Guest Post: Pakistan’s official withdrawal of consent for drone strikes

by Michael W. Lewis

[Michael W. Lewis is a Professor of Law at Ohio Northern University where he teaches International Law and the Law of War.] 

Something interesting and I believe significant, happened on Saturday.  The Pakistani Foreign Ministry summoned the US Charge d’Affaires and formally protested the continuance of drone strikes on Pakistani territory.

Pakistan protests drone strike; US CdA summoned
(2013-06-08)
On the Prime Minister’s instructions, the US Charge d’ Affaires, Ambassador Richard Hoagland was summoned this afternoon to the Foreign Office by Special Assistant to the Prime Minister and Minister of State for Foreign Affairs, Mr. Tariq Fatemi to lodge a strong protest on the US drone strike carried out in North Waziristan on 07 June 2013. The US official was handed a demarche in this regard.

It was conveyed to the US CdA that the Government of Pakistan strongly condemns the drone strikes which are a violation of Pakistan’s sovereignty and territorial integrity. The importance of bringing an immediate end to drone strikes was emphasized.

It was also pointed out that the Government of Pakistan has consistently maintained that drone strikes are counter-productive, entail loss of innocent civilian lives and have human rights and humanitarian implications.

It was also stressed that these drone strikes have a negative impact on the mutual desire of both countries to forge a cordial and cooperative relationship and to ensure peace and stability in the region.

Islamabad
08 June 2013

While it is nothing new to hear Pakistani politicians complaining about drone strikes, this is the first (to my knowledge) formal state-to-state expression that unmistakably denies further consent.  The prior statements by Pakistani members of parliament and parliamentary resolutions condemning drone strikes were not effective assertions of Pakistani sovereignty because they were not made by the sovereign.  Further, they were not directed to the proper diplomatic representative assigned to receive such statements.  This statement satisfies both requirements.

I think this raises the bar for the US.  While Pakistan is still subject to an “unable or unwilling” analysis it would seem that this would place some form of obligation on the US to show that they are in fact unable or unwilling.  Up until now the US was apparently operating under continued passive consent based upon the behavior of the military and ISI which were either cooperating or at least not interfering with the strikes.  But once Pakistan makes it clear state-to-state that they are no longer consenting, the US cannot rely on non-interference by the Pakistani military as the basis for continued consent.  This means there must be some showing that Pakistan is “unable or unwilling”.  This would, at a minimum, require the US to inform them state-to-state (not necessarily publicly) that there are targets that the US expects them to deal with.  Unless they immediately stated they were unwilling or unable to do anything about those targets, the US would also have to give Pakistan an opportunity to deal with the issue.  Only after some period of inaction or fruitless effort by Pakistan would the US be able to declare them “unable” and continue drone strikes.

This is not saying that the US cannot continue drone strikes based upon self-defense, but such self-defense would need to entail a Caroline­-like immediacy.  Where the strikes are directed against training areas or other targets that are not in the process of preparing or staging attacks against US forces in Afghanistan, then there will need to be a showing that Pakistan is unable or unwilling to deal with that threat, which would require allowing Pakistan time to deal with the threat if they indicated a willingness to do so.

On the other hand, by taking this step, Pakistan is opening itself up to having to answer some hard questions.  If this is a clear withdrawal of consent then the US will have to ask about Pakistan’s willingness and ability to deal with the problem.  Any prevarication on this issue is tantamount to being unwilling to deal with it.  If Pakistan is insisting on its sovereign right to deny others access to its territory, it will need to be ready to live up to its sovereign obligation of preventing the Taliban using its territory as a base of operations.

http://opiniojuris.org/2013/06/10/guest-post-pakistans-official-withdrawal-of-consent-for-drone-strikes/

