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The Political Quarterly, Vol. 85, No. 1, JanuaryMarch 2014

DOI: 10.1111/j.1467-923X.2014.00000.x

The Use of Drones in Pakistan: an Inquiry into

the Ethical and Legal Issues
MAHMOOD AHMAD
Most states justify their use of force as consistent and compatible with rules of international law. Such appeals to legitimacy
show that legal norms do play an important
role in legitimising the resort to lethal force, to
promote the discrimination between combatants and non-combatants. In an attempt to
assess whether the use of drones in tribal
regions of Pakistan has been in compliance
with the law of conict management, the just
war tradition oers two separate moral
assessments of uses of lethal force: jus ad
bellum (the right to war),1 and jus in bello
(conduct of war).2

Jus ad bellum: the legality of US

drone strikes in Pakistan
Like any other law, international law oers a
substitute to force or violence in international
politics. Under international law, states are
prohibited from using lethal force in the
territory of another state unless the attacking
state is acting in legitimate self-defence or the
target state has given its consent for such
lethal action. In all other circumstances, they
resort to law enforcement measures instead.
Moreover, international humanitarian law or
international human rights law put further
limits on the use of military force by drawing
on basic human rights principles.3
For almost a decade, the United States has
deployed unmanned aerial vehicles, known
as drones to kill members of al-Qaeda and
the Taliban in targeted operations. In particular, the CIA-run drone programme in the
Federally Administered Tribal Areas (FATA)
of Pakistan has stirred strong debate over the
legality of such operations. It is argued that
USA is not at war with Pakistan; therefore, it
has no right to conduct drone strikes in its
territory.
Article 2 (4) of the UN Charter prohibits the
threat or use of force by one member state

against another. However, there are two

exceptions to this Article: rst, when such
action is taken with the consent of the host
state;4 and second, when it is carried out in
self-defence as a response to an armed attack
or an imminent threat, providing that the host
state is unable or unwilling to take appropriate action itself.5

Sovereignty
Since the Peace of Westphalia treaties of 1648,
sovereignty and the derivative notion of territorial integrity have served as foundational
principles of international law. According to
it, only a state enjoys the absolute control over
access to its territory. In conrmation, the UN
General Assembly has unanimously adopted
a resolution stating that the use of force by a
state on the territory of another will be considered as an act of aggression.6 The notion of
sovereignty is so crucial to the structure of
international law that even a lawful intervention to prevent genocide is contested.7
However, it must also be acknowledged
that the principle of sovereignty is not always
easy to understand, because it may refer not
only to a symbol of political legitimacy but
also to a states authority to make and enforce
its laws over time and to defend its independent position as a nation. As a result, sovereignty is not only a legally organising
principle but an important symbol that has
been acknowledged by all nation-states of the
global community. By the same token, state
sovereignty holds that governments like Pakistan have full control over their own aairs
within their territorial boundaries.
Therefore, whereas Pakistan has been making concessions to aid the United States in the
war on terrorism, that doesnt mean the
Pakistani government should concede and
compromise its position as a sovereign state.
This is why Pakistan has been criticising the

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USA for its unilateral action of using force

against militants within its territory, contrary
to the recognition of the principle of sovereignty.
In April 2012, the Pakistan National Assembly passed a non-binding resolution, demanding a review of its relations with the United
States and called for the immediate cessation
of drone strikes. The resolution stated:
Pakistans sovereignty shall not be compromised. . . . The relationship with the USA
should be based on mutual respect for the
sovereignty, independence and territorial
integrity of each other.8 The majority of political leaders in Pakistan oppose the US drone
strikes on Pakistani citizens; however, they
are frustrated by the governments ineective
response.9 On the other hand, Pakistan has
also sought to acquire greater decisionmaking authority over the programme, if not
to see it end. According to US diplomatic
cable leaked by WikiLeaks, in May 2009,
President Asif Ali Zardari in a meeting with
US ocials reportedly requested, Give me
the drone technology so my forces can take
out the militants [so that] we cannot be
criticised by the media or anyone else for
actions our Army takes to protect our sovereignty.10 ISI chief General Zaheerul Islams
visit to the USA in July 2012 was reportedly
aimed at seeking direct control of predators
[drones] for precision strikes and for minimising their political fallout.11
The United States is in a vulnerable position
because without explicit and public consent,
Pakistan can bring a legal claim against it and
ask for compensation. The case would apply
equally even if some sort of tacit consent
exists between Pakistan and the United States,
because it would be dicult for the USA to
prove such an agreement in court or any other
public forum.12
Nonetheless, almost a decade after the USA
conducted its rst drone strike in FATA,
Pakistan has yet to lodge a formal complaint
to the UN Security Council. Besides, it continues to clear airspace for the drones, which
the US administration interprets as implicit
consent.13

