Targeted killings as a part of the War on Terror: a study on U.S. cross-border incursions in Pakistan

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JURIDISKA INSTITUTIONEN Stockholms universitet

Targeted Killings as a Part of the War on Terror

– A Study on U.S. Cross-‐Border Incursions in Pakistan

Xandra Carlsson

Examensarbete i Folkrätt, 30 hp

Examinator: Said Mahmoudi

Stockholm, Höstterminen 2013

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ABBREVIATIONS ... 3

1. INTRODUCTION ... 4

1.1 B

ACKGROUND

... 4

1.2 P

ROBLEM

D

ISCUSSION

... 5

1.3 P

URPOSE

... 8

1.4 R

ESEARCH

Q

UESTIONS

... 8

1.5 M

ETHOD

... 8

1.6 S

OURCE

C

RITICISM

... 9

1.7 D

ELIMITATION

... 9

2. PAKISTAN ... 10

3. LETHAL FORCE ... 11

3.1 D

EFINITION

: T

ARGETED

K

ILLINGS

... 11

4. JUST WAR TRADITIONS ... 14

5. THE CHARTER OF THE UNITED NATIONS ... 16

5.1 A

RTICLE

2(4) –

AN ABSOLUTE PROHIBITION TO THE USE OF FORCE

? ... 17

5.2 A

RTICLE

51 – T

HE

I

NHERENT

R

IGHT TO

S

ELF

-D

EFENCE

... 20

5.2.1 The Notion of “Armed Attack” ... 23

5.3 A

CTS OF

A

GGRESSION

... 26

5.4 T

HE

E

VOLVEMENT FROM

S

TATE TO

N

ON

-S

TATE

A

CTORS

? ... 29

6. STATE LIABILITY ... 31

6.1 H

ARBOURING

S

TATES OR THE

U

NABLE AND

U

NWILLING

T

EST

? ... 33

7. THE LEGALITY OF THE U.S.’S USE OF FORCE IN PAKISTAN IN SELF- DEFENCE – SUMMARY ... 35

8. NECESSITY, PROPORTIONALITY AND IMMEDIACY ... 39

8.1 P

RE

-

EMPTIVE SELF

-

DEFENCE

... 40

9. STATE CONSENT TO CROSS-BORDER INCURSIONS ... 42

10. TIME TO REINTERPRET THE CHARTER AND THE PROHIBITION OF THE USE OF FORCE? ... 44

11. CONCLUSION ... 48

12. BIBLIOGRAPHY ... 50

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ABBREVIATIONS

9/11 The terrorist attacks on the United States

of America on 11

^th

September 2001 on the Pentagon and Twin Towers

The CIA Central Intelligence Agency

FATA Northwest boarder region between

Afghanistan and Pakistan known as Waziristan

HRL Human Rights Law

IHL International Humanitarian Law

The International Court of Justice ICJ

Territorial state The state in which the terrorists resides

UAV Uninhabited Aerial Vehicle

UCAV Uninhabited Combat Aerial Vehicle

UK United Kingdom

UN United Nations

UN Charter/Charter Charter of the United Nations

U.S. The United States of America

Victim state The state attacked by the non-state actor

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1. INTRODUCTION

1.1 Background

The fall of the Twin Towers and attack against Pentagon on September 11

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2001 (hereinafter 9/11), went to the heart of the American Republican foreign policy agenda as they symbolised the United States of America’s (hereinafter U.S.) international economic influence. After the attack, President George W. Bush declared “War on Terror”

¹

and that in order to prevent hostile acts, the U.S. would; “…reserve the option of pre-emption where a grave threat is posed to it or its allies.”

²

The Bush administration reconfirmed the previous view taken after for example the discotheque bombing in Berlin in 1986,

³

where terrorists and supporting states were considered capable of threatening the national security; hence refocusing the national strategic posture. As a response to the attacks on 9/11 the U.S. and the United Kingdom (hereinafter UK) soon thereafter went into Afghanistan in the fight against terrorism, al Qaeda and the Taliban in what was to be known to the world as “The Bush Doctrine” or “The New Strategy”.

⁴

The main elements of the Bush Doctrine were outlined in the National Security Strategy of the U.S. and initially described the policy that the U.S. had the right to secure itself from countries that harbour or give aid to terrorist groups – regardless of where the terrorists may be dwelling geographically. Consequently, reserving the right to target and kill terrorists on other states sovereign territory. This new posture was to be; “…regarded as a genuine attempt to adapt the legal doctrine to

1 Bush, G.W, (2001, September), Address to a Joint Session of Congress and the American People, Washington, DC, Available at: <http://georgewbush-

whitehouse.archives.gov/news/releases/2001/09/20010920-8.html>

2 Soafer, A.D, (2003), On the Necessity of Pre-Emption, European Journal of International Law, Vol.

14, No. 2, p. 211.

3 CNN, (2001), Berlin Disco Bomb Verdict Due, 23.20.2013, Available at:

<http://edition.cnn.com/2001/WORLD/europe/11/12/germany.disco/index.html>

4 Cordesman, A.H, (2007), The New Bush Strategy in Iraq Is Victory Still Possible? A Detailed Analysis of the Bush Plan, Arleigh A. Burke Chair in Strategy, 18.10.2013, Available at:

<http://csis.org/files/media/csis/pubs/070116_cordesman_bush_plan.pdf>

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contemporary demands…”

⁵

and get around the problem where the harbouring state is “unwilling or unable” to meet the posed threat. On the 1

^st

of June 2002, George W. Bush announced, in his graduation speech at West Point Military Academy, that preventive war would play a vital role in the future of American foreign policy and national defence.

⁶

As a subsequent step, the U.S. began using uninhabited combat aerial vehicles (UCAV), also called drones, which selectively targeted suspected al Qaeda and Taliban strongholds,

⁷

primarily in the northwest boarder region between Afghanistan and Pakistan known as Waziristan (FATA).

