The ‘Unmanned’ Conflict in Pakistan – By Neha Ansari

800px-OCPA-2005-08-11-080331Is Pakistan undergoing an armed conflict as defined by International Humanitarian Law and are the CIA-operated drone attacks in compliance with the legal regime?

Neha Ansari, Fletcher MALD 2013, is a second-year master’s candidate at the Fletcher School of Law and Diplomacy, concentrating in International Security and Southwest Asia & Islamic Civilization. Prior to Fletcher, she studied Karachi and worked as a senior sub-editor at a Pakistani English newspaper.

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There have been somewhere between 335 and 365 drone strikes in Pakistan as of March 12, 2013, according to various estimates. The use of drones is one of the most politically charged issues in Pakistan today; many Pakistanis claim that the drone strikes are illegal and an impingement of the state’s sovereignty. The United States has been conducting drone strikes targeting terror suspects in Afghanistan and Pakistan since 2004, and more recently, in Yemen and Somalia.

Drones are the commonly used term for unmanned aircraft vehicles (UAVs) or Remotely Piloted Aerial Systems (RPAS). These aircrafts can stay aloft for up to 17 hours, surveying and recording real-time imagery of activities on the ground of the area they cover.[1] The two types of drones used in Pakistan to target terrorists are the MQ-1B Predator and the MQ-9 Reaper[2], both of which are armed with Hellfire missiles.

Even though the use of drones in official combat areas is legal according to International Humanitarian Law (IHL), the use of the technology outside of declared combat zones has brought international criticism to the US drone program.[3] This is because IHL does not apply in non-conflict zones.

This research paper examines the legality/illegality of the drone strikes in Pakistan. The paper is divided into two sections: 1) Is there an armed conflict going on in Pakistan and, hence, does IHL apply? 2) Are the drone attacks in compliance with the relevant law regime?

I. Determining the ‘conflict status’ and ensuing challenges

For IHL to be applicable there needs to be an armed conflict. Determining whether Pakistan is experiencing armed conflict is a challenge due to the complexity of the current situation with regards to both terrorism and the lack of information available about the Pakistani government’s consent to the American use of drones.

The categories of ‘armed conflict’ in IHL include: international armed conflict (IAC), non-internationalized armed conflict (NIAC) and an internationalized NIAC.

Internationalized armed conflict

In the Geneva Convention 1949, common Article 2 is defined as: “…declared war or of any other armed conflict in which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”[4] A High Contracting Party in international law refers to a country or nation capable of signing and ratifying an international treaty.

The United States is not in an armed conflict with the State of Pakistan under Common Article 2 of the Geneva Conventions and Article 1(4) of Additional Protocol I – the two countries are actually declared allies. Washington has provided Islamabad with almost $10 billion in overt security and economic assistance since 2002 and continues to compensate the Pakistani military for its counterterrorism efforts with roughly $1 billion in annual reimbursements[5] as part of Pakistan being its frontline ally in the global war on terror.

However, the United States has declared war on the Haqqani Network–an al-Qaeda ally based in the Federally Administered Tribal Areas (FATA) of northwestern Pakistan–and the Taliban, both of whom are executing attacks on International Security Assistance Force (ISAF) forces in Afghanistan. The primary objective of these outfits is to “unite against NATO forces in Afghanistan”. Therefore, under the legal framework of IHL, the Haqqani Network and the Taliban can be viewed as military combatants in America’s transnational campaign against transnational terrorist groups. US president Barack Obama has declared that the US military forces operating in Afghanistan and elsewhere ought to be employed unilaterally against terrorist targets in Pakistani territory if Islamabad fails to interdict them despite possessing actionable intelligence.[6] This makes the situation an IAC from the United States perspective.

