International Law and Drone Strikes in Pakistan: The Legal and Socio-political Aspects

258 Pages·2014·1.079 MB·English

by  Sikander Ahmed Shah

International Law and Drone
Strikes in Pakistan
While conventional warfare has an established body of legal precedence, the legality
of drone strikes by the United States in Pakistan and elsewhere remains ambiguous.
This book explores the legal and political issues surrounding the use of drones in
Pakistan. Drawing from international treaty law, customary international law, and
statistical data on the impact of the strikes, Sikander Ahmed Shah asks whether
drone strikes by the United States in Pakistan are in compliance with international
human rights and humanitarian law. The book questions how international law
views the giving of consent between states for military action, and explores what
this means for the interaction between sovereignty and consent.
The book goes on to look at the socio-political realities of drone strikes in
Pakistan, scrutinizing the impact of drone strikes on both Pakistani politics and
US–Pakistan relationships. Topics include the Pakistan army–government
relationship, the evolution of international institutions as a result of drone strikes,
and the geopolitical dynamics affecting the region.
As a detailed and critical examination of the legal and political challenges
presented by drone strikes, this book will be essential to scholars and students of
the law of armed conflict, security studies, political science, and international
relations.
Sikander Ahmed Shah is Associate Professor at the Lahore University of
Management Sciences, Pakistan.
Routledge Research in the Law of Armed Conflict
Available titles in this series include:
Islamic Law and the Law of Armed Conflict
The armed conflict in Pakistan
Niaz Shah
Cluster Munitions and International Law
Disarmament with a human face?
Alexander Breitegger
International Law and Drone Strikes in Pakistan
The legal and socio-political aspects
Sikander Ahmed Shah
Forthcoming titles in this series include:
The Concept of Military Objectives in International Law and
Military Practice
Agnieszka Jachec-Neale
Accountability for Violations of International
Humanitarian Law
Essays in honour of Tim McCormack
Jadranka Petrovic
Islam and Warfare
Context and compatibility with international law
Onder Bakircioglu
International Law
and Drone Strikes
in Pakistan
The legal and socio-political aspects
Sikander Ahmed Shah
First published 2015
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
711 Third Avenue, New York, NY 10017
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2015 Sikander Ahmed Shah
The right of Sikander Ahmed Shah to be identified as author of this
work has been asserted by him in accordance with sections 77 and 78
of the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilized in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,
or in any information storage or retrieval system, without permission in
writing from the publishers.
Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
A catalog record has been requested for this book
ISBN: 978-0-415-82801-7 (hbk)
ISBN: 978-0-203-52177-9 (ebk)
Typeset in Baskerville by
Florence Production Ltd, Stoodleigh Court, Devon, UK
For Hadi, Hana, and Ibrahim
This is an important book. As well as evaluating the illegality of the use
of drones in Pakistan, Shah highlights the dangers of facilitating military
intervention without consequences, while also bringing to the forefront
the forgotten voices in this debate, the victims – whose voices have only
recently been heard through improved political interest and strategic
litigation.
Clive Stafford Smith OBE, founder and
Director of Reprieve.
Contents
Acknowledgements ix
1 Legality of drone strikes 1
Introduction and historical background 1
International law governing the use of force in self-defense and the
US war in Afghanistan 12
The legality of US drone attacks in Pakistan 32
2 Consent and territorial sovereignty 70
State sovereignty in international law 70
The doctrine of consent in international law and state/territorial sovereignty 73
How the law of consent and sovereignty intersects with drone attacks
in Pakistan 88
The scope of consent extended, the nature of such consent, its conformity
with peremptory norms, and its retraction 95
3 Drones and compliance with human rights law 109
Background 109
Mutual application of IHRL and IHL 111
Extraterritorial application of core human rights treaties and customary
international human rights law in armed conflict or otherwise 121
Regional bodies and courts 135
Contraventions of IHRL by the US and Pakistan: a reality? 138
What is different about drones? 150
4 Drone strikes and compliance with international
humanitarian law 156
Background 156
The applicability of Common Article 3 162
The legality of the weapon 163
Use of the weapon 174
The combatant in a time of drones 176
viii Contents
5 The social and political impact of drones in Pakistan 194
The drone victim 196
Litigating on the drones: the interaction of drone victims with the
Pakistan legal system 211
The impact of drones on FATA 223
Conclusion 226
6 Conclusion 230
Remedies and course of action 230
The way forward 239
Index 243
Acknowledgements
This book emerged out of my desire to understand and examine the root causes
of armed violence in Pakistan. I felt that many legal assessments from outside
Pakistan were simplistic, because they did not adequately account for the
subjectivities and ground realities presented in the volatile parts of Pakistan. By
principally focusing on drones, I ventured to determine whether considerations
beyond military efficacy and legal frameworks influence the use of interstate force
against non-state actors. Furthermore, I assessed whether and how drone attacks
contribute to cyclical violence in Pakistan’s troubled regions. For me, combat
drones are here to stay: they will have far-reaching consequences cutting across
the local, national, and international divides, and will continue to pose serious
challenges for individual human rights and state sovereignty.
I am extremely grateful to Shmyla Khan – a brilliant and dedicated individual
– for providing me with endless and invaluable research and editorial assistance
throughout the course of this entire project. I am also deeply appreciative of the
research and editorial assistance provided by Abid Rizvi. Furthermore, I wish to
thank Uzair Kayani, Asad Farooq, Abdul Rahman Mustafa, Sadaf Aziz, Ejaz
Haider, Hassan Bashir, Kevin Gray, Khalid Mir, Ahmer Bilal Soofi, Beena Soofi,
Lubna Anwar, Anwar Kamal, Zara Zamir, Nadir Shah, and Ali Sultan for
providing necessary advice and encouragement.
I am grateful to Dean Anjum Altaf (LUMS) for his guidance and for providing
me with the optimal environment to conduct my research; Professor Steven
Ratner (Michigan), Professor Marco Sassòli (Geneva) and Professor Naveeda
Khan (John Hopkins) for their invaluable support; Former Foreign Minister of
Pakistan Hina Rabbani Khar for providing me with practical insight and the
opportunity to contextualize my arguments; and the University of Michigan Law
School for extending me support for conducting seminal secondary research.