close

Вход

Забыли?

вход по аккаунту

?

0973598411110002

код для вставкиСкачать
US drone attacks and Pakistani Statehood
Joachim von Wedel*
The United States drone attacks, which have been taking place in Northwestern Pakistan for some years now, have recently been subjected to more
detailed international media coverage. This phenomenon may be explained
by the continuity and rising intensity of the attacks, recent personal charges
against the US put forward by relatives of some of the victims (Kazim
2011) and possibly by the fact, that the killed civilians include citizens
from the European states. The attacks are a part of a coherent historicalmilitary development starting with the terrorist attacks in New York and
Washington in September 2001. According to this fact there is a general
apprehension which merges the US-American activities in Pakistan and
Afghanistan under one single title and regards them as parts of a larger,
overwhelming "war on terror". This perception is furthered by the recent
adoption of an "Af-Pak-Strategy" by the United States.
In contradiction to this perception, the following text defends the thesis,
that, in spite of all historical budget planning or technology related
closeness of both cases (Kazim 2011),1 the drone attacks in Pakistan, at
least from a certain perspective, are police rather than military activities.
On the one hand, the thesis concretizes the impression, that the notion " AfPak-Strategy" blurs the difference between an occupied country
(Afghanistan) and a sovereign state (Pakistan). It underlines the fact, that
the US activities in both countries are qualitatively different. On the other
hand, the thesis does not say, that the drone attacks in Pakistan should
altogether be considered as police acts. Rather they can legitimately be
considered so from the perspective of civilians, especially the civil
population of North Western Pakistan. The arguments in favour of the
thesis would hint, firstly, at the difficulties of subsuming the drone attacks
under the legal justification pretended by the United States, i.e. the right to
self defence (Art. 51 of the United Nations Charter). These legal
difficulties illustrate the fact that at present the Pakistan case differs
*
European Academy Kuelz - Kulice, Poland.
1. Cf. e.g. Alston: "Missiles fired from drones are not categorically different from other
weapons like missiles fired from gunships or bullets from a soldier's gun".
Alston 2010.
12
Joachim von Wedel
substantially from a classic military conflict. The resemblance of the case
to police activities will be shown in a second step, focussing on the
political and technical specificities of the situation. Finally, the text will
observe some of the consequences of this situation for Pakistan's statehood.
During the war against the Taliban in Afghanistan in autumn 2001 great
hopes had already been linked with the drone technology (Rashid 2010:
65). Future campaigns were meant to be short, almost painless and
relatively inexpensive. In Pakistan drone attacks started in 2004. They
apparently took place almost exclusively in the "Federally Administered
Tribal Areas" in North-West Pakistan. Since 2008 the number of the attacks
increased significantly. While there had been a maximum of four attacks
per year until 2007, in 2008 there already had been 33 of them (minimum
killed were 273). During 2009 the number rose to 53 (minimum number of
victims were 368), and during 2010 to 118 (minimum killed were 607).
The aggregate number of victims oscillates between 1.374 and 2.189.2
There is a suspicion that for every militant killed ten civilians have had to
die (Byman 2009).
Responsible for the realization of the attacks is the CIA. One of the
basic characteristic features of the drones, which can stay in the air up to
26 hours and cost ca. 40 Mio USD per piece, is their ability to be steered
from a distance. Since a large part of the drones seem to start and land at
the airport of Shamsi, located ca. 300 km South from the Pakistani city of
Quetta and 100 km away from the Afghan border, they are all steered by
CIA employees at Langley, Virginia. The drones possess at least three
different kinds of cameras and high quality sensors. They can reach - even
if technically not completely up-to-date any more (Deutschlandfunk 2010)
- a maximum speed of ca. 135 mph and an altitude of 25.000 feet. The
monitors at Langley show live pictures taken by the drones which circulate
for hours at a distance of two to three kilometres above their target objects.