27 Responses

  1. Actually, Pakistan has, on a number of occasions in the past, summoned U.S. diplomats and protested drone strikes as a violation of its sovereignty. See. e.g http://dawn.com/2011/03/18/cameron-munter-summoned-to-fo-over-drone-attack/ and http://www.chinadaily.com.cn/world/2011-05/13/content_12501316.htm
    Second, if consent is revoked, the presumably automatic application of the “unwilling or unable analysis” as a “doctrinal back-up” for continuing drone trikes would of course certainly be quite convenient from one perspective at least – that of the “droning state”
    But really, why couldn’t Pakistan say it doesn’t consent and challenge the very legal pedigree of the unwilling or unable doctrine – that is, why could it not claim that it’s not yet a settled part of international law and therefore does not justify drone strikes against its citizens/property in any event?
    This argument would certainly put the U.S. in a difficult position and one which the Pakistani government could credibly make. Based on this argument, it could arguably even shoot down a U.S. drone as a measure of legal self-defense,  as I have written in FP. http://afpak.foreignpolicy.com/posts/2013/05/08/can_pakistan_legally_shoot_down_us_drones – would you say Pakistan would be behaving illegally here?
    To me, it would be a much more promising and credible legal strategy. Why, for its part, would a smart government in the country even inadvertently grant the doctrine legal legitimacy by engaging in cat-and-mouse factual debates about why it is able and willing when it has the strategically more sophisticated option of challenging the doctrine itself.
     
     

  2. Notwithstanding heroic efforts to get us to believe this, I continue to take issue with whether “unable or unwilling” is more than a rationalization used by a victim state to go into a host state. The practice on which it is based is exceedingly thin. The fact that American intellectuals assert it is convenient for the American government but those intellectuals hardly show independence in this setting.  The rockat hthe hit the hard place in Pakistan now. If we go in asserting self-defense I expect Pakistan will assert self-defense against our going in. What they will do to respond will bring this to a further head.

  3. ==On the other hand, by taking this step, Pakistan is opening itself up to having to answer some hard questions.  If this is a clear withdrawal of consent then the US will have to ask about Pakistan’s willingness and ability to deal with the problem.  Any prevarication on this issue is tantamount to being unwilling to deal with it. ==
     
    We should not reverse the burden of proof. Pakistan does not have to prove anything. The US has to prove that international law gives it the freedom to kill people in Pakistan.

  4. Dawood,
    Pakistan has “protested” drone strikes in the past, this seems to be a clearer statement that they must end immediately (although your link to the Chinese paper appears to be dead). 
    Pakistan always has the right to shoot down US drones.  That is part of sovereignty and national self-defense.  However, harboring NSA’s that are continually conducting attacks on US forces across the border in Afghanistan, and then defending them with military force would provide the US with justification for using military force against Pakistan.  I don’t think either state is interested in that happening, but there is an obligation on state’s to prevent their territory from being used as a based of operations for NSA’s conducting attacks against another state.
    I am not quite sure why you and Mihai both seem to feel that Pakistan has no obligation in this regard.  Surely if Lashkar-e-Taiba were launching frequent Mumbai-style attacks against India, then India could respond militarily against Lashkar targets within Pakistan couldn’t they?  Pakistan could certainly resist such Indian attacks, but then a state of war would exist between the two countries.  Pakistan could also insist that India provide it an opportunity to deal with the Lashkar threat itself, and as long as it was successful in preventing further attacks by Lashkar against India, then India would have no basis for military action in Pakistan.  The same analysis applies in this case and Pakistan has the same obligation to prevent further cross-border attacks, just as the US has an obligation to honor Pakistani sovereignty as long as Pakistan thwarts such attacks.
     

