During the relentless campaign that preceded the 2012 US presidential elections, some of us had expected that the drone killings of Pakistanis, militants and innocents alike, would be a subject of discussion. That never took place. And, in fact, fresh drone attacks inside Pakistan’s Federally-Administered Tribal Areas (FATA) during the campaign months were treated by the mainstream media in the same way that the police blotter reports routine crimes in the neighborhood.

Under question is not only the legality but also the “effectiveness” of these repeated drone killings. It should be noted that the Bush administration carried out fewer targeted killings: of the 340-plus attacks in Pakistan as of October 2012, almost 300 occurred under the Obama administration. What is not surprising is that a number of those who were critical of the Bush administration’s targeted killings have since joined the Obama administration; rather than condemn targeted killing as the violation of international law that it is, some former critics are defending it, presumably as part of their job.

Imran’s Predicament

On Oct. 27, however, the drone attacks on Pakistani soil became a visible news item when Pakistani politician Imran Khan, a critic of the US drone strikes, was briefly delayed and questioned by US immigration officials in Toronto before being allowed to board a flight to New York. Imran Khan’s “notoriety” in Washington stems from the fact that he was one of the leading protestors who tried to enter the FATA along the border with Afghanistan as a fellow-traveler of the Code Pink group protesting against the routine US drone attacks.

Code Pink, an activist group that demonstrates for peace, is composed mainly of women. Members wear the signature pink color. Code Pink conducts marches, protests and high-visibility publicity stunts to achieve their goals. The name “Code Pink” is a play off of the US Department of Homeland Security’s color-coded alert system in which, for example, code orange and code red signify the highest levels of danger. Code Pink was most active in Egypt in 2011 following the Tahrir Square uprising.

Imran Khan and thousands of others were turned back by none other than the Pakistani military, who blocked the convoy just miles away from the border of South Waziristan - one of the more disturbed districts in the area. It is important to note that the Code Pink march into FATA was also denounced by the Tehrik-e-Taliban Pakistan (TTP), otherwise known as the Pakistani Taliban.

The incident points to the many fissures within Pakistani society at a time when the Obama administration has made the drone strikes the centerpiece of its counterterrorism program in Pakistan, Yemen and other places where the alleged terrorists are challenging the United States, in particular. To begin with, the Pakistani military, whose watchword is to protect Pakistani citizens, is working hand-in-glove with the Obama administration in killing Pakistani militants and innocents. Why so, one may wonder.

Let Them Do the Killing!

If all the little wheels inside the big wheel were visible, that could probably explain the “deals” that were consummated between Washington and Rawalpindi on this matter. What is certain, though, is that the Pakistan military, ostensibly committed to eradicating terrorists who kill the Americans across its border inside Afghanistan, is under a full-court press from the Obama administration to carry out military operations inside North Waziristan, from where, according to intelligence-linked media reports, America’s present enemy number one, the Haqqani group, operates.

Although Rawalpindi issues regular public denials of the Haqqani group’s existence in North Waziristan, it has failed to convince the Obama White House. As a result, the Obama administration continues to sit on the Pakistan military’s shoulders demanding military operations inside North Waziristan, or else the drone attacks will continue, perhaps more vigorously than ever before.

It is no gainsaying that Rawalpindi refuses to put more boots and machinery on North Waziristan’s soil and has instead chosen the other option, which is to allow the Americans to kill some Pakistanis, militants and innocents. This “generosity” of Rawalpindi has given the Obama administration a free hand to continue with the drone strikes and escalate such attacks whenever it chooses.

On May 20, writing for the Pakistani news daily, The Dawn, Hasan Zaidi gave readers a glimpse of the deal that was worked out at the highest military level between the United States and Pakistan. He said: “Secret internal American government cables, accessed by Dawn through WikiLeaks, provide confirmation that the US military’s drone strikes program within Pakistan had more than just tacit acceptance of the country’s top military brass, despite public posturing to the contrary. In fact, as long ago as January 2008, the country’s military was requesting the United States for greater drone back-up for its own military operations.

“Previously exposed diplomatic cables have already shown that Pakistan’s civilian leaders are strongly supportive – in private – of the drone strikes on alleged militant targets in the FATA, even as they condemn them for general consumption. But it is not just the civilian leadership that has been following a duplicitous policy on the robotic vehicles.

“In a meeting on Jan. 22, 2008, with US CENTCOM Commander Admiral William J. Fallon, Army Chief General Ashfaq Kayani requested the Americans to provide ‘continuous Predator coverage of the conflict area’ in South Waziristan where the army was conducting operations against militants. The request is detailed in a ‘Secret’ cable sent by then US Ambassador Anne Patterson on Feb. 11, 2008. Pakistan’s military has consistently denied any involvement in the covert programme run mainly by the CIA.” Zaidi pointed out, however, that “Gen Kayani’s request for ‘Predator coverage’ does not make clear if mere air surveillance were being requested or missile-armed drones were being sought.”

