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Drone Attacks

International law burns in “Hellfire”

Asif Mahmood

International Institute of Strategic Studies & Research

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Name of Study: Drone Attacks

International law burns in “Hellfire” Author: Mr. Asif Mahmud Published by: International Institute of Strategic Studies

& Research Islamabad Co-operation: WAMY (Saudi Arabia) Price: Rupees: 250.00 First Edition: June 2010 Copies: 1000

Address:

International Institute of Strategic Studies & Research. P.O. Box: 126, I-10/4 Islamabad (Pakistan) Phone/Fax No: 0092514441713 Mobile No: 00923215007037 Website: www.iissr.org Email: turabi786@gmail.com

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No. CONTENTS

Page

1 Preface 9

2 Tragedy of Errors 11

3 Satisfied with the Payments? 35

4 Jus ad bellum

“Some Are More Equal” 44

5 Drones and International Law 53

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To my daughter Aesha

..Shine in her innocent eyes always reminds

me of those children whose right to life was taken

away by a drone. They deserved to live…

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Preface

While the law regulates the society, international law

regulates the relationship between nation states. It is intriguing and shocking that the international law is being violated by the self anointed custodians of it and it makes our stomach churn a little that torch bearers of human rights are very eagerly operating the barbarian Drone program without any sign of compunction and without any regard of human rights. Apparently Drone attacks are intended to target al-Qaeda operatives but media reports reveal that for each al-Qaeda operative 140 civilians have to die. It must be matter of concern for the international community that innocent civilians are being butchered in the name of war on terror. Moreover, Drone attacks are violating the very concept of Pakistan’s sovereignty as they are not in conformity with the UN principles of a just war. Drone attacks are also creating problems for Pakistan in handling the issue, killing of innocent civilians are generating anti US sentiments in the society and eventually it is becoming difficult for Pakistan to deliver accordingly as popular sentiments hate every one associated with the US. Pakistan being the ally of US in this war on terror has to face the act of retaliation to the Drone attacks and resultantly not a single city of Pakistan is safe today. Drones are counter productive. It is also intriguing what US actually wants to achieve by Drone attacks. Whether it has some hidden agenda inside Pakistan or it is targeting only al-Qaeda operatives. Pakistan’s passiveness is also a shame. The government should have raised the voice condemning this barbarian practice as it is against the constitution of Islamic

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Republic of Pakistan as well, what to talk about International Law.

Following lines of Khalil Jibran is a true depiction of grievous situation eventuated in the tribal areas of Pakistan.

“What destiny will the giants bring the world at the end

of their struggles?

Will the farmer return to his field to sow where death

has planted the bones of dead?

Will the shepherd pasture his flock on fields mown by

the sword?

Will the sheep drink from springs whose waters are

stained with blood?

What will be the destiny of your country and mine?

Every time I am alone, I ask my soul these questions.

But my soul is mute like my destiny. ,,

It was need of the time to knock at the conscience of the international community and to draw its attention to this barbarian practice. We are grateful to our brother Asif Mahmood, research fellow at IISSR, for preparing this study. I wish him Godspeed.

Prof. Alif- Ud- Din Turabi Director General

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Tragedy of Errors

As we are down to the ugly list of options in this war on terror, with drones eviscerating our tribal areas, the nation is grappling with many troubling questions: Are we still a sovereign state, being the ultimate conundrum.

What the knights of peace, fighting this noble war on terror, have so far achieved by using drones butchering hundreds of innocents including women and children? How many targets they have hit? What is the success ratio? Is it a reliable technology? What are its shortcomings? For each al-Qaeda operative how many civilians have to die?

It has been alleged that from December 1, 2009 to December 31, 2009, for each al-Qaeda terrorist 140 innocent Pakistanis had to die. Success rate of these attacks is merely 11%. It means 89 out of hundred (100) drone attacks kills innocent civilians only. 58 civilians die every month due to these attacks. From December 1, 2009 to December 31, 2009 only five al-Qaeda activists and 700 innocent civilians have been killed. Out of 44 drone attacks only 14 could hit the target.(1)

Another report, authored by Amir Mir, reveals that “from January 14, 2006 to April 8, 2009 US drone bombings killed 678 civilians and 14 al-Qaeda operatives, accounting to a ratio of nearly 50 civilians killed for every al-Qaeda operative killed, or a 94% civilian death rate.”

(2)

The terrible fact of mounting civilian casualties has been admitted by former senior counter insurgency advisor to US Army, David Killcullen when in a meeting with

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congress, he revealed, “we have killed 14 senior al-Qaeda leaders using drone attacks; In the same time period we have killed 700 Pakistani civilians in the same area.”

(3)

Peter Bergen and Katherine Tiedemann are the leading and renowned counterterrorism experts in US. They have authored an analysis of casualties resulting from drone attacks and they assert that for 2008, nearly 60% of the casualties were found to have likely been civilians. (4)

Daniel Bayman, a senior fellow of Brookings institute, in his study holds that despite the difficulty in determining exact numbers of civilians casualties, it was likely that more than 600 civilians have been killed by the US at the time of writing. He further states that for every militant killed, 10 or so civilians also died. (5)

It is pertinent to note that according to one of the most credible think tank institute’s study (The Brookings Institution) 90% of those killed by US in Pakistan are innocent civilians and not the terrorist, allied forces are looking for. Although the things are going haywire and every so often the question has been raised about the exact number of civilian deaths and justification of this barbarian act, the simpering faces of the ruling coterie offers no answer to them. The nation is pissed off, sulking over being humiliated by US but the snickering patricians of ruling club is always busy skirting around the subject and hobnobbing with the world elite, having no visible sign of compunction even, for their abject failure in defending their countrymen.

Marx Kantar, a human rights activist from US holds that among 1000 Pakistanis killed so far only 20 were affiliated with the terrorist organizations.

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Albeit begrudgingly, the government of Pakistan must

brazen it out that it has done nothing of substance even to

collect the exact nature of damage done by the drone

attacks, what to talk about making some efforts to make US

stop this counterproductive act of terror in the guise of war

on terror.

Like Pakistan, US too, have the policy of not speaking

of drone attacks. Gareth Porter a leading investigative

journalist in US, States that US government refuses to share

even the basic data on drone attacks and it suggests that

managers of the drone attacks program have been using the

total secrecy surrounding the program to hide abuses and

high civilian casualties. (6)

It has been repeatedly said by the US administration

that drone attacks are being carried with due care and are

very precise and limited in terms of collateral damage. It

adds to our list of wonders that you kill 140 innocents for

each al-Qaeda operative terrorist and still you claim that

attacks are precise and limited in terms of collateral

damage.

Ken Silberstein, in his article, “Is Secrecy on Drone

Attacks Hiding Civilian Casualties?” writes

“Intelligence analysts have been unable to obtain

either the list of military targets of the drone strikes

or the actual results in terms of al-Qaeda or civilians

killed, according to a Washington source familiar

with internal discussion of the drone strike program.

The source insisted on not being identified because

of the extreme sensitivity of the issue. “They can’t

find out anything about the program,” the source told

to IPS. That has made it impossible for other

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government agencies to judge its real consequences,

according to the source.”(7)

He states further,

“since early 2009, Barak Obama administration officials have been claiming that the predator attacks in Pakistan have killed 9 of 20 top al-Qaeda officials, but they have refused to disclose how many civilians have been killed in the strikes.” (8)

(CNAS) Center for a New Americans Security an influential and a pro-military institution, has published a paper criticizing Obama for use of drones in Pakistan. Saying that drones are precise and limited (in terms of collateral damage) can aptly be termed a faux pas. Drone operators basically rely on two things, local spies who drop microchips near targets and thermal cameras who verify the targets. According to the “Time” Magazine:

“Reporters from Waziristan suggest that CIA has access to a network of spies. Tribesmen have told TIME of agents who drop microchips (locally known as Patari) near targets; the drone can look onto these to guide their missiles or bombs with pinpoint precision. (9)

Gareth Porter writes:

“Press reports that CIA is paying Pakistani agents for identifying al-Qaeda targets by placing electronic microchips at farmhouses supposedly inhabited by al-Qaeda officials, so they can be bombed by predator plans, has raised new questions about weather the CIA and Obama administration have simply redefined al-Qaeda in order to cover up an abusive system and justify the program. The initial story of the CIA payments for placing the chips by Carol Grisanti and Mushtaq

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Yousafzai of NBC new April 17 was based on confession, the young man says, “I was given 122 dollars to drop chips wrapped in a cigarette papers at al-Qaeda and Taliban houses. I was successful, I was told, and I would be given thousands of dollars.”

(10)

Declan Walsh, the Guardian’s correspondent for Pakistan and Afghanistan narrates the same:

“The CIA is equipping Pakistani Tribesmen with secret electronic transmitters to help target and kill al-Qaeda leaders in north-western tribal belt. The mysterious electronic devices, dubbed “Chips” or “Pathrai” (Pashto word for a metal device) which have become a source of fear, intrigue and fascination. “Everyone is talking about it”, said Taj Muhammad Wazir, a student from south Waziristan, “People are scared that if a Pathrai comes into your house a drone will attack it.” 11

And read what Gareth Porter says about a spy assigned to drop electronic chip at al-Qaeda houses.

He (the spy) goes on to say,

“I thought it was a very easy job. The money was so good so I started throwing the chips all over. I knew people were dying because of what I was doing, but I needed the money.”12

According to the Guardian:

“A former CIA officer who served in Waziristan in 2006 said that small American teams comprising CIA agents, radio experts and special forces soldiers are stationed inside Pakistani military bases across the tribal belt. From there the CIA recruits a network of paid, and sometimes

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unwitting, informers - known as “cutouts” - to help identify targets, he added. In most cases they are poor local men.”(13)

This read unequivocally reveals that the whole mechanism of drone attack is flawed. It basically depends on poor informers. The informers being a part of tribal society may have their own axis to grind. They can drop a microchip near the houses of their enemies regardless of the fact that they are Taliban or not. As mentioned earlier, where a spy says:

“I started throwing the chips all over I knew the people were dying because of what I was doing, but I needed money.”

The innocent residents of tribal area are at the mercy of these informers. If an informer wants someone die along with one’s family, he simply has to drop a microchip near one’s home and drones are there to do the rest.

Jane Mayer, in his article, says:

“In Afghanistan and Pakistan, the local informants, who also serve as confirming witnesses for the air strikes, are notoriously unreliable. A former CIA officer, who was based in Afghanistan after September 11th told me that an Afghan source had once sworn to him that one of al-Qaeda top leaders was being treated in a nearby clinic. The former officer said he could barely told off an air strike after he passed on the tip to his superiors. “They scrambled together an elite team”, he recalled. “We caught hell from headquarters. They said why aren’t you moving on it when insisted on checking it out first?” It turned out to be an intentionally false lead. “Sometimes you are

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dealing with tribal chiefs “the former officer said. Often they say an enemy of theirs is al-Qaeda because they just want to get rid of somebody. Or they made crap up because they wanted to probe they were valuable, so that they could make money. You couldn’t take their words.”