⁸

1.2 Problem Discussion

Legal scholars have questioned the legality of the U.S.’s use of drones in targeted killings in Pakistan because of the issues to unite the concept of state sovereignty and the legal justifications given. So far, the explanations for the sovereign trespasses given by the U.S. in the war on terror have been, at best, weak. The U.S. has put forward two justifications for the use of force in Pakistan. Firstly in self-defence as a response to armed attacks carried out by al Qaeda and the Taliban, and secondly, because Pakistan has consented, openly, implicitly and/or tacitly to the use of force on its territory. The emergences of the Bush Doctrine and later on the Obama Doctrine, which essentially follows the same outline as set by the Bush administration, pose major limitations to the concept of state sovereignty. In international law state independence is an absolute right that gives states the power to regulate internal affairs without foreign interference. There is an inherent right to self-defence found in Article 51 of the Charter of the United Nations (hereinafter the UN Charter or Charter) but traditionally, the application

5 The National Security Strategy of the United States, (2002), The National Security Strategy of the United States, 18.10.2013, Available at: <http://nssarchive.us/NSSR/2002.pdf>

6 Bush, G.W, (2002, June), President Bush Delivers Graduation Speech at West Point, West Point, NY, Available at: <http://georgewbush-whitehouse.archives.gov/news/releases/2002/06/20020601- 3.html>

7 Bush, G.W, (2001, October), Presidential Address to the Nation, Washington, DC, Available at:

<http://georgewbush-whitehouse.archives.gov/news/releases/2001/10/20011007-8.html>

8 FATA, (2013) Federally Administrated Tribal Areas, 2013-01-29, Available at:

<http://www.fata.gov.pk/>

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of the Charter has been in relation to the use of force by states or state sponsored organs. The 9/11 attacks thus amplified the urgent feeling that states no longer were the sole actors on the international arena but non-state actors had the potential to pose a real and dangerous threat to the national security as well.

However, although the U.S. legal justifications have not received a consistent opinion juris, the majority of states find that the U.S.’s deployment of drones into other states sovereign territory must adhere to the same legal rules as traditional manned aircraft. There is hence no legal difference since both types of aircrafts are capable of violating international laws. Nevertheless, regardless of what the majority believes, the U.S. is continuing its war on terror by using drones in targeted killings in Pakistan without a clear justification. The U.S.’s actions may however, despite the inconsistent support by other states, have far reaching implications as it seemingly widens the scope of the use of force found in the UN Charter.

Furthermore, looking at the future, the importance of combat drones in modern warfare will most likely not decrease. Potentially, drones could become the next decade’s choice in combat aircraft warfare. Drones or

“Predators” perform tasks that otherwise would be too dull, dirty or dangerous for a soldier to perform, referred to as the “Three Ds”.

⁹

These advantages paired with the relatively cheap costs of manufacturing drones has led to a dramatic increase in their use since 2005.

¹⁰

The considerations of the potential costs in lives by sending pilots to warzones or remote areas for missions of reconnaissance is lowered or completely removed, hence making it “easier” to target and kill enemy combatants without an increased risk for military personnel.

9 Singer, P.W, (2009), Robots at War: The New Battlefield, The Wilson Quarterly (1976-), Vol. 33, No.

1, p. 36.

10 Ibid, p. 33.

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Although the U.S. is not the only country that operates drones, other states have to this day used UAVs (uninhabited aerial vehicles) for surveillance purposes only and not UCAVs (uninhabited combat aerial vehicles) armed for launching missiles.

¹¹

This is partly due to the advantages in sophisticated warfare vehicles the U.S. has had, however, this advantage could be about to disappear. There has been an increased interest from both state and non-state actors (such as Hezbollah) to acquire more high-tech drone technology, which leads to the question - what will happen when others follow the U.S.’ lead? Firstly, will the threshold for the use of force in self-defence be lowered to include non- state actors, and secondly, will the use of drones in targeted killings become commonly accepted in such armed attacks? The fear is that without any risk of human loss for the attacker, the legal limitations on who can be killed, and under what circumstances might be interpreted too expansively. Peter W. Singer called drone technology “worryingly seductive” as it creates the perception that war can be “costless”.

¹²

There seems to be a danger of an emergence of a double standard where the U.S. won’t adhere to the same legal rules as the rest of the international community. The legality issues regarding the U.S.’s frequent use of drones in targeted killings in Pakistan are making it palpable that there is a lack of consensus among states and legal academics. It is not wholly clear whether the Charter allows the use of force in self-defence against non-state actors or whether the use of drones in targeted killings comply with international laws, there is thus an urgent need for clarity.

11 Brunstetter, D, & Braun, M, The Implications of Drones on the Just War Tradition, Ethics &

International Affairs, Vol. 25, No. 3, p. 337.

12 Mayer, J, (2009), The Predator War. What are the risk for C.I.A.’s Covert Drone Program?, 08.09.2013, The New Yorker, Available at:

<http://www.newyorker.com/reporting/2009/10/26/091026fa_fact_mayer>

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1.3 Purpose

The aim of this essay is to examine the U.S.’s actions in Pakistan in the war on terror. An analysis will be made of the U.S.’s justifications for the use of force and the legality of combat drones in targeted killings in Pakistan under international law.

1.4 Research Questions

This essay will examine the U.S.’s cross-border incursions in Pakistan in the war on terror. Can the U.S. legally justify targeted killings in Pakistan through the use of drones under international law?

Particularly, can the U.S. invoke the inherent right to self-defence found in Article 51 of the UN Charter?

Is it time to reinterpret the UN Charter to include non-state actors in the definition of self-defence and the prohibition of the use of force in order combat transnational terrorism?

1.5 Method

The method is to critically analyse the different views taken by states and legal scholars in the use of force against non-state actors and the legality of the use of drones in targeted killings. State practice will also be examined in the light of case law from the International Court of Justice (hereinafter ICJ). Furthermore the UN Charter will be assessed.

Specific attention will be paid to Articles 2(4) and 51 since the U.S. has

put forward two justifications for the use of force in Pakistan, firstly in

self-defence as a response to armed attacks carried out by al Qaeda and

the Taliban, and secondly, because Pakistan has consented, clearly,

implicitly and/or tacitly to the use of force on its territory.

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1.6 Source Criticism

Apart from the official UN Charter, UN documents such as Security Council Resolutions and state practice, most of the sources that describe the situation in Pakistan have been found in the media. Additionally, most of the sources are from western media and thus a western view on the turn of events is prevailing in the sources. Therefore, the true picture might not be the one put forward in this essay, for example, how someone has been killed or the number of civilians killed might differ from the published numbers. However, some of the sources used are taken from Middle Eastern media. This is to try to offer a more balanced picture, although, still, the truth of the matter might be hard objectively present. Secrecy is an essential part of diplomacy, resulting in that the true relationship between Pakistan and the U.S. is unclear.

