JURIST Guest Columnist Sikander Ahmed Shah of Lahore University of Management Sciences Department of Law and Policy says that whether US drone strikes in Pakistan are illegal hinges on the nature of consent given and whether actions exceed that consent …

The recent killings of 24 Pakistani soldiers by NATO air strikes at the Salala check point in Mohmand has caused intense anger in Pakistan, leading to the government boycotting the Bonn talks. As part of its protest, Pakistan has demanded that the US vacate the Shamsi Air Base within 15 days. It is widely believed that the Shamsi base has been regularly used by the US for drone and associated surveillance flights.

US drone strikes in the Federally Administered Tribal Areas (FATA) are deeply resented by the Pakistani population. Officially, the government has vociferously condemned these operations as illegal under international law and a violation of its territorial sovereignty. In the absence of certain extenuating circumstances, the overwhelming majority of international law experts would find the drone strikes in FATA to be illegal under international law. They do not qualify as acts of self-defense as definition under Article 51 of the UN Charter and thus violate Article 2(4), which upholds the territorial integrity of a state.

The drone attacks also fail to meet the self-defense standard of customary international law, which requires immediacy, necessity and proportionality for using force in self-defense. Firstly, there is no instant or overwhelming danger posed to the US if it does not conduct drone attacks in Pakistan.

The attacks are unnecessary because other peaceful modes and means of facing the threat have not been exhausted given the time parameters involved. Such operations are also unnecessary as rather than diminishing the threat and dangers faced the gravity of the threat posed is augmented by such attacks. The attacks are not proportional in relation to the wrong suffered by the US keeping in mind the partial disconnect between those responsible for the September 11, 2001 attacks and those being targeted and because of the intervening events over the course of a decade. Drone strikes are also not proportional considering the nature and the magnitude of force used to achieve US objectives. The killing of scores of innocent civilians and other forms of serious collateral damage is strong evidence in support of this determination.

However, the legal analysis of US drone strikes in FATA does not end here. The fact that Pakistan has now demanded that the US vacate the Shamsi Air Base establishes at a minimum its earlier acquiescence or implicit authorization in how the base was being used. The question to ask is whether the level of such authorization qualified Pakistan as consenting to drone attacks with the result that the US had neither violated Pakistan’s sovereignty nor undertaken a wrongful or unlawful act against it. In other words was there the presence of consensual intervention involving the use of force?

Under Article 20 of the International Law Commission’s Articles of State Responsibility, consent provided by one state removes responsibility for wrongful actions against another. Under Article 26, however, consent and other contingencies that excuse or justify otherwise wrongful acts for ascertaining state responsibility cannot be invoked if the same acts are not in conformity with an obligation arising under a peremptory norm (jus cogens) of general international law. In other words, a state cannot consent to the commission of an unlawful acts on its territory that involve acts of aggression, slavery, racial discrimination, genocide, war crimes and crimes against humanity, etc.

Interestingly under customary international law the prohibition of the use of force against another state is now widely accepted as a preemptory norm; though whether the right of self determination has achieved such a status is highly doubtful. It is fair to say that if a state provides free consent, which has not been effected by coercion, deceit or mistake and allows another country to carry out attacks on its territory it would most probably not be a violation of the preemptory norm of the prohibition of the use of force even though it might come in conflict with the right of self-determination. However, if the attacks qualify as unlawful aggression under international law or exceed the amount of force originally consented to then state wrongfulness will not be precluded.

Consent can be accorded on behalf of the state by an official who operates within the scope of his authority keeping in mind the character of the act consented to.

Therefore, in order to determine whether the drone attacks carried out in FATA are wrongful under international law, a number of questions need to be answered, including: (1) whether Pakistan consented to drone strikes on its territory freely; (2) whether the US exceeded the ambit of attacks authorized; (3) whether the attacks amount to aggression or were violative of jus cogens; and (4) whether the appropriate organ or agent of the Pakistani government sanctioned these drone strikes. One can only determine the legality or wrongfulness of the drone strikes once these questions have been answered.

Sikander Ahmed Shah is an Assistant Professor in the Lahore University of Management Sciences Department of Law and Policy. He teaches Advanced Public International Law and focuses his research on state sovereignty and territoriality, use of force, self-determination, global terrorism, human rights and humanitarian law, WTO laws and corporate governance.

Suggested citation: Sikander Ahmed Shah, Drone Strikes in Pakistan: Examining Consent in International Law, JURIST – Forum, Dec. 8, 2011, http://jurist.org/forum/2011/12/sikander-shah-drone-strikes.php.