Consent
Pakistan has eectively, if not publicly, consented to drone strikes. It is evident from

reports that Pakistani authorities have not

only consented to such strikes,14 but also
shared relevant intelligence and even allowed
drones to use Pakistani air bases.15 While the
scope and substance of its consent remain
classied, nonetheless Pakistan has never
advanced formal complaints in any international forum. The failure to avail itself of
formal means of protest leads many experts to
assume that perhaps Pakistan consented to
these strikes.
According to the classied cables of the US
embassy in Islamabad, leaked by WikiLeaks
in 2010, Pakistans military and civil leadership had actively supported drone operations.16 In August 2008, former Prime
Minister Yousaf Raza Gilani reportedly said
that he didnt care whether US drone strikes
target the right people. They will condemn it
in the National Assembly and then ignore it.17
Moreover, in September 2012, then-Foreign
Minister Hina Rabbani Khar, while condemning unilateral strikes also expressed her
governments support for the drone
programmes objectives: What the drones
are trying to achieve, we may not disagree.
If theyre going for terrorists, we do not
disagree. But we have to nd ways which
are lawful, which are legal.18
However, one important but often ignored
legal issue is Pakistans legal obligations.
Even if it has consented to such strikes,
eliminating concerns regarding its national
sovereignty, Pakistan still has a responsibility
to protect the human rightsincluding protection from extrajudicial killingof not only
its own citizens but other individuals within
its territory as well. Extrajudicial killing is
strongly prohibited under international law,
and Pakistan cannot support or acquiesce in
the extrajudicial killing of individuals within
its boundary by other states unless it itself is
engaged in an armed conict with individuals
or groups that are being targeted by US
drones, in which case it can consent to such
killings. It may be noted that for some groups,
such as the Tehrik-e-Taliban Pakistan (TTP),
Pakistan is in a state of armed conict and can
legally target members of the TTP as combatants. However, it is very doubtful that Pakistan is in a state of armed conict with other
groups targeted by US drones, such as the
Haqqani network. Pakistan may therefore be
violating its legal obligations under inter-

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national human rights law in consenting to

the extrajudicial killing of members of such
groups. Under international human rights
law, such individuals should be arrested and
triedan obligation that cannot be evaded by
allowing another state to employ summary
execution.
Its also worth mentioning that Pakistani
consent to US strikes also brings with it
obligations under international humanitarian
lawthe responsibility to ensure that such
strikes conform to standards laid down by
humanitarian law. Pakistan needs to ask for
more information regarding greater transparency and the articulation of clear policies on
proportionality and distinction. Pakistani
consent needs to be conditional upon the
United States demonstrating that its activities
conform to international humanitarian law.
On the other hand, if any government seeks
assistance from another state, the state providing assistance is allowed to use the same
level of force as the host state itself has the
right to use. In its use of combat drones in
Pakistan, the United States often disregards
this important legal governing principle applicable to internal armed conict.19 For most
of the period since the beginning of the drones
campaign in Pakistan, there has been no
armed conict in the country. Therefore,
even an explicit and express consent by Pakistani authorities would not legalise their use.
However, the United States does not consider that the legality of the strikes rests
exclusively upon Pakistani consent. According to US ocials, drone strikes are also
justied by self-defence.

Self-defence
The Bush Administration argued that the
tragic events of 9/11 enabled the right of
self-defence against al-Qaeda and that the
Taliban had aggravated an armed conict
with them. The Global War on Terror
(GWOT) was characterised as an armed
conict without any territorial boundaries
against the actors responsible. The Obama
Administrations legal position remains the
same as its predecessors. The United States
still considers itself at war with al-Qaeda and
its aliates, and has the legal right to kill
wherever they nd them. They justify their
position by giving reference to the right of