“The consequences of bad ground intelligence can be tragic. In September a NATO air strike in Afghanistan killed between 70 and 125 people, many of them civilians who were taking fuel from two stranded oil tankers; they had been mistaken for Taliban insurgents. According to a reporter from the guardian, the bomb strike, by an F-ISE fighter plane, left such a tangle of body parts that village elders resorted to handing out pieces of unidentifiable corpses to grieving families, so that they could have something to bury. One Afghan villager told the newspaper, “I took a piece of flesh with me home and I called it my son.”

(14)

Thermal cameras are also unreliable. According to a “Time” Magazine report:

“Thermal cameras are notoriously imperfect. Even under ideal conditions, images can be blurry. In one of several stills from drone video seen by TIME, it is hard to tell if a group of men is kneeling in prayer or the men are militants in battle formation. (15)

A New Yorker report unveils a similar tragedy of errors.

“But the strikes are only as accurate as the intelligence that goes into them. Tips from informant on the ground are subject to error, as is

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the interpretation of video images. Not long before September 11, 2001, for instance, several US counterterrorism officials became certain that a drone had captured footage of bin Laden in locale he was known to frequent in Afghanistan. The video showed a tall man in robes, surrounded by armed body guards in a diamond formation. At that point drones were unarmed, and were used only for surveillance. “The optics was not great, but it was him.” Henry Crumpton, then the CIA’s covert operations officer for the region, told time. But two other former CIA officers, who also saw the footage, have doubts. “It’s like an urban legend”, one of them told me. “They just jumped to conclusions, you couldn’t see his face. It could have been Joe Schmo. Believe me; no tall man with beard is safe anywhere in Southwest Asia. “In February 2002, along the mountainous eastern border of Afghanistan, a Predator reportedly followed and killed three suspicious Afghans, including a tall man in robes who was thought to be Bin Laden. The victims turned out to be innocent villagers, gathering scrap metal.”

(16)

This read makes our stomach churn. It is not a just war. It amounts to a crime. A human rights lawyer at New York university school of Law, Hina Samsi, has very aptly remarked:

“These are targeted killings by the state.”

Interestingly, prior to 9/11, the US has, on many occasions criticized Israel for targeted killings of Palestinians. The Americans ambassador to Israel, Martin Indyk is on the record saying, "the United States government is very clear on record as against targeted

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assassinations… There are extra judicial killings and we don’t support that.”

(17)

In their book “The Age of Sacred Terror” Daniel Benjamin, (State Department’s counterterrorism director) and Steven Simon (a former counterterrorism advisor) report that George Tenant (then the CIA advisor) had, just one week before 9/11, categorically denounced the usage of drones as a weapon and refused to deploy the predator for anything other than surveillance. He opined, It would be a terrible mistake for the director of CIA to fire a weapon like this.”

(18)

But once the US suffered 9/11, the policy had been revised downward. The president signed a memorandum of notification authorizing the CIA to kill members of al-Qaeda and their associates anywhere in the world. Passing the bill “Authorization for Use of Military Force” the congress endorsed the presidential policy without any visible sign of computation and between the line declaring that although all are equal, we, the American are more equal, empowered to overwrite each and every concept of International Law and state sovereignty. It was expected that with Obama coming into the oval office things would be changed. But unfortunately dream couldn’t come true and now we are being told that during the first nine and half months of Obama in office, he has authorized as many aerial strikes in Pakistan as Bush did in his final 36 months.

In 2002, Jaffrey Smith, a former CIA general council, in an interview with the Washington Post, said, “Assassination as a norm of international conduct exposes American leaders and the Americans overseas.”

Michael Walzer, in his book “Just and Unjust War” has stirred a million dollar question:

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“under what code the CIA operates? I don’t know. The military operates under a legal code and it has a judicial mechanism. There should be a limited finite group of people who are targets, and that list should be publicly defensible and available. Instead, it is not being defended. People are being killed and we generally require some public justification when we go about killing people.”

(19)

According to the New York Times, even the UN has questioned the usage of drone as a killing tool. Philip Altson, an Australian human rights activist, and a UN human rights investigator, before presenting a report on the drone program to UN tried to have a response to his basic questions on drone from US but failed. In his report he mentioned that the US representatives ignored his concerns. He said US refusal to respond to the united Nation’s concerns that the use of drones might result in illegal execution was an “untenable” position. The US must demonstrate that it is not randomly killing people in violation of International Law. (20)

Even then it is said that drone attacks are precise and limited in terms of collateral damage. Gosh!

Whenever a high value target is hit, the victory is crowed by the US administration but when it is said “10, 12 or 13 people killed,” independent analysts hold they are supposed to be innocent civilians.

Let’s have another brief of these (precise and limited in terms of collateral damage) attacks.

On Tuesday, June 23, 2009, the drone aircraft struck a funereal gathering in the Makeen district of South Waziristan, leaving behind 80 innocent people killed. It is

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considered the deadliest ever drone strike. People were gathered for a funeral procession of a militant killed earlier in the day in a prior drone attack, when three missiles were fired in the crowd. The death toll was reported as under:

43…… (BBC, 24 June 2009)

60…… (The New York Times, 23 June 2009)

60……. (DAWN, 24 June 2009)

45……. (Aljazeera, 24 June 2009)

83……. (XINHIA News Agency, 24 June 2009)

Max Kantar reports:

“Three missiles were fired from at least two US drones directly into the crowed of the mourners. Conservative estimates suggest that at least 35 of dead were local villagers, among them 10 civilians between the ages of 5-10 years old and four local tribe elders… Every report agrees on the fact that no prominent of significant militant leaders was harmed in the attack.”(21)

According to the New Yorker:

“One eyewitness, who lost his right leg during the bombing, told Agence France Presse that the mourners suspected what was coming: “After prayers ended, people were asking each other to leave the area, as drones were hovering.” The drones which make a buzzing noise are nicknamed “machay” (wasps) by the Pakhtun natives, and can sometimes be seen and heard, depending on weather conditions. Before the rumors could clear out, the eyewitness said, two drones started firing

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into the crowd. “It created havoc” he said. “There was smoke and dust everywhere. Injured people were crying and asking for help.” Then a third missile hit. “I fell to the ground” he said. (22)

Attack, on January 13, 2006, on Damadola (a village in Bajaur Agency about 7 km from Afghan border) is another tragic event as it was carried on the sacred day of Eid-ul-Adha when people were gathered on a dinner. Not a single al-Qaeda man was killed, only innocent civilians were butchered.

The Sunday Times reports:

“An American strike….., was prompted by “wrong information” and killed Pakistani villagers including five women and five children. Three houses were raised to the ground and 22 people died.”

(23)

Further it states:

“Among the mourners was Shah Zaman, who lost two sons and a daughter in the attack. “I ran out and saw planes,” he said. “I ran towards a nearby mountain with my wife. When we were running we heard three more explosions and I saw my home being hit. Sahebzada Haroon Rasheed, a member of parliament, who lives nearby said the planes had targeted there houses belonging to jewellary dealers.”

(24)

Five children and five women were dead and while 14 of the dead were from the same family and no high value target was hit but ABC news declared it was not an Eid-ul-Adha gathering, it was a terror summit instead. The question is, if it was a terror summit why you have killed

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children and women and not the terrorists who according to your “reliable sources” were gathering there?

The Telegraph wrote the strike was aimed at Ayman al Zawahiri, Osama bin Laden’s second in command. Even American’s television networks, according to The Telegraph, initially reported the attack as a successful CIA strike, citing unnamed American intelligence officials who claimed that Al-Zawahiri was likely to have been at the compound. 25

Pakistani authorities strongly denied these claims.

According to the telegraph,

“We have checked all our sources. There was no sign of al-Zawahiri’s presence in the village, the ISI official who wished to remain unanimous, told the Sunday Telegraph, “All these killed in the strike are innocent civilians. They (the US) are now trying to cover this up by leaking faulty information to the media.”

(26)

The DAWN reported,

“Eyewitness said that the majority of the slain victims were women and children. Up to 14 of these victims belonged to one family, they said. The shelling wrought damage on houses and killed about two dozen of cattle. Some of the victims were identified as Hussain Nawaz , a 5 years old child, 9 year old Mehda Bibi, 10 - year old Sadiq Bibi, 9 - year - old Taib and seven –year- old Zahidullah.”(27)

ABC news must now publish this list of “teen

terrorists”, who were probably gathered their at a terror

summit. It is pertinent, here, to note that ABC News

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reported that top al-Qaeda operatives including Midhat

Marsi, (a bomb maker and a chemical weapons expert)

Khalid Habib and Abdul Rehman Almaghrabi were killed.

However it has been proved that the information was wrong

and no al-Qaeda operative was killed. Midhat Mursi al

Sayed Umar was killed on 27 July 2008 and not in 2006

strike, reported by BBC [28 July 2008].

The act of aggression was so terrible that Pakistan

protested against it. Foreign ministry issued a statement

saying it protested to US Ambassador Ryan Crocker over

the loss of innocent civilians lives. The information minister

called it highly commendable and said the government

wanted to assure the people we will not allow such

incidents to occur.

US, on January 15, 2006, expressed regrets over the

civilians death but said the strike was justified. The US

senator John Mccain said, “It is terrible when innocent

people are killed; we regret that, we apologies but I can’t

tell you that we wouldn’t do the same thing again, we have

to do what we think is necessary to take out al-Qaeda,

particularly the top operatives.”

And Senator Evan Bayh went even further:

“Now it’s a regrettable situation, but what else we are

supposed to do. It is like the wild, wild west out there. The

Pakistani border is the real problem.”

A question raised by the chief pentagon correspondent of CNBC, Jim Miklaszewski is very important. In his article he stirred it, “Americans military officials say ICI drones

monitored the movements of al-Qaeda suspects at the village for two weeks before the attacks. It is not clear, however if there was also human intelligence. But even if

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Ayman al-Zawahiri was there, where does the US get the authority to use lethal force inside Pakistan. (28)

Public statement of Amnesty International is also worth

reading in this case:

“Amnesty International today wrote to US president George Bush to express its concerns that between 13 and 18 people were killed on 13 January 2006, when missiles were fired into three houses in Damadola, a federally administered tribal

area. In the letter Amnesty International said it was concerned that a pattern of killing carried out with these weapons appeared to reflect a US government policy condoning extrajudicial executions. Amnesty International reiterated to the US President that extrajudicial executions are

strictly prohibited under international human rights law. Anyone accused of an offence, however serious, has the right to be presumed innocent unless proven guilty and to have their guilt or innocence established in a regular court of law in a fair trial.

In addition the fact that air surveillance, witnessed by local people, took place for several days before the attack indicates that those ordering the attack on the basis of this information were very likely to have been aware of the presence of women and children and others unconnected with

political violence in the area of attack. Pakistani Journalists who interviewed local people said that the victims were all civilians, including five women, five children and eight men and that reports of militants killed in the attack were

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intended to justify an attack based on faulty intelligence.”