  5. Forgive my ignorance, but doesn’t this fit within the context of the GWOT, thus rendering the LOAC applicable? If so, it would seem that the US is legally justified in launching drone strikes (so long as they target legitimate military objectives, i.e. members of transnational NSAs harboured within another State). 
    Assuming the LOAC is triggered, is the “unable and unwilling” test still applicable or is that only in peacetime? 
    Thank you kindly in advance and again my apologies for the ignorance. 
    Kindly, 
    RB

  6. Michael – Pakistan certainly has an obligation to prevent NSA attacks, as do all countries – and I have written about this http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2239817 – I do not think that is in dispute, but to automatically graduate from that first claim to the second claim that “that would provide the US with justification for using military force against Pakistan” is clearly contentious and certainly challengeable  – as a matter of customary international law, the ICJ’s opinion and scholarship.
    Do I think that the “unwilling or unable” doctrine is certainly NOT part of international law. No, there’s arguments on both sides so the point is not settled.
    This is not to deny that, if for the next many years, we continue to pretend that the debate doesn’t exist and justify the use of force in “unwilling or unable” states, the debate might conveniently wish itself away in the face of, but at present it seems slightly apologetic to refuse to acknowledge it’s existence.
     
     

  7. RB,
    While the US no longer uses the term GWOT, it does maintain that the LOAC is not confined to merely “hot” battlefields.  This position is widely disputed.  But even under the US formulation it may not use force against NSA’s harbored within another state without either 1) the consent of that state (which is what the US had been operating under in Pakistan) or 2) a finding that the state harboring them is unable or unwilling to prevent the NSA’s from staging attacks.  If Pakistan indicates they are willing to prevent such attacks and they effectively do so, the US is clearly forbidden from striking the NSA’s on Pakistani territory.  The Pakistanis don’t have to incarcerate them or kill them, and if they capture them they are under no obligation to hand them over to the US.  Their sole responsibility is to prevent NSA’s on their soil from conducting attacks against other states. 

  8. Precisely 12 months ago:
     
    5 June 2012:
    “Pakistan on Tuesday summoned the US charge d’affaires Richard Hoagland to the foreign ministry to convey its ‘serious concerns’ over drone strikes.According to a statement issued by Foreign Office, he was officially conveyed the government’s serious concern regarding drone strikes in Pakistani territory. He was told that the drone strikes were unlawful, against international law and a violation of Pakistan’s sovereignty. The Parliament had emphatically stated that they were unacceptable. Drone strikes represented a clear redline for Pakistan.”
     
    http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/national/06-Jun-2012/us-envoy-handed-drones-demarche
     
    Any difference between that and what happened on 8 June 2013?
     

  9. Michael
    I do not know if my earlier comment went through so I do apologize if this is a repetition.
    That states have a duty to exercise “diligence” in preventing NSA’s from launching “armed attacks” – not just “imminent threats” or “planning” – that point is not disputed. So we agree here.
    But to quickly graduate from that uncontentious claim of state responsibility to the rather contentious one – that a failure to prevent NSA attacks automatically means that the US can use “military force against Pakistan” is rather puzzling to me.
    It’s pretty clear from scholarship, ICJ decisions and thin state practice that the “unwilling or unable” doctrine has, at best, a weak legal pedigree. Yet I have not seen this being acknowledged in the above post? Of course, you may rightfully disagree and debate about how weak or strong that pedigree is but ignoring the debate altogether, I do not understand that.
    On the other hand, perhaps, as it’s a smart strategy for Pakistan to challenge the legality of “unwilling or unable” doctrine if it really objects, it may be a similarly smart  strategy on the part of the “victim” state’s government to ignore legal debates to the contrary for long enough as it rapidly builds up constant state practice (puts the flesh on the bones so to speak) in parallel to its legal claim by bombing “unwilling or unable” states without their consent – with the hope that the “unwilling or unable” doctrine eventually get crystallized into CIL, but for now I do think the debate is a bit more critical and nuanced than made out to be here.

  10. JP,
    Perhaps not.  It would depend upon the specific language of the demarche.  “Serious concerns” is the only quote.  Parliament “emphatically stating they are unacceptable” is fairly meaningless it is up to the executive to make policy. 
    If that demarche specifically stated that strikes were a violation of Pakistani sovereignty and they must end immediately (language not captured in this piece) then I would say they were the same, and perhaps this wasn’t a significant departure from the past.  But I’ve not seen that language (particularly the “bring[] an immediate end to drone strikes” part) elsewhere. 