The motives that these two states have for arguing certain standpoints are perhaps not always given in its entirety, or even partially, or for that matter given truthfully.

1.7 Delimitation

Drones have become a legally controversial topic due to two main reasons. Firstly, because of its frequent use by the U.S. in states in which the U.S. is not in an armed conflict with, and secondly, because of it’s use in targeted killings of suspected terrorists. However, drones are not the first aircrafts to be able to hover and launch missile attacks from the air. Traditional missile weapons platforms such as combat airplanes, helicopters and submarines, can fire missiles in the same way as from a drone. There is no difference between a drone attack launched by an operator based in Nevada compared to an attack from a helicopter, or a gunship launched far away from the combat zone.

Drones are like any other weapon, hand held or otherwise – there is a need for a physical person to control them.

This essay will treat drones like any other guided missile weapons

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platform and no distinction will be drawn as some authors

¹³

have done between traditional target weapons and combat drones. This conclusion is in accordance with the assumptions of Philip Alston, special rapporteur for the UN in his report on Targeted Killings.

¹⁴

The essay will solely focus on the U.S.’s actions in the cross-border incursions and use of drones in Pakistan. Although other states may have used the same ratifications for the use of force against non-state actors, the legality issues of the U.S.’s actions have a greater impact on future legal implications because of its status in the international community. However, given the scope of this essay, the second U.S.

drone program conducted by the Central Intelligence Agency (hereinafter the CIA) will not be touched upon. Furthermore, the legality of the drone strikes in relation to International Humanitarian Law and Human Rights Law (hereinafter IHL and HRL) will not be examined due to the limited scope of this essay.

Lastly, “non-state actors” will be defined as to include any non-state entity that has the capacity to undertake armed attacks against the state.

These will include terrorist groups, rebel groups, other organized armed groups, and even individuals.

2. PAKISTAN

Following the 9/11 attacks in 2001, former President of Pakistan Pervez Musharraf sided with the U.S. against the Taliban government in Afghanistan after the U.S. president George W Bush put pressure on Pakistan to comply.

¹⁵

After the fall of the Taliban regime many members of the Taliban resistance fled to the Northern border region of Afghanistan and Pakistan where the Pakistani army had previously little

13 Brunstetter, D, & Braun, M, (2011), The Implications of Drones on the Just War Tradition, Op Cit.

14 U.N Doc A/HRC/14/24/Add.6, Human Rights Council 14th session, A Study on Targeted Killings.

Report of the Special Rapporteur on Extrajudicial, summary or arbitrary executions, Philip Alston.

15 USA Today, (2006, September), Musharraf’s Book Says Pakistan Faced U.S.’ Onslaught if it Didn’t Back Terror War, 24.10.2013, Available at: <http://usatoday30.usatoday.com/news/world/2006-09-25- pakistan-memoir_x.htm>

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control.

In 2004, the Pakistan Army launched a campaign in the FATA region to combat the growing al Qaeda and Taliban forces in the area.

¹⁶

Musharraf unequivocally condemned all acts of terrorism during the 61

^st

Session of the UN’s General Assembly in New York, and pledged to combat Islamic extremism and lawlessness within Pakistan itself. He stated that the government was committed to rooting out extremism and was seeking to prevent future acts of terrorism being launched from the territory of Pakistan.

¹⁷

3. LETHAL FORCE

Targeted killings are in most contexts prohibited as it violates the right to life. Only in exceptional circumstances can the use of lethal force be legal.

¹⁸

In armed conflicts, military armies are allowed to use force with the sole intent to kill if the use of force is in line with the rules set out under International Humanitarian Law and Human Rights Law.

3.1 Definition: Targeted Killings

Targeted killings have recently been a policy more frequently adopted by states to rid themselves of perceived threats to their national security. The term was put into commonly use in year 2000, when Israel made public a policy, which allowed targets to be put on alleged terrorists in the Palestine territories.

¹⁹

Though the term is used regularly, it has still not yet been defined by international law, nor does it fit any particular legal framework. One explanation to why it has been so difficult to agree on a definition of targeted killings might be the

16 South Asia Terrorism Portal, FATA Timeline, 24.10.2013, Available at:

<http://www.satp.org/satporgtp/countries/pakistan/Waziristan/timeline/2004.htm#>; Stewart, S, (2009), Pakistan: the South Waziristan Migration, Stratfor Global Intelligence, 24.10.2013, Available at:

<http://www.stratfor.com/weekly/20091014_pakistan_south_waziristan_migration>

17 Musharraf, P, (2006, September), 61^st Session of the United Nations General Assembly, New York, NY, Available at: <http://www.un.org/webcast/ga/61/pdfs/pakistan-e.pdf>

18 U.N Doc A/HRC/14/24/Add.6, Op Cit, para. 9.

19 Ben-Naftali, B, & Michaeli, K, (2003), We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of Targeted Killings, Cornell International Law Journal, Vol. 26, p. 2.

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challenge to narrow down and describe what actions that constitute targeted killings.

There is a wide range of contexts and ways to execute target killings, from armed conflicts to situations in peacetime, by governments and their agents, to organized armed groups in armed conflict. The method of killing may also vary, from drone attacks, to snipers or poison. There are hence few annexations between situations that could constitute

“target killings” and therefore not easy to find a common definition for it. However, looking at a few situations that have been agreed upon by scholars to constitute target killings there is a pattern to be discerned.

On 5

^th

January 1996, Yahya Ayash, also known as ‘The Engineer’, was killed in Gaza when his booby-trapped mobile phone exploded next to his head. Ayash had been one of the leading bomb makers of the Palestinian militant organization Hamas. Although Israel never publicly acknowledged responsibility, the killing of Ayash is widely attributed to Israel’s intelligence service Shin Beit.

²⁰

On 3

^rd

November 2002, six suspected al Qaeda members were killed in Yemen from a missile fired from a U.S. drone. Among those killed was Ali Qaed Senyan al-Harithi, suspected of masterminding the attack on the warship USS Cole off the coast of Aden in October 2000.