Non-internationalized armed conflict (NIAC)

Under common article 3 of the Geneva Conventions, a NIAC is a conflict that is “not of an international character occurring in the territory of one of the High Contracting Parties.”[7]

According to the successive judgments of International Criminal Tribunal for the former Yugoslavia (ICTY), the intensity of the conflict and the organization of the parties to the conflict[8] are determining thresholds of NIAC that distinguish it from internal disturbances and rioting. In the Tadic case, the ICTY affirmed that a NIAC exists in situations of protracted armed violence between organized armed groups within a state.[9]

If we apply this to Pakistan and the United States, both nations have declared war on the Taliban. “War has come to Pakistan, not just as terrorist bombings, but as full-scale battles,” said the New York Times in October 2008.[10] “This is now a war zone,” said Marco Succi, the spokesman for the International Committee of the Red Cross (ICRC),[11] after the Pakistan military launched an offensive in South Waziristan (one of the seven divisions of FATA). With Succi’s statement, the ICRC recognized Pakistan as a declared war zone under the criteria of a non-internationalized armed conflict (NIAC). The ICRC’s declaration is important as the humanitarian organization has a legal mandate under the four Geneva Conventions and the two Additional Protocols to act in the event of an international armed conflict to protect victims.[12] Therefore, the ICRC only begins its operations on the ground after a war zone is declared by the organization itself or by the United Nations and other major international organizations; its declaration means that the scale of the violence has passed the threshold indicated by the IHL regime and turned into a conflict as defined under the Geneva Conventions and the Additional Protocols.

For a conflict to be categorized as NIAC, in accordance with Article 1 of the Additional Protocol II, it must take place “in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations…”[13]

In order for a non-state actor to be categorized as a High Contracting Party under IHL, the organized armed group must meet certain criteria that are outlined in the International Law Association’s 2010 Final Report on the Meaning of Armed Conflict.[14] These classification requirements include: having an organized body with a systematic command structure; exercising leadership control; providing military training; having organized acquisition and provision of weapons and supplies; recruiting new members; possessing communications infrastructure; identifying itself as a group; and having a space to rest and control over a territory. The Haqqani Network and the Taliban fulfill all of these conditions. Both organizations have cohesive command and control structures, and the commanders enjoy high degrees of autonomy but also adhere to a rigid hierarchical structure.[15] Further, both groups control territory within Pakistan; there are strong senses of ideological, religious and tribal identity within the groups; and they have well-established communications systems. Therefore, the Haqqani Network and the Taliban fulfill the criteria for non-state actors and armed opposition groups under Additional Protocol II. Hence, IHL is applicable and the groups are bound by it within the purview of a NIAC in Pakistan.

Another layer of conflict: internationalized NIAC?

An internationalized non-international armed conflict is an internal or civil war characterized by the intervention of a foreign power’s armed forces.[16] An interesting aspect of this conflict concerns the military cooperation between Pakistan and the United States against the Taliban in northwestern Pakistan. The Express Tribune reported that “WikiLeaks cables revealed that the US drone program within Pakistan had more than just tacit acceptance of the country’s top military brass despite public posturing to the contrary.”[17] “The cables state that the country’s military was requesting the US for greater drone back-up for its own military operations as long ago as January 2008.”[18] [19]

In 2010, another WikiLeaks cable exposed that Pakistan has twice requested that American soldiers embed its Frontier Corps in North and South Waziristan.[20] On both occasions Pakistan asked for US Special Forces assistance in providing intelligence, surveillance and reconnaissance, including video footage from drones, to its troops.[21] According to a Reuters and US Air Force joint report, “Pakistan appears to be helping supply human targeting intelligence to the United States” and Pakistani agents are “increasingly involved in target selection and strike coordination.”[22] [23] Moreover, most of the drones were being operated from within Pakistan[24] from the Shamsi Airbase, which was leased to the United States in 2001 until 2011.[25]

Despite rampant derision, anti-drone politicking and public fury, Pakistan has not complained about drone attacks in any international forum, raising the question “why, despite all the noise about sovereignty in the eight years since the first drone strike in 2004, have two successive Pakistani governments, military and civilian, failed to hire a single lawyer to challenge drone strikes within the United Nations, a foreign court or even a local Pakistani court?”[26] This inaction suggests lack of political will, which can be interpreted as consent to the drone strikes in its sovereign territory. The above-mentioned instances illustrate Pakistan’s “approval” for drone attacks and American military assistance, making it a military partner in the transnational war against al-Qaeda and Taliban. Therefore, the conflict in FATA is an internationalized NIAC.