(29)

The drone attack in Khaisoor, a village in North Waziristan is another example of abject inhumanity. On Tuesday, May 09, 2009, three travelers passed through this village. The villagers in accordance with their traditions of hospitality served them a meal. The travelers left the village after eating the meal. At 4:30 am the following morning house of the man, who served the meal, was bombed killing 14 women children and two elders and wounding 11. My discerning readers must go through this write-up of Kathy Kelly:

“In Jayne Anne Philip’s Lark and Termite, the skies over Korea, in 1950, are described in this way:

“The planes always come…… like planets on

rotation. A timid bloodletting, with different

excuses”

The most recent plane to attack the Pakistani village of Khaisoor (according to a Waziristan resident who asked me to withhold his name) came twenty days ago, on May 20th 2009. A US drone airplane fired a missile at the village at 4:30 am, killing 14 women and children and 2 elders, wounding eleven.

The previous day, some travelers had come to Khaisoor and the villagers had served them meal. “This is our custom”, my fried relates. “It is our traditional way”. But these travelers were the members of the Taliban, and their visit was noted by US forces….. Although the visitors had left right after their meal, the US responded to this act

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of hospitality by bombing the homes of the hosts early the following morning.

I asked my friend how families cope, when a bomb suddenly blasts their home in middle of the night. Do they have any kind of first aid available to help the wounded? “You see this”, he said, pointing to the long shawl that I happened to be wearing, a customary parts of every village woman’s dress, “they try to use this (as a bandage) because it is all they have”. I imagined the shawl rapidly soaking up the blood of dying Pakistani man, woman or child.

On the morning of 20th the other villagers had rushed to section where the missile had hit, hoisting injured survivors onto their shoulders, and carrying them across rough, hilly, terrain to the nearest road (about 5KM away from the village) where, lacking vehicles of their own an with no hope of receiving an ambulance visit, they waited for a car to stop, their only means of reaching a hospital. The first car they saw did stop, but its driver refused to take any of the wounded for fear that his action would be noted by an unmanned US drone, and that he himself would face the reward for his hospitality which the village had received.

The villagers walked along the road until another car stopped and did agree to take some of the wounded to a nearby center run by the International Commission of the Red Cross.

Villagers have become accustomed to the drone attacks. At first some were paralyzed with fear - but since 2001, they have endured about 70

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such attacks, and drone surveillance has become a routine fact of life.

Even the children can identify the drones flying overhead. “When there is a drone up above the children don’t play in a group because they don’t want the drone to hit them.” said our visitor. The pilots of the drones looking through monitors at their consoles in Nevada and elsewhere in the US, are more likely to mistake group of people for their designated targets than people standing alone. Groups of children have been attacked….. . But the duty these villagers were bombed for carrying out this time was hospitality. Strangers come to your home and you feed them. During my visit here in Pakistan, soon to end, I’ve been shown profound respect and hospitality, although I’ve come here from the land of an enemy, from a county that brings terrifying robotic planes here, constantly surveilling and routinely killing from the skies in the manner reminiscent of science fiction. These drones are a daily fact of life here brought by visitors; US bombs are now part of their sky: new planets on rotation. Here, the enlightened West now stands for mechanized death from the skies, “a timid bloodletting with different excuses.”

Yesterday, the “excuse” our visitor described, the rationale for incinerating women, children and elders, was a mere act of hospitality, - the extreme, obligatory hospitality shown to friends and enemies alike in this part of the world.”(30)

The next month witnessed another tragedy. On June 18, 20009, in Raghazai, a village in South Waziristan, a US

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predator fired two missiles in a compound. And when people gathered there to look after the wounded, the drone struck again. Kathy Kelly narrates the event:

“On Tuesday the US drones launched and attack on a compound in South Waziristan, locals rushed to the scene to rescue survivors. The US drone then launched more missiles at them, leaving a total of 13 dead.

The next day, local people were involved in a funeral procession when the US struck again. Reuters reported that 70 of the mourners were killed.”

(31)

The New York Times reports:

“The drones had been flying over the Wana area far a day, prompting most of the Taliban there to vacate their bases and training camps.” (32)

The report is speaking volumes of the fact that the militants were provided with enough time to flee and when the drone struck there were only civilians to face the music. Attack on the people busy in rescue activities is a gross violation of ethics and law.

On September 8, 2008. the drones fired at least five missiles at a madrassah of Jalaluddin Haqqani, according to Aljazeerah “ at least 17 people were killed - Doctors reported that more than 20 wounded - mostly women and children - were taken to Miranshah’s main hospital”

(33)

Max Kantar reports, “Of those killed, at least eight were children.” And the New York Times report was:

“The missile attack, about 10:20am, killed 23 people, including eight children, and wounded at least 18. The strike hit the compound

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run by Sirajuddin Haqqani, the son of Jalaludin Haqqani, whom the United States has accused of organizing some of the most serious recent attacks in Afghanistan against American and Nato forces and of masterminding a failed assassination attempt against the Afghan president, Hamid Karazai. It appeared that neither man was present at the compound during the attack. Among those killed were one the Jalaludin Haqqani’s two wives, his sister, sister-in -law and eight of his grandchildren.” (34)

To add to our chagrin, the US administration, without feeling a twinge of guilt, is using the drone strikes as a tool to achieve political objectives too.

14 May, 2008 drone strike in Damadola is a fine example of it. It has been alleged that the strike was aimed to derail the peace process between militants and the government. A pilotless predator fired two missiles on a two story compound in Khaza, a small hamlet in the Damadola area at about 8:45PM. The timing of the attack is very significant. According to Dawn,

The missile strike came while a prisoner exchange was taking place between the government and militant commander Baitullah Mehsud in South Waziristan.” (35)

Militant’s spokesman Mullah Umar said the strike was an attempt by the United States to derail the peace process.

Max Kantar reveals, “In at least two other known cases US drones attacked tribal area people and infrastructure in what appears to have been an attempt to sabotage ceasefire / neutrality agreements with area militants and the government of Pakistan.”

(36)

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October 30, 2006, strike on a madrassah in Chenagai

village of Bajaur was the most blatant and deadly attack on

civil population. Eighty two people were killed. 12 of them

were said to be children in their early teens. (37) There was

no high value target or any foreign militant among those

killed.(38) The attack apparently had two aims. One is to

squash a potential truce between the government and the

Mohmand tribes. US carried these attacks exactly on the

day the government was expected to sign a peace deal with

the militants.Two, an act of repraisal, because the attack

came two days after the local people held a rally shouting

slogans in support of Usama bin Laden and Mullah Omar.

So it was meant to teach them a lesson.

The BBC’s Barbara Plett in Islamabad says Monday

morning’s attack coincides with peace talks between tribal

elders and pro Taliban militants in Bajaur. (39)

Dawn reported:

Surprisingly, the strike on

Damadola, the second since January, came the day

the government was expected to sign a peace

agreement with militants in Bajaur replicating the

September 5 truce reached with militants in North

Waziristan. The peace agreement, had it been

signed, would have resulted in the grant of a

pardon to the two most wanted militants, Maulana

Faqir Muhammad and Maulvi Liaqat. Both had

been charged with harboring and providing shelter

to al-Qaeda operatives. (40)

In another example, on October 21, 2009 a US missile

strike in South Waziristan killed 12 people, including several

children, while maiming at least 2 girls aged 4 and 6. (41) This

32

strike was also politically motivated. According to The

Military Time’s analyst:

“The latest strike was especially sensitive. It hit territory controlled by Hafiz Gul Bahadar, a militant leader the army has coaxed into remaining neutral during the offensive against the Mehsud faction in South Waziristan. Analysts said the missile strikes, which have long angered ordinary Pakistanis and motivated militant fighters, could stir fury among Bahadur’s insurgents, straining the deals with the army… “This has the potential of messing up the calculus of Pakistanis”, said Kamran Bukhari, an analyst with Startfor, a US based global intelligence firm. “It could broaden the scope of the war for the Pakistanis, which they are not prepared for at this time.”( 42)

Japan Times also holds that the US missile strike has complicated the war for Pakistan.(43) Bahadur had reportedly agreed to remain neutral in the military assault against Tehrik-e-Taliban stronghold in neighboring South Waziristan in return for an assurance of no army interference in his stronghold.(44) But the drone strike squashed it creating more troubles for Pakistan despite the fact that even American officials have said it is logical for Pakistan to target its top enemy rather than broadening its fight to include all insurgent groups.(45)

The study of drone attacks also reveals that despite litany of denials by the concerned authorities, Blackwater, a private mercenary is operating inside Pakistan.

Jeremy Schahill holds,

“The Blackwater operatives also assist in gathering intelligence and help direct a secret US

33

military drone bombing campaign that runs parallel to the well documented CIA predator strikes, according to a well placed source within the US military intelligence apparatus. The source who has worked on covert US military programs for years, including in Afghanistan and Pakistan, has direct knowledge of Blackwater’s involvement. A former senior executive at Blackwater confirmed the military intelligence officer’s claim that the company is working in Pakistan for the CIA and JSOC. He also confirmed that Blackwater has facility in Karachi and has personnel deployed elsewhere in Pakistan. When asked about Blackwater’s covert work for JSOC in Pakistan, this source, who also asked for anonymity, told the Nation, “From my information that I have, that is absolutely correct.” (46)

Tom Eley, too, reports the same:

“Blackwater has been contracted to work with the unmanned predator drones that carry out assassinations and terrorize villages in eastern and southern Afghanistan and the border regions of Pakistan. Blackwater provides security to hidden bases in Pakistan and Afghanistan that carry out the drone attacks. Blackwater personnel also assemble and load Hellfire missiles and 500 pound laser-guided bombs.”( 47)

A report of New York Times also reveals that Blackwater is arming US drones for CIA.(48)

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FATA

35

“Satisfied with the Payments?”

With this, the crunch question comes to fore: Has Pakistan been a consenting party or a victim of blatant aggression? This is an area that is extremely murky.

It has been alleged that Parvez Musharraf had allowed the US to set up a secret CIA base inside Fata in January 2008 to plan missile strikes by drones on militants. On January 9, 2008 Mike McConnell, director of the National intelligence visited Islamabad where they discussed a plan to make operational in Fata a secret CIA base that could mount attacks on militants by drones armed with missiles. (49)

However, Parvez Musharraf has said that no secret agreement was signed during his rule that allowed drone attacks on Pakistani soil.(50)

God knows what the reality is, as there is no man answering the question what the US drones were doing at Shamsi air base if there exists no secret deal.