²¹

In London, on 22

^nd

July 2005 Jean Charles de Menezes was killed in the tube after being mistakenly taken for being one of the terrorist suspects after the London bombings earlier that year.

²²

He was shot several times in the head at close range.

20 BBC News, (2000), Israel Investigates Raid Deaths, 23.02.2013, Available at:

<http://news.bbc.co.uk/2/hi/middle_east/899104.stm>

21 Campbell, D, & Whitaker, B, (2000), CIA Missile Kills Al-Qaida Suspects – US Admits Involvement in Yemen Attack by Drone, 23.02.2013, Available at:

<http://www.theguardian.com/world/2002/nov/05/alqaida.terrorism>

22 BBC News, (2005), Man shot dead by police on Tube, 23.02.2013, Available at:

<http://news.bbc.co.uk/2/hi/uk_news/4706787.stm>

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American Anwar al-Awlaki was killed on 30

^th

January 2011, by a drone strike in Yemen.

²³

Anwar had been one of the most influential English- speaking adversaries to America and had been connected to dozens of terrorist investigations in the U.S., UK and Canada.

²⁴

Al-Awlaki had been targeted earlier by the U.S. but escaped, however, this time U.S.

drones crossed into northern Yemen and successfully unleashed a barrage of Hellfire missiles at a car carrying him and other top operatives from al Qaeda’s branch in Yemen.

In August 2012 several drone attacks in the northern Pakistan killed 13 people in three separate attacks.

²⁵

On the 3rd January 2013, Maluvi Nazir Wazir also known as Mullah Nazir was killed by a U.S. drone strike in the tribal regions bordering Afghanistan.

²⁶

Maulvi Nazir Wazir, was an important commander from the Wazir tribe.

Common features for all these non-exhaustive situations mentioned where some sort of target killings have been executed, are according to the UN Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the; “…intentional, premeditated and deliberate use of lethal force.”

²⁷

In Dr Nils Melzer view it is the intentional killing of a specified known target that differentiate target killings from;

“…unintentional, accidental, negligent or reckless use of lethal force.”

²⁸

23 Mazzetti, M, Schmitt, E, & Worth, R.F, (2011), Two-Year Manhunt Led to Killing of Awlaki in Yemen, The New York Times, 22.02.2013, Available at:

<http://www.nytimes.com/2011/10/01/world/middleeast/anwar-al-awlaki-is-killed-in- yemen.html?ref=anwaralawlaki>

24 Time Topics, (2012), Anwar al-Awlaki, The New York Times, 23.02.2013, Available at:

<http://topics.nytimes.com/top/reference/timestopics/people/a/anwar_al_awlaki/index.html>

25 Mujtaba, H, (2012), A Flurry of Drone Attacks Pounded Northern Pakistan at the Weekend, Killing 13 People in Three Separate Attacks, Officials and Witnesses Said on Sunday, 22.10.2013, Available at: <http://www.reuters.com/article/2012/08/19/us-pakistan-drones-idUSBRE87I03D20120819>

26 Webb, S, (2013), U.S. Drone 'Kills Important Taliban Commander': Mullah Wazir Reportedly Eliminated by Missile Strike on House, Daily Mail, 22.02.2013, Available at:

<http://www.dailymail.co.uk/news/article-2256422/U-S-drone-kills-important-Taliban-commander- Maulvi-Nazir-Wazir-reportedly-eliminated-missile-strike-house.html>

28 Melzer, N, (2008), Targeted Killing in International Law, Oxford University Press Inc, New York, p.

2.

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There is an element of premeditation and a conscious choice, which is not found in similar situations in for example law enforcement. In targeted killings, the aim of the operation is the death of the person targeted. In law enforcement where deadly violence is intentionally used against a known offender, the decision to kill is based on the imminence of the threat, but the goal of the operation is to capture, not to kill.

²⁹

In armed conflicts, there are furthermore no limits to what kind of means and methods one can use in target killings. It can therefore include; “…any forcible measure, regardless of the means employed, which is capable of causing the death of a human being.”

³⁰

In order to discuss the legality of drones in targeted killings this essay will use the definition given by the UN and the Special Rapporteur Philip Alston

³¹

in the way that has been discussed earlier. The common element in all these contexts is the premeditated act of lethal force that is deliberately used by states in times of peace or during armed conflicts against an individual or individuals specifically identified in advance by the perpetrator.

³²

There are other definitions used for targeted killings, e.g. Dr Nils Melzer’s 5 criteria, however, this essay will use the one that Dr Melzer and the UN have agreed upon signifies targeted killings.

4. JUST WAR TRADITIONS

The U.S. has conducted numerous of drone attacks within the borders of Pakistan that falls within this essay’s accepted definition of targeted killings. It is however questionable whether the deployment of these attacks comply with international law and more specifically with the use of force set out in the UN Charter. Whether or not a specific targeted killing is legal depends on the context in which it is conducted:

whether in armed conflict, outside armed conflict, or in relation to the

30 Melzer, N, (2008), Targeted Killing in International Law, Op Cit, p. 2.

32 Melzer, N, (2008), Targeted Killing in International Law, Op Cit, pp. 4-5.

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interstate use of force.

³³

The U.S.’s cross border incursions in Pakistan is a use of interstate force, in these situations targeted killings conducted on the territory of another state may be legal during two situations. Firstly, if the targeting state has the right under international law to use force in self-defence under Article 51 of the UN Charter because the territorial state is responsible for the armed attack against the victim state or as of lately, is unwilling or unable to stop armed attacks launched from its territory against the victim state.

³⁴

. Secondly, if the territorial state in which the non-state actor resides, consents.

International law permits such acts of force if the use of force to respond to the attacks is necessary, proportionate and immediate.

The U.S.’s legal justification for targeted killings and the use of force on Pakistani territory is based on the inherent right to self-defence and/or consent given by the government of Pakistan. The U.S. claims to currently be; “…in an armed conflict with al Qaeda, as well as the Taliban and associated forces.”

³⁵

After 9/11, the U.S. and UK launched a military attack in Afghanistan against the Taliban and al Qaeda as a response to the terrorist attacks. In order to escape, many of the al Qaeda and Taliban followers fled from Afghanistan into the FATA area in Pakistan.