Regional Spillover?

Spillover of armed conflict into neighboring countries is usually characteristic of a failed state.[27] A state that is failing has several attributes, one of the most common being “loss of physical control of its territory or a monopoly on the legitimate use of force.” [28] Today, both Afghanistan and Pakistan fall under this category. Pakistan can be termed a ‘failed state’. These characteristics facilitate an enabling environment for armed groups to cross the porous border frequently and unchecked. The internationalized NIAC being fought in Afghanistan has thus “spilled over” to Pakistan as “the militant fighters crossing back and forth from FATA account for 30-40 percent of the guerrilla attacks taking place in Afghanistan”[29] against ISAF. The US cross-border operations into Pakistan do not represent a separate armed conflict.[30] IHL rules are thus applicable to this situation.[31]

Consequently, more than just one type of armed conflict exists in Pakistan, and as there is at least one type of conflict under way in the area, a state of armed conflict under IHL can be established and the law regime is applicable.


After concluding that IHL is in place in Pakistan, this part of the paper examines whether the IHL principle jus in bello—“the rules and laws governing the conduct of armed conflict”[32]—are being complied with or not. For a conflict to be legal under IHL, it is incumbent upon the High Contracting Parties to adhere to the main principles of distinction, military necessity, and proportionality. In this case a complexity emerges because organized armed groups, the Taliban and the Haqqani Network are parties in the conflict in the Afghanistan-Pakistan border region.

Specifically, this multi-layered conflict is complicated by the fact that the Taliban and al-Qaeda reside, organize and work from densely civilian-populated tribal areas. Nonetheless, US Attorney General Eric J. Holder Jr. recently insisted that the covert drone program is within the purview of IHL. He claimed that American drone operations began with the Bush Administration’s authorization of military force against al-Qaeda and its allies, enacted by Congress shortly after the 9/11 attacks, which he said extended beyond the traditional battlefield of Afghanistan because al-Qaeda members are moving and launching attacks from elsewhere.[33]

This claim does not bode well with the IHL concept of direct participation in hostilities, which refers to the specific hostile acts that suspend a civilian’s non-combatant protection.[34] The civilian’s act must be likely to either adversely affect the military operations of a party to the conflict or inflict death, injury or destruction.[35] Both the Taliban and Al Haqqani network[36] fall under the definition of unlawful combatants as they directly participate in hostilities. This said, who distinguishes between lawful and unlawful combatants? Not all Taliban fighters are lawful combatants as some take direct part in hostilities without being entitled to do so and therefore cannot be classified as prisoners of war.[37] Not all individuals under attack in the area have a continuous combat function though, as a civilian’s uncoordinated or occasionally hostile acts neither constitutes group membership nor support of an organized armed group.[38] [39]


Consequently, the issue of discrimination or distinction between civilians and combatants is relevant here. According to Article 48 of the Additional Protocol I: “…to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

With a drone strike, it is clearly impossible to follow this Article. President Barack Obama’s administration targets and kills “men of military age,” defined as those within the age bracket of 18 to 35, in Pakistan’s tribal areas, where the drone strikes are concentrated.[40] This definition is not the same as the one for military targets articulated in Article 48. The New York Times reported that just days after taking office, the president learned that the first strike under his administration had killed a number of innocent Pakistanis.[41] According to the Bureau of Investigative Journalism, 411 to 884 civilians have been killed in the total reported killings of 2,536 to 3,577 people by drone attacks in Pakistan. That makes the civilian casualty rate anywhere between 18 and 26 percent. Meanwhile, the number of people injured because of the drone strikes in Pakistan ranges from 1,173 to 1,464. An estimate of 168 to 197 children have also been killed, while many have been injured [42]

To give a proportionate estimate of the number of citizens killed, US intelligence claims that no more than 30 non-combatants were killed alongside 500 militants—around 5 percent—and these mainly included family members who live and travel with the military targets.[43] This number is highly contested. Statistics compiled by Pakistani authorities in January 2010 indicate that drone strikes killed more than 700 civilians in 2009 alone.[44] [45] However, three former Pakistani senior intelligence officials, while being interviewed by the New York Times, expressed disbelief that the number could be so low. C.I.A. accounting has so troubled some US administration officials that they brought their concerns to the White House. One called it “guilt by association” that has led to “deceptive” estimates of civilian casualties.[46] Even if it is assumed that this estimate is true, this ‘5 percent’ is accountable under IHL.

