Just before sunrise on the morning of Nov. 21, an American drone struck two rooms in the living quarters of a seminary near Tal in the Hangu district of Khyber-Pakhtunkhwa. Tal is 49 kilometers southeast of Sadda, the first major town in the Lower Kurram Valley, and north of the North Waziristan tribal region, almost abutting its border.
The drone, possibly an MQ-9 Reaper, based on the number of missiles it fired, reportedly killed six people: four Afghan nationals directly belonging to the Haqqani network—including Maulvi Ahmed Jan, advisor to Sirajuddin Haqqani—and two Pakistanis from Hangu and Sadda.
The Nov. 21 strike is the first reported drone attack on a ground target outside the federally-administered tribal areas. While there have been two strikes in the Jani Khel area, which is situated in Frontier Region Bannu, in December 2008 and March 2009, the Tal strike is the first outside the tribal areas because Article 246(C) of the Constitution of Pakistan declares the six frontier regions and the seven tribal agencies as part of FATA.
Local sources say the seminary, Miftah-ul-Quran, was frequented by Afghans. At least one unnamed Pakistani intelligence official has been reported as saying that Haqqani network leader Sirajuddin Haqqani was spotted at the seminary just two days before the strike. It is a known fact in the area that many Haqqani network fighters relocated to this part of Hangu, and further into Kurram agency, after North Waziristan became unsafe for them because of drones.
Kurram has a long, pre-Partition history of tense sectarian relations. While the Sunnis dominate the Lower Kurram Valley and the road that leads to Parachinar, headquarters of Kurram, the Upper Kurram Valley is dominated by the Turis, a Shia tribe. In recent years, clashes have often led to the Sunni tribes blockading the road to Parachinar.
Into this milieu arrived the Haqqanis. The Haqqani network, of all the Afghan groups fighting the U.S.-led coalition, has been the closest to the Mehsud core of the Tehreek-e-Taliban Pakistan, often arbitrating leadership and other turf disputes.
The strike has created yet another embarrassing situation for the federal government of Pakistan Muslim League (Nawaz). It came within 24 hours of an ill-advised statement to the Senate Foreign Relations Committee by Sartaj Aziz, who advises the prime minister on foreign affairs and national security, claiming that U.S. Secretary of State John Kerry had assured Islamabad there would be no drone strikes while Pakistan talks to the Taliban.
But the federal government is not the only one that has painted itself into a corner. Another potential victim of the Tal drone attack is Imran Khan, whose party, Pakistan Tehreek-e-Insaf, rules Khyber-Pakhtunkhwa province. Khan has made stopping drone attacks and talking to the Taliban the main planks of his politics. While he previously had wiggle room on the technicality that the drones struck targets in the tribal areas, which is the administrative remit of the federal government, the Tal strike falls within the jurisdiction of his party’s government.
As of the writing of this article, Khan had decided that his party would block the NATO supply line through Khyber-Pakhtunkhwa to Afghanistan for an indefinite period. This creates a constitutional problem for his government because Articles 97 and 98 of the Constitution establish the executive authority of the federal government and “conferring of functions on subordinate authorities,” which include, among other entities, the provincial governments.
Similarly, Part I of the Fourth Schedule details the Federal Legislative List, which places, among other functions, defense and external affairs squarely within the ambit of the federal government. Khan’s distinction that while the party can block the NATO supply line and, therefore, interfere with the constitutional functions of the federal government while keeping the Peshawar government shielded from its constitutional obligations to the federation can only have negative consequences.
This is not all. He has also invited his party’s government to join in the protest. This further puts pressure on the Peshawar government because jumping into the blockade would mean foregoing its constitutional obligation to ensure that no one can forcibly influence decisions that belong to the federal government under the Constitution and to which the Khyber-Pakhtunkhwa government is subordinate in its functioning.
Imran Khan and his party have chosen to rely merely on frothing from the mouth and invoking national honor.
While an argument can be mounted, as it will be, that Khan is trying to force the federal government’s hand into taking a decision on drone strikes—he accuses Islamabad of double-speak on the issue—the fact remains that it, nonetheless, creates a legal-administrative problem for his own provincial government. So how can Pakistan stop the U.S. from violating its airspace? What options, if any, does Islamabad have? Khan’s assertion that Pakistan must get out of what he describes as America’s war might make a good slogan in front of a charged crowd, but it doesn’t proffer a policy. Consider.
The issue of drones has to be dealt with at two levels: realpolitik and international law. Within realpolitik, or what we might call the level of force, there are two other factors: technological and operational. Legally speaking, as the law exists, no state can engage in any kind of combat, on the ground or from the air, without the permission of the state whose territory—land, airspace or sea—is to be used or where the other state might engage targets. (Some legal experts believe that the state, even if it wanted to, could not consent to such strikes. This is debatable, but allows us a peek into legal complexities.)