Sitting Tight on “Tight Screw” - Why?

There could be more than one reason why the Pakistan military, the protector of Pakistani citizens, has opted to allow the killer drone strikes. To begin with, Rawalpindi continues to claim that it is “preparing” for a military attack, “Operation Tight Screw,” in North Waziristan. This is an ongoing promise, with no deadline laid down. Despite occasional issuance of Rawalpindi’s intent to “satisfy” Washington’s demand for military operations inside North Waziristan, neither has Operation Tight Screw been made operative, nor have the drone strikes stopped. So, what is Rawalpindi’s gig? What is it that made Rawalpindi subservient to these evidently illegal killings of Pakistanis by a distant foreign power?

Contrast this with Rawalpindi’s angry reactions and the countermeasures it implemented to make the Americans “pay” last November, when a US attack along the Pakistan-Afghanistan border killed at least two dozen Pakistani soldiers lodged in an outpost.

Citing those who are in the thick of things in an Oct. 31 article, “Why Army operation in North Waziristan is so risky,” in the Pakistani news daily, The News International, MAK Lodhi points out that “North Waziristan is infested with extremists of all shades and hues, of nationalities, even that of the US.” Lodhi quotes unnamed Pakistani military officers posted in North Waziristan: “We live in a barricaded camp and when we move out for the construction of a road we go well-equipped and under the cover of armored vehicles. We wear a different uniform, not the regular pigmented army fatigue. It indicates to militants that we are involved in road construction under the Frontier Works Organization and we are not regular army troops.”

In other words, it is reasonable to say that the Pakistan military, afraid of losing many of its troops in a likely-to-fail mission in North Waziristan, has chosen the better part of valor, and has allowed the Americans to rain in Hellfire missiles from air to kill those “extremists of all shades and hues.” Fair enough, but wait. That could be only one of the reasons.

The other reason is that like the Americans, Pakistan’s military has separated “good terrorists” from “bad terrorists.” Needless to say, measured by Rawalpindi’s yardstick all those terrorists the Americans want to kill are not necessarily “bad terrorists.”It has been documented over and over again that Rawalpindi has provided shelter, and even money, to groups of terrorists who do the “dirty work” the Pakistan military cannot do openly in neighboring countries.

Another reason is that the residents of FATA are mostly Pushtuns, and they consider the Afghan Pushtuns battling US/NATO troops in their territory as their brethren. Moreover, the FATA residents, the Pakistani Pushtuns, consider themselves pretty much independent of Islamabad’s “meddling” and want to keep things that way. If the Pakistan military, most of whom are Punjabis, try to use Pakistan’s military might to subdue them, these Pushtuns do have the capability to make Islamabad, Karachi, Rawalpindi and other cities and areas of Pakistan mighty unsafe. Hence, one may add, Rawalpindi has “good reasons” to be reluctant to soil its hands with Pakistanis’ blood and, hence has allowed the Obama administration to “take care of the business.”

But there are problems. To begin with, within the Zardari administration there are some who are publicly expressing a great deal of discomfort over the drone killings. Last April, the Pakistani media reported that during his meeting with US Special Envoy to Afghanistan and Pakistan Ambassador Marc Grossman, who called on him at Aiwan-e-Sadr, President Asif Ali Zardari had urged Washington to stop the drone attacks and find alternatives.

On Sept. 27, Pakistan’s Foreign Minister Hina Rabbani Khar, responding to a question at the Asia Society in New York, called the drone strikes inside Pakistani territory “illegal, unlawful and counterproductive,” saying they were among the reasons for the rise of anti-Americanism in Pakistan.

However, neither Pakistan’s president nor its foreign minister went beyond making those general remarks, and it was left to Interior Minister Rehman Malik to address the key subject of the killing of innocent Pakistanis by a foreign power without seeking the host country’s permission to do so. On Oct. 19, Rehman Malik told the Pakistani media that according to Islamabad’s calculations, the number of drone attacks in recent years totaled 336, of which 96 were launched from Afghanistan. He said there are no exact statistics on the number of people killed in the drone strikes in Pakistan. Estimates vary from about 2,500 to more than 3,000 victims, as many as 174 of them reportedly children.

The latest US study, Living Under Drones: Death, injury, and trauma to civilians, researched by International Human Rights and Conflict Resolution Clinic (Stanford Law School) and Global Justice Clinic (NYU School of Law), published in Sept. 2012, claimed that only 2 percent of drone strike casualties in Pakistan are top militants. Researchers at Stanford and New York University also claim that the American drone strike policy in Pakistan has not helped Washington achieve its goal of curbing terrorism in the region. The civilian deaths that mark practically every drone strike on terror suspects in Pakistan’s tribal regions have achieved the opposite goal: locals hate the United States because of the unceasing fear that death may come from above at any moment.