The principle of distinction does not only require discrimination between civilian and military persons, but also between civilian and military objects. The Geneva Conventions relative to the Protection of Civilian Persons in Time of War prohibits attacks on schools, hospitals and other civilian objects, and also declares blocking their access as a violation. Drones have struck missiles at weddings, schools, funerals, children on the streets and local gatherings.

Military necessity

Military necessity consists of the necessity of those measures that are indispensable for securing the ends of the war, i.e. no more force should be used to carry out a military operation than is necessary considering the circumstances.[47] It has been defined as the principle that justifies those measures not forbidden by international law that are indispensable for securing the complete submission of the enemy as soon as possible.[48]

The Obama Administration has sanctioned at least 313 drone strikes have hit Pakistan since taking office.[49] The relevant question here is whether such frequent and deadly drone strikes are necessary to achieve the military advantage and suppress the enemy: this question has no clear answer. But, if the answer is yes, there ought to be balance between military necessity and humanity.[50] “The necessity requirement imposes an obligation to minimize the level of force used through, for example, the use of warnings, restraint and capture.” No warnings are given, the act of restraint on attacks is not exercised and no one is captured—just killed.


Related is proportionality, which prohibits that “which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects…which would be excessive in relation to concrete and direct military advantage anticipated.”[51] The proportionality requirement limits the permissible level of force based on the threat posed.[52] [53] IHL requires that targeting decisions in individual military operations must avoid civilian causalities that are excessive in relation to the anticipated military advantage.[54] In other words, it is prohibited to do more than what is needed.

The United States insists that its drone strikes are proportional. Former director of the CIA Leon Panetta defended the use of drones by saying, “When we use [the drone technology], it is very precise and it limits collateral damage.”[55] According to Columbia Law School professor Matthew Waxman, conversely, “proportionality says that a military target may not be attacked if doing so is likely to cause incidental civilian casualties or damage that would be excessive…But there is no consensus on how to calculate these values, nor is there consensus on what imbalance is ‘excessive’.”[56] Indeed, even if most of the killed are militants, there are hundreds of people, including children, who are injured—apart from the population living in fear.[57]

CIA-operated ‘covert’ program

Another major criticism of the drone program in Pakistan is that it is CIA-operated. This is because the CIA employees are civilians; thus “state members who are not members of its armed forces”[58] [59] are executing the strikes. Professors of international law argue that only members of the US armed forces have the combatant privilege of using lethal force without facing prosecution.[60] For example, New York University law professor Philip Alston, who backs an end to CIA drone attacks, argues that “intelligence agencies have no place in running programs that kill people in other countries.”[61] Under this view, CIA drone pilots are liable to prosecution under the law of any jurisdiction where attacks occur for any injuries, deaths, or property damage they cause.[62]


Pakistan—despite its vehement accusations that the US breaches its territorial sovereignty—has given consent for the United States to conduct drone attacks on its soil. As there are many types of armed conflict in Pakistan, IHL applies on its territory. Taken together, these factors indicate that drone strikes are legal as long as they are conducted against those who are directly participating in military hostilities. IHL principles are difficult to uphold in this context, however, because of the way drones strikes are conducted: shrouded in secrecy and lacking pre-determined militant targets, follow-up investigations, or explanations afterwards. Indeed, drones are not indispensable for winning the war on terror, and the costs of such a program may not be worth the potential benefits.

