Abstract Terrorising Terrorists – The jus ad bellum of drone operations in Pakistan by Tobias Ruettershoff

Over the last decade, Unmanned Aerial Vehicles (UAVs), or ‘drones’, have become the United States’ (U.S.) preferred military tool for fighting al Qaeda and other terrorist groups, used in all major military conflicts and crisis regions of the world, such as Iraq, Libya, Somalia and Yemen, yet mostly in the Afghanistan-Pakistan region. Although their use as a military tool is only part of a wider, highly emotional debate about the use of force against non-state actors across national borders, global attention has focused on such operations. After denying for many years that these attacks do take place, the U.S. administration has recently admitted to conduct such operations, defending them as a legal and legitimate response to terrorist threats. The chapter finds that amidst the heated discussion about the use of drones, it is often forgotten or misunderstood in which ways the state can react to transnational terrorism.

In the first step of the analysis, it is discussed whether the laws of war can be applied to the transnational fight against terrorism or if it has to be seen under human rights law, which would put much stronger restraints on the use of force. It is argued that the law-enforcement paradigm is very difficult in dealing with terrorist threats originating from areas which are no longer under government control. On the one hand, law-enforcement agencies of the victim state are often unable to operate in foreign countries. On the other hand, if the host government attempts to use law-enforcement measures, the backlash from the militants is more likely to create more of a quagmire than if a concerted and limited military action, such as a drone attack, were taken. Therefore, it is the most sensible option to assess the drone strikes is under the laws of armed conflict and not human rights law, as it is too domestic in nature to apply to the fight against international terrorism and does not allow appropriate means.

This raises important questions about the violation of Pakistan’s sovereignty, as Article 2 (4) of the UN Charta prohibits the “use of force against the territorial integrity or political independence of any State”. An exception to this prohibition is Article 51, which allows self-defence against an armed attack, yet it is not clear whether any action of self-defence has to be in response to an armed attack imputable by another state. In the traditional interpretation of the ICJ and customary international law, Article 51 does not warrant a right to self-defence against non-state actors, unless they are imputable to another state. Yet, as it is argued in the chapter, in recent years there has been change. Article 51 is now more and more interpreted in the way that states must be able to defend themselves against terrorist threats, hence allowing transnational use of force against terrorists. However, to limit risk of abuse against Article 2 (4), the strict rules of customary law need to be applied. These are the principles of immediacy, necessity, and proportionality.

Applied to the cross-border use of drones by the U.S. military against terrorists based in Pakistan, the chapter maintains that the overwhelming majority of U.S. incursions into Pakistani territory are illegal under international law because they do not meet these strict constraints of customary international law. However, targeted killings are not per se illegal, if the United States can prove – in each individual case – that an operation meets the requirements.

Syria: “Boots on the Ground” After All? By Tobias Borck

We will have “no boots on the ground” in Syria – that is the great mantra governments in Washington and London are repeating at almost every possible occasion. Even when American and British military action against Syria was imminent in September 2013 so as to punish Bashar al-Assad’s regime for the use of chemical weapons, Barack Obama and David Cameron made clear that putting “boots on the ground” was not up for discussion.

Just last week, in his speech at West Point, Obama felt compelled to tell the world again that he had “made a decision that we should not put American troops” into Syria and that he believed “that is the right decision.” Nobody disagrees, not even the Syrian opposition. They may be demanding more anti-tank and anti-aircraft guns, they may even welcome Western air support, but they certainly don’t want American or British soldiers to take on the Assad regime on their behalf.

But there may come a time when all this insistence of “no boots on the ground” no longer matters. There may come a time when Obama and Cameron (or their successors) send their uniformed men and women into Syria after all – or at least vote in the UN Security Council that other nations should send theirs. When these “boots”, wherever they may come from, are placed “on the ground” in Syria, it will not be to fight Assad. That remains – and will most likely remain – out of the question. Instead, it will be to keep the peace, to stabilise Syria and to make sure that a political settlement can be implemented.

The war in Syria will end with a political solution, no side can win a military victory. Obama and Cameron repeat that fact almost more frequently than their “no boots” mantra. In fact, there is wide-spread agreement within the international community that a political settlement is the only way to end the nightmare of the Syrian people.

Let us cast our minds forward and imagine a scenario where such a political settlement has actually been reached. The regime and the opposition sign a document, the newspapers print pictures of handshakes. But what next? Syria is in ruins. Aleppo, Homs, Damascus’ suburbs – everything has been reduced to rubble after years of barrel bombs, shelling and gunfire. Millions of Syrians are displaced, everyone has experienced monumental loss and is irrevocably scarred for life, physically or mentally. And there are inevitably some groups, probably the radical Islamists, that are not done yet, that want to keep killing and destroying.