  11.  
    RB – great question. Michael – great response.
    One of the issues not often discussed enough is the interaction between different legal regimes – especially IHL, sovereignty, and the law of self-defense (and human rights law as well). Fortunately, that’s changing more and more now.
    As Michael points out, even if a “transnational NIAC” were to exist as a legal category, it would not make moot the need to analyze whether an US attack on Pakistan territory would be in breach of Pakistan’s sovereignty – which requires a separate test.
    Also, it’s worth noting, as I’m sure you know, that a Peshawar High Court handed down a ruling in May 2013 that instructed the Pakistan government to call for an end to the drone strikes – though the decision’s legal analysis had several flaws. I co-authored a short piece on the decision here http://www.opensocietyfoundations.org/voices/case-watch-court-pakistan-addresses-us-drone-attacks
     

  12. Professor Lewis and Mr. Horowitz, thank you both kindly for your clarifications.
    I was under the [flawed] impression that the determination of the existence of an armed conflict could possibly have a direct bearing on the legality of the drone strikes in that it would provide a carte blanche legalization for engaging hostilities, thus rendering the ‘unable or unwilling’ test moot (even when conducted transnationally in the context of an ‘internationalized’ NIAC). I don’t know why I thought the right to participate in hostilities could trump the obligation to respect state sovereignty. Again, my apologies.
    Meanwhile Professor Lewis, as per your reference to “hot” battlefields I found your article ‘Drones and the Boundaries of the Battlefield’ to be of particular interest.
    Thank you both once again for taking the time to clarify this.
    Respectfully,
     
    Ray Barquero 

  13. Consent is not required for lawful measures of self-defense against non-state actors who are DPAA (direct participants in armed attacks) re: U.S. military in Afghanistan, etc. See 19 J. Transnat’l L. & Pol’y 237, 249-57 (2010); 39 Denv. J. Int’l L. & Pol’y 569, 569-71 (2011).
    Moreover, “unable or unwilling” is not a limit of lawful measures of self-defense against ongoing armed attacks.  See 39 Denv. J. at 580-81.  Additionally, Pakistan would be “unable” (at least) if the armed attacks continue to be planned and coming from Pakistani territory.

  14. Jordan,
    I agree with your self-defense analysis, but I think self-defense in that context has a much narrower, more Caroline-like definition of immediacy than the US appears to be using for some of its targeting in Yemen and Pakistan. 
    I don’t believe that strikes based upon membership in an organization that is generally conducting hostilities against the US can be justified under self-defense if the targets are not engaged in attacks or actions preparatory to attacks.  I think Pakistani Taliban sleeping in a training camp are targetable with Pakistan’s consent, but are not targetable as self-defense.  They are also targetable after a showing that Pakistan is unwilling or unable to do anything about them.  That is the difference that I think this demarche makes. 

  15. “They are also targetable after a showing that Pakistan is unwilling or unable to do anything about them.”
    I am sorry, but where is this based on? The prohibition on the use of force outside of SD or Ch.VII-authorization is ius cogens (however you formulate it) and cannot simply be replaced by the practice of some states that bend the rules to their convenience but without showing or forming the necessary practice and legal conviction to speak of a new rule of IL.

    Outside of the scope of self-defence, and without consent of the territorial state, how is targeting ever lawful if that territorial state is unable or unwilling? Since when is inability or unwillingness the next exception to article 2(4) Charter? If there is no threat of an imminent attack, and without UNSC approval, allowing use of force against a sovereign state on the simple basis that this territorial state is unable or unwilling to prevent a (not-imminent) attack or quash a threat thereof, carries an immense danger of widening the allowed uses of force beyond what is justified by the threat level in these circumstances. Inability and unwillingness (while not giving consent) should be addressed by the international mechanisms set up to deal with threats to IP&S, rather than by some ex post facto might is right assessment.