The drone is able to identify potential targets, seemingly on the basis of a
list approved by the US administration. The air strife takes place only after
the pilot has sanctioned it, and additionally the head of the CIA's
clandestine services or his deputy (Alston 2010: 8). When the employee
presses a button in Langley, Virginia, a rocket of the type of Hellfire leaves
the drone. The CIA employee sees a fireball, and then the ruins on the
ground. Later, the drone lands without any damage.
2. Numbers according to Wikipedia "Drone attacks in Pakistan", http://en.wikipedia.org/
wiki/Drone_attacks_in_Pakistan, February 16th, 2011.
US drone attacks and Pakistani statehood
13
Dubious legal base
The examination of the legal base which follows does not imply that a legal
perspective leads to a privileged, better, not to speak of an encompassing
judgement of an apparently complex situation. Neither does the legal point
of view support the thesis, that the situation as such resembles a police
situation. The aim of this section is only to demonstrate the gap between
today's situation in North-western Pakistan and the situation which the
United States are implicitly referring to, by legitimizing their drone attacks
under the 'right to self defence' of the United Nations Charter (Alston 2010,
Lobel 1999: 537). Both cases are different to such an extent that the drone
attacks in Pakistan cannot reasonably be considered a conventional act of
self defence any more.
The state-related right to self defence has its legal basis in Article 51 of
the UN Charter. This provision is, apart from the authorization of force by
the Security Council in Art. 42,3 the only exception to the prohibition of the
international use of force in Article 2, paragraph 44. According to Article
51, the adoption of force by a state within a foreign state can be
exceptionally legal, if it aims at self defence against an ongoing "armed
attack": "Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security"5. A
potential aggressor could, according to the position held by the authors of
3. Art 42: "Should the Security Council consider that measures provided for in Article
41 would be inadequate or have proved to be inadequate, it may take such action by
air, sea, or land forces as may be necessary to maintain or restore international peace
and security. Such action may include demonstrations, blockade, and other operations
by air, sea, or land forces of Members of the United Nations".
4. Art. 2 Abs. 4: "All Members Shall refrain in their international relations from the
threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Nations".
5. The full wording of Art. 51 reads: "Nothing in the present Charter shall impair the
inherent right of individual or collective self-defence if an armed attack occurs against
a Member of the United Nations, until the Security Council has taken measures
necessary to maintain international peace and security. Measures taken by Members in
the exercise of this right of self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
14
Joachim von Wedel
the Charter in the 1940s, only be a state. The scenario the founding fathers
of the Charter had in mind was exclusively an inter-state conflict. This
position has been expressed e.g. in a definition adopted by the General
Assembly in 1974: "Aggression is the use of armed force by a State against
the sovereignty, territorial integrity or political independence of another
State" (Resolution no. 3314 (XXIX), dec. 14th, 1974). This interpretation,
which is still valid in the new century, excluded for many authors, the
applicability of the right to self defence by the United States in 2001 (Byers
2002, Myers/White 2002). Private actors were not considered to be
potential origins of an "armed attack". Against terrorists there was,
according this position, no right to self defence (Schmitz-Elvenich 2008:
107). Private activities, including that of terror groups, were - from that
perspective - basically regarded as null (Schmitz-Elvenich 2008: 55), and
any "self defence" against such an activity as an "illegal reprisal"
(Muellerson 2003: 40f).
At the same time there was - at least officially - a wide consensus that
all states had to do what they could against international terrorism. The
obligation to adopt effective anti-terrorist measures was e.g. considered
not to be realized in the case where a state was in a situation of internal
instability or unable to effectively fight terrorism at home due to structural
weaknesses. In such a situation the state which was the victim of a terrorist
attack had the right to adopt all those measures which the inactive state
should have taken. These measures could, however, only be taken by victim
states, and not by "interested" states. Additionally, and this was also an
expression of the subsidiary character of the right to self defence, the
respective state had to be asked to adopt such measures on his own, before
any activity from outside could take place. In any case, measures of self
defence could never be directed against the state, from which the terrorists
were acting, but only against the terrorists themselves. This case seems to
apply to the present situation; Pakistan being too, weak for an effective
anti-terror fight has to accept the CIA's interference. Nevertheless, it
remains unclear to what extent the US drone attacks are really a reaction to
the lack of an efficient anti-terror fight by the government in Islamabad,
and to what extent they take place independently from those efforts.
