The killing of an American aid worker Warren Weinstein and Italian Giovanni Lo Porto, who were held hostage by Al Qaeda in Pakistani tribal area, in an American drone strike in January this year has again brought to limelight the issues related to such attacks. It has given birth to several questions regarding the legality of drone strikes in tribal areas as well as the intelligence gathering involved in it. An Al Qaeda leader, Ahmad Farouq, was also killed in that strike on Jan 15.

The killing of the two hostages was made public by the US government a few days ago. It was reported in international and national media that the drone strike was aimed at wiping out a compound linked to Al Qaeda. It was reported that the American CIA authorised the attack, but had no information that the two hostages were being kept there. This shows that intelligence gathering and surveillance might not always be accurate and there are chances of killing of innocent citizens in such attacks.

“On behalf of the United States government, I offer our deepest apologies to the families,” said US President Barack Obama with a grim face, clearly showing the pain he had felt. “I profoundly regret what happened,” he added.

While the issue of civilian killings in drone strikes has been surfacing from time to time and several cases were reported by the media, no apology has so far been extended for those killings by the US government. Similarly, the successive Pakistani governments, who were bound under the Constitution to safeguard the life and property of their citizens, have never come forward to publicly tender an apology for such killings.

In Oct 2013 the Amnesty International launched a report “Will I be next? US drone strikes in Pakistan”, wherein it particularly highlighted two incidents it said may have violated international law. The said report pointed out that in one of the incidents 18 labourers were killed in a strike near the Afghan border as they were preparing to eat a meal at the end of their working day in July 2012.

In the second such occurrence, a 68-year-old woman, Mamana Bibi, was killed as she picked vegetables in her family’s fields at Ghundi village of North Waziristan in October 2012. Her grandchildren, who were eyewitness to the occurrence and had also received injuries, still recount with vividness how their grandmother was blasted into pieces. That family still awaits justice.

Prior to AI report, another important report “The civilian impact of drones: unexplained costs, unanswered questions” was jointly released by the Human Rights Clinic at Columbia Law School and the Center for Civilians in Conflict by the end of 2012.

Later, in May 2013 the International Crisis Group issued a report “Drones: myths and reality in Pakistan”. Both the reports have carried comprehensive recommendations for the US and Pakistani governments and also discussed the issue of non-combatant casualties in these attacks.

Another important development took place early this month when the Islamabad High Court ordered the capital police to register a criminal case against a former station chief of CIA at Islamabad, Jonathan Bank, and ex-CIA legal counsel John A. Rizzo for murder, conspiracy, terrorism and waging war against Pakistan. The court made the decision over a petition filed by an inhabitant of Waziristan Agency Kareem Khan, whose son Zahinullah Khan and brother Asif Iqbal were killed in an alleged drone strike in Dec 2009 in Waziristan.

However, looking at different judgments of the superior courts on the issue of drone strikes it is evident that there is no uniformity in their findings over it. Prior to the IHC judgment, the Peshawar High Court had in May 2013 declared the US drone strikes in Pakistani tribal areas as a war crime and issued several directives to the government and security forces to ensure stoppage of such strikes in future, including taking up the issue at the UN Security Council and the General Assembly.

A bench comprising the then chief justice Dost Mohammad Khan (now a judge of the Supreme Court) and Justice Mussarat Hilali had ruled: “The drone strikes, carried out in the tribal areas (Fata) particularly North and South Waziristan agencies by the CIA and US Authorities, are a blatant violation of the basic human rights and are against the UN Charter, the UN General Assembly Resolution, adopted unanimously, the provision of Geneva Conventions thus, it is held to be a war crime, cognisable by the International Court of Justice or Special Tribunal for war crimes, constituted or to be constituted by the UNO for this purpose.”

The court had delivered the verdict in four almost identical writ petitions and had ordered: “The government of Pakistan and its security forces shall ensure that in future such drone strikes are not conducted and carried out within the sovereign territory of Pakistan. Proper warning be administered in this regard and if that does not work, the government of Pakistan and State institutions, particularly the security forces, shall have the right being under constitutional and legal obligations to shot down the drones, attacking Pakistani territories or when these enter the airspace of Pakistan sovereign territory.”

Subsequently, in Dec 2014 the high court dismissed a contempt of court petition against the federal government and prime minister for non-implementation of the said judgment. The ministry of foreign affairs had told the court that the government had taken up the drone strikes issue at the international level and it was implementing the court orders. It was stated that the prime minister had taken up the issue of drone strikes at 68th General Assembly of the UN and termed the strikes as an attack on the sovereignty of Pakistan.

Contrary to the judgment of the high court, the Supreme Court in at least two of the cases ruled that it had no jurisdiction to issue directives to the government for cessation of US drone attacks. Early this month the court in one of the cases observed that the issue did not fall within the ambit of Article 184(3) of the Constitution which deals with the jurisdiction of the Supreme Court for enforcement of fundamental rights.

Legal experts believe that the American government is morally bound to tender an apology for killing of the innocent Pakistani citizens in drone strikes like it had apologised over the killing of its own citizen. They say that it is responsibility of the Pakistani government to compensate the families who lost their innocent relatives in such strikes.

Published in Dawn, April 27th, 2015

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