self-defence against an imminent attack;20 a

concept which is based on a vague, broad and
judicially untested21 principle, and is further
undermined by widely reported personality
strikes and more recently signature
strikes.22 John Brennan, Director of the CIA,
has argued that international law does not
prohibit the United States from using lethal
force against its enemies outside combat
zones, particularly when the host countrys
consent is involved, or it is unwilling or
unable to take concrete action against the
imminent threat.23
However, the problem with the USAs
claimed right of self-defence is that important
actors in the community of international law
do not even accept that the situations in
Pakistan constitute legitimate self-defence
under the UN Charter. Besides, it also sets a
dangerous precedent in that it empowers
states to disrespect fundamental human
rights and use lethal force outside an active
battleeld. Sean Murphy expresses his concern that, without an explicit consent by the
government of Pakistan, a broadly dened
right of self-defence against al Qaeda in
Pakistan in response to the attacks of 9/11 is
problematic, since the requirements of necessity and proportionality are likely to restrict
unilateral uses of lethal force against a State
that was not involved in those attacks.24
The escalation of drone attacks under the
Obama Administration saw the vast majority
of those attacks target the TTP, the Afghan
Taliban or other militant groups such as the
Haqqani network.25 These groups, the Haqqani network in particular, are closely tied to
the conict in Afghanistan, providing nancial and logistical support, ghters and training, and they also plan and execute operations
against US and Afghan forces. Of course, the
justication for self-defence can only be
applied to strikes against those suciently
involved in operations in Afghanistan
mere aliation or political support is not
sucient. The complex nature of militancy
in tribal areas of Pakistan demands that one
cannot use any single criterion for targeting
them. Some of these groups operate only in
Pakistan, some in Afghanistan, some in both,
and some elsewhere around the globe. While
assessing the legal justication for drone
strikes, the criteria should be based on the
link between drone targets and the conict in
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Afghanistan alone.26 Moreover, militants in

Pakistan who target US soldiers inside Afghanistan territory are still considered to be
attacking Afghanistan. Therefore, only Afghanistan and not the United States has a right to
respond; moreover, it has no right to use
major force for low-level cross-border incursions.27
Characterising the drone campaign in Pakistan as an extension of an armed conict in
Afghanistan and linking it to the right of selfdefence require more robust territorial limitations that must be consistent with international law. It also distinguishes such
attacks from perhaps much more worrying
killings far from traditional battleelds and
with vanishingly small connections to true
armed conict. The UN special rapporteur
on extrajudicial executions, Cristof Heyns,
has questioned the US claim that drone strikes
are legally justied in response to the 9/11
attacks.28 Such critiques challenge the very
assumption that, more than a decade later
and outside an active battleeld, the United
States can still be at war with those it holds
responsible and invoke the laws of war when
targeting them.
In the wake of the 9/11 attacks, the UN
Security Council in Resolution 1368 found
that these attacks triggered Article 51 (selfdefence).29 But it has not authorised the use of
lethal force against any particular state such
as Pakistan. Therefore, the United States has
no right to use drones on the basis of selfdefence.
Other attempts such as hot pursuit to
justify drone strikes do not apply in the case
of Pakistan.30 In Afghanistan, militants are
killing US and Afghan soldiers, and then
take refuge in tribal areas of Pakistan. Hot
pursuit on land doesnt exist and is permitted
only under the law of the sea, but even if it
did, there is no resemblance of the use of
drones to that right. Hot pursuit (at sea)
entails that law enforcement agents should
have jurisdiction and that the suspect should
remain in visual contact until its arrest.
Another argument related to hot pursuit is
that of commando action, in which US Special
Forces could cross the Afghan border into
Pakistan and kill suspected militants using
drones.31 However, such action at its strongest
is only permissible in a situation where a host
state is unable to exercise due diligencea

failed state. But thus far the USA has not

recognised Pakistan as a failed state. Both
Pakistan and the United States may need to
take disarmament and counter-terrorism
measures, but the situation by no means
allows the US to disregard Pakistan sovereignty in carrying out its unilateral actions.
Even more importantly, the US also needs
Afghanistans consent to carry out drone
attacks from its territory. It appears, however,
that Afghanistan has not given this consent
so far.

Jus in bello: the conduct of drones

in Pakistan
Numerous reports that favour drone strikes
over air strikes or ground operations argue
that they cause fewer civilian casualties in
combat zones and are thus more attractive
and morally defensible to other forms of
warfare.32 The relative precision of drone
warfare to indiscriminate attacks, such as
carpet bombing,33 has led the former deputy
chief of the CIAs counterterrorism centre,
Henry A. Crumpton, to conclude that drones
are not only morally superior but even
humane.34
However, it is on this point that the distinction must be made between drone strikes
inside and outside an active theatre of war.
One can argue that drone attacks are less
destructive and thus more humane when
compared to other options available for active
theatres of war, where the alternatives such as
conventional aerial bombing are likely to kill
more civilians. If it were true that drone
strikes resulted in fewer casualties than air
strikes in active theatres of war like Afghanistan, then it would be hard to argue against
their employment in preference to air strikes.
Although questions about the standards and
procedures for target selection of those strikes
are still not solved, a recent study conducted
by a US military adviser has found that drone
strikes in Afghanistan have actually caused
ten times more civilian casualties than strikes
by manned aircraft.35
Yet this comparison becomes fallacious
when applied to the drone programme covertly run by the CIA in Pakistan and elsewhere, where the United States is not at war.
The USA is not in a declared war with Paki-

