Jul 4 2016 (Dawn, Pakistan) – Recently, Mullah Akhtar Mansour was killed in a US drone strike in Balochistan. In response, Pakistan expressed deep concern, terming the attack as “crossing a red line” because it was the first time that a drone strike had been conducted outside Fata, hundreds of miles away from any region in Pakistan, currently experiencing internal conflict.
It should be stated at the outset that US drone attacks in Pakistan cannot produce an international armed conflict, nor can a non-international armed conflict (NIAC) exist in Pakistan in which the US is a legitimate warring party under international law. The former kind of conflict cannot exist between the two states as they are not engaged in any hostilities against each other and, in fact, project themselves as allies. Similarly, an NIAC between the US and Tehreek-i-Taliban Pakistan (TTP) cannot exist because under the laws of war only a host state can enter into such a conflict with domestic armed groups.
US drone strikes in Pakistan are in fact one-way attacks, where there is no exchange of fire between US forces and TTP. An armed conflict can only exist if there are sustained or protracted attacks and counterattacks between warring parties. Combatants are required to be actively engaged in hostilities with each other, with the intensity of violence passing a particular threshold. However, because TTP cannot fight back against UAVs and because there are no US armed personnel stationed in Pakistan that TTP can target, such requirements of engagement are not met.
A zone of conflict is the territory within which there are active and sustained hostilities and where the laws of war are fully operationalised. In addition to exchange of attacks and intensity and duration of assaults, armed conflicts also possess a spatial dimension. Thus, war in one country does not translate into a global war between all states or between citizens of hostile states residing abroad.
The law of war is being directly challenged.
Thus a ‘red line’ was indeed crossed when Mullah Mansour was killed near Quetta, one of Pakistan’s biggest urban centres. There is complete absence of any form of armed conflict in Quetta. It is true that Quetta, like Pakistan’s other urban centres, has witnessed acts of local terrorism. But such sporadic violations of domestic criminal law do not by themselves produce an armed conflict, which requires a far higher threshold for the exchange of force, the intensity and duration of violence, and the organisation of armed groups that qualifies them as fighters engaged in an armed conflict.
In the same vein, these sites of attacks are hundreds of miles away from any active conflict zones. In summary, the law of war is inapplicable in such parts of Pakistan; to hold otherwise would be to take a position unsupported by international law, and one which will lead to future violations of the Constitution — not to mention the law of armed conflict.
Today, the law of war is being directly challenged by terrorists and hegemonic states alike. While terrorists don’t see themselves as bound by this corpus of law, powerful states like the US are also trying to contort it for military expediency.
International Humanitarian Law (IHL) recognises that war is a reality, but seeks to limit its adverse effects on civilians and combatants alike by incorporating important legal standards and parameters that warring parties have to abide by. The existence and delimitation of a spatial dimension of a conflict zone is one such powerful constraint built into IHL to protect against unnecessary escalation of violence and the use of unnecessary, disproportionate force, especially in areas far removed from the conflict zone, and to prevent the supplanting of the human rights regime and its protections unless absolutely required.
By making a mockery of the requirement of a conflict zone, the US government — by arguing it can target anyone, anywhere because the whole world is a global battlefield — challenges IHL in the most fundamental way. In a sense, the US is arguing that it can create an armed conflict and a conflict zone at any location where it conducts a drone strike. In other words, the location is determined by who is targeted in its view, and not the nature of hostilities in the region.
If this contorted and asymmetrical version of IHL is adopted, it would displace human rights law and the domestic laws of a state wherever the US conducts drones strikes at whim. This would end up depriving the people of targeted states of fundamental procedural and substantive due process protections — inclusive of all essential civil and political rights — that guarantee life, liberty and property and which are considered non-derogable under the US constitution.
The writer is the author of International Law and Drone Strikes in Pakistan: The Legal and Socio-political Aspects.
Published in Dawn, July 3rd, 2016
This story was originally published by Dawn, Pakistan