Also, the United States claim to react at private activities. According to
the general opinion in international law such activities can be regarded as
state activity only, and therefore they can be a legitimate cause of self
defence only if they have been implemented under the direction of a state
p ® '
US drone attacks and Pakistani statehood
15
(for references cf. Krajewski 2002). A certain closeness of relationship
between the private actors and the state is considered to be necessary.
According to a conventional interpretation of the right of self defence such
closeness can result from "effective control", i.e. the planning and
logistical organization of the terrorist activities by the state. The demands
are less high in the case of "overall control"; here self defence is justified
also against a state which only in a very general way takes part in the
planning, organization and coordination of paramilitary activities. A third
case, developed by referring to the hostages taken in Teheran 1979 to 1981,
is that of approval. Legal self defence can be realized against a state by
sanctioning the private activity later on and by doing so, it treats them as
having been its own acts. Finally, there has been made a proposition to
regard also the hosting of terrorists, i.e. offering a secure stay to them, as a
case in which the state itself could be regarded as aggressor. Summing up,
all cases are based on the effective and decisive control of the terrorist
activity by the respective state. If this is not the case, there is no legitimate
self defence against that state. None of these exceptions is relevant in the
present case. Nobody claims that Pakistan had been involved in any
planning or supervising of the preparation of the 9/11-attacks.
A state wanting to act according to its right to self defence as laid down
in Article 51 of the UN-Charter has to be a victim of an "armed attack". The
case of a merely threatening attack had been known by the fathers of the
Charter (Bothe 2003: 229), but has deliberately not been inserted into Art.
51. The wording does not say "an armed attack occurs or threatens", but
only an "armed attack occurs". Also, an already completed attack excludes
any reference to the right to self defence. If no further damage is
threatening, the attacked state cannot justify its activity by citing Art. 51.
Already the time lag of one month between the attacks from September
11th, 2001, and the beginning of the attack on Afghanistan had caused a
discussion on whether the attack was still "ongoing" (Tomuschat 2001).
The act of self defence has to be in close time connection with the attack,
otherwise it cannot be considered as a reaction to that attack, but a reprisal
with a merely punishing or retaliating character.
In the case of the groups and individuals being attacked in North West
Pakistan by the United States referring to their right to self defence, neither
an attack by a state (not even one being directed by a state from a distance)
nor an ongoing attack is visible. The United States do not act against an
inimical state, but within an allied state. They do not defend against a
16
Joachim von Wedel
present attack but refer to an attack which has been taking place many
years ago. According to a conventional interpretation of Article 51,
Washington could not justify its activities by that article; rather Pakistan
would be entitled to defend itself against the United States by alluding to
its right to self defence.
New, more extensive interpretations of the right to self defence do not
come to that conclusion. They rather want to allow self defence also against
non-state actors, and additionally argue in favour of an abandonment of the
restriction on "ongoing attacks", which so far had been upheld by the
dominant stream of interpretation. These new approaches, which partially
go back to the 1980s (Sofaer 2003: 210), had recently been furthered by
Washington's reactions on the attacks from September 2001. Also, the large
approval found by the Security resolutions 1368 and 1373 had enforced the
impression, that a more extensive definition of the notion of self defence
would be an adequate and internationally accepted modernisation. For the
first time then, a non-state terrorist attack had been considered as a "threat
to peace". In fact, these new approaches had been mainly justified by
referring to the changed global situation. At a time characterized by the
end of the Cold War and the continuing existence of weapons of mass
destruction, future attacks would rather not be by the state, but private
ones. If the potential victim would not react early enough, i.e. before the
threat of an attack became visible, it would be too late for an effective
defence. There was only a small "window of opportunity" which had to be
used by the state without hesitation (Yoo 2003: 573).
