DECLARACIÓN INICIAL (Art 371 C.P.P.)

The question of whether the US drone programs in Afghanistan, Pakistan, Yemen, Somalia, and against the ‘Islamic State’ in Iraq and Syria, comply with the jus ad bellum, is certainly a complicated one. The United States has relied on both the principle of consent and the right to resort to force in self-defence as justifications for armed drone strikes against suspected terrorists in the aforementioned states. The drone programs have been controversial, and the legal bases of both justifications

proffered by the United States have been questioned by commentators, in particular the heavy reliance placed on the principle of consent.

These previous two chapters have illustrated how a valid consent by the host state bars any claim by the host state that the state resorting to force is acting in violation of the jus ad bellum, even in those instances where the use of force would have been illegal if carried out by the consenting state itself.

Of course, a valid consent does not in any way justify excessive force or force that contravenes the fundamental principles of international human rights law.

Furthermore, the fact that consent is often shrouded in secrecy, as is the case with Pakistan in particular in relation to US drone strikes in the FATA region, raises the pertinent issue of whether consent should be stated publicly, or perhaps even formalised in writing and deposited with the UN Secretariat (as is the standard practice with bilateral and multilateral treaties) in order to be valid. Such measures would certainly bring a degree of transparency and accountability to the use of force, including current and future drone strikes carried out by the United States.

The debate regarding the scope of the right to self-defence in respect of the use of force by the United States against suspected terrorists has been going on since the 9/11 attacks, and is far from settled. Both the application and the precise threshold for the use of force in self-defence remain uncertain. Nonetheless, it is arguable that extraterritorial strikes using armed drones, absent the consent of the host state, may only be founded on lawful self-defence if the threat or use of force against the victim state amounts to an armed attack. The threat of a sporadic, isolated attack is clearly insufficient to amount to an armed attack for the purposes of engaging the right to resort to force in self-defence.

If these previous two chapters illustrate anything, it is that the jus ad bellum is not static. It does not exist in a vacuum. In particular, the right to self-defence has undergone significant changes in the years since 9/11, the most significant of which being the general acceptance that an armed attack perpetrated by a non-state actor may engage Article 51 of the UN Charter. Of equal importance is the increasing acceptance of the ‘accumulation of events’ doctrine, which, by permitting a victim state to weigh the cumulative effect of a series of relatively small-scale attacks in order to determine if the threshold for engaging Article 51 has been satisfied,

threat posed by transnational terrorism, allowing a victim state to act against the threat posed by terrorism in a manner that is compliant with the jus ad bellum.

The main problem, highlighted in the present chapter, is the paucity of evidence in the public domain, which often precludes a definitive determination on the legality of US drone strikes under the jus ad bellum. The involvement of the CIA, with its ‘neither confirm nor deny’ policy, in targeted killing operations in Pakistan and Yemen, the lack of information released by the US Administration, and the tendency of the US Administration to pronounce the legality of the US drone program in occasional speeches, such as Koh’s ASIL speech in 2010 and Obama’s May 2013 speech at the National Defense University, leaves a lacuna which can be filled by idle speculation as to the legal justifications being relied upon by the US in respect of its drone program in general, and specific targeting operations, particularly those occurring outside zones of active hostilities.

This lack of transparency is unfortunate, for it facilitates an accountability vacuum, and opens the United States to criticism that its drone program operates in flagrant breach of settled principles of international law, including those forming the jus ad bellum. The only effective remedy for such deficiencies in transparency and

accountability, it is respectfully submitted, is for the US to be much more forthcoming (subject of course to considerations of national security) with regard to the legal justifications underpinning the extraterritorial use of force by means of targeted drone strikes. The transfer of responsibility for the US drone program in Pakistan and other states from the CIA to the US military, presently underway, is a welcome step in the right direction. However, greater accountability can only be achieved by the

establishing of independent oversight mechanisms, either by the executive, or, preferably, the judiciary. President Obama did indicate in his May 2013 speech that consideration would be given to establishing such mechanisms. It is regrettable that little has been achieved in this regard over two years later.62

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