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Drone strikes a thorny issue for the new govt

June 10, 2013

WITHIN two days of taking oath as prime minister by Mian Nawaz Sharif the US carried out a drone strike in the North Waziristan tribal region on June 7 leaving at least 10 persons killed. Thus the US government clearly conveyed that despite a new setup in Islamabad and much public outcry against the pilotless drone attacks it is in no mood to stop these illegal strikes.

All the leading newspapers reported that the US Charge d’ Affaires, Ambassador Richard Hoagland, was summoned to the Foreign Office on Saturday to receive protest on the latest drone strike. It was reported that Tariq Fatemi, the special assistant to the prime minister, talking to the charge d’ affaires, emphasised the importance of bringing an immediate end to drone attacks as they were unpopular in this country.

The US drone attacks are now in the limelight especially after the May 29 strike wherein the second in command of Tehrik-i-Taliban Pakistan, Waliur Rehman was killed. Due to some latest developments the new government has to take some important decisions regarding these strikes whether to raise the matter on any international forum including the UN. In fact, it is a thorny issue and would not be easy for the government to take any abrupt decision.

Around a month ago the Peshawar High Court declared the drone strikes in Pakistan tribal areas as a war crime and issued wide-ranging directives to the government and security forces to ensure stoppage of such strikes in future including taking up the issue before the UN Security Council and the General Assembly.

A two-member bench of the country comprising Chief Justice Dost Mohammad Khan and Justice Mussarat Hilali on May 9 ruled in clear terms: “The drone strikes, carried out in the tribal areas (Fata) particularly North & South Waziristan by the CIA & US Authorities, are blatant violation of 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 filed by several leaders of Defence of Pakistan Council (DPC), Foundation for Fundamental Rights (FFR), a tribal notable Malik Noor Khan and advocate FM Sabir. The bench had ruled: “The government of Pakistan and its security forces shall ensure that in future such drone strikes are not conducted & 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 & legal obligations to shutdown the drones, attacking Pakistani territories or when these enter the airspace of Pakistan sovereign territory.”

The bench ruled that the drone strikes carried out against a handful of alleged militants amounted to breach of international law and conventions on the subject matter, therefore, it was held that these are absolutely illegal and blatant violation of the sovereignty of the state of Pakistan.

The court had directed the government to take the matter seriously before the Security Council of the UN and in case it did not succeed there if veto power was unduly exercised by the US authorities then, urgent meeting of the General Assembly be requisitioned through a written request to resolve this menace in an effective manner.

Apart from judgment of the high court during last couple of months several reports by some international organisations of repute were released touching several aspects of these strike including: Killing of non-combatants; destruction of their properties, violating sovereignty of a country; and legal implications attached to it. At the end of 2012 the report “The civilian impact of drones: unexplained costs, unanswered questions” was jointly released by the Human Rights Clinic at Columbia Law School and the Centre for Civilians in Conflict. Later, on May 21 the International Crisis Group issued a report “Drones: Myths and Reality in Pakistan.”

The International Crisis Group in its report recommended to the US government to demonstrate respect for the international humanitarian law principles of humanity; to develop a rigorous legal framework for the use of drones that defines clear roles for the executive, legislative and judicial branches and introduces a meaningful level of regular judicial and congressional oversight; to convert the drone programme from a covert CIA operation to a military-run program overseen by the defence department, with oversight by the Senate and house armed services committees and appropriate judicial review.

It also recommends to the government of Pakistan to enable independent assessment of drone strike casualties and impact on Fata. It has also recommended several administrative and legal changes in setup of Fata including the abolishing of the Frontier Crimes Regulation, repealing the Action (in aid of civil power) Regulation 2011 and extending jurisdiction of superior courts to Fata.

Similarly, in the other report several recommendations were made to the Obama Administration asking it to establish a special interagency task force to evaluate covert drone operations, and make recommendations to the President with regard to several issues. The issues include: The extent of civilian casualties from drone strikes and the larger impact on civilian communities; the sufficiency of civilian protection mechanisms employed by the CIA and JSOC (Joint Special Operation Command), including civilian casualty mitigation processes; the existence and sufficiency of processes for recognizing harm and making amends to civilian victims of drone strikes, their families, and communities; etc.

The report also recommended to the US Congress to exercise oversight powers to the fullest extent possible in reviewing and evaluating the issues already mentioned in the recommendations to the Obama administration.

Legal experts believe that the federal government has now to take clear stand on the issue as merely issuance of condemnation statements would no longer work as the judgment of the high court was binding on it. They believe that the government should consult experts on international law for making any final decision in this regard.