These diagnosis had been reflected in propositions to enlarge the notion
of self defence by "pre-emptive self-defence" (Hofmann 2002: 32). It had
become part of political acts, for e.g. in the case of the reformed United
States "National Security Strategy" from 2002. In the context of self
defence, Art. 51 is not cited any more. Instead the authors refer to the
traditional, i.e. pre-Charter international law. "For centuries, international
law recognized that nations need not suffer an attack before they can
lawfully take action to defend themselves against forces that present an
imminent danger of attack". The construction of a pre-emptive self defence
claimed to exist by this and other authors goes beyond the older, generally
accepted notion of anticipatory self defence insofar as there, the attack had
to be considered as taking place in the immediate future, whereas the aim
in the case of pre-emptive self defence was to impede the construction of
weapon systems of infrastructure which would make possible an armed
US drone attacks and Pakistani statehood
17
attack only in the future. According to the traditionally held position, self
defence was possible only against an attack being almost already starting.
The newer interpretation enlarges the case; self defence should be
acceptable also against a development which may only eventually lead to
an attack.
The reactions of specialists of international law to these new approaches
were generally rather negative. According to them, here, the notion of
'attack" was stretched too far. Armed attacks were not immediately starting
when terrorist organizations announced further attacks without
concretizing their time or place (Schmitz-Elvenich 2008: 143). The idea of
a general permanent danger without time restrictions was, according to this
critique, inacceptable as a guideline for the right of self defence, but on the
contrary each measure had to be justified by concrete and up-to-date
information (Schmitz-Elvenich 2008: 144, Nabers, 2005: 331). If a state
was claiming a right to a pre-emptive self defence there was an apparent
danger of misuse. Additionally, a control of self defence referring to the
criterion of proportionality was impossible, if the specific consequences .of
an attack could not - this being the case with pre-emptive self defence - be
concretized.
In fact these newer approaches to enlarge the right to self defence are
situated so far away from the text of the Charter and from the will of its
fathers, that the conclusion to say goodbye to the Charter- based notion of •
self defence altogether has gained a certain acceptance with the
propagators of an enlarged notion of self-defence. The thesis that selfdefense allows "a proportionate response to every use of force, not just
'armed attacks'" had been explicitly adopted by the former legal counsellor
of the State Department, Abraham Sofaer (cf. Lobel 1999: 541). He wanted
to emancipate state self defence conceptually from the framework defined
in Art. 51. The prohibition on the international use of force according to
this position had to be restricted only to cases where the territorial integrity
or political independence of a foreign state was attacked, but in other cases
- especially in the fight against terrorism - this prohibition had lost its
validity (O'Connell 2002: 4). Even in the US law in general for some time
now, there have been "accepted implicitly at least some uses of force,
including targeted killing, as self-defense toward ends of vital national
security that do not necessarily fall within the strict terms of armed conflict
in the sense meant by the Geneva Conventions and other international
treaties on the conduct of armed conflict" (Anderson 2009).
18
Joachim von Wedel
An indicator of the extent to which the above mentioned claims for an
enlargement of the right to self defence by its propagators themselves have
been considered incompatible with the UN Charter is the fact that they rely
on extensions of Art. 51 only half-heartedly. An argument in favour of an
enlargement of the right to self defence is in some cases linked to the much
further reaching thesis, that the epoch of the Charter - at least as to the right
to self defence - was over altogether; we were living in a "Post-Charter
Era" (Sofaer 2003: 225, Miillerson 2003: 35, 47ff). Today's international
law was, according to this argumentation, much less "state centric" than in
the 19th and at the beginning of the 20th century, and therefore also self
defence had to be defined as less "state centric" (Miillerson 2003: 34). This
means, that the realization of the right to self defence should not be
measured by Art. 51 but by traditional legal standards. The goal is to return
to the old standards of self defence which have been elaborated in
international law for centuries, leaving the egalitarian approach of the
Charter behind (Muellerson 2003: 1).