One US official, insisting that the United States is not violating international law, said: “the UN Charter clearly states that nothing…shall impair the inherent right of individual or self-defense if an armed attack occurs against a member of the United Nations…The US has an inherent right to protect itself, and we will not refrain from doing so based on a narrow—and faulty—definition of self-defense.”[63] The US has embarked on a measure of unaccountable use of force that does not abide by the IHL core principles of military necessity, “distinction in defining the target and proportionality in the evaluation of collateral damage[64]”.

The United States’ use of drones to combat terrorism in Pakistan is legal under IHL; however, the way the drones are used does not comply with the legal regime. Recently, the US has tried to justify this modus operandi under IHL, but has not been successful—the lack of transparency and free information due to the covert nature of the program may account for one reason. With the frequency of drone strikes in Pakistan rising steadily along with the death toll, the US needs to limit the scope of the use of drones and should incontrovertibly define parameters for their legal usage.


The views and opinions expressed in articles are strictly the author’s own, and do not necessarily represent those of Al Nakhlah, its Advisory and Editorial Boards, or the Program for Southwest Asia and Islamic Civilization (SWAIC) at The Fletcher School.

Works Cited

[1] “Drones: What are they and how do they work?”, BBC News, last updated: January 31, 2012,

[2] “Drones: What are they and how do they work?”

[3] Greg Bruno, “US Drone Activities in Pakistan”, Council on Foreign Relations, July 19, 2010

[4] Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War (New York: Cambridge University Press, 2010), 153

[5] Ashley J. Tellis, Pakistan and the War on Terror: Conflicted Goals, Compromised Performance, Carnegie Endowment for International Peace (Washington: 2008), 1

[6] Tellis, Pakistan and the War on Terror, 1

[7] Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Common Art.3, Aug. 12, 1949, 75 U.N.T.S. 31

[8] Gary Solis, The Law of Armed Conflict: International Humanitarian Law in War (New York: Cambridge University Press, 2010), 153

[9] ICTY, Prosecutor v Tadic, Appeal on Jurisdiction, para 70

[10] Jane Perlez and Pir Zubair Shah, New York Times, “Confronting Taliban, Pakistan Finds Itself at War”, October 2, 2008

[11] Parlez and Shah, “Confronting Taliban, Pakistan Finds Itself at War”

[12] “ICRC: Mandate and Mission”, last updated: October 29, 2010,

[13] Protocol Additional to the Geneva Conventions relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Art.1, 8 June 1977

[14] Final Report on the Meaning of Armed Conflict in International Law, International Law Association, The Hague Conference (2010), 2

[15] “The Insurgency in Afghanistan’s Heartland”, Asia Report N°207, International Crisis Group, June 27, 2011,

[16] Hans-Peter Gasser, “Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea, and Lebanon”, The American University Law Review, Vol. 33, No. 145 (1983), 145

[17] “Wikileaks: Kayani wanted more drone strikes in Pakistan”, The Express Tribune, May 20, 2011

[18] ” Wikileaks”, The Express Tribune, May 20, 2011

[19] In the same The Express Tribune report, it was stated that Admiral Fallon “regretted that he did not have the assets to support this request” but offered trained US Marines (known as JTACs) to coordinate air strikes for Pakistani infantry forces on ground.  General Kayani “demurred” on the offer, pointing out that having US soldiers on ground “would not be politically acceptable.”

[20] Rob Crilly, “Wikileaks: Pakistan privately approved drone strikes”,  The Telegraph, December 1, 2010

[21] Crilly, “Wikileaks”

[22] “Drone Warfare In Pakistan: Under President Barack Obama, Drone Program In Pakistan Broadly Expanded”, Reuters/Air Force Handout, May 2010, 2

[23] A second cable describes a 2008 meeting with Pakistan premier Yousaf Raza Gilani in which he says to Ms Patterson, “I don’t care if they do it (drone strikes) as long as they get the right people. We’ll protest in the National Assembly and then ignore it.” (The Telegraph, December 1, 2010)

[24] Michael N. Schmitt (ed), The War in Afghanistan: A Legal Analysis, (US Naval War College International Law Studies, 2009), Volume 85, 135

