Pre-emption, terrorism, and combat drones: Law and politics of security

Territorial security is of paramount importance for states. It determines and ensures the existence of states, and therefore, they do not happily entrust the decisions to use force to international institutions guaranteeing peace and security. Such reluctance on the part of states became even more discern­ible against the backdrop of the September 11 terrorist attacks, as these attacks brought about serious challenges for the laws governing the use of force among states.²Many states, such as the US, Russia, France, Israel, Turkey, and India, expressed their will to eradicate terrorism through pre-emptive wars. For instance, the Russian Defence Minister Sergei Ivanov laid down that pre-emptive use of force has become a compelling ‘reality’ in the contemporary world.³Former French President Jacques Chirac stressed that France is ready to launch a first strike against any state supporting terrorists to attack his country.⁴And Indian External Affairs Minister Jaswant Singh suggested that every state has the inher­ent right to launch pre-emptive strikes against the brewing security threats and that this right must not be limited to one state. In contemporary times, deterrence is synonymous with pre-emption, he stressed.⁵In these contexts, there seems to be an emerging understanding that if not backed by the strategy and threat of pre­-emption, deterrence may lose its utility to counter terrorism.

Yet it is important to bear in mind that pre-emption is an elusive term. Its meaning changes with the change of the discipline in which it is stud­ied. Normative theorists believe that an armed attack can be pre-emptive when launched to forestall ‘an imminent attack on the pre-emptor’. Strategic thinkers, however, employ the term as an armed initiative undertaken to gain an edge over the enemy through a surprise first strike.⁶In international law, meanwhile, notions like anticipatory self-defence and preventive self-defence also exist along with pre-emptive self-defence. In general, all of them allude to any measure involving the use of force to forestall a security threat. In essence, however, these notions entail different meanings. For instance, anticipatory self-defence involves the use of force in advance of an armed attack. It does not, however, qualify the fact of the imminence of a security threat in terms of the time continuum. Inversely, pre­emptive self-defence includes the qualification of the imminence of an impend­ing attack. In this context, the qualifying measures determine the tangibly hostile movements of the adversary, the embodying severity of harm, and the distance from the territorial borders.⁷

State violence in self-defence is a measure to repel an impending attack or avenge an injury. The armed forces and critical infrastructure of the enemy state are targets of such violence. In contrast to this, terrorist violence, in its concep­tion and character, is mostly directed against civilians. The killing of a maximum number of civilians determines its success. A loss of no substantial number of civilian lives denotes the failure of a terror attack.⁸For terrorists, the intended killing of civilians, moreover, is a means to achieve certain ends, especially strik­ing fear among civilians.⁹ Targeting and killing of civilians in terrorist violence pose a serious challenge to state security. Religiously induced terrorist violence, however, renders the violence even deadlier. Indeed, “it is the zeal which nurtures the propensity for apocalypse”,¹⁰ as Al-Qaeda terrorism “makes the identification of [the] opponent and any realistic assessment of the danger impossible. This intangibility is what lends terrorism a new quality”.¹¹

Furthermore, terrorists, unlike state actors, do not abide by the principle of concluding a violent campaign within a certain time frame. They prefer to launch violent attacks again and again.¹² In addition, they do not seek any direct military confrontations. They launch sporadic attacks against soft targets, inviting excessive military responses over an extended period of time.¹³ Terrorists, moreover, not only threaten the security of states; they also pose a danger to the safety of one’s nationals abroad. Any conflict with the terrorists, therefore, is assumed to undermine the temporal and geographical dimensions of violent conflict, which, in turn, makes it difficult to curb terrorism within a given timeframe. In this situation, it is possible that while living in times of democracy and the rule of law, we may also ‘live in an age of terror’ for longer periods of time.¹⁴ One cannot deny this fact, at a time, when we see the number of terrorist outfits continue growing with the passage of time.