  16. RJ1983,
    Well put, and I agree with your point.  My statement about “unable and unwilling” allowing a state to act outside of SD would clearly be problematic.  On reflection a better way to put this might be a bifurcated view of SD. 
    On the one hand there is always the immediate right to defend yourself from an imminent or ongoing attack.  However, even when the attack is not imminent or ongoing, I don’t believe that a state involved in a conflict with an NSA is required to give that NSA time to rest, regroup and reequip to conduct more effective attacks against it just because the NSA has found a geopolitical area that is ungovernable or sympathetic to their cause.  I can think of numerous examples of state practice (from Turkey, to Colombia, to Israel, to Russia) in which states have not accepted such a situation. 
    I think you are right that this is still framed in the context of SD, but this is a different kind of SD from the Caroline-like requirements that apply to imminent of ongoing attacks.  I guess my view is that Art. 51 SD is broader than Caroline and this is an example of the difference between the two.  If an NSA has conducted armed attacks against a state then the state may take measures against the NSA, bounded by the sovereignty of its neighbors.  When a neighbor fails to discharge its sovereignty obligations and the UN Security Council has not stepped in to mediate the situation, the state retains the inherent right of SD which would include taking the fight to its NSA enemy.   

  17. Professor Lewis – you acknowledged that RJ1983 was making the correct point and then described something that is completely at odds with and contradicts the point that RJ1983 was making.

    “I can think of numerous examples of state practice (from Turkey, to Colombia, to Israel, to Russia) in which states have not accepted such a situation.”

    I’d be surprised if you could come up with even 15 countries (out of the 193) engaging in such behavior in your “numerous” examples.

  18. Michael: my focus on persons who are DPAA is a conduct-oriented focus and not a status focus as such (like DPH under the laws of war vs. the ICRC’s status focus on persons with a CCF).  Yet, it is important to use a movie camera as opposed to a single snap shot to view their continual participation in ongoing armed attacks.  It is possible to consider that a sleeping DPAA is still a DPAA over time if such person does in fact generally directly participate in ongoing armed attacks.
    And RJ1983 — it is UN art. 51, as interpreted to allow the targeting of those who directly participae in armed attacks, that allows responsive measures of self-defense.  The Caroline incident was all about targeting non-state actors in another state (the U.S.) without the consent of the U.S. and without the U.K. and the U.S. being at war.  As the 19 J. Transnat’l L. article notes, the U.K. and the U.S. agreed that such measures of self-defense can be lawful even though there is a self-defense exception to “sovereignty” but the U.S. claimed a very stingent standard for “means” or measures of self-defene responses that is not reflected in state practice or opinio juris today.  One of the U.K. persons later wrote about agreement that if a rebel shore battery had been firing across the border into Canada from the U.S. at British soldiers, the U.K. recognizably had a right to target the non-state actor shore battery.
    This is part of the inherent right of self-defense in case an armed attack occurs.

  19. Jan,
    Your numbers game is meaningless.  193 nations have not been confronted with NSA’s attacking them from across international borders.  Every nation that I am aware of that has been attacked by NSA’s from across an international boundary has asserted a legal right to respond.  If you can provide contrary examples in which states have tolerated repeated cross-border attacks by NSA’s, that would be meaningful.  But to just state that most nations haven’t been confronted with such a situation so there cannot be any state practice in responding to such a situation is silly.

  20. Professor Lewis – we can find “numerous” examples if we intend to look hard enough (browsing non-U.S. newspapers would be a good start) – for example, states in Africa which routinely suffer NSA attacks and in Asia: Afghanistan not attacking Pakistan, China not attacking Pakistan, Iran not attacking Iraq.

    With all due respect sir, “intend” is the key word.