³⁶

Especially in the South and North Waziristan, the leaders of the Pakistani Taliban are thought to welcome and support al Qaeda and its leadership.

³⁷

Essentially, the U.S asserts to have reserved the right to target and kill terrorists belonging to the al Qaeda and Taliban networks on Pakistan’s sovereign territory, in despite of the lack of involvement by the state in which the terrorist combatants are dwelling.

The U.S. hence claims that it is using force against the non-state actor -

33 U.N Doc A/HRC/14/24/Add.6, Op Cit, paras. 28-36.

34 Ibid, paras. 34-36.

35 Koh, H, (2010, March), The Obama Administration and International Law, Keynote Address at the Annual Meeting of the American Society of International Law, Washington, DC, Available at:

<http://www.state.gov/s/l/releases/remarks/139119.htm>

36 Norton, S.N, (2011), The United Nations Charter’s Collective Security Framework in the Twenty- First Century: A Case Study of the United States’ Use of Force in Pakistan, Loyola Law Review, Vol.

57, p. 184.

37 The Economist, (2009). Pakistan and the Taliban: A Real Offensive, or a Phoney War?, The Economist, p. 24.

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the Taliban and al Qaeda residing within the Pakistani area and - is not per se using force against the government of Pakistan.

In order to look at the legality of the U.S.’s use of drones and targeted killings in Pakistan one needs to understand the Just War Traditions.

The Just War Traditions and are separated into two categories, Jus ad Bellum and Jus in Bello.

³⁸

Jus ad Bellum refers to the laws concerning the justifications for engaging in war and is today to a great extent codified in the UN Charter. Articles 2(4) and 51, which govern the right to use force, stem from centuries of custom and practice. Jus in Bello on the other hand, concerns the limits to the conduct of the hostilities and is incorporated into Geneva Conventions and The Hague Conventions.

This section will look at Jus ad Bellum and the UN Charter and the regulations governing the right to use force. The U.S.’s use of force in Pakistan will be evaluated in the light of the Charter. This essay will not look at Jus in Bello and in what manner force can be used. It is however questionable whether the U.S. claim that the use of drones when conducting targeted killings fulfils the standards set out in IHL and HRL.

5. THE CHARTER OF THE UNITED NATIONS

The UN Charter largely determines the legality of the U.S.’s use of force in Pakistan.

In the speech to the nation in 2001, George W. Bush stated that the U.S.; “…will make no distinction between the terrorist who committed these acts and those who harbour them”

³⁹

, essentially claiming a broader right to self-defence than traditionally found in Article 51 of the

38 Kolb, R, (1997), Origin of the Twin Terms Jus as Bellum/Jus in Bello, 37 International Review of the Red Cross, No. 320.

39 Bush, G.W, (2001, September), Address to the Nation on the Terrorist Attacks, President Bush's addresses the Nation the Night of 9/11/2001, Washington, DC, Available at: <http://whitehouse.c- span.org/Video/ByPresident/George-Bush-On-9-11.aspx>

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UN Charter - including the right to take military action against those states who harbour terrorist groups within its borders. Allegedly, by not actively acting against al Qaeda, Pakistan has made it possible for the U.S. to cross borders into Pakistan in the war on terror. In the U.S.’

view, Pakistan has through its inability to act showed itself “unwilling or unable”

⁴⁰

to deal with the terrorist threat posed by the al Qaeda and the Taliban. Traditionally, a response in self-defence is allowed when there is an armed attack; “…inflicted on a state, for which another state is responsible.”

⁴¹

The armed attacks that the U.S. refers to are not however committed by a state, but a non-state actor habituating within a state. Therefore, it is questionable if the U.S.'s justification of the use of force in self-defence follows the restrictions found in the Charter, particularly whether the U.S. actions in Pakistan are consistent with Articles 2(4) and 51 in the Charter.

5.1 Article 2(4) – an absolute prohibition to the use of force?

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.

Article 2(4) Charter of the United Nations

Article 2(4) has historically been viewed as an absolute prohibition on the use of force. When the Charter was created there hadn’t been a consistent practice of the abstention from the use of force, but after the First World War an; “…opinion juris slowly emerged that war was unlawful, and official reactions to the use of force changed accordingly.”

⁴²

Consequently, the purpose of the Charter is to maintain international peace and security. International lawyers, like Professor Michael Bothe, agree on that the Charter’s purpose is to; “…restrain the

40 U.N Doc A/HRC/14/24/Add.6, Op Cit, paras. 34-36.

41 Ochoa-Ruiz, N, & Salamanca-Aguado, E, (2005), Exploring the Limits of International Law relating to the Use of Force in Self-defence, The European Journal of International Law, Vol. 16, No.3, p. 499.

42 Bothe, M, (2003), Terrorism and the Legality of Pre-emptive Force, European Journal of International Law, Vol. 14, No. 2, p. 238.

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unilateral use of force.”

⁴³

The belief that Article 2(4) holds an absolute prohibition on the use of force is therefore still upheld by some academics. Article 2(4) can hence be considered to be "inseparable"

from Article 2(3), and they must thus be read together.

⁴⁴

Article 2(3) prohibits all use of force that is not authorized by the Security Council under Chapter VII or falls under Article 51 and the right to self- defence

⁴⁵

and reads; “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.”

⁴⁶

Academics who are critical to the U.S.’ use of force in the war on terror find it difficult to consolidate Article 2(4) read in conjunction with Article 2(3) with the justifications for the use of force in Pakistan given by the U.S.. The expansive interpretation of the Articles threatens to destroy the prohibition of the use of force enshrined in the Charter, which is; “essential to the international rule of law.”

⁴⁷

The U.S.’ use of force in Pakistan cannot be interpreted in another way than to potentially endanger the “international peace and security”. It implies that self-defence includes the right to use force on the territory of states on the sole basis that terrorists resides there or that ambiguous forms of consent is enough to grant the right to infringe on the principle of state sovereignty.