Instead of being restricted by Art. 51, state self-defence had, according
to this proposition, to be only necessary and proportionate (Sofaer 2003:
220, Alston 2010:12, Mullerson 2003:43), i.e. it had to reach its goal with
the least possible infringement into other legally protected goods, and at
the same time had to be acceptable after general comparison to all other
legally protected goods involved. The killing of civilians with regard to
such a standard of self defence is generally as acceptable as attacks on
private groups, or attacks against private actors which are suspected only
to plan attacks. The arguments against this position are: the prohibition of
the use of force in Art. 2, Paragraph 4 of the UN Charter would be
overthrown, if the use of military force would depend upon the discretion
of the acting state. The numerus clausus of the accepted reasons for self
defence would be extended in an irresponsible way, as the presuppositions
of self defence would depend to a large extent only upon the judgement of
the acting, "defending" state.
The goal aimed at by the fathers of the UN Charter to limit the use of
force beyond state borders seems, mainly obviously imposed by the attacks
in 2001, not to be well compatible with the newer foreign policy of the
United States any more. The Charter which provides the legal basis of the
right to self defence is either regarded as anachronistic or interpreted in an
extensive way, being in accordance neither with the UN Charter's wording
nor with the intentions of its fathers any more. Art. 51 is not regarded as
being the legal basis of state self-defence any more, but as an impediment.
In contrast to the war in Afghanistan, which at least in its initial phase,
a c c o r d i n g to available information, could be regarded as an action of selfdefence, the US drone attacks in Pakistan ten years later present themselves
as a very different case. Here, you could not speak of any attack by a state
any more, and the private attack, which still is invoked by the United
States, date many years back. Especially this hint to the legal basis
illustrates the gap between the situations in Afghanistan 2001 and Pakistan
2011. The case of Pakistan is apparently not a military case anymore, at
least not in that sense as it had been understood on the basis of the UN
Charter in the second half of the 20th century.
Police-like situation
It is more convincing to regard the case of Pakistan as - to a certain extent
- a police-like situation. Even if the drones are military weapons (and as
such had been used in the Second Iraq War) and their application is
connected to an ongoing war in Afghanistan, for several reasons the case
gives an impression of being less a military than a police situation. This
difference is relevant for a judgement of the legal consequences of the
drone attacks.
First, the relation between the immediate actors is very different from a
military situation characterized by a conflict between combatants. On the
American side, the drones are not operated by soldiers, as in the wars in •
Afghanistan and Iraq, but by employees of the civil agency - the CIA, Also
on the other side there are, in contrast to the wars in Afghanistan and Iraq,
no combatants; but on the one'hand people who, being suspected of
terrorism, deliberately do not want to be combatants, and on the other hand
the normal civil population of North Western Pakistan, also noncombatants. The distance of all actors from the military does not, at the
margins, mean a privatization of the conflict which under certain
circumstances could be seen as a form of "new wars" (Herfried Muenkler).
It is rather the case that we have to deal with of a typical police situation:
state employees with an exclusive access to weapons on the one side,
private persons on the other side.
The resemblance of the constellation to a police one becomes apparent,
secondly, in its technical features. In contrast to the standard military
conflict there is no relationship between equals, where every participant
has to be aware of more or less similar weapon's on the other side, but the
20
Joachim von Wedel
drones reflect an extremely asymmetrical conflict. In Pakistan they are,
different from their application in Iraq in 2003, where they had been one of
several means going along with the presence of infantry - at that time a
type of weapon being to disposition for both parties -, the only weapon
being used in the conflict. On the other side there are no weapons of any
relevance. In contrast to bomber attacks e.g. on Bagdad in 2003, where
there was, at least in theory, an Iraqi air defence system, here the other side
has no defence at all, not even in theory. The people being targets are
civilians meeting at private homes. The party launching the attacks finds
itself in a completely safe situation, which, according to some, is even
similar to a game. Some authors warn before a risk of a "play-station
mentality" developed by the CIA employees. After starting the hellfire
rockets this employee sooner or later can prepare for an evening with his
family. The drone puts the CIA by its technique which does not have a
complementary weapon on the other side into a position, which is identical
to that of a policeman in the streets; a position of complete technical
dominance.
