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The Folly of Drone Strikes
Sikander Shah
Legal Fellow
11/30/2011

The tragic “friendly fire” incident at the weekend, in which 24 Pakistani soldiers were allegedly killed in a NATO airstrike, raises many questions. Who shot first? How should Pakistan respond? What is the future for the already traumatized U.S.-Pakistan relationship?

But surely the biggest question, after a decade of conflict, is this: Should the United States even have launched military action in Afghanistan in the first place? And was the magnitude of the attacks on September 11, 2001, so great as to mean there was no choice but to launch military operations?

Setting aside the support of the international community, the United States still chose to act unilaterally against Afghanistan, claiming self–defense. There was much debate at the time over the legality of the initial use of force. Yet the devastation that the people of Afghanistan and Pakistan have experienced over the last decade as U.S. and coalition forces have battled Taliban militias almost makes that debate seem trite.

Interestingly, the justification for the war has transformed from self-defense, to an even less well defined fight against global terrorism. Meanwhile, Pakistan-based Taliban have replaced al-Qaeda as the central enemy in a war that has gradually come to be seen by Afghans as regime enforcement.

Whatever the reason given for military action, it has become increasingly clear that a dangerous precedent was set in Afghanistan. The justification for the use of force as self-defense has been increasingly utilized by opportunistic states to meet the challenge of insurgents and rebels, and this unwanted development of the doctrine of pre-emptive and preventive self-defense now poses a grave threat to international peace and security.

In addition, it also appears to be a mistake for coalition forces, acting under the mandate of the UN Security Council, to indulge in peace enforcement rather than just peacekeeping initiatives in Afghanistan. After all, history has shown that such aggressive use of force has typically worsened conflicts, as witnessed in Somalia.

Indeed, as underscored by events at the weekend, the fight against Taliban militants has now spilled over into Pakistan, where civilian causalities far outnumber those of combatants. This is in large part due to the U.S. insistence of using drone attacks to target militants, attacks that have had only sporadic success, even as they have killed scores of civilians, thus fueling extremism and resentment in Pakistan.

Against this backdrop, the United States has avoided providing proper legal justification for drone attacks, which violate Pakistani sovereignty. When confronted on the issue, the Obama administration responds in vague terms that it has a right to defend itself. The Pakistani military, for its part, has generally stayed quiet over the issue.

Yet although the U.S. and Pakistani governments may have until recently been in tacit agreement over the drone strikes, these extra-judicial killings should be seen as illegal under international law, in violation of the Constitution of Pakistan, and without the support of the people of Pakistan.

This isn’t to dismiss the dangers posed by Taliban militants, which are very real. The fostering of an environment of repression and intolerance – the Talibanization of society in the Pakistan-Afghan border regions – has created a level of anarchy that challenges the very fabric of society. It must be halted before irreparable harm results. But tackling Talibanization requires a multi-faceted approach that as well as recognizing the reasons behind this process, also mandates addressing the root causes of radicalism and militarism. This approach should center on the peaceful resolution of all disputes, the fostering of nation-building through political dialogue and compromise, the strengthening of democracy, and the supremacy of the rule of law. Poverty, corruption and ethnic discrimination also need to be systematically addressed.

How can the United States most usefully contribute? By immediately bringing to a halt its aggressive military strategy. Specifically, the U.S. should immediately stop drone attacks in both Afghanistan and Pakistan; withdraw its troops from Afghanistan at the earliest possible time and in the interim, U.S. and ISAF forces should only partake in peacekeeping operations. Also, the U.S. and others shouldn’t provide unaccounted for military aid to the Pakistan Army.

The Pakistani establishment, for its part, should look more to non-military means of dealing with the conflict. For a start, it should engage in genuine political dialogue with militants in control of the FATA regions to try to find a political solution to the conflict without compromising its position on sovereignty in relation to both the U.S and the militants. In addition, it should also institute measures to guarantee that its armed forces are conducting all operations in a transparent manner, in compliance with human rights and international humanitarian law. In this respect the media, civil society and humanitarian organizations must be allowed to function independently in war-torn areas.

And the international community also has a role to play, not least by being more proactive in trying to influence U.S and NATO forces in the Pakistan-Afghan region. In addition, it should also hold Pakistan more accountable for its violation of human rights treaties and international law, and take concrete measures that respect local values, customs and religion, but which also improve protections for human rights. After all, aggression against civilians is not only a violation of the Geneva Conventions, but also the Islamic Law of Nations.

Ultimately, unilateralist behavior by powerful states who achieve their objectives while violating the territorial sovereignty of weaker states is extremely damaging to interstate norms. Instead, powerful nations should resist the temptation to flex their muscles and instead focus on diplomacy, political dialogue, and compromise – and the international community should put pressure on them to do so.

Such an approach isn’t just right in and of itself, but will also give greater impetus to the development and recognition of multilateral judicial institutions that are best placed to address conflicts.

Sikander Shah is a legal fellow at the Institute for Social Policy and Understanding. For more information on this topic, please see “The Legality of U.S. Drone Attacks in Pakistan.”

This article was first published by The Diplomat on November 30, 2011. Read it here.

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