With regard to the US campaign to curb terrorism, one may assume that the political and military logic of the ‘war on terror’ was driven by the notion that the use of force shall follow the terrorists wherever they are spotted. Certainly, terrorists continue operating from within numerous states, and their intentions to harm the US and its nationals abroad are quite clear. To hunt down terrorists, thus, combat drones emerged as an ever-ready weapon. As the former CIA Chief suggested that combat drones are the only viable tool to kill Al-Qaeda leaders. They would follow these terrorists in Yemen, Somalia, and other Middle Eastern states. “We can’t let them escape. We can’t let them find hiding places”, he emphatically emphasized.¹⁵ The US meanwhile also believes that it has the right to hunt down the leaders of Al-Qaeda and its associated forces due to the continuous threat they pose.¹⁶

That is why, we see that in 2002, the Bush administration attempted to recalibrate the requirement of imminence to the new realities of the international security environment. According to it, given the manifest ability of terrorists, it is imperative to consider their intentions and capability to inflict damage at a scale which is no way less than the state actors, it outlined.¹⁷ Subsequently, different US administrations also justified their counter-terror operations outside the areas of active hostilities within the framework of self-defence. As the former Legal Adviser to the US government, Harold Koh, in his speech at the American Society of International Law underlined that the US is locked into an armed conflict with terrorists across the globe. Therefore, it “may use force consistent with its inher­ent right to self-defence under international law”, he suggested.¹⁸ Here, the Legal Adviser categorically refers to ‘the inherent right of self-defence’, which can be construed as an implicit call for pre-emptive self-defence. Such a conclusion was reached due to the facts that the US is at war with “a nimble and determined enemy that cannot be underestimated”,¹⁹ for Al-Qaeda and its associated forces are still plotting to kill Americans. The disruption and destruction of Al-Qaeda and its affiliates is the top priority of the US.²⁰ According to this argument then, security threats perpetrated by terrorists shall remain an imminent threat for the security of states.

Due to their extensive use against terrorists, combat drones are rapidly emerging as an essential tool of contemporary war­fare. Their effectiveness in striking down the intended targets in areas difficult to access for the soldiers and fighter jets is marvelous. They help in achieving the objectives of warfare even without the fear of loss of human lives on one end of the violent spectrum. It seems, thus, that states prefer to rapidly build as well as deploy combat drones in warring and war-preparedness scenarios, in contrast to other violent aerial technology alternatives like long-range missiles and fighter jets. This is happening when the contemporary practices in the non-state security threat projection realm show that terrorism as a violent tactic is here to stay, and so the usage of combat drones to hunt down these terrorists.

Likewise, the post-September 11, 2001, era is also marked by plenty of shifts in understanding as well as interpretive practices of states invok­ing laws of war in self-defence. Whereof numerous legal scholars did treat it as an instance of a ‘constitutional moment’, with a potential to alter the course of jus as bellum.²¹ This potential speaks of the trend in displacing the importance of attributing the harm to the state as a primary requirement in the recourse to the use of force. Such an assessment of the state practice, however, now underlines the fact that pre-emptive self-defence against non-state violent actors is perhaps emerging as a separate category of laws of recourse to war, whereof justificatory formulas like ‘unwilling or unable’ and ‘harbouring’ are taking primacy over other subsidiary norms enshrined in the ‘state responsibility and complicity’ frameworks. The mere presence of terrorists in a certain territory may potentially serve as a justification to strike first. Perhaps this is a pre-emptive security norm emerging out of the practice vis-à-vis combating terrorism.

About the Author

Imdad Ullah

The author is an Assistant Professor at the Centre for International Peace and Stability (CIPS), National University of Sciences and Technology (NUST), Islamabad.

Note: This excerpt is part of Terrorism and the US Drone Attacks in Pakistan: Killing First, a monograph published by the Routledge and is available at https://www.taylorfrancis.com/books/mono/10.4324/9781003145486/terrorism-us-drone-attacks-pakistan-imdad-ullah