A third and fundamental difference is highlighted when comparing the
Pakistan case with recent bomb attacks on foreign sites (e.g. on the
claimed-to-be weapon production site in Sudan in 1998): in Pakistan the
attacks take place in a foreign state which is not hostile, but allied. The
relationship between Islamabad and Washington is full of tensions and
conflicts, but the isolated protests, which had been uttered by members of
the Pakistani government against the drone attacks6 do not reach a level
which would be sufficient to motivate Washington to change its policy.
Apart from that, attacks taking place permanently and for several years are
impossible without at least implicit, maybe bought approval
(Deutschlandfunk 2010) by the government in Islamabad. The attacks start
apparently predominantly from airports within Pakistan and seem to be, as
6. If and, eventually, to what extent there is a consent o f Pakistan's government, remains
unclear. Some members of the government apparently had protested, as the minister
of defence against a drone attack from October 16th, 2008. The existence of an
explicit consent is stated by the Washington Post from November 4th, 2008: "The
secret accord was set after the September visit to Washington by Pakistan's new
president, Asif Ali Zardari. It provided new mechanics for coordination of Predator
attacks and a jointly approved list of high-value targets. Behind the agreement was a
recognition by the Zardari government, and by Pakistan's new military chief, Gen.
Ashfaq Kiyani, that the imminent threat to Pakistan's security comes from Islamic
terrorists rather than from arch-rival India."
US drone attacks and Pakistani statehood
21
far as their targets are concerned, in part in the interest of Pakistan's
•Tovernment. Any friend-foe-conflict between states, characteristic for a
military situation, is lacking here.
The use of force by the United States does not take place against another
state, but by ignoring the other state. This feature distinguishes the
situation significantly from the wars in Afghanistan or Iraq, as well as from
attacks on de facto or suspected terrorist camps which had been launched
bv several states in foreign, hostile countries during the last decades.
Object of attacks in Pakistan are not any more, as in the case of military
attacks, the military infrastructure, but immediately non-combatants. The
drone attacks therefore cannot be considered to be part of a military
conflict, but of a more or less peaceful situation. The standard war conflict
between state A and state B is replaced here by a constellation, which
resembles actions of a federal police unit in a province.
The thesis concerning the partial power related insignificance of the
Pakistani government may be, once again, supplemented by a hint to the
technical situation: The use of drones is, as mentioned earlier, steered
exclusively within the United States, i.e. without any possibility to
in fluence it from the Pakistani side. The same is true for the planning of the
attacks. As far as can be seen, the CIA also does not need any regular,
preparative coordination with Pakistani officials e.g. as to the
identification of suspects or of places of residence. The application of the
drones depends to a large extent - also distinguishing the case from that of
long-distance bombers - from sensors and cameras immediately at the
drones. The whole process is standardized to such an extent that also within
the CIA there are not many persons involved, i.e. there are altogether
almost no points in the procedure, where individual discretion could slow
clown the process or stop it. Already in theory there is no way for Pakistani
officials to influence the attacks, not to speak of specific steps within one
attack. The situation as a whole is similar to an automatized, very
centralized administrative procedure, where even in the central
administration, not to speak in the provinces; there is no substantial
possibility to influence its outcomes any more.
To sum it up, on the one hand there is a conventional military attack
directed against infrastructure in a foreign, hostile country, characterized
by the availability of weapons on both sides and individual decisions of the
military leaders on the spot. On the other hand, we have to deal with a
situation which deviates fundamentally on all of these points: An almost
22
Joachim von Wedel
completely automatized and centrally steered attack, against which no
defence is possible, and which takes place in an allied and passive country.
The first situation is a military one, the second is not.
