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.