There is nothing in Resolution 1373 of the United Nations Security Council or the legal regime under it that allows any state to operate unilaterally. The reason is simple: such activity cannot be checked through a “limiting principle.” These strikes also raise other legal problems: consent; self-defense; imminence (what is the nature of the threat and who determines it?); organization (what groups or people can be targeted?); intensity of hostilities (can the combat zone be defined, is it hot or cold?); targeting rules; transparency, etc.
Debate is raging among jurists and international-law experts on these issues. The U.S. government, as also many notable jurists argue that lex lata has nothing to offer in a situation where the enemy is elusive, tightly-coupled with the populations, is nonstate and amorphous, and where the zones of war and peace cannot be clearly defined. In other words, the argument is that precisely because there is legal friction between what the U.S. is capable of doing and what the law says—or doesn’t—the law needs to define new principles.
The U.S. is therefore arguing and justifying its combat practice on the basis of lex ferenda (the future law) somewhat ironically, however, because the U.N. Charter is clear on Article 2(4)—customary state practice since the Charter was signed—as well as Article 51, which deals with self-defense, and doesn’t allow much elbowroom to the U.S. Washington is relying on lex ferenda by going pre-Charter, to the Caroline formula. The future law, paradoxically, lies in the past. These legal aspects have generated a long and complex debate. But for the very reason that Pakistan is relying on law, given the asymmetry of power between it and the U.S., there is need for us to understand the multiple strands that make up the warp and woof of this debate. So far, Khan and his party have shirked it and chosen to rely merely on frothing from the mouth and invoking national honor.
Additionally, for all the legal protections, Pakistan skates on thin ice when it invokes sovereignty. Sovereignty has two aspects: internal and external. Internally, a state is required to exercise its monopoly over all territories under its control. Externally, a state must be able to protect its citizens against outside aggression. Pakistan, sadly, is saddled with lots of ungoverned and, in some cases, ungovernable spaces. Not just the U.S., but also our “friends,” China included, have determined that the country is the epicenter of terrorism. Pakistan worries more than one state in the world, within and outside the region. A state’s exercise of external sovereignty is, for the most part, directly proportional to its internal control.
Invoking sovereignty, therefore, can be dicey business when peoples and groups within Pakistan’s territory threaten its own and the sovereignty of other states. In fact, Afghanistan has, on a number of occasions, chided the U.S. for not fighting the war where it should: in Pakistan’s badlands. So, while we must formulate a strategy in invoking law, we must equally be aware of the arguments others can invoke.
Merely criticizing U.S. policies won’t do, either. That exercise is generally done more effectively by U.S. and other Western analysts than any Pakistani known to me. The U.S. has suffered a defeat in Iraq because of its follies and is close to another in Afghanistan. Students of warfare know that one can win many battles and yet lose the war. The point, however, is: At what cost do we want to win the war in this region by assuring an American defeat? Will we live in peace once the Americans are defeated, as they will be?
Khan and his coterie seem to think that with the American departure from Afghanistan, things will be back to normal. The problem is, if the cutoff point is the pre-U.S. Afghanistan status quo ante, so to speak, it requires a massive misreading of history to think this region was normal before the arrival of America.
Two other important factors relate to technology and operations. Armed drones are a reality. According to a U.S. Government Accountability Office report from July 2012, at least 75 states are developing the technology and/or possess it already. Canada, Australia, Germany, Poland and others are thinking of acquiring armed drones. There is also a debate about phasing out piloted aircraft. By all indications, we are destined to live with drones. The plus side is that when this technology spreads laterally, states will have to create a new legal regime to chisel the rough edges of its current use.
Operationally, drones offer the most accurate and precise (the two categories are different) platform. They are attractive because their cost per flight-hour is a fraction of flying fighter aircraft, they offer much greater loiter time, allow for discriminate strikes against an elusive enemy who, for the most part, is coupled with the population, they create distrust among enemy ranks, deny assembly and free communication, restrict movement, etc. They are, to put it candidly, the dream system for any commander.
Which is why, yes, Pakistan is one of the 75 states working feverishly on developing a viable drones capability. Two issues remain: how to acquire Beyond Line of Sight (BLOS) capability, which works in tandem with military satellites; and how to create hard points on the wings to mount missiles or Joint Direct Attack Munitions (JDAMs).
This is just a bird’s-eye view of the debate at three levels. But the point is that sloganeering alone will not get us anywhere. We need to develop capacity to understand these issues. And by “we,” I mean the political parties that represent the people. Their job is not just to agitate but to be informed and to inform. We live in a world where winning is all about knowledge and information, not emotions and ignorance.