In his first press conference on February 9, President Obama tried to justify attacks by U.S. Predator and Raptor drones that are killing hundreds of Pakistanis in their own country. He explained that the goal of these attacks is to "root out safe havens for terrorists" in Pakistan. But the drone strikes are themselves acts of terrorism, attacks on civilian targets to achieve political objectives, and they are undermining Pakistan’s own counter-terrorism strategy, as Foreign Minister Qureshi told Ambassador Holbrooke on February 10. Fortunately, international law provides valuable (and binding) guidance in the form of the principles of necessity and proportionality. These principles were defined by the Caroline case, which stemmed from U.S. support for terrorism against Canada in 1837.
Following the American Revolution, Upper Canada (now Ontario) was largely settled by a succession of immigrants from the United States. This began with about 7,000 United Empire Loyalists fleeing the Revolution, followed by "late-Loyalists" attracted by cheap land grants, who eventually outnumbered the original Loyalists by about ten to one. The doubtful loyalties of this population led members of Congress in Washington to speculate that the annexation of Upper Canada to the United States would be a "mere matter of marching." But the British government understood the vulnerability of its Canadian possessions and kept more troops on the Canadian border than anywhere else in the British Empire throughout the 19th century. The United States annexed three quarters of Mexico, but none of Canada.
William Lyon Mackenzie was a newspaper publisher and a reformist legislator in Upper Canada who campaigned for Britain to delegate real power to the Colonial Assembly. After being twice expelled from the Assembly, he was elected the first mayor of Toronto in 1834 and re-elected to his Assembly seat. After his Reform Party lost the 1836 election, he lost patience with peaceful reform and became an advocate of armed rebellion.
In 1837 the British garrison in Toronto was sent to fight a rebellion in Lower Canada (Quebec) and MacKenzie took the opportunity to march on Toronto with a rag-tag army of 400, mostly farmers from the surrounding area. The British governor called out the local militia, and enough of them answered his call to outnumber and defeat the rebels in a bloody battle at Montgomery’s Tavern.
MacKenzie and 200 rebels regrouped on Navy Island in British territory on the Niagara River, and declared independence as the Republic of Canada on December 13, 1837. MacKenzie toured Buffalo and upstate New York, raising men and arms, which were ferried over to Navy Island from Fort Schlosser, New York (present day Niagara Falls) on an American steamer named the Caroline. The rebels had several cannons and kept up sporadic fire, inflicting some damage and a few casualties.
On December 29, 1837, a British boarding party of 45 men crossed the river at night in small boats and captured the Caroline at Schlosser, killing an American, Amos Durfee. The British cut the Caroline loose, towed it into the current, set it on fire and left it to drift down the river. A contemporary newspaper depicted the fiery wreck tipping over Niagara Falls, but later research suggested that it broke up and sank before that. Two weeks later, the British attacked Navy Island and defeated the rebels, but demands for reform forced the British to grant Canadians greater autonomy and led eventually to Canada’s post-colonial dominion status.
The passions aroused by the Caroline incident on both sides of the border brought Britain and the United States to the brink of war as it raised the fundamental question of how a country can legitimately respond to cross-border fire or attacks by irregular forces that the government of the neighboring territory is failing to prevent. The British claimed the right to cross into American territory to conduct a "preemptive" military operation to prevent further men and arms reaching the rebels on Navy Island, while Americans universally viewed this as an act of war and a violation of U.S. sovereignty.
President Van Buren sent Major General Winfield Scott to Buffalo to discourage Americans from launching further attacks on Canada, but Britain and the United States remained at a diplomatic impasse for more than four years. To complicate matters further, American authorities arrested a Canadian named Alexander McLeod who claimed to have taken part in the raid and a court in New York State put him on trial for the murder of Amos Durfee.