Is the Killing Legal? Is It Effective?

Beyond the hate toward the United States generated within Pakistan or the killing of innocent people tacitly approved by Pakistani authorities, one wonders whether the drone killings are truly effective. Is it possible that these killings are creating more determined anti-America jihadists? Or, is it likely that what the Obama administration wants Americans to believe is indeed true? Are these killings are making the United States, and the world, safer?

Unlike Washington and Rawalpindi, who both seem to agree that this is the least dangerous and the surest way to get rid of terrorists lodged in a difficult terrain, there are some who consider that the drone attacks are doing just the opposite. Yulia Zamanskaya, writing in the Voice of Russia on Nov. 2 says: “Critics suggest that drone strikes are in fact politically counterproductive, lead to high civilian casualties, undermine the norms of international humanitarian law and encourage dangerous moral disengagement.”

Zamanskaya says the program can be viewed as largely counterproductive for two reasons. First, it can barely be said to result in the elimination of terrorist targets. She cited the Washington-based think tank, the New America Foundation, analysts, Bergen and Tiedemann, who said recently that “on average, only one out of every seven US drone attacks in Pakistan kills a militant leader. The majority of those killed in such strikes are not important insurgent commanders but rather low-level fighters.” Second, Zamanskaya notes, “drone strikes largely alienate and incite anger among the civilian population. That impinges upon America’s chances of winning the war; civilians who might have become supporters in some way, instead, become enraged recruits for the militants. So, terrorist attacks in Pakistan can be expected to rise proportionately as the drone campaign accelerates in the Waziristan region.”

Also on the table is the question of the legality of these attacks. According to one leading expert in the field, Chris Rogers who writes for the Huffington Post, “while the distinction between civilians and combatants in drone strikes is an undisputed requirement of international law, it is not so clear who counts as a civilian, or to be more legally precise, a non-combatant. Strictly speaking, civilians can be targeted in an armed conflict if and when they directly participate in hostilities, by picking up a gun to shoot a soldier, for instance. Members of armed forces or organized armed groups may also be targeted.”

Rogers continues: “The difficulty lies in distinguishing when a non-combatant civilian crosses the line into direct participation with or membership of an armed group, thereby becoming a potential target. In Pakistan, this distinction is even more difficult given societal and environmental factors such as the proliferation of weapons in tribal areas and mixing between civilian and combatant populations.” The targeting of potential terrorist-leaders based on “pattern of life” analysis also raises uneasy questions over the process of target differentiation. Adding to the controversy, the United States consistently refuses to clarify its target selection process.

Mary Ellen O’Connell, who holds the Robert and Marion Short Chair in Law and is a research professor of international dispute resolution at the Kroc Institute for Peace Studies at the University of Notre Dame, told CNN last August that both Presidents Bush and Obama have attempted to justify thousands of drone attacks as part of a “war” or “armed conflict.” But, she asks, is that correct?

O’Connell says: “The question must be answered in terms of international law. When the United States kills people in foreign, sovereign states, the world looks to international law for the standard of justification. In war, enemy fighters may be killed under a standard of reasonable necessity; outside war, authorities are far more restricted in their right to resort to lethal force.

“Independent scholars confirm that many drone attacks are occurring outside war zones. These experts know the legal definition of war, and they understand why it is important to know it: Above all, protecting human rights is different in war than from protecting them in peace.

“Admittedly, this dual standard for justifiable killing makes the law protecting the right to life more complicated than the law protecting other fundamental rights. Torture, for example, is absolutely prohibited in international law at all times, in war and peace. The law on killing is different. The human right to life codified in the International Covenant on Civil and Political Rights, to which the United States is a party, prohibits the ‘arbitrary’ deprivation of life. It does not prohibit absolutely all taking of life.”

But the Obama administration is not interested, nor is Pakistan’s military, to listen to these arguments. A policy has been etched in granite, and it does not matter whether it is legal or otherwise. During a press conference in India last June, his master’s voice, US Defense Secretary Leon Panetta said the United States would not stop drone attacks on al-Qaeda elements in Pakistan. Islamabad has repeatedly complained that the American drone attacks were violating Pakistani sovereignty. He stressed the fact that the United States plans to defend itself from al-Qaeda groups that seek refuge in Pakistan. “This is about our sovereignty, as well. The leadership of those who were involved in planning the 9/11 attacks are located in Pakistan, in the FATA,” he said.

There, you go, folks!

The author is South Asian Analyst at Executive Intelligence Review