FLJS policy brief questions US policy on drone strikes in Pakistan

09 January 2015

The Foundation for Law, Justice and Society has today published a policy brief by two members of the New York City Bar Association who led the Association’s eighteen-month investigation into the legality of US drone strikes to kill non-state actors in Pakistan and elsewhere.
 
The policy brief, entitled Killing by Drones: Legality under International Law, assesses the legality of drone strikes against ISIS in Syria, al-Quaeda in Iraq, the Taliban in Afghanistan, and al-Shabaab in Somalia, as well as strikes in Libya, Mali, Yemen, and – significantly – Pakistan, which has been subject to more drone strikes than any other territory, although the US generally does not acknowledge such action.
 
The authors, Rory O. Millson and David A. Herman, who were part of the New York City Bar International Law Committee that undertook the investigation, question the wisdom of such secrecy in the face of admissions from former Pakistan President Pervez Musharraf and cables released from Wikileaks, which indicate that there was a secret agreement between Pakistan and the US to allow drone strikes on Pakistani territory.
 
As part of a series of policy recommendations, the authors argue that, “the US should rethink its policy of conducting these wars in secret” since it “may have the counterproductive effect of radicalizing individuals in the region and letting local governments escape responsibility for their own problems.”

The US should rethink its policy of conducting these wars in secret [since it] may have the counterproductive effect of radicalizing individuals in the region and letting local governments escape responsibility for their own problems.

The policy brief addresses the “serious policy issues” raised by this lack of transparency over US drone strikes, and confronts public misconceptions about the legality of so-called ‘kill lists’ and ‘signature strikes’, concluding that they “are not per se illegal and may in fact ensure compliance with the principle of distinction if the lists and the ‘signatures’ are sufficiently precise.”
 
Besides the issue of transparency, Millson and Herman identify three key preconditions governing the legality of drone strikes: (1) the consent of the territorial State or the valid exercise of the right of self-defence; (2) the existence of an ongoing armed conflict, and (3) adherence to the rules of International Humanitarian Law, especially the principle of distinction, which states that military targets may be the subject of armed force but civilians may not.
 
The authors find, in agreement with international NGOs, human rights groups and UN Special Rapporteur Ben Emmerson that ‘the overwhelming majority’ of drone strikes are conducted within conventional theatres of armed conflict. 
 
The authors also make a call for the public debate to move away from “the Bush-era relic of a ‘global war’ and focus instead on the reality, namely that the US is participating in discrete domestic armed conflicts, against different enemies, at the behest of multiple foreign governments, and doing so largely in secret.”

The public discussion on armed conflict should move away from a debate over the Bush-era relic of a ‘global war’ and focus instead on the reality, that the US is participating in discrete domestic armed conflicts, against different enemies, and doing so largely in secret.
 

Key recommendations on matters of law and policy include:

  • If the US is acting, or has acted, outside the scope of Pakistan’s consent to use force on its territory, the US should make disclosures to the Security Council under Article 51 of the UN Charter.
  • To justify the pre-emptive use of force on another State’s territory, the US must establish not the “imminence” of an attack on the US  but the “necessity” of using force, meaning that there are no other means to avert a threat of violence to the US or its personnel abroad.
  • Although there is no broad international law duty of transparency, the US should rethink its policy of conducting these wars in secret. Secrecy (a) hinders the United States in the propaganda war against non-State actors; (b) compromises democratic values domestically; and (c) enables foreign governments to utilize US military strength to combat their own enemies while denying involvement and even demonizing the US for the conduct they have authorized.

 
Download:
 
Killing by Drones: Legality under International Law
Rory O. Millson and David A. Herman, members of the New York City Bar Association International Law Committee