Pakistan's statehood
The drone attacks do not annihilate Pakistan's statehood as such. Pakistan
as a state without a doubt continues to exist; its organs adopt laws, decide
about the application of that law and enforce these decisions. At the same
time the drone attacks within their realm of realization do not leave space
for any contradicting position of Pakistani officials. In doing so, they
document certain borders set for Pakistani statehood by Washington. The
degradation of Pakistan to a state, whose police related decisions, to a
certain extent, are not relevant any more, resembles a situation which is
typical for colonized state - the state transforms into a province or
protectorate. The case therefore may, at first glance, invoke the notion of
neo-colonialism, i.e. any direct political control of a people by a foreign
state. But there is no consistent US political agenda aiming at subjugation
or other fundamental political changes in Pakistan. As far as the war on
terror is concerned, there is not even a reason for such an agenda. Pakistan
does not present itself as a hostile country or one that would categorically
contradict US political aims, but as a state which to a certain extent is
either not willing or not capable of formulating any contradicting position.
Also in general Pakistan, without any doubt, continues to be capable of
adopting its own positions in almost all the other sectors of political life.
Its foreign policy related activities e.g. do not need any approval from
Washington. Washington does not aim at political changes in Pakistan but
at self-defence. The US administration claims to realize its self-defence
related activities without interference from Islamabad related to their sort,
intensity and frequency. Islamabad therefore allows to a certain, regionally
limited, extent police-related activities to the United States. It opens its
legal order for certain extra-constitutional and extra-legal activities.
Within Pakistani police law there, an US-American police law related
enclave comes into existence.
To a certain extent, this situation is a neo-imperial one. A state claims to
be able to realize its security related interests also by infringing into
another state (cf. the number of dead Pakistani civilians). Basic state
attributes linked to modern international law as well as to the United
Nations Charter, e.g. the right to be free from any police activity of another
US drone attacks and Pakistani statehood
23
slate, apparently have lost their importance. At least theoretically, the
respect for the sovereign equality of states is replaced by a one-sided
approach; own security has a much higher priority than the (external)
sovereignty of another state. The asymmetrical appearance of the case
renders visible a tendency, which is not easily to reconcile with an
international order based on the claim of sovereign equality. Art. 1 of the
UN Charter still speaks of the goal "to develop friendly relations among
nations based on respect for the principle of equal rights".
For the citizens of Pakistan the special quality of this constellation
becomes relevant in several respects. First, the pretentiously selfdefending state acts in a way as if it would be free from any police law
related restrictions, e.g. the prohibition to violate or to arrest without prior
recourse to a court decision. Second, in order for the United States to reach
their goal Pakistani statehood has to be rendered defenceless against
weapons incapable to distinguish reliably between civilians and
combatants, which is a cornerstone of international humanitarian law. The
victims' rights are not sheltered by Pakistan's government, but only by
private initiative (Kazim 2011). Third, Pakistan's citizens to a certain
extent even lose their political rights. A police activity being taken away
from their own government cannot be influenced by the citizens. No
politician being responsible for police-like activities, democratic
accountability ceases, in this respect, to exist. Apart from this, the police
law related enclave never has been established in way compatible with
Pakistan's constitutional law.
This means, that you cannot describe the situation as regionally limited
insertion of one legal order (United States police law) into another
(Pakistan's one). Rather what happens is the coming into existence of a
specific amalgam. The "police law" being reflected by the drone attacks is
neither a Pakistani nor a United States one, but neo-archaic law leaving
behind central cornerstones of modernity. The constitutional shelter of the
individual is neglected and individual rights, which are a central part of the
own legal order and have developed over centuries; are violated. Hopefully,
this situation will turn out to be a temporary one.
References
1. Alston, Philip. 'Report of the Special Rapporteur on extrajudicial,
summary or arbitrary execution. Study on targeted killings'. General
Assembly, United Nations. May 28th, 2010. UN-Document A/HRC/
14/24/Add.6.
24
Joachim von Wedel
2.