According to the Fox News:

“ The confirmation contradicts a stream of

previous denials from officials and comes after the

Times of London published a Google Earth image

apparently showing three drones at the Shamsi air

base in Pakistan’s southwestern province of

Baluchistan as early as 2006. The United States

has been using a base in Pakistan to station

36

unmanned predator drones that have been used to

attack terrorist targets inside the country’s tribal

area, a senior US official told Fox News

Thursday.”(51)

This situation is intriguing. Shah Mahmud Qureshi the

foreign minister says that Pakistani bases were not being

used for US drone attacks in the tribal areas. (52)

But the defense minister Ahmad Mukhtar said, on

December 11, 2009, that US was still using the Shamsi air

base, however, the government is not satisfied with

payments for its use. (53)

TIME reports:

“The Times has discovered that the CIA has

been using the Shamsi airfield. Key to the Time

investigation is the unexplained delivery of

730,000 gallons of F34 aviation fuel to Shamsi.

The Defense Energy Support Center site shows

that a civilian company, Nordic Camp Supply

(NCS), was contracted to deliver the fuel, worth

$3.2 million, from Pakistani refineries near

Karachi.”( 54)

Fox News reveals:

“One US official told Fox News that the US

has been flying “Predators or UAV’S” in Pakistan

since 2002. Senior officials also confirm that

Pakistan has been aiding the US in its predator

unmanned aerial vehicle strikes in Pakistan’s tribal

area, despite its leaders’ very public protests that

they see the strikes as a breach of sovereignty.”(55)

37

So on the one hand we see Pakistani officials

protesting, and on the other hand we witness drones firing,

adding to our wonders, what a classical leadership do we

have.

Asif Zardari, the president says, “Continuing drone attacks on our territory, which result in loss of precious lives and property are counterproductive and difficult to explain by democratically elected government.”

(56)

What about state sovereignty, my sir?

And Ahmad Mukhtar “warns Americans that the missile attacks were generating “anti-American sentiments.”

(57)

The worthy minister was more concerned about “American reputation” and “payments” and less, about the sovereignty of the state.

Senator Dianne Feinstein, a Democrat from California and chairwoman of the Senate Intelligence Committee says that the predator planes are based in Pakistan. (58) Our foreign minister says NO. Who to believe?

A Washington Post’s report is worth reading:

“Behind the stepped-up predator missions in recent weeks is a secret understanding between the United States and Pakistan about the use of these drones. Given Pakistani sensitivities about American meddling, this accord has been shielded in the deniable world of intelligence activities. Officially, the Pakistanis oppose any violation of their airspace and the Pakistani defense minister issued a public protest yesterday about the predator raids. But that’s not the whole story. The secret accord was set after the September visit to

38

Washington by Pakistan’s new president, Asif Ali Zardari. It provided new mechanics for coordination of predator attacks and jointly approved list of high-value targets.” (59)

It means that an elected and a self imposed president, both, are sailing in the same boat, as for as the predator attacks are concerned. Both are alleged to have secret accords with the US.

When it comes to Baluchistan governor, gosh, he is matchless. The honorable Magsi says:

“Pakistan can’t oppose US drone strikes in Baluchistan as Washington can do “whatever it pleases” because it is “paying money” to the country.” (60)

However the parliament passed a joint resolution and later on the senate of Pakistan endorsed, unanimously, another resolution against drone strikes. Leader of the House Raza Rabbani tabled it to condemn the US attacks. He assured the house that the US ambassador would be summoned to register Pakistan’s protest. The resolution said strikes were unfortunate and a gross violation of Pakistan’s sovereignty. It, further, underlined that continued incursions were harming the government’s efforts to seek a political solution through dialogue. The house said such strikes were an effort to undermine parliament. It called on the government to ensure such attacks did not recur. Senators, however, urged the government to implement parliament’s early resolution against US drones rather than merely passing resolutions.

Similarly the NWFP assembly also passed a unanimous resolution demanding that the federal government ask the US to stop drone attacks in tribal and settled areas.

39

Now, if the government is playing with the public sentiments by protesting for state’s fading sovereignty and at the same time striking secret deals with the US, it must realize it is violating the spirit of the constitution by not protecting the citizens. The constitution of Pakistan sets certain obligations for the governments and a democratic government must, at all cost, adhere to these obligations.

For a better understanding some articles of the constitution are being reproduced here.

ARTICLE 9: (Security of Person)

“No person shall be deprived of life or liberty saves in

accordance with law.”

ARTICLE 4: (Rights of Individuals to be dealt with in

accordance with law)

1. “To enjoy the protection of law and to be treated

in accordance with law is the inalienable rights

of every citizen, whenever he may be and of every

other person for the time being within Pakistan.

2. In Particular - no action detrimental to the life,

liberty, body, reputation or property of any

person shall be taken except in accordance with

law…”

Would the honorable Defense Minister, who bemoans for not being paid well, please tell us why the innocents, killed by drones, were deprived of these constitutional safeguards? Even if the government is a consenting party, the question is who authorized it to deprive the citizens of life and property unlawfully? When the constitution says “in accordance with law”, it refers to a legal and judicial process and not to the “Hellfire” of a predator hovering over.

40

Article 14 of “International Covenant on Civil and Political Rights” has well elaborated it. It states:

1. “All persons shall be equal before the courts and

tribunals. In the determination of any criminal

charge against him, or of his rights and

obligations in a suit of law, every one shall be

entitled to a fair and public hearing by a

competent, independent and impartial tribunal

establishment by law…

2. Everyone charged with a criminal offence shall

have the right to presumed innocent until proved

guilty according to law.

3. In the determination of any criminal charge

against him, everyone shall be entitled to the

following minimum guarantees, in full equality:

a. To be informed promptly and in detail in a

language that he understands of the nature

and cause of the charge against him;

b. To have adequate time and facilities for the

preparation of his defense and to

communicate with council of his own

choosing;

c. To be tried without undue delay;

d. To be tried in his presence and to defend

himself in person or through legal

assistance of his own choosing; to be

informed, if he doesn’t have legal

assistance, of this right; and to have legal

assigned to him, in any case where the

interests of justice so require, and without

41

payment by him in any such case if he does

not have sufficient means to pay for it;

e. To examine, or have examined, the witness

against him and to obtain the attendance

and examination of witness on his behalf

under the same conditions as witnesses

against him;

f. To have the free assistance of an

interpreter if he can’t understand or speak

the language used in court.

g. Not to be compelled to testify against him

or to confess guilt…”

Governments are bound to go by the constitution

Article 5 is very unequivocal in this regard:

5. “Obedience to the constitution and law is the

[inviolable] obligation of every other person for

the time being within Pakistan.”

One is not required to be an Einstein to understand that

even the president is a citizen and obedience to the

constitution is everyone’s responsibility including the

president and the “masters” who are operating for the time

being within Pakistan. Whether the government is

consenting party or not is immaterial as for as the citizens’

fundamental rights are concerned as even if the government

is consenting ally it has to obey the constitutional

obligations. Innocent civilians including children and

women shouldn’t have died irrespective of the

government’s position. They should have been charged and

tried (if the authorities were having something to prove

against them) and not butchered mercilessly. They were

citizens of Pakistan and the constitution has conferred

42

certain rights upon them and no one is empowered to snatch

then away.

Those, satisfied or otherwise with the payment, shall read following articles of “International Covenant on Civil and Political Rights”

Article 6:

“Every human being has the inherent right

to life. This right shall be protected by law. No one

shall be arbitrarily deprived of his life.”

Article 2:

“Each State Party to the present covenant

undertakes to respect and to ensure to all

individuals within its territory and subject to its

jurisdiction the rights recognized in the present

covenant, without distinction of any kind…”

The US Declaration of Independence, too, has relevance here. It states:

“All men are created equal …they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness - that whenever any form of government becomes destructive of these ends, it is right of the people to alter or to abolish it and to institute new government.”

What, if the government of Pakistan, military or civil, becomes destructive to the right of liberty, life and the pursuit of happiness on one pretext or the other? Mr. Obama!

And someone should ask the Defense Minister, if the government becomes “satisfied” with the payments sir?

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Does this “satisfaction” mean its subjects’ rights have been ceased to exist and everyone after “satisfying the government with the payment” can drop “Hellfire” on civilians, multiplying their jubiliation on Eid day even.

Should it not be wise to mention one line in the proposed 18th amendment that all fundamental rights of the people can be withdrawn and nullified by anyone, Subject to the “satisfaction” of the ruling coterie “with the payments” Rather it should be added in preamble of the constitution that “all citzens are equal before law and entitled to equal protection of law until their rulers are “satisfied with the payments”

How much consenting and willing on becomes, once satisfied with the payments” Mercy, My Lord!

However, it is important that will of a nation is represented by its parliament and not by an alleged secret act of any official, whosoever it may be. And the resolutions or the parliament speak volumes of the fact that Pakistan is not a consenting party. Some individuals may have been satisfied with the payments but the parliament hasn’t given its consent for this act of terror.

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Jus ad bellum

“Some Are More Equal”

An act of aggression against a state, otherwise illegal, can only be legitimized under chapter vii of the UN charter. The question is: has the US been operating inside Pakistan under the said chapter?

For a profound understanding, some articles are being mentioned here.

Article 39:

“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 article 42 and 42 to

maintain or restore international peace and

security.”

Article 40:

“In order to prevent an aggravation of the

situation, the security council may, before

making the recommendations or deciding upon

the measures provided for in Article 39, call upon

the parties concerned to comply with such

provisional measures as it deems necessary or

desirable. Such provisional measures shall be

prejudice to the rights, claims or the position of

45

the parties concerned. The Security Council shall

duly take account of failure to comply with such

provisional measures.”

Article 41:

The Security Council may decide what

measures not involving the use of armed forces

are to be employed to give effect to its decision,

and it may call upon the members of the United

Nations to apply such measures. These may

include complete or partial interruption of

economic relations and of rail, sea, air, postal,

telegraphy, radio and others means of

communication, and the severance diplomatic

relations.”

After taking all above mentioned measures, if the

purpose is not achieved, then under article 43, only the

Security Council can decide to use the force against non

complier.

Article 42:

Should the Security Council consider that

measures provided for in Article 41 would 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, or

other operations by air, sea or land forces of

Members of United Nations.”

This is the sole justified act of aggression under

International Law. Any act of aggression not in accordance

46

with Article 42 of 7 of UN charter shall be declared unjust

war and a violation of the purposes of United Nations.

Under UN charter there is another justified use of force and that is self defense. Whenever a country uses forces against the other, save under Article 42, the aggrieved has a right of self defense under Article 51.

Article 51:

“Nothing in the present charter shall

impair the inherent right of individual or

collective self defense 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.”

What the predators are doing in FATA is neither justified under Article 42 nor under Article 51.

