Pakistan has told the United States to halt drone strikes on Pakistani territory. Thus, the debate about the legality of the U.S. drones program has taken a new turn. (For background, see my analysis of the Wittes-O’Connell debate on this issue from last year.)
How does one determine whether the United States can legally continue drone attacks without Pakistan’s permission? Does one turn to past rulings of the International Court of Justice (ICJ), which has repeatedly determined Article 51 to have a narrow scope (see, for example, the Congo v. Uganda and Nicaragua v. U.S. decisions)?
The United States is targeting not Pakistani security services but rather armed groups on Pakistani territory whose attacks are difficult to attribute to the government of Pakistan. So the Congo v. Uganda case is particularly relevant. In 1998, Uganda took actions on the territory of the Democratic Republic of the Congo (DRC) that the RC dubbed aggression. The ICJ ruled that Uganda did not have the DRC’s consent and that the attacks to which Uganda was responding “did not emanate from armed bands or irregulars sent by the DRC or on behalf of the DRC…” Thus, per these factors, as well as many others, the ICJ ruled that “the circumstances for the exercise of a right of self-defence by Uganda against the DRC were not present…”
The United States no longer has consent for drone attacks. And it is striking militants that are not formally tied to Pakistan. So case closed? Future U.S. drone attacks in Pakistan would violate international law?
Well, one could turn elsewhere in an effort to pry open Article 51’s contours. This is what Lawfare‘s Robert Chesney did in an article he posted earlier this year. He downplays the ICJ rulings as “much-criticized suggestions” that read Article 51 “atextually.” He continues to argue that the laws of neutrality support a broad interpretation of the inherent right of self-defence. A neutral state has an obligation to prevent its territory from being used as a launching ground for attacks, and if it fails to meet this obligation, Chesney asserts, another state can intervene in self-defence. (He also offers this and this as examples of “a thorough debunking” of the ICJ position.)
But I guess we won’t definitively know the answer until Pakistan takes the case to the ICJ, right? And given the ICJ’s history of interpreting Article 51 narrowly, the court would likely rule in Pakistan’s favor, and thus Pakistan has every incentive to take the case to the court, yes? Well, Pakistan has a lot to gain from its relationship with the United States – billions of dollars, influence in Afghanistan to check India’s power, a possible eventual civilian nuclear power deal. So Pakistan is unlikely to take the case to the ICJ, and the debate about the legality of the U.S. drones program is likely to continue.
