By Maham Ayaz
Since 9/11, the United States (US) has relied on unmanned drone strikes to counter so-called terrorism in Yemen, Somalia, Pakistan, Libya and Afghanistan. Initiated under George W. Bush and continued during Barack Obama’s presidency, these strikes were touted as precise and minimally disruptive. However, reality is the opposite.
Between 2004 and 2018, there were about 439 US drone strikes in Pakistan, causing approximately 4026 deaths, including 969 civilians and 207 children, according to the Bureau of Investigative Journalism. ‘These figures expose the US claims of precision and underscore the lack of transparency in the drone programme. These drone strikes violated Pakistan’s sovereignty and breached several international laws. Despite the devastating impact of these strikes on Pakistani civilians and sovereignty, Pakistan has no viable legal forum to seek reparations or challenge these actions.
This insight explores the violations of international law by US drone strikes, the systemic challenges Pakistan faces in seeking legal recourse, and the potential avenues available for victims to pursue justice and reparations.
Under Article 2(4) of the United Nations Charter, states are prohibited from using force against another state’s territorial integrity or political independence. The US drone strikes in Pakistan are a clear violation of this principle. However, the US has argued that Pakistan’s earlier perceived tacit approval of these operations negates claims of sovereignty violations. Yet, these claims of tacit approval are not substantiated and remain speculative, further diluting their credibility. ’
| ‘Victims can leverage national courts and legal systems to bridge these gaps, while affected states may unite to establish a joint forum to address these violations. |
Moreover, the US invokes the doctrine of self-defence against nonstate actors to justify these operations. However, this claim fails to meet the stringent criteria of Article 51 of the UN Charter, which requires an armed attack of sufficient scale and urgency. Furthermore, if the justification is based on preemptive self-defence, even then, as per the Caroline incident, the threat has to be “instant, overwhelming, leaving no choice of means, and no moment for deliberation,” which was not the case in the present scenario. Therefore, the justifications of the US are not grounded in law.
Even if the legality of the strikes under jus ad bellum was arguable, their execution violates international humanitarian law (IHL) principles. Signature and double-tap strikes fail to distinguish between combatants and civilians as these strikes target individuals whose behaviour is like any terrorist. The approach has been criticised as it can target any military-aged man and violates the principles of distinction and proportionality under the IHL.
However, addressing these violations is fraught with significant legal challenges. Pakistan and the US have neither consented to the jurisdiction of the International Court of Justice nor signed the Rome Statute. Moreover, the formation of the UN Security Council (UNSC) complicates matters, as the US will likely block any resolution condemning US actions as a permanent member.
This accountability void extends beyond Pakistan. In Yemen, 453 drone strikes between 2002 and 2018 caused approximately 225 civilian casualties. Somalia experienced 261 strikes, causing approximately 143 civilian casualties. In Libya, drone operations escalated during and after NATO’s 2011 intervention, causing unintended civilian harm. Afghanistan witnessed thousands of strikes in its territory. While many were carried out with the consent of the government, civilian casualties from these strikes remain a significant issue.However, despite the formidable challenges, there are avenues for victims of US drone strikes in Pakistan to pursue justice and reparations. While jurisdiction and political hurdles often block direct legal action against the US, victims can still explore alternative strategies to seek accountability.
One promising option is leveraging domestic courts in Pakistan to compel the government to act on behalf of its citizens. Building on the precedent set by the Al Noor Khan case in the Peshawar High Court in 2013, where the court ruled that US drone strikes violated Pakistan’s sovereignty and international law, victims can file further constitutional petitions. These efforts can press the Pakistani government to implement reparative measures. Additionally, domestic litigation can challenge the government to engage actively with the US on its citizens’ behalf.
Victims can collaborate with human rights organisations to document and advocate for their cases on the international stage. These organisations have a history of raising awareness and putting pressure on the US to address civilian harm caused by drone operations. For example, in Ahmed Salem bin Ali Jaber v. United States in US courts in 2015, Yemeni victims, through advocacy and legal support, brought international attention to a drone strike that killed civilians, including a local imam. Although the case was dismissed in US courts due to the political question doctrine, it demonstrated the potential of international advocacy to highlight such injustices.
Furthermore, victims can seek reparations through diplomatic and non-judicial mechanisms. There is precedence for the US offering financial compensation in certain cases. For instance, in 2015, the US publicly acknowledged and compensated the families of two hostages—an American and an Italian—who were killed in a drone strike in Pakistan. While the US has not acknowledged civilian harm caused by drone strikes as warranting reparations, historical examples from other contexts reinforce the principle of state accountability. For instance, Libya paid US$170 million to victims of the 1989 UTA Flight 772 bombing and US$2.7 billion for the 1988 Lockerbie bombing. Though the circumstances differ, this case illustrates that reparations can serve as a mechanism to address grievances and promote accountability.
The legal and institutional gaps in addressing the repercussions of US drone strikes are undeniable. From Pakistan to Yemen, Somalia, Libya, and Afghanistan, affected nations and their citizens face immense challenges in seeking justice for civilian harm and sovereignty violations. Victims can leverage national courts and legal systems to bridge these gaps, while affected states may unite to establish a joint forum to address these violations. Such collective action is not merely about seeking justice and reparations but about creating a framework for accountability and safeguarding civilian rights. As drone warfare continues to expand, these measures are essential to uphold international law, prevent future violations, and ensure that the voices of the harmed are neither ignored nor forgotten.
About the author: Maham Ayaz
Email: mahamayaz308@yahoo.com