A US congressman Dennis Kucinich has very aptly remarked:

“Pakistan’s objections to the illegal US Predator strikes inside a county’s border should be a clear indication of how Pakistan would respond to another illegal attack upon their sovereign nation. The president is once again violating international law by invading yet another nation which has not attacked the United States.”(61)

UN human rights investigated Philip Altson also holds the same view:

“It will increasingly be perceived as carrying out indiscriminate killings in violation of International Law.”(62)

47

It is pertinent, here, to note that while the US has more than 7000 UAVs and more on order there is still no legal framework for the operation of this new technology. In a congressional committee proceedings in Washington DC which heard evidence that legal issues surrounding the use of UAVs have not been fully worked, the chairman even refused to hear the criticism. A lone protester was told by the chairman: “You are going to have an opportunity to sit down or be asked to leave it’s your choice.”

(63)

John Turret reports:

“There have been multiple civilian deaths as a result of the use of such drones and the committee heard there are concerns inside and outside the US government that drone attacks violate human rights standards and may constitute extra judicial execution.” (64)

Professor Kenneth Anderson from the Washington Collage of law at American University told the hearing:

“The long term effect of that, given that there

are not necessarily statutes of limitations, could be

the problem of CIA officers or for that matter

military officers or their lawyers, being called up

in front of International Tribunals or courts is

Spain or some place that say you’ve engaged in

extrajudicial exestuation or simple murder and we

are going to investigate and indict. Although

nobody in the world doubts what’s going on in

Pakistan, it’s kind of hard for the lawyer to step up

and say by the way what we are doing is legal and

here’s why and give a whole series of reasons and

say, ‘by the way we are not admitting that we are

actually doing any of this stuff. It’s very hard for

48

the lawyer to get out in front of the client when the

client itself has not actually formally stood up and

said this is what we are doing.” (65)

American university law collage has filed a freedom of

information law suit demanding that the government

disclose the legal basis for its use of unmanned drones to

conduct target killing overseas, as well as the ground rules

regarding when, where and against whom drone strikes can

be authorized. (66)

Drone attacks have no legal justification. The doctrine

of Jus ad Bellum, (the right to wage a war) is subject to

certain laws of UN. Article 2 of the UN charter provides:

“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 Nation.”

So far, two justifications have been offered for these

attacks. One, the attacks are being carried out with the

consent of Pakistan, so under Article 20 of the “UN’s

Responsibility of States for Internationally Wrongful Acts”

it is legal. The Article states:

“Valid consent by a state to the commission of a

given act by another state precludes the wrongfulness

of that act in relation to the former state to the extent

that the act remains within the limit of that consent.”

Second, drone attacks are an act of self defense under

Article 51 of UN charter and Article 21 of Responsibility of

States for International Wrongful Acts, 2001.

Article 21 provides:

49

“The wrongfulness of an act of a state is

precluded if the act constitutes a lawful measure of

self-defense taken in conformity with the charter of the

United Nations.”

And Article 51 of UN charter provides:

“Nothing in the present chapter shall impair the

inherent right of individual or collective self defense if

an armed attack occurs against a Member of the

United Nation.”

Justification on the basis of Pakistan’s consent has no

bearing. The article 21 takes about a valid consent and not

merely a secret consent if there is any.

Consent is considered a valid when it is obtained

without:

1. Coercion

2. Undue influence

3. Fraud

4. Misrepresentation

5. Mistake

We all know well the story of a midnight phone call. So

if it is, by the way, established that there is a Pakistani

consent, it is evident that it has been obtained under

coercion and undue influence and it can’t be considered a

valid consent under Article 21.

A valid consent of a nation should have been in a

written form. After litany of unequivocal denials from the

Pakistani authorities on any agreement with US and US’

failure to produce anything of substance, it shall aptly be

50

presumed that there is no consent at all. Resolutions of the

parliament of Pakistan are very clear in this regard that

drone attacks are detrimental to Pakistan’s sovereignty.

In a keynote address to the American Society of International Law, state department’s legal advisor Herald Koh has said:

“It is a considered view of this administration that drone operations, including lethal attacks comply with all applicable law, including the laws of war. A state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force.” (67)

But there are certain conditions for exercising the right of self defense:

i) An armed attack must occur:

There must be an actual armed attack against the state. Is a terrorist attack an armed attack for the purpose of this article? Once the prominent view was that a terrorists attack committed by non-state actors was a form of criminal activity to be combated through domestic and international criminal justice mechanism.(68) In the Nicaragua Case ICJ founded that the term ‘armed attack’ has a narrower meaning than the words ‘threat or use of force’ and “aggression.”

(69) Not every use of force in breach of Article 2(4) of the charter amounts to an armed attack.(70) This view was reaffirmed by the ICJ in 2003 in the Oil Platforms case. (71)

It has been said that invasion of one state by another state would constitute an “armed attack.”

(72) The UN charter doesn’t explicitly state that armed attack must be

51

committed by the state but because the charter framework was intended to govern relations between states and not individuals and group and hence the traditional assumption was that such attack had to emanate from a state. However, it doesn’t mean that only an act of a state shall be considered an armed attack. In Nicaragua case the ICJ stated that:

“An armed attack must be understood as including not merely action by regular armed forces across an international border, but also 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 (inter alia) an actual armed attack conducted by regular forces, or its substantial involvement therein (emphasis added)”(73)

Article 8 of “Responsibility of States for Internationally Wrongful Acts 2001” provides:

“The conduct of a person or group of persons

shall be considered an act of state under international

law if the person or group of persons is in fact acting

on the instructions of, or under the direction or control

of, that state in carrying out the conduct.”

Now the question comes to fore: Is there any proof that al-Qaeda is under the control of Pakistan or works on the instructions of Pakistan, or operates under the directions of Pakistan? The director of Amnesty International says “NO.” She writes:

“The obvious problem, however, is that there is no proof whatsoever that the non-state group in

52

question, al-Qaeda, is under the control of the Pakistani government.” (74)

She holds,

“Furthermore if the argument for self-defense is based on the fact that the Taliban are conducting raids against allied and US forces from across the border in Pakistan, it runs into a different problem. If the drone attacks are seen as motivated by the “hot pursuit” doctrine through which they are actually perusing al-Qaeda operatives who have attempted to escape across the Afghan border, then they must be connected to specific operations.

Instead it is common knowledge based on statements made by various US defense and military officials that the drones are actually launched in response to intelligence gathered from reconnaissance also conducted through drone aircraft, making the hot pursuit doctrine inapplicable in this situation.” (75)

So it is quite clear that drone attacks don’t fulfill the first condition of Jus ad Bellum.

ii) The degree of the force used in self-defense must be proportionate to the armed attacks:

This is governing condition of the right of self-defense that the degree of force used must be proportionate and necessary. A state under international Law is not given carte blanche to respond the way it desires. A state can’t use greater force than is required. It can’t kill 140 innocents for each terrorist. But some can do the other way as some are more equal.

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Drones and International Law

What is the status of innocent tribesmen under international law? Their indiscriminate killing is justified or not? What about an act of reprisal? Was it a criminal act on the part of tribesmen to look after those wounded and to feed the visitors? Is it permitted under international law to attack the places of worship? What the law says if there is doubt whether a mosque, school, madrassa or home is being used for military proposes or not? What are precautionary measures provided under international law? Is it legal to kill 140 innocents for each al-Qaeda operative The civilians have any protection under law or they can be butchered in the ongoing fashion?

The tribesmen, according to the fourth Geneva Convention (12 August 1949), are protected persons.

Article 4 provides:

“Persons protected by the convention are these

who, at a given moment and in any manner

whatsoever, find themselves, in case of a conflict or

occupation, in the hands of a party to the conflict or

occupying power of which they are not nationals.”

And tribesmen also find themselves in hands of a party to the conflict. So they are protected persons and not a party to conflict.

Article 33 (PART 3) declares:

“No protected persons may be punished for an

offence he or she has not personally committed.

54

Collective penalties and likewise all measures of

intimidation or of terrorism are prohibited.

Reprisals against protected persons and their property ate prohibited."

Article 50 of the Hague Resolution (concerning the Laws and Custom of War on Land) also provides the same:

"No general penalty, pecuniary or otherwise, shall

be inflicted upon the population on account of the acts

of individuals for which they can’t be regarded as

jointly and severally responsible."

Article 28 of the Hague Resolution holds:

"The pillage of a town or place, even when taken

by assault is prohibited."

International Law doesn’t only protect the people but also their property. Another Article provides the same. According to Article 47 of The Hague Resolution "pillage

is formally forbidden."

It is interesting to note that the Geneva Convention

omitted the word "formally" in order not to risk reducing, through a comparison of the text, the scope of other provisions which embody prohibitions, and which, while they contain no adverb, are nevertheless just as absolute in character.(76)

As mentioned earlier, drone attacks on October 30,

2006 was an act of reprisal because the attack came two days after the local people held a rally shouting slogans in support of Osama and Mulla Omar. The attack on Khaisoor was also an act of reprisal because villagers had served, some travelers belonging to al-Quida, a meal and the next

day drone struck house of the host.

55

Reprisals are considered measures repugnant to law.

Article 20 of the Geneva Convention VI provides:

"Reprisals against the persons and objects

protected by this part are prohibited."

In 1874, the Brussels Conference has established this rule that "an innocent person ought not to suffer for the

guilty."

The International Committee of the Red Cross has always raised its voice against reprisals. Article 2 (Paragraph 3) of the Geneva Convention of 1929 provides:

“Measures of reprisals are forbidden.”

Collective punishment is illegal. Only the culprit must be punished and not the innocent civilian is an established law. It has no legal justification to kill 140 innocent people fear each terrorist. Under Geneva Convention collective punishment is a war crime. Before the Geneva Convention Collective punishment has been regarded a valid tool. Initially the principle was laid down by Union general William Tecumseh Sherman in his Special field order 120, November 9, 1864 which laid out the rules for his "March to the sea in the American Civil War:

"V. To army corps commanders alone is entrusted

the powers to destroy mills, houses, cotton gins etc " (

77)

The British justified such actions in Boer wars and the Germans in Franco-Prussian war and World War I as being in accordance with the law. (78) In World War I and II killing of innocent people including women and children was considered a lawful act of reprisal by the invaders. It is

56

believed that the drafters of the Geneva conventions had in mind the reprisal killings of World War I and II and Article 33 was an outcome of this prudence. But unfortunately Now US is considering the act of reprisal justified on one pretext on the other,

On June 18, 2009 in Raghazai, US drone fired two missiles in a compound. And when people gathered there to look after the wounded the drone struck again. The act of US implied that no one should take care of those wounded in drone attack and if someone dare, he shall face the consequences. However the law provides to the contrary.

According to Article 17 of Additional Protocol 1 (Protocol Additional to the Geneva Conventions of August 12, 1949 and relating to the protection of victims of International Armed Conflicts June 8, 1977):

“The civilian population shall respect the

wounded, sick and shipwrecked even if they belong to

the adverse party and shall commit no act of violence

against them. The civilian population and aid

societies, such as National Red Cross Societies shall

be permitted even on their own initiative, to collect

and care for the wounded, sick and shipwrecked even

in invaded or occupied areas. No shall be harmed for

such humanitarian acts.”