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stan and is thus not entitled legally to use air

strikes or other military forces on its territory.
As we discussed, the UN Charter requires
that there should be evident self-defence,
UN Security Council authorisation or explicit
invitation by the sovereign host state, all of
which are missing in the case of Pakistan.36
Besides, a legal right to use military force
such as drone strikes must also conform to
basic principles governing the rules of warfare that include distinction, necessity, proportionality and humanity. These rules, set
out by International Committee of the Red
Cross (ICRC), provide moral justications for
the use of force in general.

Distinction
The most fundamental distinction made by
just war theory is that between combatants
and non-combatants.37 It has proved to be
very useful in nding moral grounds in establishing laws for regulating war. The principle
of distinction makes it legally acceptable, at
least in some cases, to kill an enemys combatants. But the same principle makes it impossible to legally justify the killing of innocent
civilians by combatants. There are, of course,
some cases where even combatants retain
certain rights, such as the right to surrender.
There are also cases in which it is legally
allowed to kill civilians, but these cases must
adhere to a very strict and restrictive set of
conditionsand even those are debatable.
The complication is further exacerbated in
cases of insurgent and guerrilla warfare, in
which dierentiating between combatants
and non-combatants is dicult.38
The case of Pakistan presents this particular
challenge. The suspected militant wears civilian clothes, and even the most sophisticated
and advanced cameras carried by drones are
unable to identify with certainty whether the
suspect is a militant. In such cases of doubt,
international humanitarian law gives preference to civilian status. It says:
[I]n case of doubt as to whether a [sic] specic
civilian conduct qualies as direct participation
in hostilities, it must be presumed that the
general rule of civilian protection applies and
that this conduct does not amount to direct
participation in hostilities. The presumption of
civilian protection applies, a fortiori, in case of
doubt as to whether a person has become a

member of an organized armed group belonging

to a party to the conict. Obviously, the standard
of doubt applicable to targeting decisions cannot
be compared to the strict standard of doubt
applicable in criminal proceedings but rather
must reect the level of certainty that can reasonably be achieved in the circumstances.39

Moreover, indirect war-supporting activities,

including nancial assistance or political support, or other more general instances such as
criminal activity, do not constitute direct
participation in hostilities or qualify as a
continuous combat function. Individuals
engaging in such activity should not be considered as combatants, nor be targeted for
attack.
So far, the United States has consistently
refused to clarify where and on what basis it
draws the line between combatants and noncombatants. The targeting of unknown individuals based on pattern of life analysis,
known as signature strikes, has raised
some serious concerns over the process of
target selection and the standards applied to
it. The widely reported signature strikes have
been condemned not only by members of civil
society and human rights activists, but also by
US ocials and Congressmen.40 The obvious
outcome of such strikes would be more civilian casualties, either by misreading their
behaviour or because the standards for identifying the pattern of life might be too lax.41 In
a letter to the President, twenty-six Members
of Congress stated that they were concerned
about the use of signature strikes because they
could result in the killing of more civilians or
innocent individuals who may not pose any
threat to the United States.42 One senior ocial at the State Department remarked that
when CIA ocials see three guys doing
jumping jacks they assume it a terrorist training camp.43 Signature strikes have greatly
damaged the principle of distinction upon
which all other civilian protections rest.44 Distinction is the rst rule in the ICRCs customary international humanitarian law:
The parties to the conict must at all times
distinguish between civilians and combatants.
Attacks may only be directed against combatants. Attacks must not be directed against
civilians.45

In addition, double tap strikes in which US

drone strikes have targeted rescue workers
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and rst responders have also been reported.46

In the absence of ocial, credible and public
rebuttal of these allegations, such strikes not
only violate the principle of distinction, but
also violate customary international law,
which gives protection to humanitarian aid
providers and medical professionals.
Medical personnel exclusively assigned to medical duties must be respected and protected in all
circumstances. They lose their protection if they
commit, outside their humanitarian function,
acts harmful to the enemy. (Rule 25)
Humanitarian relief personnel must be respected and protected. (Rule 31)