  21. Test

  22. Jan,
    I am sure African nations have been attacked by NSA’s.  I would be very interested in examples of such attacks being ignored, because I know of many situations in which African states have responded to such attacks.
    If you believe that Iran has not attacked Kurdish separatists in Iraq then it is you that needs to read more broadly.
    http://www.newsmax.com/KenTimmerman/Nourial-Maliki-iran-iraq-kurds/2011/07/19/id/404082

  23. Is there really enough state practice and opinio iuris to support the position that use of force is allowed in these specific circumstances (i.e. in the absence of an ongoing or Caroline-type of imminence of attack)? While the ad bellum condition of necessity gives some leeway in the direction of anticipatory SD, it is hard to see how a use of force against a state, unable/unwilling towards a NSA, could ever be necessary when the attack is not imminent or responded to. In my view, force used to counter a non-imminent attack by NSA in a state that is unable/unwilling would amount to an unlawful exercise of public powers in a sovereign state, only to be cured by consent of the territorial state (cf. Lotus on enforcement jurisdiction). “[I]f the UNSC has not stepped in to mediate the situation”, this by itself may be an indication that acting is not warranted under IL. Obviously, one unattractive way to avoid all of this would be to say that “inability/unwillingness” by and of itself amounts to an actual or imminent armed attack, with the result that the victim state can resort to article 51. 

  24. All my efforts to post a comment get lost in air, except the test message. 

  25. While from an in bello point of view the US might be engaged in a cross-border NIAC (or IAC, even in relation to the NSA, if one for some reason subscribes to that view), this does not affect the conditions that ius ad bellum self-defence imposes on violations of another state’s territorial sovereignty. Is there really enough state practice and opinio iuris to support the position that use of force is allowed in these specific circumstances (i.e. in the absence of an ongoing or Caroline-type of imminence of attack)? While the ad bellum condition of necessity gives some leeway in the direction of anticipatory SD, it is hard to see how a use of force against a state, unable/unwilling towards a NSA, could ever be necessary when the attack is not imminent or responded to. In my view, force used to counter a non-imminent attack by NSA in a state that is unable/unwilling would amount to an unlawful exercise of public powers in a sovereign state, only to be cured by consent of the territorial state (cf. Lotus on enforcement jurisdiction). “[I]f the UNSC has not stepped in to mediate the situation”, this by itself may be an indication that acting is not warranted under IL. Obviously, one unattractive way to avoid all of this would be to say that “inability/unwillingness” by and of itself amounts to an actual or imminent armed attack, with the result that the victim state can resort to article 51. 

  26. RJ1983 — the Caroline case had nothing to do with anticipatory, much less preeemptive self-defense — merely self-defense claims of the UK in response to ongoing armed attacks by non-state actors (and the practice had existed before and the UK and US were in agreement that such could occur, so some opinio juris in that respect — plus subsequently re: U.S. responses to NSA armed attacks from other countries — see 19 J. Transnat’l L. article).
    And, the Lotus case was all about prescriptive jurisdiciton (wht we term today objective territorial jurisdiction where one ship crashed into another), not enforcement jurisdiciton.  When Lt. Demons was in Turkey, he was rightly arrested there.

  27. Jordan, I don’t have many difficulties with applying SD to actions of NSA. To support this possibility we can also look at far more recent – post 9/11 – practice than Caroline (which, actually, was not about SD but about necessity, cf. Commentaries to Art. 25 State Resp. Articles). SD against NSA that are committing or imminently to commit an armed attack, fine, but I have difficulties in accepting the use of force against a state for mere inability or unwillingness without there being an ongoing or imminent armed attack at all
    The factual dispute in Lotus was indeed about the extent of  prescriptive jurisdiction, but it was clear that I was not referring to this part. Far less controversial than the PCIJ’s holding on prescriptive jurisdiction – freedom to legislate, only curtainled by prohibitive rules of IL – was the clear dictum that, in the absence of a permissive rule, a state “may not exercise its power in any form in the territory of another state” (enforcement jurisdiction).
     

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