The term “shall” means that it is on obligation for civilians to look after the wounded etc. It is impossible to deny those who wish to come to help of the wounded their right to do so. That right is a natural appanage of all persons and no one can prevent the civilian population from carrying out their humanitarian duty towards the wounded.

“Even on their own initiatives” means that public requires no formal permission from any authority. This term

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was adopted after lengthy discussion. Article 18 of the First Convention, like the 1973 draft, used the term ‘spontaneously’. It was considered inadequate, as on the one hand, it seemed to exclude organized aid and on the other hand did not apply to the societies whose activities do require some degree of concerted cooperation. The expression “even on their initiative” doesn’t imply improvised action. It means that the aid societies can, now, take their decision in accordance with the ground reality without consulting anyone. (79)

“To collect and care” is also significant. Commentary to the 1st convention states that “to collect a wounded man is to receive him into ones house.”

(80)

“No one shall be harmed”, means civilian population enjoys a right and can’t be punished for this.

Article 10 of the Additional Protocol I provides:

(1) All the wounded, sick and shipwrecked to

whichever Party they belong, shall be respected

and protected.”

(2) “In all circumstances they shall be treated

humanly and shall receive the fullest extent

practicable and with the least possible delay, the

medical care and required by their condition.

There shall e no distinction among them founded

on any ground other than medical ones,”

The term ‘all the wounded’ means this protection is available not only to civilians but to everyone, even to operatives of al-Qaeda and if the people rushed to the compound to provide the wounded with assistance, it was a legal act and the villagers were performing their duty under Geneva Convention and by punishing them with a “hellfire” the US has violated the international law.

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‘Shall be protected, what is protection?

Protect, according to the commentary of Additional protocols, means “to come to someone’s defense, to lend help and support.” 81 It is also an obligation of civilians to come to their rescue. 82

Taking care of wounded and sick is such a noble cause that the law has emphasized it. It is stated in the commentary to the 1st convention;

“It is not sufficient to respect the wounded.

They require care… the wounded must be given

such care as their condition requires this

fundamental principle has remained unchanged

since 1864.( 83)

‘In all circumstances they shall be treated humanity’. Human treatment doesn’t refer only to the medical treatment but applies to all aspects of man’s existence. (84)

It means the villagers were authorized by the law to even take wounded home and look after them but they were butchered merely on the ground that they rushed to the spot to look after those wounded. They were killed while performing their duty as the Article 17 provides, “the civilian population shall respect the wounded.”

Article 17 holds:

“No one shall be harmed for such humanitarian acts”

But the poor villagers were harmed and wronged and no one is paying heed to their miseries.

Humanitarian assistance is also protected under Article 13:

“The protection to which civilian medical units

are entitled shall not cease unless they are use to

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commit outside their humanitarian function, acts

harmful to the enemy.”

By rushing to the compound, what act, harmful to US,

the poor villagers did commit?

What are the acts which are harmful to the enemy? The

answer is worded as follows:

“Acts the purpose or effect of which is to harm the

adverse party, by facilitating or impeding military

operations.”

Under this definition it is evident that the tribesmen did

no wrong, they were wronged, instead.

Article 16 (Additional Protocol) provides:

“Under no circumstances shall any person be

punished for carrying out medical activities…”

Those acquainted with the tribal areas of Pakistan know

well the people have no reach to modern medical facilities.

The traditional methods are the only relief in emergency.

And the people who rushed to the compound after the

missile attack were actually working on humanitarian

ground. And it had been guaranteed that under no

circumstances they shall be punished for carrying out

medical activities.

Article 18 of Geneva Convention I provide the same:

“No one may ever be molested or convicted for

having nursed the wounded or sick.”

Article 16, of the Geneva Convention relative to the

protection of civilian persons in war (2nd part) provides:

“The wounded and sick shall be the object of

particular protection and respect.”

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Civilian population is specifically protected under Geneva Convention IV. As we know 89% o drone attacks have killed civilians. (Chapter 1)

October 30, 2006 strike on a Madrassa in chenagai village of Bajaur was justified on the ground that there were information that it was being use for militant activities. But in the attack no militant was killed. In many other attacks only civilians are killed. All this is gross violation of Geneva Convention IV.

Article 48 provides:

“The parties to the conflict shall at all times

distinguish between the civilian population and

combatants and between civilian objects and military

objectives and accordingly shall direct their

operations only against military objectives.”

According to St Petersburg declaration of 1868:

“The only legitimate object which states should

endeavor to accomplish during war is to weaken the

military forces of enemy.”( 85)

In the Hague Conventions of 1899 and 1907, and the Geneva Conventions of 1929 and 1949, this rule of protection in deemed to be generally accepted as rule of law.”

(86)

Article 48 was inserted in the Convention IV on repeated demands by ICRC. From the beginning of its work the ICRC considered that it was necessary to explicitly confirm the concept of distinction in the treaty. (87) ICRC proposed that:

“In the conduct of military operations, a

distinction should be made at all times between on

the one hands, persons who directly participate in

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military operations and on the other hand, persons

who belong to the civilian population, to the effect

that the latter be spared as much as possible.”( 88)

Later on ICRC introduced the following draft during the two sessions of the Conference of Government Experts in 1971 and 1972:

“In order to ensure respect for the civilian

population, the parties to the conflict shall confine

their operations to the destruction or weakening of

the military resources of the adversary and shall

make a distinction between the civilian population

and combatants, and between civilian objects and

military objectives.”( 89)

Article 51 of the Geneva Convention (Additional Protocol)provides:

1- “The civilian population and individual civilians

shall enjoy general protection against dangers

arising from military operations.”

2- The civilian population as such, as well as

individual civilians, shall not be object of attack.

Acts or threats of violence the primary purpose of

which is to spread terror among the civilian

population are prohibited.

3- Civilians shall enjoy the protection afforded by

this section, unless and for such time as they take

a direct part in hostilities.

4- Indiscriminate attacks are prohibited.

Indiscriminate attacks are:

a. Those which are not directed at specific military

objectives.

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b. Those which employ a method or means of

combat which cannot be limited at a specific

military objective; or

c. Those which employ a method or means of

combat the effects of which cannot be limited as

required by this protocol;

d. And consequently, in each case, are of a nature

to strike military objectives and civilians of

civilian objects without distinction.

5- Among others, the following types of attacks are

to be considered as indiscriminate:

a. An attack by bombardment by any methods or

means which treats as a single military objective

a number of clearly separated and distinct

military objectives located in a city, town, village

or other area containing a similar concentration

of civilians or civilians or civilian objects; and

b. And attack which may be expected to cause

incidental loss of civilian life, injury to civilian,

damage to civilian objects, or a combination

thereof, which would be excessive in relation to

the concrete and direct military advantage

anticipated.

6- Attacks against the civilian population or

civilians by way of reprisal are prohibited.”

This is one of the most important articles in the protocol. A drone attack (read with this article) reveals how unlawful they are.

• Article 51(1) says the civilian population shall

enjoy general protection against damages arising from military operations but drones have killed

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678 civilians amounting to a 94% civilian death rate.

• Article 51(2) says that civilians shall not be

object of attack but from December 1, 2009 to December 31, 2009 only 5 al-Qaeda operatives

and 700 innocent civilians have been killed.

• Civilians, under Article 51(3) are protected

unless they take a direct part in hostilities but drones are killing innocent civilians and from January 14, 2006 to April 8, 2009 US bombing has killed 768 civilians. And in only one month “December 2009” for each al-Qaeda operative,

140 innocent civilians also had to die.

• Article 51(4) prohibits indiscriminate attacks but

drone attacks are very much indiscriminate according to article 51(4) a, b, c and Article 51(5).

We have read (in chapter # 1) that on October 30, 2006 a madrassa was attacked in Chanagai village of Bajaur

because drone operated doubted it being used for military purposes. Eighty two people were killed, 12 of them were said to be children in their early teens. But there was no high value target or any foreign militant among those killed.(90) Article 52(3) Additional Protocol is significant in this case that states:

“In case of doubt whether an object which is

normally dedicated to civilian purposes, such as a

place of worship, a house or other dwelling or a

school, is being used to make an effective contribution

to military action, it shall be presented not to be so

used.”

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52(1) (Additional Protocol 1)provides:

“Civilian objects shall not be the object of attack.”

And 52(2) (Additional Protocol 1)states:

Attacks shall be limited strictly to military objectives.”

Article 7(2) (Protocol 1) is also a must read in this regard. If provides:

“The following acts are and shall remain

prohibited at any time and in any place whatsoever,

whether committed by civilian or by militant agents:

(a) violence to the life, health or physical or

mental well-being of persons, in particular:

i. murder

ii. torture of all kinds, whether physical or

mental…

iii. collective punishment

Chapter IV of the Geneva Convention IV deals with precautionary measures. Article 57 provides:

1. In the conduct of military operations, constant

care shall be taken to spare the civilian

population, civilians and civilian objects.

2. with respect to attacks, the following precautions

shall be taken:

a. those who plan or decide upon an attack

shall:

i. do everything feasible to verify that the

objectives to be attacked are neither

civilians nor civilian objects and are not

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subject to special protection but are

military objectives…

ii. take all feasible precautions in the choice

of means and methods of attack with a

view to avoiding, and in any event

minimizing, incidental loss of civilian life,

injury to civilians and damage to civilian

objects’

iii. refrain from deciding to launch any attack

which may be expected to cause incidental

loss of civilian life, injury to civilians,

damage to civilian objects, or a

combination thereof, which would be

excessive in relation to the concrete and

direct military advantage anticipated;

b. an attack shall be cancelled or suspended if it

becomes apparent that the objective is not a

military one or is subject to special protection or

that the attack may be expected to cause

incidental loss of civilian life, injury to civilians,

damage to civilian object or a combination

thereof, which would be excessive in relation to

the concrete and direct military advantage

anticipated;

c. Effective advance warning shall be given of

attacks which may affect the civilian population,

unless circumstances do not permit.

Is there any precautionary measure involved in drone attacks? Any answers in yes shall add to my wonders.

Drone attacks have also eviscerated the Universal Declaration of Human Rights. Its preamble lays down some important principles.

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1. Recognition of the inherent dignity and of the equal

and inalienable rights of all members of human

family is the foundation of freedom, justice and

peace in the world

(Is it recognition of inherent dignity that 58 innocent people die every month by predator drones?)

2. “Disregard and contempt for human rights have

resulted in barbarous act so the highest aspiration

of the common people is the advent of a world in

which human bengs shall enjoy… freedom from

fear.”

(When 140 innocent have to die for each al-Qaeda operative, is it continuance of barbarous acts or advent of a new world)

3. “If man is not to be compelled to have recourse, as a

last resort, to rebellion against tyranny and

oppression, it is essential that human rights should

be protected by the rule of law.”

(What about the right of those innocent civilians who have been stained by drones)

4. Article 3 of the universal Declaration provides:

“Everyone has the right to life, liberty

and security of persons”

(What is the rational behind butchering civilians in FATA?)