Even where there is reasonable certainty, the

United States is still compelled to take all
measures that it can to minimise civilian
casualties. However, there is only scant information available as to whether such precautionary measures have been taken during US
drone strikes. In cases where the distinction is
very hard to make, humanitarian law favours
sparing life and avoiding destruction.47
There is no agreement about the exact
number of civilians or non-combatants killed
by drone strikes in Pakistan since their inception in 2004. However, reports that the United
States assumes all military-age males in a
strike zone to be militants unless clear evidence to the contrary emergesan assumption of guilt by associationis unjustiable
for three main reasons.
First, even a hardened terrorist does not live
in isolation: the raid on Osama Bin Ladens
compound illustrated that militants may be
living with their families and must have
interactions with a range of actors such as
drivers, shopkeepers, suppliers etc. who have
contact with them but may be innocent. The
killing of these people on grounds of guilt by
association violates the principle of noncombatants immunity under international
humanitarian law.
Second, the drone programme has
expanded beyond al-Qaeda and the Afghan
Taliban to include and target organisations
such as the TTP, the Haqqani network and
other low-level militant groups who have
close interactions with civilian populations.
It is very unlikely that drone attacks on local
militant networks with close connections to
civilian population will not also risk killing
non-combatants.

Third, the drone strikes have mostly targeted residences in tribal areas of Pakistan
where the cultural norm is that large numbers
of family members live together in a single
house. In such cases, it is highly likely that the
blast from drone strikes will result in the
wounding or killing of innocent children
and women as well.48 While some civilian
casualties are hard to avoid in any warfare,
nevertheless the intentional targeting of such
residences will always result in increased
civilian casualties and thus violate the proportionately principle.
Moreover, applying combatant status to
every potential victim through the guilt by
association approach is at odds with the
moral and legal norms which make a determination before using lethal force against
them. The gradual loosening of the standards
applied through this approach can be seen in
the targeting of funeral processions and other
social gatherings such as Jirga meetings and
wedding parties, which has not only resulted
in the killing of non-combatants but also tears
down the entire social fabric in tribal areas of
Pakistan.
Such attacks illustrate how the principle of
proportionality has been disregarded with
drone strikes. The indiscriminate targeting of
large gatherings at events such as funeral
processions, and also of the rescue workers
who come to aid the victims through double
tap, is a violation of the proportionality principle and cannot be justied. Such strikes if
conducted in a combat zone would amount to
war crimes.49

Necessity
Necessity refers to military necessity. The
only option to use lethal force is where it is
necessary to accomplish a reasonable military
objective. Attacks even on lawful targets must
respect this principle. As US drone strikes in
Pakistan have taken place outside an active
theatre of war (Afghanistan), in such cases
international human rights law would apply.
International human rights law does not permit the targeting of civilians and considers it
to be a deprivation of life that could result in
sanctions for the individual or state.
Moreover, in Pakistan, which falls short of
outright armed conict, the use of lethal force
is legal only if all other eorts such as capture

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have failed and it is necessary to protect life.50

The United States has other options besides
drone strikes in Pakistan. Alternatives such as
law enforcement may take more time but are
nevertheless lawful and ethical. Their eectiveness is evident from the increase in arrests
of high-ranking Taliban leaders in Pakistan by
Pakistani security agencies.
However, ocials in the US Administration
emphasise time and again that the use of
drones in Pakistan is necessary. David Kilcullen, an independent observer, thinks otherwise. He argues that drone strikes are hard to
justify under the principle of (military) necessity, which holds that force should only be
used when the prospects of success are reasonable. In his Congressional testimony in
March 2009 he said:

the permitted use of force extends not only to

the quantity but also to its geographic scope.54
The US administration has so far refused to
disclose how targets are selected, what military advantage is conferred by killing with
drones, and how collateral damage is
weighed against the military objective. The
higher body counts, particularly in reported
signature strikes and the broad denition of
combatants that regards all adult males in a
conict zone as militants unless clear evidence to the contrary emergesguilt by
associationis deeply troubling, and is frustrating attempts to justify drone strikes under
the principle of proportionality.

[Drone attacks] are deeply aggravating to the

population. And theyve given rise to a feeling of
anger that coalesces the population around the
extremists and leads to spikes of extremism well
outside the parts of the country where we are
mounting those attacks.51

Humanity is another principle that provides a

context for decisions in armed conict. It
favours decisions of sparing life and avoiding
unnecessary destruction in close cases under
either principle of proportionality or of necessity. Again, according to the ICRC Guidance
document, the principles of humanity and
necessity are of particular importance in the
context of conict in Pakistan.
It is very unlikely that in regular conicts
that is, between organised militarythe principles of humanity and necessity will restrict
the resort to force against legitimate military
targets. However, the practical importance of
their restraining function becomes more relevant where a party to the conict takes eective control of the circumstance in which its
military operations are conducted, a situation
that is comparable to peacetime policing
where military forces operate against selected
individuals.55
The reported attack on Baitullah Mehsud in
August 2009 raises serious legal concerns
about how it was conducted. First, the attack
was carried out by CIA operatives, who are
not legally allowed to kill in armed conicts.
Moreover, reports also indicated that the US
authorities were so sure about Mehsuds identication that they were able to see Mehsud
was receiving an intravenous drip as he has a
kidney ailment and was diabetic as well.56 In
such a case the ICRC study of customary
international humanitarian law says:

Kilcullens ndings have raised serious concerns as to whether drone strikes are accomplishing the strategic objective in a signicant
way. The strikes fuel rather than suppress the
interest in ghting against the United States
and are therefore counterproductive and hard
to be justify under the principle of necessity.