[25] Peer Muhammad/Reuters, “US prepares to vacate Shamsi airbase”, The Express Tribune, November 30, 2011

[26] Dawood Ismail Ahmed, “Pakistan’s cheap talk on drones”, Foreign Policy, March 29, 2012

[27] Robin Geiss, “Armed violence in fragile states: Low-intensity conflicts, spillover conflicts, and sporadic law enforcement operations by third parties”, International Review of the Red Cross, Volume 91, Number 873, March 2009, 128

[28] “Failed States Index FAQ”, The Fund for Peace,

[29] Schmitt, The War in Afghanistan,114

[30] Schmitt, The War in Afghanistan , 360

[31] Schmitt, The War in Afghanistan, 360

[32] Solis, The Law of Armed Conflict , 22

[33] Charles Savage, “US Law May Allow Killings, Holder Says”, New York Times, March 5, 2012

[34] Solis, The Law of Armed Conflict , 203

[35] Solis, The Law of Armed Conflict, 203

[36] International Review of the Red Cross, “Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law”, Volume 90, Number 872, December 2008, 1002

[37] Solis, The Law of Armed Conflict , 205

[38] Solis, The Law of Armed Conflict , 206

[39] The ‘civilian’ who engages in an occasional hostile act can only be targeted at the time when he is actually engaged in the unlawful combatancy. This is not how they are targeted by drones.

[40] Jo Becker and Scott Shane, “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will”, New York Times, May 29, 2012,

[41] Becker and Shane, “Secret ‘Kill List’”

[42] Casualty Estimates: CIA Drone Strikes in Pakistan 2004-2013, The Bureau of Investigative Journalism, accessed March 13, 2013,

[43] Casualty Estimates, 5

[44] Peter Bergen and Katherine Tiedemann, “The Year of the Drone: An Analysis of US Drone Strikes in Pakistan, 2004-2010”, Counterterrorism Strategy Initiative Policy Paper, New America Foundation, February 24, 2010, 1-2

[45] Jane Mayer, “The Predator War”, The New Yorker, October 26, 2009

[46] Becker and Shane, “Secret ‘Kill List’”

[47] Solis, The Law of Armed Conflict , 258

[48] Solis, The Law of Armed Conflict , 258

[49] Bergen and Tiedemann, “The Year of the Drone”, 5

[50] Schmitt, The War in Afghanistan, 797

[51] Mary Ellen O’Connell, “Lawful Use of Combat Drones”, Congress of the United States, House of Representatives, Subcommittee on National Security and Foreign Affairs, Hearing: Rise of the Drones II: Examining the Legality of Unmanned Targeting, April 28, 2010, 5

[52] Wolff Heintschel von Heinegg and Volker Epping (eds), “Civilian Intelligence Agencies and the Use of Armed Drones”, International Humanitarian Law Facing New Challenges (Germany: Springer, 2007) 164

[53] These limitations on permissible force extend to both the quantity of force used and the geographic scope of its use. (O’Connell, 5)

[54] Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287

[55] BBC, Orla Guerin, “Pakistani civilian victims vent anger over US drones”, November 3, 2011

[56] Bergen and Tiedemann, “The Year of the Drone”, 5

[57] BBC, Orla Guerin

[58] Philip Alston, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, United National General Assembly, Human Rights Council, Fourteenth session, Agenda item 3, 21

[59] A former US intelligence official said it was unclear what protocols the CIA was following: “if it becomes a more generalised ‘kill anybody’ (approach), it degrades the notion we’re going after serious threats to the United States.”(Reuters/ Air Force Handout, 4)

[60] O’Connell, “Lawful Use of Combat Drones”, 6

[61] CNN, “US is world’s top user of targeted killings, UN says”, June 2, 2010

[62] Heinegg and Epping, “Civilian Intelligence Agencies  and the Use of Armed Drones”, 143

[63] CNN, “US is world’s top user of targeted killings”

[64] Heinegg and Epping, “Civilian Intelligence Agencies  and the Use of Armed Drones”, 160

King Faysal of Iraq


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