history, was supposed to last 'days, not weeks,' but is in its fourth month and has revealed NATO to be an increasingly fictitious military organization. ... After more than 10,000 sorties, ... NATO's increasingly desperate strategy boils down to: Kill Gaddafi. Then what? More incompetent improvisation, for many more months.

Let us begin with Will’s mischaracterization of the operation as “the least surreptitious assassination attempt in history.” Will’s criticism here is bizarre for at least two reasons: (1) it’s not an assassination attempt; and (2) Will seems to be suggesting that the operation would be more palatable if it were surreptitious.

To begin with, NATO is not attempting to assassinate Col. Qaddafi, even if NATO is targeted him for killing. Though it is tossed about in the press to cover any sort of state-sponsored killing of an individual, assassination is not so broad. Moreover, this misuse of the word effectively abjures the whole body of the law of armed conflict. People are killed in armed conflicts. This is the very nature of armed conflicts. When armed conflicts occur--and there is surely one occurring Libya--states are vested with the authority to use force against enemy states, including their combatants and the infrastructure that provides the enemy state a military advantage. Combatants include both front-line soldiers and commanders, including Col. Qaddafi. Additionally, combatants are eligible targets 24 hours a day, 7 days a week, and anywhere they are found (provided the use of force satisfies the proportionality analysis), so long as they are not rendered hors d’combat. Bombing Qaddafi’s compounds, from which he exercises command and control, clearly satisfies these conditions. Further, because Qaddafi is the commander of his armed forces, he himself is a combatant and may be targeted at anytime and anywhere, unless he is hors d’combat. This is not assassination.  

Will’s bizarre critique of the operation’s lack of ruse, perfidy, or treachery is undeserving of a response.

Next, despite the number of times American commentators—particularly right-leaning American commentators—decry NATO’s operation as a failure or mired in a stalemate, this contention is patently false. When NATO’s operation began, Qaddafi’s forces were on the verge of overrunning Benghazi, Qaddafi had reestablished control over nearly all of western Libya, and Misurata was under siege. The Arab Spring itself was threatened with being snuffed out. Now, after just 90 days of bombing, the Libyan rebels have consolidated control over eastern Libya, they’ve pushed out of Benghazi all the way to Brega, they have made huge gains in the last two weeks in western Libya, lifting the siege of Misurata and capturing towns Qaddafi consolidated control over in the days before the NATO campaign began, and they have demonstrated a new-found ability to coordinate their operations.

And what result if NATO were to have not intervened? The rebellion would have been crushed, likely brutally. Qaddafi’s regime would have consolidated power. Worse, statements by Western leaders—including many of the members of the Republican party (elected or otherwise) who currently level criticism at this operation—would have ensured Qaddafi’s return to pariah status. And, with that return to pariah status, Qaddafi would doubtless have returned to his old ways of providing arms and support to radical and terrorist elements around the world. His regime would have been a source of insecurity for the United States.

Instead, now the United States, by virtue of its early though limited combat participation and its continuing provision of logistical support, has managed to actual build good will with a population in the Middle East. This feat may be the greatest foreign policy coup for the United States in the last decade. And George Will wants to snuff it out.

NATO should keep bombing Colonel Qaddafi. The United States should keep supporting that operation. It should lend more support to the Libyan rebels. These rebels will soon replace Qaddafi at Libya's helm.

To Not Intervene in Libya

Intervention in armed conflict confined within the borders of one country makes me nervous.  My colleague, Ben, recently advocated for Western intervention in Libya, and while it is clear the rebels need assistance, I’m still leery of coming off the fence.

From out a different time comes this reflection on US foreign policy in October 1959:
The Western conception of Democracy seems to me the only one that is worthwhile from the viewpoint of the human condition, of human rights, and freedoms.  Its superiority resides in the fact that it places Man at the summit, while Communism reduces him to the state of a slave to an all-powerful State...But the weakness of Western Democracy is its failure to deliver social justice...In most countries where they build up military forces as a rampart against totalitarian, freedom-hating communism, our American friends close their eyes to the violations of Democracy perpetrated by the governments concerned - violations which lead to a system no less totalitarian than the one they are fighting against, and without the latter’s advantages...The West must try to understand that.