Proportionality
Proportionality prohibits the injury or loss of
civilian life, damage to civilian objects, or a
combination thereof, which would be disproportionate to the anticipated concrete military
advantage.52
However, reports claim that drone strikes
are not precise and have resulted in countless
civilian casualties in Pakistan; David Kilcullen
and Andrew Exum estimate that in the three
years between 2006 and 2009, 700 persons died
in drone strikes, of whom only fourteen were
intended targets.53A ratio of fty civilians
killed for targeting one suspected militant is
a clear violation of the principle of proportionality. Even in cases where the unintended
victims are fewer, it is important to make a
distinction between victims to see whether
they are children, aged people, in homes etc.
Proportionality is not all about numbers.
Moreover, the principle of proportionality on

Humanity

Attacking persons who are recognized as hors de

combat is prohibited. A person hors de combat is
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. . . (b) Anyone who is defenseless because of

unconsciousness, shipwreck, wounds or sickness . . . 57

Mehsuds illnesses might have not rendered

him defenceless, but did the United States
have exact information about his medical
conditions? Moreover, he was the only person
about whom the US had detailed information
and he was the intended person on the US kill
list. However, no information has been given
about the others who were killed in the same
strikes that included his wife, her parents and
bodyguards, and whether they were direct
participants in hostilities or engaged in a
continuous combat function, at least at the
time when the attack was conducted.58 The
ICRC Interpretative Guidance advises that in
cases where exact information about such
individuals is not available, they should be
treated as civilians.59 The killing of twelve
unintended individuals while targeting Mehsud, who was receiving medical treatment, is
a clear violation of the principle of humanity.

Conclusion
The strongest conclusion that can be drawn
from the above discussion is that the United
States has no legal right to use lethal force
such as drone attacks inside Pakistani territory. The only basis for the USA to use lethal
force lawfully in Pakistan is with the consent
of the latters political leadership. Pakistan
has neither expressly consented nor it has
requested assistance from the USA, particularly in the form of drone attacks. At times
they have even protested. In addition, the UN
Security Council has not given any authorisation for drone attacks, nor does the USA have
any basis of self-defence in international law
for attacking inside Pakistan, since Pakistan as
a state is not responsible for an armed attack
on US soil.
Moreover, the use of drone strikes inside
Pakistan to date has even been at odds with
the governing principles of the conduct of
armed conict. One particular ethical concern
is the question of accountability and due
process. The drone programme is run by the
CIA, protected from international laws on the
conduct of war. They are not trained in the
rules of international humanitarian law governing the conduct of war, and evidence exists

that such rules are frequently violated in the

context of drone strikes in tribal areas of
Pakistan. As reported, for each intended target these drone strikes have killed many
unintended victims, disregarding the principle of proportionality. On other hand,
many experts contest the eectiveness of
using drones to target militants. It is also
apparent that the United States has not taken
the necessary measures to protect noncombatants; at the very least, there is almost
no information available as to who makes
decisions about targeting a specic individual
and on what basis.
The line between law enforcement and
warfare has resulted in moral ambiguity
about US drone policy. The law enforcement
approach tries to anticipate threats and hit
back for attacks. It acts and polices within the
traditional model of defence. On the other
hand, a war against terror has no boundaries, and its theatre of operations is transcending traditional bordersboth ethicolegal and geographical. The eorts to defeat
al-Qaeda and its aliates are not like a conventional war. Employing law enforcement
methods is the only proper and eective
way to suppress terrorism. Strict adherence
to the rule of law while confronting terrorism
makes not only common sense but moral
sense as well. Bishop Butler, one of the most
eminent moral philosophers of the eighteenth
century, rightly observes that if moral sense
had the same psychological power as it has
the right, it could govern the world. It is really
sad that the moral sense of modern man has
become totally impotent and lifeless.60

Notes
1 It looks into the circumstances and determines
whether it is suciently grave to necessitate a
military response as last resort. It also ensures
whether all non-violent alternatives have been
attempted and attempts to determine whether
the use of military force has a reasonable hope of
success to rectify a given wrong.
2 Its main concern is to discriminate between the
perpetrator and innocents while employing
force against them and also to look into the
proportionality factorthat is, to ensure the
damage done while using lethal force should
not exceed the military value of the targeted.
3 N. Melzer, Targeted Killing in International Law,
Oxford: Oxford University Press, 2008.