However, those who believe that the U.S.’ use of force in Pakistan is legal, contend that the interpretation of the Charter and the prohibition of the use of force in Article 2(4) must strive to better reflect the reality of today. This reality includes an existence where non-state actors pose a real threat to states and their national peace and security. Where

43 Ibid, p. 229.

44 Dinstein, Y, (2005), War, Aggression and Self-Defense, 4th ed., Cambridge University Press, Grotius, p. 82.

45 Ibid, p. 312.

46 U.N. Charter, art. 2(3).

47 American Civil Liberties Union, (2010), Statement of U.N. Special Rapporteur on U.S. Targeted Killings Without Due Process, 22.10.2013, Available at: <https://www.aclu.org/national-

security/statement-un-special-rapporteur-us-targeted-killings-without-due-process>

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traditional rules no longer are effective to combat the threat that non- state actors can pose. A failure to adopt a more flexible reading of Article 2(4) will eventually lead to the rejection of the prohibition of the use of force, which in the end also would affect the perceived legitimacy of the UN. The academics that support this view argue that the plain wording of the article does not prohibit a wider interpretation of the Charter. When the Charter was written the Australian delegation proposed an amendment, adding the words; "…against the territorial integrity or political independence of any member state."

⁴⁸

This sentence has arguable created loopholes to Article 2(4) that actually limits the prohibition of the use of force to specific instances.

⁴⁹

In situations where the Security Council is; “…either unable or unwilling to authorize collective action”

⁵⁰

Article 2(4) would not hinder a response in self-defence as long as the pursuit of the use of force is of international peace and security. The Security Council Resolutions 1368 and 1373, adopted after 9/11 was unanimously passed. In those, the Security Council confirmed that an; “act of international terrorism, constitutes a threat to international peace and security”

.⁵¹

Articles 2(3) and 2(4), therefore seem to not hinder the use of force in Pakistan as long as the use force is not; "…against the territorial integrity or political independence”.

⁵²

However, while Article 2(3) should not be read in conjunction with Article 2(4) as to prohibit all uses of force, it should be read as limiting such uses of force.

This reinterpretation of Article 2(4) would technically allow the U.S to use force in Pakistan as long as the goal of the attack is not to infringe

48 Franck, T, M, (1990), The Power of Legitimacy Among Nations, Oxford University Press, New York, p. 12.

49 Ibid.

50 Shearer, I, A Revival of the Just War Theory?, in Schmitt, M.N, & Pejic, J, (2007), International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein, Martinus Nijhoff, pp. 10-11.

51 U.N. Security Council, 4370th Meeting, Resolution 1368, (2001), Threats to International Peace and Security Caused by Terrorist Acts, (S/RES/1368), 12.09.2001; U.N. Security Council, 4385th Meeting, Resolution 1373, (2001), Threats to International Peace and Security Caused by Terrorist Acts, (S/RES/1373), 28.09.2001.

52 Shearer, I, A Revival of the Just War Theory?, Op Cit, pp. 10-11.

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Pakistan’s territorial integrity or political independence.

⁵³

Thus would Article 2(4) according to the wider interpretation not prevent the U.S.

from the use of force in Pakistan as long as the threshold for a legal response in self-defence is fulfilled and/or consent from the Pakistani government is given. In this author’s view, there seems to be a shift in opinion juris after the 9/11 attacks and that Article 2(4) today, does not pose an obstacle to the use of force if such actions are taken after a decision by the Security Council or in response in self-defence in line with Article 51 of the UN Charter.

5.2 Article 51 – The Inherent Right to Self-Defence

"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...”

⁵⁴

Charter of the United Nations, Article 51

Part of the problem in finding a general consensus and acceptance to the U.S.’s claim of self-defence seems to lie in the encumbrance to consolidate the traditional view that the Charter is only applicable to states actions and not created to include actions taken by non-state actors.

⁵⁵

Only states can be the victim of an armed attack and traditionally the interpretation of Article 51 has been limited to involve self-defence for states acting against other states.

There are three distinct views put forward by legal scholars. Firstly, there are those, like Eric Myjer and Nigel White, who don’t believe that non-state actors can commit armed attacks within the meaning of Article 51.

⁵⁶

They base their assumption on the fact that the Charter was drafted during a time where states were the main actors on the

53 Ibid, p. 10.

54 U.N. Charter, art. 51.

55 Wilmshurst, E, (2008), Definition of Aggression, United Nations Audio visual Library of International Law, 09.09.2013, Available at: <http://untreaty.un.org/cod/avl/pdf/ha/da/da_e.pdf>

56 Myjer, E, & White, N, (2002), The Twin Towers Attack: An Unlimited Right to Self-Defense, Journal of Conflict and Security Law, Vol. 7, p. 7.

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international arena and the drafters probably couldn’t foresee the future problems with armed attacks by non-state actors that would be significant enough that a state may feel the need to respond with force.

The purpose behind the Charter was to maintain international peace and security and limit the use of force. A wider interpretation of who can commit an armed attack goes against its original purpose.

Secondly, there are those who believe that non-state actors may commit armed attacks within the meaning of the Article, but only in situations where the attacks can be attributable to a State.

⁵⁷

This view finds legal ground in for example the Wall Case where the International Court of Justice (hereinafter the ICJ) declined to find that Israel could be acting in self-defence because Israel had not claimed that the terrorist acts were attributable to a state.

⁵⁸

Finally, there are those who accept that an attack by a non-state actor may constitute an “armed attack,” regardless of whether a state was involved in any aspect of the attack.

⁵⁹

Firstly and foremost, it is important to establish who can claim the right to self-defence established in Article 51 of the Charter and against whom it may be invoked. In the Nicaragua case

⁶⁰

, the ICJ concluded that attacks by armed groups cannot trigger Article 51 of the Charter.

Hence, historically, Article 51 has been interpreted to only cover armed attacks committed by a state against another state. The traditional view of Article 51 would therefore render terrorist groups such as al Qaeda, to fall outside of the scope of the use of force in self-defence. The

57 Weiner, A.S, (2006), The Use of Force and Contemporary Security Threats: Old Medicine for New Ills?, Stanford Law Review, Vol. 59, p. 437.

58 Advisory Opinion Concerning Legal Consequences of the Construction of a all in the Occupied Palestinian Territory. International Court of Justice, 9 July 2004.

