Saturday, March 16, 2013

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.