5. Article 5 (UDHR) says:

“No one shall be subjected to torture, or to

cruel, in human or degrading treatment or

punishment.”

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(Attack on a funeral procession is kind and human

treatment, perhaps)

6. Article 12 (UDHR) provides:

“Everyone has the right to the protection of

law”

(Why the law couldn’t protect those killed by

drones)

7. Article 7 (UDHR) says:

“All are equal before law and are entitled

without any discrimination to equal protection

of law”

(What about those innocent equals killed by more

equals? Why they couldn’t be recognized as a

person before law?)

8. Article 17 provides:

“No one shall be arbitrary deprived of his

property”

(Then why the Hellfire burns the homes of

innocent civilian?)

9. Article 20 (UDHR) says:

“Everyone has the right to freedom of

peaceful assembly and association”.

(And the funeral procession is not peaceful

assembly)

10. Article 6 of International Covenant on Civil

and Political Rights provides:

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“Every human being has the inherent right to

life. This right shall be protected by law. No

one shall be arbitrary deprived of his life.”

(To our utter surprise 90% of those killed by US in Pakistan are civilians. But are they human being, too to qualify in having the protection of this article?)

11. Article 16 (ICCPR) says:

“Everyone shall have the right to recognition

every where as a person before law.”

12. And Article 21 (ICCPR) – (Like Article 20 of UDHR) provides:

“The right for peaceful assembly shall be

recognized.”

(But children can’t play and funeral processions come under fire)

A bare reading of the European Convention of Human Rights may also be a thing of substantive importance here.

Article 2 (European Convention) provides:

“Everyone’s right to life shall be protected by law.

No one shall be deprived of his life international save

in the execution of a sentence of a court following his

conviction of a crime for which the penalty is provided

by law.”

And Article 3 states:

“No one shall be subjected to torture or to

inhuman or degrading treatment or punishment.”

Article 5 of the European Convention of Human Rights says:

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“Everyone has the right to liberty and security of

person.”

Article 8 holds:

“Everyone has the right to respect for his private

and family life, his home and his correspondence.”

Article 11 says:

“Everyone has the right to freedom of

peaceful assembly…”

Article 15 states:

(1) “In the time of war or other public emergency

threatening the life of the nation any High

Contracting Party may take measures derogating

from its obligations under this convention to the

extent strictly required by the exigencies of the

situation, provided that such measures are not

inconsistent with its other obligations under

international law.”

(2) “No derogation from Article 2, except in respect

of deaths resulting from lawful acts of war shall be

made under this provision.”

(For a profound understanding how the essence of this

legislation is being violated by predator drones, read

Chapter 1)

The European Convention of Human Rights may not be

strictly applicable on the drone attacks but it stirs a crunch

question: What the European Community should do when

the US its ally is busy eviscerating the whole human rights

legislation? What about their pledge to the concept of

human rights?

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Here it should be noted that the US has not yet signed the Additional Protocols to Geneva Conventions (As mentioned earlier, one of the most important part of International Law). US opine its ratification will legitimize the groups involved in wars of national liberation. But even then the US is bound by the provisions of Additional Protocols because it fundamentality reflects customary international law and customary international law is applicable to all states regardless of circumstance. In an official declaration and appeal on the 20th anniversary of the establishment of the Additional Protocols, the International Committee of the Red Cross stated that the 1977 amendments largely already form a set of rules of customary law valid for every state, whether or not it is party to the protocols. (91)

International Humanitarian Law, also known as the Law of War and the Law of Armed Conflict (LOAC) has three basic sources i.e. Treaties, customs and general principles. If the US has not yet ratified any treaty, it is even then under an obligation to follow the customs and general principles. There are six general principles which being the part of customary International law always apply to the use of armed force,

(1) Parties to an armed conflict must distinguish between the civilians and combatants and between civilian objects and military objectives. A target must be a military target.

(2) Attacks are prohibited if they cause incidental loss of civilian life, injury to civilian or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack.

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(3) The use of military force is justified only

to the extent it is necessary to achieve a military

goal. It must not exceed the level required to stop

the threatening activity.

(4) It is duty of parties to the conflict to take

precautions to spare the civilian population before

and during the attack.

(5) Infliction of unnecessary suffering or

destruction or of superfluous injury is prohibited.

(6) Engaging in indiscriminate attacks is

prohibited. (92)

As said earlier customs are one of the basic

sources of international humanities law, if shall be

appropriate to look into the customary rules of

international humanitarian law.

Rule 1:

“The parties to the conflict must at all times distinguish

between civilians and combatants. Attacks may only be

directed against combatants. Attacks must not be directed

against civilian.”

Rule 6:

“Civilians are protected against attack unless and for

such time as they take a direct part in hostilities.”

Rule 7:

“The parties to the conflict must at all times distinguish

between civilian objects and military objectives. Attacks

may only be directed against civilian objects.”

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Rule 8:

“Civilian objects are all objects that are not military objective.

Rule 10:

“Civilian objects are protected against attack, unless and for such time as they are military objectives.”

Rule 11:

“Indiscriminate attacks are prohibited.”

Rule 12:

“Indiscriminate attacks are those:

(a) which are nor directed at a specific military objective;

(b) which employ a method or means of combat which can not be directed at specific military objective; or

(c) which employ a method or means of combat the effects of which cannot be limited as required by International Humanitarian law;

And consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.

Rule 13:

“Attacks by bombardment by any method or means which treats as a single military objective a number of clearly separated and distinct military objectives located n a city, town, village or other area containing a similar concentration of civilians or civilian objects are prohibited.”

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Rule 14:

“Launching an attack which may be expected to cause

incidental loss of civilian life, injury to civilians, damage to

civilian objects, or a combination thereof, which would be

excessive in relation to the concrete and direct military

advantage anticipated, is prohibited.”

Rule 15:

“In the conduct of military operations, constant care

must be taken to spare the civilian population, civilians and

civilian objects. All feasible precautions must be taken to

avoid, and in any event to minimize, incidental loss of

civilian life, injury to civilians and damage to civilian

objects.”

Rule 16:

“Each party to the conflict must do everything feasible

to verify that targets are military objectives.”

Rule 17:

“Each party to the conflict must take all feasible

precautions in the choice of means and method of warfare

with a view to avoiding, and in any event to minimizing,

incidental loss of civilian life, injury to civilians and

damage to civilian objects.”

Rule 18:

“Each party to the conflict must do everything feasible

to access whether the attack may be expected to cause

incidental loss of civilian life, injury to civilians, damage to

civilian objects, or a combination thereof, which would be

excessive in relation to the concrete and direct military

advantage anticipated.”

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Rule 19:

“Each party to the conflict must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to concrete the and direct military advantage anticipated.”

These rules need no signature, no ratification. US may not have yet ratified additional protocols but it is bound to follow these customary rules of International Humanitarian Law. And violation of these rules constitutes a war crime. The International Military Tribunal, established by an agreement signed on the 8th day of August 1945, by the Government of United States of America, the provisional Government of French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of the Soviet Socialist Republics), defines criminal acts as followings:

Article 6: “The following acts, or any of them, are crimes…

(a) Crimes against Peace: Namely planning preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiring for the accomplishment of any of the foregoing;

(b) War Crimes: namely, violation of laws or customs of war.

(c) Crimes against Humanity: namely, murder, extermination, enslavement,

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deportation, and other inhumane acts committed against any civilian population.”

One can apply these rules of International Military Tribunal to the situation mentioned in chapter 1 and may very aptly stir the question: Are these rules applicable to US itself? or these golden rules were Nuremberg Trial specific?

A study of Nuremberg principles shall suffice to determine what constitutes a war crime.

A document No. 3-07.1 issued by the Headquarters, Department of the Army, Washington, DC on May 1, 2009 with the signatures of Martin E. Dempsey, Commanding General US Army Training and Doctrine Command, provides a summary of the law of war rules. It states:

• Fight only enemy combatants.

• Do not harm enemies who surrender, disarm them and turn then over to the chain of command.

• Do not kill or torture detainees.

• Collect and care for the wounded, whether friend or foe.

• Destroy no more than the mission requires

• Treat all civilians humanly

• Do ones best to prevent violations of the law of war.

• Report all violations of the law of war to superior” (93)

The document furthers states:

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“US forces obey the law. The law of war is a body of International treaties and customs, recognized by the United States as binding.”

(94)

But the deeds are different from the words. Apply these rules to chapter 1 of this read and you will have another side of the story.

The Hague Rules of Air Warfare (Feb 1923) are also very much relevant to this study.

Article XXII provides:

“Aerial bombardment for the purpose of

terrorizing the civilian population, of destroying

or damaging private property not of a military

character, or of injuring non combatants is

prohibited”

Article XXIV provides:

“Aerial bombardment is legitimate only when

directed at a military objective, that is to say, an

object of which the destruction or injury would

constitute a distinct military advantage to the

belligerent.

(2) Such bombardment is legitimate only when directed

exclusively at the following objectives:

(i) military forces;

(ii) military works

(iii) military installations.

iv. military establishments

or depots;

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v. factories constituting important and well known

centers engaged in manufacture of arms,

ammunition, or distinctively military supplies;

vi. lines of communications or transportation used

for military purposes.

(3) The bombardment of cities, towns’ villages,

dwellings, or building not in the immediate

neighborhood of the operations of land forces is

prohibited. In cases where the objectives specified

in paragraph 2 are no situated, that they can not

be bombarded without the indiscriminate

bombardment of the civilian population, the

aircraft must abstain from bombardment.”

Article 25 of the Hague Convention IV provides:

“The attack or bombardment, by whatever means,

of towns, villages, dwellings, or buildings which are

undefended in prohibited.”

According to Article XXV of (Hague II) July 29, 1899, Law and Customs of War on Land:

“The attack or bombardment of town villages,

habitations or build during which are not

defended, is prohibited.”

A unanimous resolution of League of Nations Assembly (September 30, 1938) provides:

(1) The intentional bombing of civilian population is illegal;

(2) Any attack on legitimate military objectives must be carried out in such a way that civilian population in the neighborhood is not bombed trough negligence.”

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On September 01, 1939 the US President Franklin D.

Roosevelt appealed to Governments of France, Germany,

Italy, Poland and his Britannic Majesty that

“the ruthless bombing from the air of civilians

in unfortified center of population during the

course of the hostilities which have raged in

various quarters of the earth during the past few

years, which have resulted in the maiming and in

the death of thousands of defenseless men, women

and children, has sickened the hearts of every

civilized man and woman and has profoundly

shocked the conscience of humanity. If resort is

had to this form of inhuman barbarism during the

period of the tragic conflagration with which the

world is now confronted, hundreds of thousands of

innocent human beings who have no responsibility

for, and who are not even remotely participating

in, the hostilities which has now broken out, will

lose their lives. I am therefore addressing this

urgent appeal to every government which may be

engaged in hostilities publicly to affirm its

determination that its armed forces shall in no

event, and under no circumstances, undertake the

bombardment from the air of civil populations or

of unfortified cities, upon the understanding that

these same rules of warfare will be scrupulously

observed by all of their opponents. I request an

immediate reply.”

