The U.S. recently launched missile attacks into Pakistan from unmanned drones based in Afghanistan, as it has done for several years. While the drones target suspected militants, the U.S. acknowledges that many innocent people have been killed. Most drone attacks occur on the border with Afghanistan, but now the Obama administration is considering expanding the attacks to other areas of Pakistan. We asked the Kroc Institute’s Mary Ellen O’Connell, an expert on international law, about the legal basis for the attacks.
Does the U.S. have the legal right to launch missile attacks into Pakistan?
Under international law, the U.S. may use significant armed force in Pakistan under three conditions: One, if Pakistan is responsible for an armed attack on the U.S. Two, if Pakistan is a failed state [a state with no central government or one where that government is so ineffective that it has little control over much of its territory]. Three, if Pakistan’s government has requested help in waging a civil war. The U.S. does not claim Pakistan attacked us or that it is a failed state. Pakistan is not engaged in a civil war, nor has it requested our help—at least not expressly. The U.S. may have Pakistan’s tacit consent to attack an area where Islamabad exercises little control, but that is a weak basis for lethal conduct, made even weaker by the lack of Afghanistan’s consent to launch drones from its territory.
Some say we have a ‘right of hot pursuit.’ Isn’t that a legal basis?
Hot pursuit means continuous pursuit of suspects from one jurisdiction to another for purpose of arrest. President Bush authorized U.S. forces to engage in something like this — cross-border use of force from Afghanistan into Pakistan. But that authorization is relevant for U.S. domestic law purposes only, it has no relevance for the law governing U.S.-Afghan-Pakistan relations, namely international law. Under international law, there is no right of hot pursuit on land. Moreover, what the U.S. is doing in Pakistan is not hot pursuit. It is unlawful without Pakistan’s consent.
Are the drone attacks—lawful or not—helping the counter-terrorism effort?
We keep getting reports that U.S. drone attacks are killing many militants — including top leaders. As David Cortright well explains, however, using military force in such situations does not lead to long-term positive results. The U.S. is perceived throughout the world as acting lawlessly with respect to Pakistan—in killing innocent people and in disrespecting Pakistan’s sovereignty. These perceptions are fueling anti-American feeling, which may well be fueling recruits to terrorism. Taking the moral and legal high road is the best strategy against terrorism.
Mary Ellen O’Connell’s comments may be used in whole or in part. She can be reached at (574) 631-7953 or at maryellenoconnell@nd.edu.
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