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4 UN General Assembly Resolution No. 36/103,

UN Doc A/RES/36/103 (9 December 1981).
5 ICRC Customary IHL, rule 14.
6 Resolution adopted by the General Assembly,
3314 (XXIX). Denition of Aggression, A/RES/
29/3314,
http://www.un-documents.net/
a29r3314.htm
7 The UN Charter says: Nothing contained in the
present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic jurisdiction of any
state.
8 Guidelines for Revised Terms of Engagement
with USA/NATO/ISAF and General Foreign
Policy, National Assembly of Pakistan, http://
www.na.gov.pk/uploads/documents/
1334243269_639.pdf
9 Drones: Myths and Reality in Pakistan, ICG
Report, (2013), p. 05; available at: http://
www.crisisgroup.org/~/media/Files/asia/
south-asia/pakistan/247-drones-myths-andreality-in-pakistan.pdf
10 B. Glyn Williams, Private approval, public condemnation: drone warfares implications for
Pakistani sovereignty, Terrorism Monitor, vol.
11, issue 7.
11 Spymaster to talk tough on drones, The
Nation, 19 July 2012.
12 M. E. OConnell, Unlawful killing with combat
drones: a case study of Pakistan, 20042009,
Legal Studies Research Paper No. 09-43, Notre
Dame Law School, 2010. Available at: https://
www.law.upenn.edu/institutes/cerl/conferences/targetedkilling/papers/OConnellDrones.pdf
13 A. Entous, S. Gorman and E. Perez, US unease
over drone strikes, Wall Street Journal, 26 September 2012.
14 N. Robertson and G. Botelho, Ex-Pakistani
President Musharraf admits secret deal with
U.S. on drone strikes, CNN, 12 April 2013.
15 C. Woods, CIA drones quit one Pakistani site
but US keeps access to other airbases, The
Bureau of Investigative Journalism (TBIJ), 15
December 2011.
16 I. Khan and D. Khan Wazir, Night raid kills
Nek, four other militants: Wana operation,
Dawn, 18 June 2004.
17 Immunity for Musharraf likely after Zardaris
election as president, US Embassy Islamabad
Cable, 23 August 2008, cited in D. Walsh,
WikiLeaks cables: US special forces working
inside Pakistan, Guardian, 30 November 2010.
18 Pakistan backs drones aim not method: minister, Express Tribune, 28 September 2012.
19 See, e.g., S. Murphy, The international legality
of US military cross-border operations from
Afghanistan into Pakistan, International Law
Studies, vol. 84, US Naval War College, 2009;

20

21
22

23

24
25

26

27

28

29

30

31
32

33
34

35

36

available at: http://scholarship.law. gwu.edu/

cgi/viewcontent.cgi?article=1897& context=faculty_publications
M. Isiko, Justice Department memo reveals
legal case for drone strikes on Americans,
NBCnews.com, 4 February 2013.
J. Jaer, cited in ibid.
J. Becker and S. Shane, Secret kill list proves a
test of Obamas principles and will, New York
Times, 29 May 2012; available at: http://
www.nytimes.com/2012/05/29/world/obamas-leadership-in-war-on-al-qaeda. html?pagewanted=all&_r=0
J. O. Brennan, The ethics and ecacy of the
Presidents counterterrorism strategy, speech
delivered at the Woodrow Wilson International
Center for Scholars, 30 April 2012.
S. D. Murphy, ibid., p. 109.
Less than 20 per cent of targets in Pakistan have
been al-Qaeda members since the start of the
programme in 2004.
C. Rogers, Legality of US drone strikes in Pakistan,
Center for Research and Security Studies, 2010;
available
at:
http://crss.pk/downloads/
Reports/Special-Posts/Legality-of-US-DroneStrikes-in-Pakistan.pdf
The International Court of Justice has ruled in
several cases that measures short of military
force must be used.
O. Bowcott, Drone strikes threaten 50 years of
international law, says UN rapporteur, Guardian, 21 June 2012.
Article 51 provides for the right of countries to
engage in self-defence, including collective selfdefence, against an armed attack.
J. Northam, Airstrikes in Pakistans tribal areas
legally murky, National Public Radio, 10 June
2009, http://www.npr.ort/templates/story/
story.php?storyID=101953944
S. D. Murphy, ibid.
B. J. Strawser, Moral predators: the duty to
employ uninhabited aerial vehicles, Journal of
Military Ethics, vol. 9, no. 4, pp. 34268.
The rst successful use of the technique was on
6 May 1943, at the end of Tunisia Campaign.
H. A. Crumpton, quoted in Scott Shane, The
moral case for drones New York Times, 14 July
2012; available at: http://www.nytimes. com/
2012/07/15/sunday-review/the-moral-casefor-drones.html?_r=0
L. Lewis and S. Holewinski, Changing of the
Guard: civilian protection for an evolving military, PRISM, vol. 4, no. 2, 2013; see also Spencer
Ackerman, US drone strikes more deadly to
Afghan civilians than manned aircraftadviser, Guardian, 2 July 2013; available at
http://www.guardian.co.uk/world/2013/jul/
02/us-drone-strikes-afghan-civilians
M. E. OConnell, Flying blind, America Maga-