59 U.N. Security Council, 4370th Meeting, Resolution 1368, (2001), Op Cit; Brunnee, J, & Toope, S, (2010), Legitimacy and Legality in International Law, Cambridge University Press, p. 296; Van Steenberghe, R, (2010), Self-Defence in Response to Attacks by Non-State Actors in the Light of Recent State Practice: A Step Forward?, Leiden Journal of International Law, Vol. 23, p. 183.

60 Case Concerning Military and Paramilitary Activities in and Against Nicaragua, (Nicaragua v.

United States of America), International Court of Justice, Judgment of 27 June 1986.

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traditional view would therefore significantly limit the situations when force in self-defence is allowed. The ICJ later on confirmed its previous ruling in the Nicaragua case in the latter case of the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, an Advisory Opinion from 2004. Therein the ICJ established that Article 51; “…recognizes the existence of an inherent right of self-defence in the case of armed attack by one state against another state.”

⁶¹

Thus, although advisory opinions are not legally binding,

⁶²

the ICJ clearly expressed that in contexts similar of the Wall Case, states cannot invoke self-defence against non-state actors.

However, these rulings are from before the 9/11 attacks and it is possible that the ICJ might have ruled differently today in a case concerning terrorism.

Consequently, al Qaeda and the Taliban are not a state and arguably not a state sponsored organ by the Pakistani government either. These groups can therefore not be the targets for an act in self-defence covered by the traditional interpretation of the Charter. However, the U.S.’ actions in Pakistan have turned the table and more states are following the U.S.’ lead and supports the justification to use force against non-state actors in self-defence. This view is said to be supported by the wording in Article 51 since it only speaks of an inherent right to self-defence; “if an armed attack occurs against a member of the United Nations ”

⁶³

without reference to the source of the attack.

⁶⁴

61 Advisory Opinion Concerning Legal Consequences of the Construction of a all in the Occupied Palestinian Territory. Op Cit, para. 139.

62 U.N. Charter, art. 96; Jurisdiction. (2013). Advisory Jurisdiction. 08.09.2013. Available at:

<http://www.icj-cij.org/jurisdiction/index.php?p1=5&p2=2>.

64 Buckley, A, (2012), NOTE & COMMENT: Smiting Spell: The Legality of Targeted Killings in the War against Terrorism, Journal of East Asia & International Law, Vol. 5, Issue. 2.

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5.2.1 The Notion of “Armed Attack”

The right to use force in self-defence is triggered by an “armed attack,”

as recognized by Article 51 of the Charter.

⁶⁵

The language in the Article has been used numerous times to justify acts of aggression,

⁶⁶

but the term “armed attack” which is one of the key elements in Article 51 has never been defined by any organ of the UN. (Although the ICJ has in the Nicaragua case made a reference to Resolution 3314 to determine what constitutes an armed attack, see 5.3). Generally speaking, an armed attack must; "…involve a 'significant' amount of force."

⁶⁷

However, what amounts to “significant” is still unclear. The ambiguous description has created disputes to what the threshold is for the amount of force needed to constitute an armed attack, and if a different threshold should be applied for non-state actors than for attacks made by regular forces sent by states.

There has been no question whether the U.S. has suffered armed attacks by al Qaeda and the Taliban. For example, in 1998, bin Laden killed 224 people and wounded nearly 5,000 in bombings against the U.S.

embassies in Kenya and Tanzania.

⁶⁸

In 2000, al Qaeda struck again by bombing the USS Cole

⁶⁹

and in 2001 al Qaeda hit the World Trader Centre in the 9/11 attacks. If those attacks were to originate from a state, no one would question the U.S.’s right to use force in self- defence. Professor Yoram Dinstein doesn’t believe that there is a threshold for the amount of force needed to constitute an armed attack in Article 51. He rejects the distinction between small-scale and large- scale attacks and argues that the size of the attack shouldn’t matter but all armed attacks should amount to a response in self-defence.

⁷⁰

66 O'Connell, M.A, (2009), International Law and the Use of Force, Cases and Materials, Foundation Press, pp. 280-295.

67 Ibid, pp. 890-893.

68 Rashid, A, (2008), Descent into Chaos: The U.S. and the Disaster in Pakistan, Afghanistan, and the Central Asia, Penguin Books, p. 16.

69 Ibid, pp. 17-18.

70 Dinstein, Y, (2005), War, Aggression and Self-Defense, Op Cit, p. 174.

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However, looking at customary law identified by the ICJ, it seems like a fairly high benchmark for what constitutes an armed attack and therefore would warrant a response in self-defence has been set.

⁷¹

The ICJ commented obiter dictum in the Nicaragua case from 1986, that;

“While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of gravity cannot [...]

produce any entitlement to take collective counter-measures invoking the use of force”.

⁷²

In that case Nicaragua brought a suit against the U.S. for providing rebels with military and paramilitary support against the government. The U.S. argued that it together with El Salvador was acting in self-defence because the Nicaraguan government provided guerrillas in El Salvador with logistical aid and support. The ICJ rejected the U.S.’ claim and stated that the concept of an armed attack does not include assistance of rebels in the form of providing weapons and logistics.

⁷³

In the subsequent case of Eritrea and Ethiopia, the commission found that although there may have been a loss of life;

“Localized border encounters between small infantry units […] do not constitute an armed attack for purposes of the Charter”.

⁷⁴

The Nicaragua Case and the case of Eritrea and Ethiopia, hence seem to establish that not all use of force can give rise to a response in self- defence, contrary to the view taken by Professor Yoram Dinstein.

In the regards to non-state actors, even less guidance is given as to the possible threshold requirements for the amount of force needed to constitute an “armed attack”. Steven Ratner, however, applies a similar logic to non-state actors as to states, hence not setting a higher threshold for non-state actors.

⁷⁵

Small-scale attacks by al Qaeda or the Taliban would therefore suffice for a response in self-defence by the U.S.

However, other scholars such as Elizabeth Wilmshurst argue that a

71 Nicaragua v. United States of America, Op Cit.

72 Ibid, para 249.

73 Ibid, para. 195.

74 Partial Award – Eritrea’s Damages Claim, (State of Eritrea v. the Federal Democratic Republic of Ethiopia), Eritrea–Ethiopia Claims Commission, 19 December 2005, para. 11.

75 Ratner, S.R, (2012), Self Defense Against Terrorists: The Meaning of Armed Attack, Public Law and Legal Theory Working Paper Series, No. 270, Cambridge University Press, p. 7.

