For years, Pakistani governments and its military have publicly opposed U.S. drone strikes carried out within Pakistani territory. Only last week, Pakistan's Parliament demanded an end to drone strikes that violate Pakistan's "sovereignty, independence and territorial integrity" And why should they not be infuriated? By most estimates drone strikes are alleged to have killed at least a few hundred innocent Pakistani civilians, including children as young as eight, and injured over a thousand others.
This begs 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? To be sure, the government could argue that it is not completely ineffective against the drone attacks: it did recently close Shamsi air base to protest against the NATO strikes that killed Pakistani soldiers. It could also provide a few superficial defenses to justify inaction: Pakistan is a poor country and therefore cannot afford to engage international lawyers or organizations or that any such action will be futile in the face of U.S. hegemony. However, neither alibi can withstand scrutiny.
Pakistan has routinely employed resources on international legal matters when there is political will to do so. In 1999, Pakistan submitted a dispute to the International Court of Justice against India regarding an airspace incident. In 2009, Pakistan proposed a resolution at the U.N. Human Rights Council to prevent "defamation of religion" or blasphemy. Last year, Pakistan sought to engage the International Court of Justice in another dispute against India concerning water rights. And Pakistan, over the years, has invested significant resources to highlight the Kashmir problem at the U.N.
In fact, the Pakistani government does not even need to expend much money to raise the issue of drone strikes. A number of Pakistani lawyers are well versed in international law. Lawyers often take up cases pro bono and submit amicus briefs in support of a country's case without charge. In fact, international human rights NGO's working with local Pakistani lawyers; most notably, the British charity Reprieve, has been providing legal representation to civilian victims and commenced litigation against the British Foreign Secretary for assisting drone strikes.
Similarly, the argument that international legal discourse would be futile in constraining use of force by a superpower is equally unpersuasive. Any minimally competent government knows how international law can be utilized to decisively engage in "lawfare", that is to challenge stronger opponents on the basis of legal argument. In fact, the detainee scandal at Abu Ghraib is a perfect example of how law and the media was used by civil libertarians and human rights groups to embarrass an administration that appeared otherwise unconstrained in absolute pursuit of national security. In fact, history is replete with examples of powerful states being persuaded to abandon uses of force even against their unambiguous self-interest. At the turn of the 20th century, "gunboat diplomacy" was frequently used by European powers to compel sovereign debt repayments from Latin American debtor states. However, through the efforts of individuals such as Luis Drago and Elihu Root in the Second Hague Peace Conference, these same powers agreed to discourage force as a means to recover debt payments even though this had hitherto proven itself a convenient mechanism.
Paradoxically, there appears to have been more meaningful discourse and criticism concerning the legality of U.S. drone strikes within American academia and policy circles in days than there has been in almost eight years in Pakistan's corridors of power.
The point here is not that the U.S. would immediately halt drone strikes if the Pakistani government challenged it through international law. It would most likely not. Over time, however, legal action would undoubtedly mobilize debate at the U.N., and most definitely reduce the near unlimited autonomy that the U.S. enjoys at present - targeting decisions may need to be better explained, evidentiary standards may need to be clearly determined, compensation may need to be provided to victims and so on. Such accountability would even provide valuable information to U.S. citizens concerned about the actions of their executive branch when it acts under a cloak of secrecy to target U.S. citizens such as Anwar al-Awlaki.
It is possible that if such discourse were instigated, Pakistan may in due course decide that some drone strikes are beneficial because they do not result in civilian deaths, as the U.S. often claims, and therefore should be permitted. The goal is not to achieve an "either-or" outcome that permits or disallows drone strikes absolutely. Instead, it is to make such uses of force subject to a clearly articulated, transparent, and democratic framework that promotes accountability as to the legal and evidentiary basis on which each strike is carried out, so as to minimize loss to innocent life and property.
However, the utter lack of any Pakistani legal challenge whatsoever ensures that the United States need not worry. Successive U.S. administrations can continue to assert the rather simple Thucydidean justification of using force in another state's territory half-way across the world whenever such a state is "unable or unwilling" to suppress harm to the U.S in self-defense, regardless of the costs this may impose on the targeted state's citizens. And why should it not? Its political responsibility is limited to the national security of its territory, not to Pakistanis and for all intents and purposes, there are grounds to believe that Pakistani leaders have not only consented to, but encouraged such strikes.
As it stands, because these drone strikes kill people in regions that provide no political or economic capital to the Pakistan elite residing in cities, the government can well afford to engage in cheap talk on national sovereignty whilst doing nothing to uphold that sovereignty. Although Imran Khan promises change, for now, the Pakistani government quietly dodges its sovereign responsibility to protect its citizens and territory.
Dawood Ismail Ahmed is a Pakistani lawyer and doctoral candidate in international law at the University of Chicago. He is also a research associate at the Center on Law and Globalization.
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