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37

38

39

40

41

42
43
44

45

46

47

48

zine, 15 March 2010; available at http://america

magazine.org/issue/729/article/ying-blind
M. Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, New York:
Basic Books, 1977.
P. M. Asaro, How just could a robot war be?,
Proceedings of the 2008 conference on Current
Issues in Computing and Philosophy, 2008.
N. Melzer, Interpretive Guidance on the Notion of
Direct Participation in Hostilities under International Humanitarian Law, International Committee of the Red Cross, 2009.
J. Herb, Lawmakers want legal justication for
drone strikes; available at http://thehill.com/
blogs/defcon-hill/operations/232523-lawmakers-want-legal-justication-for-drone-strikes#ixzz2Yiy7OUZs
Some State Department ocials have complained to the White House that the criteria
used by the CIA for identifying a terrorist
signature were too lax; see Becker and Shane,
ibid.
J. Herb, ibid.
Becker and Shane, ibid.
K. J. Heller, One hell of a killing machine:
signature strikes and international law, Journal
of International Criminal Justice, vol. 11, issue 1,
2013.
Rule 1Customary International Humanitarian Law Rules, ICRC, 2005; available at http://
www.icrc.org/customary-ihl/eng/docs/v1_rul
NYU School of Law and Stanford Law School
Living under drones: death, injury, and trauma
to civilians from US drone practices in Pakistan,
2012, p. 3; available at www.livingunderdrones.org/wp-content/uploads/2012/10/StanfordNYU-LIVING-UNDER-DRONES.pdf
Third Expert Meeting on the Notion of Direct
Participation in Hostilities Co-organised by the
International Committee of the Red Cross and
the TMC Asser Institute, Section 4, 2005, p. 44.
TBIJ reports that in Pakistan, 176 children have

49

50

51

52

53

54
55
56

57
58

59

60

been killed in drone strikes since 2004. See NYU

School of Law and Stanford Law School Living
under drones, ibid.
M. J. Boyle, The costs and consequences of
drone warfare, International Aairs, vol. 89,
issue 1, 2013, pp. 129.
Basic Principles on the Use of Force and Firearms by
Law Enforcement Ocials, 1990; available at
http://www.ohchr.org/EN/Professional
Interest/Pages/UseOfForceAndFirearms.aspx
D. J. Kilcullen, Testimony before the House
Armed Services Committee Hearing on HR
1886, the Pakistan Enduring Assistance and
Cooperation Enhancement (PEACE) Act 2009.
Rule 14Proportionality in Attack, Customary International Humanitarian Law Rules,
ICRC, 2005; available at http://www.icrc.org/
customary-ihl/eng/docs/v2_cha_chapter4_
rule14
D. Kilcullen and A. McDonald Exum, Death
from above, outrage down below, New York
Times, 16 March 2009; available at http://
www.nytimes.com/2009/05/17/opinion/
17exum.html?pagewanted=all&_r=0
M. E. OConnell, Flying blind, ibid.
N. Melzer, Interpretive Guidance, ibid., pp. 801.
For details of the attacks see J. Mayer, The
predator war: what are the risks of the CIAs
covert drone program?, New Yorker, 26 October
2009.
Rule 47Customary International Humanitarian Law Rules, ICRC, ibid.
Rule 6, ibid. Civilians are protected against
attack, unless and for such time as they take a
direct part in hostilities.
Ibid, Additional Protocol I: Article 50(1) of the
1977 Additional Protocol I provides: In case of
doubt whether a person is a civilian, that person
shall be considered to be a civilian.
J. Butler, Fifteen Sermons, Cambridge: Hilliard
and Brown, 1827.

74 Mahmood Ahmad
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