This passage struck a chord with me in the context of the Arab Spring.  The issue of when and when not to intervene is not a new one, but our posture has evolved over time.  However, there is one lesson we can learn despite this evolution:  When the West picks a side and backs it with weapons and violence, they tend to destroy that which they sought to protect.  Western, or American, involvement can quickly illegitimize a rebellion.  It can rally the ambivalent to the government’s side, seeing Western involvement as a violation of sovereignty.

Even when we are successful at covertly supplying rebels, the outcomes can be hard to predict.  Case in point: American interventionism in Afghanistan in the 1980s and 1990s.  In Afghanistan we dumped weapons and when we felt we had “won” we left Afghanistan to sort itself out.  So what are we to do?

The US does best when it supports peaceful protests.  When we work through diplomacy, when we don’t supply guns, the results tend to be more favorable. You saw this in Egypt and Tunisia. We deftly navigated a complicated diplomatic minefield, which led to relatively bloodless revolutions. The final outcomes remain unknown, but few think the situation in Egypt or Tunisia would have been better if the US had intervened militarily.  Clearly in Libya we lack the carrots we did in Egypt, and diplomacy is only effective if the sticks remain on the table.  However, I remain hesitant of military intervention.  I would freely admit there may not be a situation where I would change my mind.

As to the speaker above, he was Sihanouk, the despotic ruler, and one-time king, of Cambodia.  In his own efforts to root out leftist opposition, he ignored all manner of human rights and was eventually deposed in a coup.  When the US intervenes militarily the consequences are uncertain, and often don't fully precipitate until years later. Sihanouk decries the way the West builds up military forces and doesn't use them, but the use of force has a ripple effect far more unpredictable then civil disobedience and diplomacy.

Naked No-Fly Zones

On Friday, Gen. Wesley Clark penned an Op-Ed in the Washington Post arguing against U.S. intervention in Libya. While I disagree with his conclusion—as I noted here, I advocate for covert military support for the Libyan rebels as an initial matter—Gen. Clark raises some excellent points. Among them:

In Libya, Gaddafi has used and supported terrorism, murdered Americans and repressed his people for 40 years. The American public may want to see him go. But his current actions aren't an attack on the United States or any other country. On what [legal] basis would we seek congressional support and international authorization to intervene in a civil war? Do we have the endorsement of the Arab League? A U.N. Security Council resolution?

(emphasis mine).

International law evolves through custom and through treaties. Custom is defined by state practice—the actions of one or more states in a particular situation, the justifications put forward by those states, and the reactions of the rest of the international community. In Libya, instituting a unilateral (or even a multilateral) No-Fly Zone without a U.N. Security Council Resolution—or at least a determination by NATO that Qaddafi is threatening the alliance—risks rolling back 80 years of international law prohibiting aggression.

Once, war as a political tool was common place. The power to make war at will was seen as the prerogative of every sovereign. (In fact, what differentiated fully- and quasi-sovereign states was the lawful ability of the one to make war in contrast to the other.) That era faded with the signing of Kellogg-Briand Treaty in 1928. The end of the lawfulness of aggressive war was confirmed by the Nuremburg Tribunals following World War II. And, since then, states that have taken offensive action against other states have sought to justify that action almost universally on some other legal basis—general self-defense but sometimes protection of nationals or humanitarian intervention—acknowledging, implicitly, that to engage in offensive war would be illegal.

The problem with imposing a No-Fly Zone over Libya without U.N. sanction is that doing so is certainly an act of aggressive warfare. What else could it be with French recognition for the Libyan rebels, threats from the United States, and demands from other Western states that Qaddafi must leave? Clearly, the West has decided on a political course of action—the removal of Qaddafi—and, by imposing a No-Fly Zone, seeks to effect that course of action.

Worse, an unsanctioned No-Fly Zone would be an act of aggressive warfare widely accepted if not praised by the international community. As such, it would serve as dangerous precedent to any state that might find it convenient to wage war against a neighbor to settle a border dispute, accumulate more land and resources, or merely distract its own populace from troubles at home. Notwithstanding Kellogg-Briand, the U.N. Charter, or the Rome Statute, this customary restoration of lawful aggressive warfare may well undercut the modern international order, legal and otherwise.