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Fog of War

by Feisal Naqvi
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Good or bad, legally speaking, drones can’t kill without due process.

[dropcap]T[/dropcap]he debate over drone strikes in Pakistan’s federally-administered tribal areas has mostly focused on whether Pakistan has given permission to the United States for such attacks and whether these are valid under international law. Pakistan maintains that it has given no such permission, and that the attacks violate its sovereignty. Unfortunately, these protestations of outrage have worn increasingly thin. A recent U.N. report concludes that Pakistan had agreed to drone strikes from time to time. Another report, in The Washington Post, said Pakistan had been complicit in drone strikes at least up to 2011.

Gabriela Noriega—AFP

Gabriela Noriega—AFP

The apparent fact that Pakistan consented to drone strikes does not resolve the question of whether drone strikes are legal. This is because Islamabad can only authorize the U.S. to act within the constitutional boundaries that apply to the state of Pakistan. So did the Pakistani government violate the Constitution by authorizing U.S. drone strikes?

The Constitution is clear: Article 9 states that no person may be deprived of life or liberty “save in accordance with law.” And Article 10-A provides that every person is entitled to “a fair trial and due process.” There is no statute that authorizes Islamabad to drone its own people. And even if there were a law to that effect, it is difficult to argue that execution-by-missile—without any trial or independent review—constitutes “due process.”

On the other hand, Pakistan is at war. If security forces can shoot back at terrorists and bomb positions occupied by them, then why is it not legal to use drones against them? It is an established fact that ground operations against terrorists and militants tend to cause more collateral damage and casualties than drone strikes, which demonstrate greater precision.

The U.S. Department of Justice has already weighed in on the legality of drone strikes against Americans. This legal opinion concludes that such strikes are valid under both U.S. and international law because (a) the U.S. is at war with Al Qaeda, (b) citizens who stand with state enemies are liable to be treated as enemies themselves, and (c) the right of the United States to protect itself against armed attack—particularly if the capture of the U.S. citizen concerned is not feasible and this person poses an imminent threat—trumps the individual’s right to due process. The Justice department’s analysis is controversial. But it represents a considered attempt to deal with a genuine problem. But even if you accept that analysis, it does not cover Islamabad’s apparent authorization of drone strikes, which target Pakistani citizens on Pakistani soil.

Geography matters. If the Pakistani government can “legally” execute its citizens in the tribal areas without trial or due process, then it can do the same in other parts of the country as well. If Hakimullah Mehsud has been droned to death today, then tomorrow’s targets could just as easily include Baloch separatists or Lyari gangsters. The rationale in each case could be the same: the targeted are known criminals whose conventional apprehension would risk reaping an unacceptable degree of collateral damage. (The U.S. Department of Justice has dismissed as absurd the question of whether drones can be used against Americans on U.S. soil.)

The Justice department’s analysis ultimately rests on the basis that the U.S. Congress has authorized President Barack Obama to use “all necessary and appropriate force” to defend the United States against Al Qaeda. There has been no equivalent declaration of war in Pakistan. Further, while the Constitution authorizes Pakistan’s president to declare a state of emergency and suspend enforcement of fundamental rights, no such emergency has been declared to date—at least not to deal with militants in the tribal areas. In any event, Article 9 cannot be suspended even during an emergency.

Where does this leave Pakistan? What legal structure governs the obligations of the Pakistani government in responding to terrorism? In particular, what legal limits apply to Pakistan’s armed forces operating within their country?

Article 245(1) of the Constitution says that, “The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war and, subject to law, act in aid of civil power when called upon to do so.” Unfortunately, there is very little guidance as to what the armed forces can or cannot do “under the directions” of Islamabad. Beyond Article 245, there is only constitutional confusion.

The last time this area was explored was in 1977 when Prime Minister Zulfikar Ali Bhutto responded to opposition riots by enforcing martial law in certain areas and by amending the Constitution via the Seventh Amendment to exclude any judicial interference in areas where the Army was “acting in aid of civil power.” Both the Sindh High Court and the Lahore High Court found that the Army could only supplement, not replace, civil institutions while doing so, but all this became moot on July 4, 1977, when Gen. Zia-ul-Haq abrogated the Constitution.

Both courts had also discussed a different type of “martial law,” i.e., the state’s right to defend itself—by whatever means necessary—when faced with a situation beyond the control capability of civil forces. In the words of British jurist A. V. Dicey: “Martial law is sometimes employed as a name for the common law right of the Crown and its servants to repel force by force in the case of invasion, insurrection, riot, or generally of any violent resistance to the law. This right, or power, is essential to the very existence of orderly government, and is most assuredly recognized in the most ample manner by the law of England … If, then, by martial law be meant the power of the government or of loyal citizens to maintain public order, at whatever cost of blood or property may be necessary, martial law is assuredly part of the law of England.”

The Sindh High Court ducked the question of whether this type of “martial law” was part of Pakistan’s legal heritage. The Lahore High Court, on the other hand, disagreed.

Pakistan has a mechanism for dealing with complicated moral questions: Parliament.

