10 Jun Guest Post: Pakistan’s official withdrawal of consent for drone strikes
[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
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.
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.