Professional Documents
Culture Documents
Article 2(4) of the U.N. Charter prohibits the threat or use of force by one state against another.
Two exceptions to the Article 2(4) prohibition on the use of force are particularly relevant to the
question of whether US targeted killings in Pakistan are lawful: (1) when the use of force is
carried out with the consent of the host state; and (2) when the use of force is in self-defence in
response to an armed attack or an imminent threat, and where the host state is unwilling or
unable to take appropriate action.
1. Exception One: Pakistani consent It isnt specifically clear whether Pakistan had consent
to the use of drone strikes. Whilst sources suggest that Pakistan has originally supported
drone strikes, contradicting sources allude to Pakistans withdrawal of consent. The later
proposition is further reinforced by repeated public statements by Pakistani officials, which
intensified in 2012 declaring the US strikes as illegal, counter-productive, and violate the
countrys sovereignty, clearly rejecting any notion of consent on behalf of the Pakistani
government.
2. Exception Two: Self-defence In the absence of Pakistani consent, US use of force in
Pakistan may not constitute an unlawful violation of Pakistans sovereignty if the force is
necessary in self-defence in response to an armed attack, either as a response to the attacks
of September 11, 2001, or as anticipatory self-defence to mitigate threats posed by nonstate groups in Federally Administered Tribal Areas. Ultimately, the construction of an
argument, for or against the appropriateness of self-defence, depends on what side of the
conflict one chooses to advocate for. In short, for the use of force to be lawful, the host state
must also be shown to be unwilling or unable to take the appropriate steps, itself, against
the non-state groups. Similarly, the application of anticipatory self-defence has been widely
critiqued on the basis that the US drone strikes couldnt have reasonably been invoked to
prevent an attach that was at the time, instant, overwhelming, and leaving no choice of
means, and no moment of deliberation, according to the U.N. Human Rights Committee
Special Rapporteur, Study on Targeted Killings A/HRC/14/24 28 May 2014. Furthermore,
Pakistan has infrequently shown attempts to take action against Al-Qaeda and Taliban
command structures located in the countrys region, in line with the States obligations
under International Human Rights Law and International Humanitarian Law concerning the
use of force, thereby rejecting the legitimacy of self-defence as a possible exception to the
use of force carried out against Pakistan by the US with the use of drone strikes since 2004.
Accordingly, the use of force by the US against Pakistan, primarily deals with the issue of
legitimacy of the use of force in light of the prohibition in the U.N. Charter. Nevertheless, the
ongoing conflict between the US and Pakistani has marked a turning point in the use of
unmanned aerial vehicles (drone technology) as a means of combating terrorism on an
international scale.
The linked between drone technology and humanitarian law
If used in strict compliance with the principles of humanitarian law, drone technology can
reduced the risk of civilian casualties by significantly improving overall situational awareness.
The ability of drones to loiter and gather
intelligence for long periods before a strike,
couples with the use of precision-guided
munitions, is undoubtedly a positive
advantage from a humanitarian law
perspective. As the International Committee
of the Red Cross (ICRC) has noted, any
weapon that makes it possible to carry out
more precise attacks, and helps avoid or
minimise incidental loss of civilian life,
injury to civilians, or damage to civilian
objects, should be given preference over
weapons that do not.
Irrespective of the advantages and disadvantages linked to the use of drones in the context of
international law, the legality regarding the use of drones in response to armed conflict remains
paramount insofar as limiting the use of drones in circumstances that would otherwise call for
less intrusive measures. Accordingly, the following propositions are key to understanding the
legality of drone technology under international law as it currently stands:
(a) When considering whether a States use of force violates the sovereignty of another State in
contravention of the U.N. Charter, one must consider the notions of jus as bellum, the body of
law concerning the recourse to force, and depends on whether the later State has consented
to the strikes, or whether the former State is lawfully acting in self-defense.
(b) When determining when and which individuals may lawfully be targeted under applicable
international human rights or humanitarian law, regardless of ones assessment of the
legality of the recourse to the use of force the use of force against a specific individual
must also comply with either international humanitarian law (in the context of an armed
conflict) or international human rights law (outside armed conflict).
(c) When considering whether a State may legitimately rely on the defence of self-defence to
the use of force pursuant to Art 51 U.N. Charter, the requirements of proportionality and
necessity must still be met in order to legitimately utilise drone technology as a means of
self-defence.
In summary, discussions regarding the legality of the drones policy under both international
humanitarian law, the body of law governing armed conflict, and international human rights law,
often require fact-dependent contextual analysis. Due to the benefits of drone technology, there
is no doubt that the use of drones will continue to increase overtime. Accordingly, it is imperative
that the international community collectively deals with the lack of certainty regarding the use of
drones under international law principles.