This future Syria will need serious state-building and some kind of peacekeeping force to provide the necessary security. America and Britain will not have to shoulder this task alone; that is the responsibility of the UN – Russia, the EU, the Arab League, perhaps even Iran will need to help. But it may not be enough to deploy a few thousand Blue Helmet troops from India, Nepal, Indonesia or Spain as in the UN’s ongoing peacekeeping mission in Lebanon. This is not to disparage the quality of these troops or their achievements. But if groups like al-Qaeda’s affiliate in Syria, al-Nusra, or the even more extreme Islamic State of Iraq and the Levant (ISIS) linger on, American and British soldiers may have to step up.

American and British militaries are the only ones with the necessary training, equipment and experience to battle an opponent like ISIS. They did it successfully during the surge in Iraq in 2007-08 when they fought al-Qaeda, ISIS’s predecessor, into a corner. The Iraqi case should also be a warning. Since American and British troops have left Iraq, radical Islamists have experienced their own little surge. ISIS currently controls parts of Fallujah and Ramadi and suicide bombers terrorise the people of Baghdad. The Iraqi military, although trained by America and Britain and outfitted with Apache helicopters, drones and hellfire missiles, has made little progress against the extremists.

There will be “no boots on the ground” – this mantra will hold true as long as the war rages in Syria. But when the agony of the Syrian people finally ends and a political solution to the conflict is reached, it may become untenable. A UN peacekeeping mission may be needed to help rebuild the country and American and British soldiers may have to do the heavy lifting, to once again take up the battle with radical Islamists. We should be ready.

Andrew Rathmell’s View – Libya: How to build a stateless state?

Two years after the death of Muammar Qaddafi, Libya’s transition is not going well.  The headlines  tell a depressing story: the Prime Minister (briefly) kidnapped by his own security services; daily assassinations, bombings and robberies; militias and secessionists in the east blockading oil facilities; and the General National Congress (parliament) in disarray.  In the coffee shops and dilapidated government offices where the Tripolitanian middle classes and government officials gather, there is talk of stasis and disappointed expectations.

None of these travails are surprising in the context of a bloody transition from a long-entrenched dictatorship.  For a successful transition, Libya needs to work towards an internal political settlement that balances the interests of its different regions, and to build state structures that are able to enforce the rule of law and administer the economy in a way that serves the wider population rather than, as under Qaddafi, selected elites.

The International Community is responding to this challenge creditably, with the UN, World Bank, EU, US and numerous individual countries rushing to offer assistance.  Keen to see a stable Libya emerge which can get oil production back on track, control its porous borders and crack down on homegrown jihadists, they are providing a range of technical assistance to the Libyan security sector and civil service.  By building up these government institutions in the context of a constitutional process, goes the logic, a duly elected Libyan government will be able to get a grip on the country.  It seems “obvious” that, in a country with a small population, abundant oil wealth, and a lack of deep sectarian or ethnic divisions, this standard statebuilding formula should work.

However, there is a contradiction at the heart of the Libyan state-building project.  Unlike many of its neighbours, modern Libya has deliberately tried not to build a state.  While Libya appears to have the trappings of modern statehood (ministries, flags, airlines, security forces), at the deeper conceptual level, the country has eschewed real state-building.  This was most explicit during Qaddafi’s rule when he put in place a system of “permanent revolution” and deliberately undermined state institutions. But even under the monarchy, the regime only constructed the façade of statehood.  The central administrative and coercive institutions were built purely to protect a narrow elite rather than to support a wider programme of state-building.

Historians have argued that this aversion to statebuilding derives in part from Libya’s disastrous experience with modern statehood under the brutal Italian occupation and in part from the relatively recent and rapid process of urbanisation.  Whatever the cause, the Libyan predeliction for “stateless statebuilding” means that an overly simplistic approach of transferring international skills, equipment and organisational structures is unlikely to succeed.

Libya’s international allies will need to avoid the all too common tendency to import templates from other jurisdictions and Libya’s leaders will need to recognise that they cannot “buy” a modern state overnight.  They will need to focus as much effort on the essentially political tasks of linking state structures to the population as on the technical tasks of bolstering government institutions.  It will be a fascinating, if fraught, journey.

For a recent update, see David Hammond’s blog at: http://9bri.com/human-rights-in-libya-interview-and-comment-on-the-deaths-in-tripoli-from-the-national-council-for-civil-liberties-and-human-rights/