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terrorist attack by a non-state actor must reach a certain intensity as to amount to an armed attack by regular forces.

⁷⁶

A merely dispersed, small-scale attack would not be enough. For non-state actors a more significant amount of force is needed to constitute an armed attack in line with Article 51 of the Charter. However, lately another understanding has emerged among states such as Israel, Turkey and Colombia that lowers the threshold of force significantly for non-state actors. Even though a single attack in itself would be too minor to qualify as an “armed attack” in Article 51, several minor attacks can amount to a response in self-defence. This view is based on the Oil Platforms Case where the ICJ stated that a; “series of attacks, non of which individually could amount to an armed attack, might together constitute an armed attack.

⁷⁷

Therefore, these states argue that even if a single attack wasn’t sufficient enough for a legal response in self- defence, by accumulating the attacks the threshold for an “armed attack” may be reached. Hence, the single attack on 9/11 or the accumulated attacks made by the al Qaeda and the Taliban have been enough to qualify as an “armed attack” within the meaning of Article 51 of the Charter.

Although, the first requirement in Article 51 - the existence of an

“armed attack” - is fulfilled, al Qaeda as a non-state actor is traditionally not able to be the target of an armed attack in self-defence.

The Charter is written by states, and its legal framework is aimed at states. Nevertheless, in some cases, the acts of non-state actors can be conferred to the territorial state. In the Nicaragua Case, the court based its description of an armed attack on Article 3(g) of the Definition of Aggression Under UNGA Resolution 3314 (XXIX). The Security Council is recommended to take the resolution into consideration when appropriate, but the definition of aggression is rarely applied. The ICJ has however, after the Nicaragua Case, applied Article 3(g) in several

76 Willmshurst, E, (2006), The Chatham House Principles of International Law on the Use of Force in Self-Defence, International and Comparative Law Quarterly, Vol. 55, p. 971.

77 Case Concerning Oil Platforms (Islamic Republic of Iran v. United States of America), International Court of Justice, Judgement of 6 November 2003, para. 65.

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cases regarding the unlawful use of force by states.

⁷⁸

5.3 Acts of Aggression

“The sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against

another State of such gravity as to amount to the acts listed above, or its substantial involvement therein qualify as an act of aggression”.

⁷⁹

Deﬁnition of Aggression, Resolution 3314 (XXIX), Article 3(g)

It has been understood that not only regular forces can constitute an armed attack by a state and the ICJ has applied the definition of aggression to infer state liability in cases where the armed attack by a non-state actor is a part of the direct consequence of state actions.

⁸⁰

When Article 3(g) of the Deﬁnition of Aggression was adopted there were major difficulties in reaching a consensus to what constitutes aggression relating to irregular bands. According to Elizabeth Wilmshurst, fellow of the Royal Institute of International Affairs at Chatham House and Professor of International Law at University College London, agreement was reached to be limited to the ”sending”

of organised groups; ”rather than organising and supporting them.”

⁸¹

The “sending” requirement therefore sets a higher threshold than merely organising and supporting a non-state actor since it presumes an actual intention by the state to perform the armed attack executed by the non-state actor.

Although the definition of aggression may include other forms of aggression, such as economic warfare, this essay will not take into account these other types, since Article 51 traditionally has been

78 Case Concerning Armed Activities on the Territory of the Congo, (Democratic Republic of the Congo v. Uganda), International Court of Justice, Judgement of 19 December 2005, para. 146; Nicaragua v.

United States of America, Op Cit, para. 3.

79 U.N. General Assembly, 29^th Session, Resolution 3314 (XXIX), (1974), Definition of Aggression, (A/RES/29/3314), 14.12.1974.

80 Democratic Republic of the Congo v. Uganda, Op Cit; Nicaragua v. United States of America, Op Cit; Islamic Republic of Iran v. United States of America, Op Cit.

81 Wilmshurst, E, (2008), Definition of Aggression, Op Cit, p. 2.

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interpreted as to only consider the use of military force.

⁸²

The definition in the resolution may however include other uses of force since the list in Article 3(g) is non-exhaustive.

⁸³

The first case where the ICJ used the Definition of Aggression in the regards of the unlawful use of force by states was in the Nicaragua Case.

⁸⁴

The court stated obiter dictum, that an armed attack can be said to occur if the scale and effects could be assimilated to an attack carried out by regular forces rather than to a mere frontier incident.

⁸⁵

The case does not make any threshold distinction in the use of force between states and non-state actors but it was made clear that not all uses of force will amount to a response in self-defence. Although the Nicaragua Case did not concern the harbouring of terrorists (see 5.1 for a full discussion regarding the term “harbouring”) and was contextually specific, the ICJ concluded that the providing of logistical aid and support is not enough to incur state liability. Since then the Nicaragua Case, has had much influence on subsequent case law.

In for example, the Oil Platforms Case

⁸⁶

, an U.S. vessel was struck by a missile on international waters. As a response to the assumed attack by Iran, three Iranian oil platforms were subsequently destroyed. Judge Simma, in his separate opinion, expressed his dissatisfaction that the Nicaragua Case had created the impression that; “…if offensive military actions remain below the – considerably high – threshold of Article 51 of the Charter, the victim of such actions does not have the right to resort to – strictly proportionate – defensive measures equally of a military nature.”

⁸⁷

According to him, defensive measures taken against smaller-scale use of force should also be regarded lawful even if it falls short under Article 51. The court did not uphold any of the

82 Ratner, S.R, (2012), Self Defense Against Terrorists: The Meaning of Armed Attack, Op Cit, p. 8.

83 U.N. General Assembly, 29^th Session, Resolution 3314 (XXIX), Op Cit, art. 4.

84 Nicaragua v. United States of America, Op Cit.

85 Yusuf, A.A, (2012), The Notion of ‘Armed Attack’ in the Nicaragua Judgment and Its Influence on Subsequent Case Law, Leiden Journal of International Law, Vol. 25, Issue 2, p. 464.

86 Islamic Republic of Iran v. United States of America, Op Cit.

87 Ibid, para. 12

Targeted killings as a part of the War on Terror: a study on U.S. cross-border incursions in Pakistan

JURIDISKA INSTITUTIONEN Stockholms universitet