And now the US authorities, without any compunction

are carrying out drone attacks. This is perhaps ‘human

barbarism’!

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UN resolution (on human rights, December 19, 1968, General Assembly) explicitly prohibits the bombardment of civil population. It provides:

b. That it is prohibited to launch attacks against the civilian populations as such;

c. That distinction must be made at all times between persons taking part in hostilities and member of the civilian population to the effect the letter be spared as much as possible.”

The fact that drones are being operated by CIA and not by regular US Army deepens the legal crisis further. General David Mc Kieman, the commander of International Security Assistance Fore (ISAF) in Afghanistan has said that “these drones don’t come under my command; I can’t speak on the issue” (95) What he meant was perhaps that US forces were not violating its own rules or international law. But another legal issue arises as the CIA’s involvement in this program is illegal and the CIA, by operating drones, has acquired the status of a mercenary, which the UN has unequivocally declared unlawful and a crime.

Article 47 of Additional protocol 1 has defined that mercenary is a person who:

a. is especially recruited locally or abroad in

order to fight in an armed conflict:

b. does, in fact, take a direct part in the

hostilities;

c. is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that

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promised or paid to combatants of similar ranks and functions in the armed forces of that party.

d. is not a member of the armed forces of a party to the conflict; and

e. has not been sent by a state which is not party to the conflict on official duty as a member of its armed forces.”

It is much evident that CIA is taking a direct part in the hostilities, it is not a part of US Army and CIA operatives are not members of the US Army. So according to Article 47, CIA is a mercenary involving in a criminal activity.

Here is a list of UN resolutions, which have declared the mercenaries illegal.

General Assembly Resolutions:

1. 1514 14 December, 1960

2. 2465 20 December, 1968

3. 2548 11 December, 1969

4. 2708 14 December, 1970

5. 3103 12 December, 1973

6. 34/14 14 December, 1979

7. 40/74 11 December, 1985

Security Council Resolutions:

1. 239 10 July 1967

2. 405 14 April 1977

3. 419 24 November 1977

4. 496 15 December 1981

5. 507 28 May 1982

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Gary Solis, an adjunct professor at Georgetown

University, has very rightly criticized US policy in his

articles.

He wrote:

“They (CIA agents) are fighters without

uniforms or insignia, directly participating in

hostilities, employing armed force contrary to

laws and customs of war. Even if they are sitting

in Langley, the CIA pilots are civilians violating

the requirement of distinction, a core concept of

armed conflicts as they directly participate in

hostilities.”( 96)

Further he stated:

“Before the 1863 Lieber Code condemned

civilian participation in combat, it was contrary to

customary law. Today civilian participation in

combat is still prohibited by two 1977 protocols to

the 1949 Geneva Conventions. Although the

United States has not ratified the protocols, we

consider the prohibition to be customary law

binding on all nations. It makes no difference that

CIA civilians are employed by, or in the service of,

the US government or its armed forces. They are

civilian; they wear no distinguishing uniform or

sign, and if they input target data or pilot armed

drones in the combat zone, they directly

participate hostilities.”( 97)

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Terrorism, in its all forms should be

eliminated but an abject disregard of International

Law shall bear no fruit, it may pave the way to

globalization of terror, instead,

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1- Dawn – January 2, 2010.

2 - The News – “60 Drone Hits Kill 14 Al-Qaeda Men,

687 civilians” April 10, 2009.

3 - Max Kantar, “International Law; The First Causality

of Drone War” 4 - Revenge of the Drones: An Analysis of Drone

Strikes Inside Pakistan.” – The New America

Foundation: October 19, 2009.

5 - Daniel L. Bayman,” Do Targeted Killings Work?” Brookings, July 14, 2009.

6 - Gareth Porter, “US-Pakistan: CIA Secrecy on Drone

Attacks Data Hide Abuses,” Inter Press Service

News Agency, June 12, 2009.

7 - Harper’s Magazine, June 12, 2009.

8 - Harper’s Magazine, June 12, 2009

9 - Bobby Gosh and Mark Thomson: “The CIA’s Silent War in Afghanistan,” June 01, 2009.

10 - “CIA Keeping Drone Data Secret” (IPS news

agency) June 12, 2009.

11 - “Mysterious ‘Chips’ is CIA’s Latest Weapon Against Al-Qaeda Targets Hiding in Pakistan’s Tribal Belt.”

The Guardian, May 31, 2009.

12 - “CIA Secrecy on Drone Attacks That Hide Abuses”

June 13, 2009.

(ANTI WAR.COM)

13 - Declan Walsh “Mysterious Chips Is CIA latest Weapon…” May 31, 2009.

14 - Jane Mayer, “The Predator War” The New Yorker.”

October 26, 2009.

15 - Bobby Gosh and Mark Thompson, “The CIA’s Silent

War in Pakistan”, June 01, 2009.

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16 - Jane Mayer, “The Predator War” The New Yorker.”

October 26, 2009

17 - Ibid

18 - Ibid

19 - Ibid

20 - October 27, 2009.

21 - Max Kanar, International Law, The First Causalty…”

22 - Jane Mayer, “The Predator War”

23 - Christina Lamb, “ Air Strike Misses al-Qaeda Chief”

The Sunday Times, January 15, 2006.

24 - Ibid

25 - “Pakistan Fury As CIA Air Strike On Village Kills

18”, The Daily Telegraph, January 15, 2006.

26 - Ibid

27 - Dawn 14 January, 2006.

28 - “Anatomy of the Air Strike In Pakistan”, January 17,

2006, MSNBC

29 - Index: ASA 33/002/2006 (public) News Service

Number.027, 31 January, 2006.

30 - Visitors And Hosts In Pakistan, June 10, 2009. The

Huffington post. Visitors and hosts in Pakistan

31 - “No we see you, now we don’t.”

32 - Pir Zubair Shah “Pakistan Says US Drone kills 13”

June 18, 2008.

33 - September 8, 2008

34 - Jane Perez and Pir Zubair Shah, “US Attack on Taliban kills 23 In Pakistan.” New York Times, September 8, 2008.

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35 - Anwarullah Khan, May 15, 2008, Dawn.

36 - Marx Kantar

37 - Anwarullah Khan, 82 Die As Missiles Rain On Bajaur.” Dawn, October 30, 2006.

38 - Anwarullah Khan, Dawn.

39 - BBC News, October 30, 2006.

40 - Anwarullah Khan, Dawn.

41 - Marx Kantar, International Law.

42 - Hussain Afzal, “Missile Strike Could Complicate Pakistan’s Battle.” Military times, October 22, 2009.

43 - “US Missile Strike Complicates Pakistan Battle”, Japan Times, October 23, 2009.

44 - “Amanda Hodge, “US Drone Takes out Al-Qaeda King Pain” The Australian, October 23, 2009.

45 - Hussain Afzal, Military Times.

46 Jeremy Schahil, “The Secret US War In Pakistan”, The Nation, November 23, 2009.

47 - Tom Eley, “Obama Administration Uses Blackwater In Drone Killings,” WSWS.ORG

48 - Dawn, August 21, 2009.

49 -

50 - Sahil Nagpal, “No Secret Agreement With US Signed For Drone Attacks” Top news in February 24, 2009.

51 - Fox News, January 19, 2009.

52 - Daily Times, February 16, 2009.

53 - Dawn, Saturday 12 December 2009.

54 - Times Online, “Secrecy And Denials As Pakistan Lets CIA Use Airbase to Strike Militants”. February17, 2009 (updated)

86

55 - Fox News, January 19, 2009 (updated)

56 - Jane Perelz, “Petreaus, in Pakistan, Hears complaints about Missile Strikes” New York Times, November03, 2008.

57 - Ibid.

58 - Greg Miller, “Feinstein Comment on US Drones Likely to Embarrass Pakistan”. Los Angeles Times, February 13, 2009.

59 - David Ignatices, “A Quiet Dead With Pakistan.” Washington Post. November 04, 2008.

60 - Malik Siraj Akbar, “Drone Attacks In Baluchistan Can’t Be Opposed: Magsi”, Daily Times, December 06 2009.

61 - Dawn, September 14, 2008.

62 - ABC News, October 27, 2009

63 - john Turret, “Legality of US Drones Questioned”, Al-Jazeerah English, March 24, 2010/

64 - Ibid

65- Ibid

66 - Dan Froomkin, “Drone Wars, Without Any Rules” The Huffington Post, March 24, 2010

67 - ABC News, March 30, 2010

68 - G Travalio and I Altenburg; Terrorism, State Responsibility, And the Use of Military Force(2003), Chicago journal of International Law, 97, 98-100.

69 - Nicaragua Case [1986] ICJ rep 14 [191]

70 - Ibid

71 - Case Concerning Oil Platforms, (Iran VS US). November 06, 2003. ICJ(64)

72 - B.Simma, “The Charter Of the United Nations: A Commentary (Oxford University Press, 1994) 670

87

73 - Nicaragua Case [1986] ICJ rep 14 [195]

74 - Rafia Zakria; Drones and the Law. Dawn, January 27, 2010.

75- Ibid Ibid

76 - [(3) P.226] See, 'Final Record of the Diplomatic Conference of Geneva of 1949, vol 2-A, P.823

77 - Sherman, William T, Memories of General W.T. Sherman. 2nd ed,, D. Appleton & Co. 1913(1889) Chapter XXI, reprinted by the Library of America, 1990. ISBN 0-940450-65-8

78 William Miller Collier, “The Laws Of War As to Conquered Territory”. New York Times, November 29, 1914.

79 - Commentary, Protocol I (710)

80 - Ibid , P(711)

81 - Ibid P(446)

82 - Ibid P(446)

83 - Ibid P(448)

84 - Ibid P(449)

85 - Declaration to the Effect of Prohibiting the Use of Certain Projectiles in Wartime Signed in St. Petersburg, 29 November – 11 December 1868.

86 - Commentary, protocol I (P. 1864)

87 - Ibid P(1867)

88- Ibid

89 - Ibid P(1870)

90 - Ammanullah Khan. 82 Die As Missiles Rain On Bajaur; Dawn, October 31, 2006.

91 - Max Kantar, International Law: The first causality…

88

92 - The Program for Humanitarian Policy and Conflict

Research at Harvard University.. “Brief Premier on IHL.”

93 - FM. 3-07.1, Security Force Assistance. Appendix B, table B-1. May 2009.

94 Ibid1q

95 - Amir Wasim, “Isaf Chief Refuses to Discuss Drone Attacks”, Dawn, November 14, 2008.

96- Gary Solis, ‘CIA Drone Attacks Produce America’s Own Unlawful Combatants’, Washington Post, March 12, 2010

97 - Ibid