Dawn | Letters to the Editor | 7 February 2010

RAFIA Zakaria’s article (Jan 27) on drone attacks in Fata seems to contain boilerplate arguments by Amnesty International that are also used by it in many other conflicted areas of the world where terrorists pursue their violent trade.

Amnesty loves to use American-trained individuals with varying ethnicities matching a particular region. It is a bit like Al Qaeda using American Taliban as their spokesman against Americans.

First, one may ask Ms Zakaria as to what is her purpose in criticising US drone attacks and foreign policy when the Pakistan government is neither ordering these drone attacks nor has the power to stop them.

The writer criticises the people in Pakistan for not uniting “in protesting the illegality of the (drone) attacks” and for being “focused … on the utility of these attacks in killing foreigners rather than their illegality”.

Fata people bear the brunt of atrocities visited upon them on a daily basis by Taliban/Jihadist terrorists, their massacres through homicide bombings, etc, and if they don’t complain against, rather welcome, drone attacks on terrorists, it is their right, their prerogative to do so.

Someone sitting in New York might be worried about the legality or illegality of drone attacks, but to the people on the ground it’s a question of life and death.

As for to Ms Zakaria’s legal arguments, they appear to be misleading, laconic and not entirely valid. Referring to Article 51 of the UN Charter, she concedes that the UN Charter allows acts of self-defence against terrorist attacks by non-state actors, but makes it conditional.

Actually this Article grants member-states their inherent and unrestrictive right to take actions for their self-defence. Let me quote it : “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a member of the UN, until the Security Council has taken measures necessary to maintain international peace and security.”

Furthermore, a state’s right of self-defence does not emanate solely from Article 51. It’s rooted in customary international law. For instance, under the principle of Lotus case, states are entitled to take any action, including for self-defence, that is otherwise specifically barred.

In addition to Article 51, there are two Security Council Resolutions 1368 and 1373 that , inter alia, recognise the inherent right of states for individual or collective self-defence against all forms of terrorism. Security Council resolutions under Chapter VII are legally binding.

The writer then cites Article 2(4) of the UN Charter that restraints states from using force or the threat of force against the territorial integrity of another state and discusses two exceptions to this prohibition: self-defence and consent of the other state. However, there is also a third exception which she fails to mention, and that is the Security Council authorisation pursuant to Article 42 of the UN Charter.

Contrary to her contention, this consent (for drone attacks) is not required by the UN to be in the form of a formal written agreement between the two states as asserted by the writer.

She also confuses the concept of jus ad bellum with jus in bello. The former deals with laws or rules concerning the use of force while the latter are laws that apply after the fighting has begun, such as international humanitarian laws.

Lastly, Ms Zakaria , while accepting the right of the states to go after the non-state actors pursuant to the justification of ‘hot pursuit’, she restricts it by saying that it must be proven that the non-state actors (terrorists) are under the control of the state they are based in and, secondly, that the targeted must be connected to ‘specific operations’ undertaken.

These two conditions would be virtually impossible to prove. According to this logic, no state would be able to take any action against terrorist attacks from across the border to defend its citizens and to protect its territory.

Indeed it would be a lawless world with the terrorists free to attack any country with impunity and states able to deploy non-state actors to commit aggression against other states without fear of retaliation!

DR TAUSIF KAMAL
Attorney-at-Law
United States

Source: Dawn