Aaleem Gardezi In light of the ongoing drone attacks in the Federally Administered Tribal Areas (FATA) of Pakistan near the Pak-Afghan border, the people across the length and breadth of the country are venting their anger and outrage.
The Government of Pakistan has condemned such acts by questioning their legality and expressing its concern over the infringement of Pakistans sovereignty and territorial integrity.
For more than four years, the United States has been using Unmanned Aerial Vehicles (UAVs), also known as drones to bomb various Al-Qaeda and Taliban targets, within the territory of Pakistan.
The US President Barack Obama has not only continued with the policies of George Bush, but rather the intensity of these attacks has considerably increased.
The drones have become a weapon of choice for the US in its fight against terrorism and Al-Qaeda raising significant issues under international law.
A study called The Year of the Drone published in February 2010 by the New American Foundation found that in a total of 114 drone strikes in Pakistan carried out between 2004 and early 2010, approximately 834 to 1,216 persons had been killed, about two-thirds of whom were militants and one-third civilians.
In a similar study, the Brookings Institution (one of the most prominent think tanks in the US), highlighted the horrendously indiscriminate nature of drone attacks in Pakistan.
It concluded that more than 600 civilians had died due to the attacks in Pakistan.
Thus, as a result every militant is killed at the cost of 10 civilians.
The drone attacks by the US violate both the United Nations Charter and the Geneva Conventions of 1949, which prohibit wilful killing.
Article 2(4) of the UN Charter prohibits the threat or use of force against the territorial integrity or political independence of any state.
Without any explicit evidence to suggest that the Pakistani government has requested the US to assist them in fighting militancy in the region, the use of UAVs amounts to a clear violation of Pakistans territorial integrity.
Furthermore, the Geneva Convention of 1949 and their Additional Protocols I and II of 1977 form bedrock of International Humanitarian Law.
Provisions of these conventions have attained the status of Customary International Law (meaning that irrespective of the ratification of the said law they must be followed) and they aim to resolve matters of humanitarian concern arising directly from armed conflicts whether of international or non-international nature.
The purpose of the Additional Protocol I was to cater to issues raised by the changing trends of armed conflicts that is now far more asymmetric in nature.
The US in one of its indiscriminate drone attacks in January 2006 launched 10 missiles into the Damdola Village located in the Bajaur tribal area of Pakistan.
The target of the attack was Ayman-al-Zawahiri (a top Al-Qaeda operative), who was allegedly attending a dinner being held in celebration of the Eid-ul-Azha.
Resultantly, three houses were totally demolished and the death toll was as high as 22.
This attack clearly violates several articles of the Additional Protocol I.
Firstly, Article 51(2) prohibits the civilian population from being the object of the attacks under any circumstances.
Further, Article 51(5) talks about the principle of discrimination and regards an attack to be indiscriminate when bombarded by any means or methods which may lead to an incidental loss of civilian life.
Moreover, a house hosting a religious dinner is not of military character and could not qualify as a military objective unless it was clear that the house itself was by its location and use is making an effective contribution to the military action, in accordance with Article 52(2).
It is also imperative to note that the US seems to be in clear violation of their minimal precautionary obligations under Article 57 of the Additional Protocol I.
According to Article 57(2)(a)(i), the planners of the attack must take utmost precautionary measures to verify that the objects of the attack are not civilians and under Article 57(4) reasonable precautions must be taken to avoid losses of civilian lives and civilian objects.
The similar incident was repeated in May 2008 when missiles were fired into Damdola area, killing more than 12 people and injuring several others.
In addition to International Humanitarian Laws, further liability can be imputed on the US under the concept of extrajudicial assassinations which are prohibited under human rights.
Extrajudicial executions constitute the illegal assassinations of individuals whether by the state, government or by the state authorities, like the armed forces.
Extrajudicial executions are prohibited in accordance with the International Covenant on Civil and Political Rights (ICC-PR), which the US has ratified.
According to Article 6(1) of IC-CPR, every individual has the inherent right to life and no one shall be arbitrarily deprived of his life.
Furthermore, Article 6(2) stipulates that the penalty of death can only be rendered by a competent court of law.
This is further ensured under Articles 10 and 11 of the Universal Declaration of Human Rights.
Article 10 ensures that everyone is entitled to a fair public hearing and Article 11(1) states that anyone charged with a penal offence is presumed innocent until proven guilty in accordance with law.
The UN Special Rapporteur on Extrajudicial Executions, Philip Alston has also criticised the drone strikes in Pakistan on the basis that they violate the laws described in the article.
The US persists in its policy of drone strikes in Pakistan.
The concept of 'precision bombing has its own merits as disseminated by the US that unfortunately cannot cover its actions under the said notion because of clear reports of indiscriminate deaths of countless civilians, including women and children.
Encroaching upon another states territorial sovereignty to target militants and killing innumerable civilians would certainly not amount to low collateral damage.
The writer is an advocate and a research associate at the Research Society of International Law, Pakistan.
Email: aaleengardezi@rsilpak.
org