Anderson, Kenneth, 2009. 'Targeted Killing in U.S. Counterterrorism
Strategy and Law' in Hoover Publications, May 11th, 2009,
www.hoover.org/publications/defining-ideas/article/5281 (checked
on march 24th, 2011).
3.
Byers, Michael, 2002. 'Terrorism, the Use of Force and International
Law After 11 September' in 51 International and Comparative Law
Quarterly All (2002).
4.
Byman, Daniel L. 2009. 'Do Targeted Killings Work?' in Brookings,
July 14th, 2009.
5.
Deutschlandfunk. 2010., Anonymer Tod aus der Luft' in emission
from November 19th, 2010. See http://www.dradio.de/dlf/sendungen/
hintergrundpolitik/1323288 (checked on march 24th, 2011).
Finke, Jonas, 2010., Koharenz in der volkerrechtlichen Behandlung
nichtstaatlicher Gewaltakteure', in Jelena Baumler, Cindy Daase,
Christian Schliemann und Dominik Steiger, ed., Akteure in Krieg und
Frieden. Tubingen: Mohr Siebeck Verlag, pp. 47-68.
6.
7.
Gilbert, Paul, 2007. 'Civilian Immunity in the ,New Wars", in Igor
Primoratz, ed., Civilian Immunity in War. Oxford: Oxford University
Press, pp. 201-216
8.
Hofmann, Rainer. 2002. 'International Law and the Use of Military
Force Against Iraq', in German Yearbook of International Law 45
(2002), pp. 9-34.
9.
Kazim, Hasnain, 2011., Pakistanische Klagen gegen US-Drohnen' in
Spiegel Online, January 20th, 2011.
10. Lobel, Jules, 1999. 'The Use of Force to Respond to Terrorist Attacks:
The Bombing of Sudan and Afghanistan', in The Yale Journal of
International Law 24 (1999), pp. 537-557.
11. Miillerson, Rein, 2003. 'Jus ad Bellum and International Terrorism',
in: Israel Yearbook on Human Rights 32 (2003), pp. 1-51.
12. Myjer, Eric and Nigel White, 2002. 'The Twin Towers Attack: An
Unlimited Right to Self-Defense' in 7 Journal of Conflict and Security
Law 17 (2002)).
13. Nabers, Dirk, 2005. Allianz gegen den Terror. Deutschland, Japan und
die USA. Wiesbaden: VS Verlag fuer Sozialwissenschaften.
14. Rashid, Ahmed, 2010. Sturz ins Chaos. Afghan is tan, Pakistan und die
Riickkehr der Taliban. Darmstadt: Leske Verlag.
US drone attacks and Pakistani statehood
25
15. Schmitz-Elvenich,
Heiko,
2008.
Targeted Killing.
Die
volkerrechtliche Zulassigkeit der gezielten Totung von Terroristen im
A us land.. Frankfurt am Main: Peter Lang Verlag.
16. Sofaer, Abraham D, 2003. 'On the Necessity of Pre-emption',
in European Journal of International Law Vol. 14, no. 2 (2003),
pp. 209-226
17. Tomuschat, Christian, 2001., Der 11. September und seine rechtlichen
Konsequenzen'
in
Europaeische
Grundrechte-Zeitschrift,
pp. 535-545.
18. Walter, Dierk, 2006. Islamistischer Terrorismus. Hintergrunde und
Gegenstrategien. Schwalbach/Taunus: Wochenschau Verlag.
19. Wilkinson, Paul, 1992. 'International Terrorism: New Risks to World
Order' in: John Baylis and N. J. Rengger, Dilemmas of World Politics.
Oxford: Oxford University Press, pp. 228-260.
20. Yoo, John, 2003. 'Future implications of the Iraq conflict' in The
American Journal of International Law 97 (2003), pp. 563-576.
Документ
Категория
Без категории
Просмотров
3
Размер файла
1 106 Кб
Теги
0973598411110002
1/--страниц
Пожаловаться на содержимое документа