A major reason the legal situation in this regard is so murky is that the judicial world divides into two halves: the normal world of peace, and the shadowy world of war. Peacetime rights are clearly delineated by the Constitution and various laws. Wartime rights are unclear; for all practical purposes, anything goes during wartime except crimes against humanity. Pakistan’s predicament, and indeed the predicament of many other states faced with never-ending, low-intensity conflicts, is to figure out how to manage the nether land between the worlds of war and peace. This task is difficult, but not impossible.

One useful way to approach the problem is by deliberately not examining the morality of drone strikes. Such an approach is helpful because, like abortion, drones raise such strong emotions that consensus becomes impossible. The heat and noise from pro- and anti-drones camps drowns out all other issues—which need to be resolved and whose examination helps clarify the picture.

In simple terms, whether or not drone strikes are acceptable, the current situation in which unknown people within the government hierarchy authorize outside forces to kill Pakistanis with no independent review of the basis for such targeting is entirely unacceptable. To use a different example, people divide strongly on whether or not the death penalty can ever be moral. At the same time, most people agree that even if the death penalty is immoral, it must be applied in a manner consistent with due process. Similarly, most people agree that whether or not the death penalty should be available is something to be decided by our elected representatives, not by unelected executive-branch officials.

One interesting precedent in this regard is provided by Pakistan’s much-maligned series of cases legitimizing martial law. In the famous case of State v. Dosso, Chief Justice Muhammad Munir wrote that a successful revolution was the source of its own legitimacy and that, consequently, courts operating in a post-revolutionary framework could not question any limitation placed on them. In the Nusrat Bhutto case in 1977, the Supreme Court again rationalized the imposition of martial law by General Zia on the basis of the “doctrine of necessity.”

The Supreme Court also validated Gen. Pervez Musharraf’s coup in 1999 against the government of Prime Minister Nawaz Sharif, this time through the Zafar Ali Shah judgment of 2000—but with one important distinction. Whereas the previous two judgments had effectively conceded that a successful usurper was subject to no legal restraints, the court this time defined its task as trying to “save what institutional values remained to be saved.”

The court thus explicitly held that the mere fact an emergency exists could not be taken to mean that no checks and balances remained. In this regard the court relied on the Liaquat Hussain and Farooq Leghari cases, where it had held that while the initial existence of an emergency was for the executive to decide, and while the continuance of an emergency was for the legislature to decide, the state could only suspend fundamental rights to an extent proportionate to the nature of the emergency—and that too for a duration limited to the exceptional circumstances.

On the basis of this line of precedent, it emerges that if the state of Pakistan wants to use drone strikes in the tribal areas, it needs to (a) declare an emergency under Article 232 of the Constitution; (b) suspend enforcement of fundamental rights in the tribal areas; and (c) enact a legal framework which specifies a mechanism through which drone targets are afforded some bare minimum of due process and which makes the discretion of the executive to name targets both structured and subject to independent review.

What sort of due process can one provide assassination targets? The question is not as idiotic as it seems. The law is clear that due process does not mean a full-fledged trial in all circumstances. As per the famous tripartite test introduced by the U.S. Supreme Court in Matthews v. Eldridge, the nature of the process to be afforded depends on a balance of various factors, including the interest of the person concerned, the injury threatened by the official action, risk of error, and the probable value of additional procedural safeguards versus the costs of these safeguards. One response to the due-process argument is that there is no time for such niceties on the battlefield. This response is misguided. Most drone strikes are preceded by weeks, if not months, of aerial coverage. In any event, the debate over drones is not about their battlefield utility but their use for extrajudicial killings.

Bureaucratizing or systematizing the process of drone strikes will not necessarily make them moral. But it will make the process of killing more just. So far as the morality of drone strikes is concerned, Pakistan already has a constitutional mechanism for dealing with complicated moral questions: Parliament. If the federal government believes it has no option but to resort to extrajudicial killings as a means to defend the country, then it has the obligation to make that argument openly and publicly to the people of Pakistan. That way, if the people or courts disagree, at least they can hold their representatives accountable.

The current position represents the worst of all worlds. Pakistan publicly decries drone strikes, but secretly allows them. It tells its people that their rights are being violated, but is complicit in those violations. It demonizes the United States for its faults, but then grovels before the ally country in private. If Pakistan is an independent and sovereign country, its government should take charge and prove it.

Naqvi is a senior lawyer based in Lahore. He has been appointed as an amicus by the Lahore High Court in a petition filed by Jamat-ud-Dawah’s Hafiz Saeed against drone strikes. The views expressed herein are his own. From our Nov. 15, 2013, issue.

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1 comment

Aamir November 22, 2013 - 12:51 am

True, drone strikes achieve their targets with minimum civilian Casualties and maybe effective on killing the intended targets but are they effective on achieving the objectives? Are they not gaining sympathies for the side its being used against?
American’s can justify them if their citizens get killed by a drone, declaring them as state enemies, becsuase they are fighting Alqaeda. But can Pakistan do that, have we declared a war against TTP?
Why are we lacking a clear policy on such issues? Is the government/Army supporting the drones because they think its right or do they fear that they may lose the much needed aid?
Haven’t the Pakistani forces helped create Taliban’s and may still be supporting them secretly to keep their dream of controlling Afghanistan alive?

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