But powerful interests in both countries were eager to resolve the dispute. British bankers wanted to invest in the United States and American land developers wanted British capital. Other important matters, such as the border of Maine and New Brunswick and the disposition of Oregon, also remained unresolved due to the diplomatic stand-off. Finally, in 1842 the British government sent Lord Ashburton, a senior partner in Barings Bank, to Washington to negotiate with the new Secretary of State Daniel Webster. They exchanged several letters and Ashburton eventually expressed his government’s regrets for the incident based on Webster’s definition of the relevant customary international law, which went as follows: "(The U.S. Government) does not think that that transaction can be justified by any reasonable application or construction of the right of self-defence under the laws of nations. It is admitted that a just right of self-defence attaches always to nations as to individuals, and is equally necessary for the preservation of both. But the extent of this right is a question to be judged of by the circumstances of each particular case, and when its alleged exercise has led to the commission of hostile acts within the territory of a Power at peace, nothing less than a clear and absolute necessity can afford ground of justification…
"Under these circumstances, and under those immediately connected with the transaction itself, it will be for Her Majesty’s Government to show upon what state of facts, and what rules of international law, the destruction of the Caroline is to be defended. It will be for that Government to show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation. It will be for it to show, also, that the local authorities of Canada, even supposing the necessity of the moment authorized them to enter the territories of The United States at all, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it. It must be shown that admonition or remonstrance to the persons on board the Caroline was impracticable, or would have been unavailing; it must be shown that day-light could not be waited for; that there could be no attempt at discrimination between the innocent and the guilty; that it would not have been enough to seize and detain the vessel; but that there was a necessity, present and inevitable, for attacking her in the darkness of the night, while moored to the shore, and while unarmed men were asleep on board, killing some and wounding others, and then drawing her into the current, above the cataract, setting her on fire, and, careless to know whether there might not be in her the innocent with the guilty, or the living with the dead, committing her to a fate which fills the imagination with horror. A necessity for all this, the Government of the United States cannot believe to have existed.
"All will see that if such things be allowed to occur, they must lead to bloody and exasperated war."
Webster’s words defined what have since been recognized in international law as the principles of necessity and proportionality. His precise wording has been cited in subsequent cases, in particular the "necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation" and that the action taken "must be limited by that necessity, and kept clearly within it." Perhaps most notably, the International War Crimes Tribunal at Nuremberg cited the Caroline case as an established legal precedent in rejecting the defendants’ claim that Germany’s invasion of Norway was an act of preemptive self-defense. The judges rejected the claim that "Germany alone could decide…whether preventive action was a necessity, and that in making her decision her judgment was conclusive." The Tribunal ruled that this "must ultimately be subject to investigation and adjudication if international law is ever to be enforced."
Applying Webster’s standards to the drone attacks in Pakistan, it is clear that President Obama is not faced with an "instant" or "overwhelming" "necessity of self-defense," and that, far from having "no moment for deliberation," the United States government has in fact taken seven years since bin-Laden and al-Qaeda fled into Pakistan to come up with this particular "choice of means." As with Guantanamo, the fact that the U.S. spent seven years and billions of the taxpayers’ dollars developing an illegal policy does not provide a justification for continuing it now.
The ICJ panel found that, "The US’s war paradigm has created fundamental problems. Among the most serious is that the US has applied war rules to persons not involved in situations of armed conflict, and in genuine situations of warfare, it has distorted, selectively applied and ignored otherwise binding rules, including fundamental guarantees of human rights laws." These "binding rules" and "fundamental guarantees" include the Caroline principles of necessity and proportionality, as well as the Third and Fourth Geneva Conventions, the International Covenant on Civil and Political Rights, the U.S. War Crimes Act and Uniform Code of Military Justice, and the entire body of international law governing war and human rights.
The ICJ panel concluded that, contrary to the claims of the U.S. government, the established principles of international law "were intended to withstand crises, and they provide a robust and effective framework from within which to tackle terrorism." Any effort to "root out safe havens for terrorists" in Pakistan must therefore be governed by the same principles of necessity and proportionality that U.S. Secretary of State Daniel Webster stipulated to the British government in 1841, and which have since gained universal recognition as binding customary international law.