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Little hope for compensation for drone attack victims

August 10, 2012

In this November, 2008 file photo, Pakistani tribesmen gather at a house destroyed by a suspected US missile in Mir Ali village near Miran Shah, the main town of Pakistan's North Waziristan tribal region. – File photo by AP
In this November, 2008 file photo, Pakistani tribesmen gather at a house destroyed by a suspected US missile in Mir Ali village near Miran Shah, the main town of Pakistan's North Waziristan tribal region. – File photo by AP

“I see the indiscriminate killings and injuries of civilians in any circumstances as human rights violations,” said Navi Pillay, the United Nation’s High Commissioner in a press conference early June. Pillay went on to add that the secretive use of drones by the US could potentially violate international law, requiring further examination. The US government, however, shows no signs of curbing its use of drones in Pakistan, and has attempted to legitimise drones as a precise weapon causing minimal civilian deaths.

Regardless of the number of civilian deaths linked to drone attacks, the US should have a system in place to compensate inhabitants of Pakistan’s border region who suffer property loss and physical damage due to drone missions.

Certain laws passed by the US government allow citizens of foreign nations to sue the state for damages or compensation of their injuries. The Foreign Claims Act of 1942 was created during World War II to allow Europeans to sue the US for damages they suffered. The purpose of the act is to “promote and maintain friendly relations through the prompt payment of meritorious claims.” During the passage of the act, the acting secretary of the Navy explained, “Experience in connection with the presence of our armed forces in foreign countries has demonstrated that the failure to pay promptly for damages done to native residents by members of our forces is one of the principal sources of irritation which adds considerable difficulty to the maintenance of cordial relations with foreign people.”

However, the act draws a major distinction between the duties to pay damages during a combat mission versus a non-combat mission. This relates to the general principle in international law that a nation is not required to pay damages when it is engaged in a lawful combat operation. William Beach Lawrence, a 19th Century American legal expert, explained, “The first right of every independent state is to assure its own preservation by all the means in its power. When a sovereign using this right is obligated to resort to arms . . . it is a public misfortune which foreigners must share with nationals…”

Despite this distinction, the US has applied the Foreign Claims Act to civilians living in war theaters including Afghanistan and Iraq. The claim can be made by the injured party or their next of kin and is adjudicated by a judge advocate of the US military, with a heavy reliance on evidence released by the Department of Defense. Though the act distinguishes between solitia, condolence payment, and combat damages, there is little practical effect for these distinctions according to the Campaign for Innocent Victims In Conflict (CIVIC).

The following are the recommendations for payments to civilians claiming physical or property damage as reported by CIVIC.

Injury Suffered Solitia(USD) Battle Damage/Condolence (USD)
Death $2000 $2500
Serious Injury $400 $1600
Non Serious Injury $200 $600
Serious Property Damage -- $2200
Non Serious Property Damage $200 $200
 

The US government does not make the settlement process public, because as Lieutenant Colonel Jimmie Cummings of the US Army explained, “the settlement of claims is in most cases a sensitive topic for those who have suffered loss (and) it is usually a matter of agreement that the terms of the settlement remain confidential.”

Further, the settlement of claims can often be arbitrary and unequal. In one Iraqi claim, a widow as able to recover 10,000 dollars when her civilian husband was killed by a convoy of American soldiers driving on the wrong side of the road, while a sister of a different civilian killed in the same fashion by American soldiers was only awarded 5,000 dollars in her case.

The US will also not give compensation to family members of combatants, or individuals who were engaged in combatant-like activities. In one case, the wife of a civilian killed by US soldiers was not awarded any damages because her husband had accidentally entered the US convoy while it was on a mission, inadvertently disturbing the mission. CIVIC explained that cases “based on the “combat exception” were given no consideration for a condolence payment… even if it is shown that the victims did not posses ill intent toward the convoy or US forces.”

Despite its shortcomings, the FCA has provided compensation in some instances to civilian victims of US action. However, the act’s application to Pakistan is unlikely for two reasons. First, the US Supreme Court has held that the US government cannot be sued by foreign nationals unless it has consented to being sued. While the US has consented to being sued in Afghanistan and Iraq by applying the FCA, they have not given consent for its application to Pakistan. The second reason why inhabitants of the drone-buzzing Fata region will not be eligible to bring a FCA claim is that the US will assert that drone attacks are combat missions not covered by the act.

While the Foreign Claims act is exclusively handled by the Department of Defense, foreign nationals can also bring claims in US domestic courts through the Alien Tort Statute. This statute allows US district courts the ability to hear lawsuits filed by non-US citizens for offences committed in “violation of international law.”

In Sosa v. Alvarez-Machain, the Supreme Court found that an individual who was taken illegally from Mexico through a kidnapping commissioned by the US government, could not bring a claim because the kidnapping and detention did not amount to a violation of the “law of nations” or international law.

As of yet, no US district court has accepted a claim by Pakistani civilians who suffered injuries due to drone operations, because most suits against the CIA or serving government officials have generally been rejected by American courts. Hypothetically, if Pakistani civilians brought a claim, they could cite to the growing attitude in the international legal community that the secretive and arbitrary use of drones by the US amounts to a violation of international law. However, the District Court could likely reject this argument, since some international legal experts still believe that the US is permitted to use drones as a means of preemptive self-defence.

The only pending cases by civilian victims of drone attacks have been spearheaded by journalist Karim Khan, who is currently suing the CIA for 500 million dollars in Pakistan’s domestic High Court. Khan has petitioned the Peshawar High Court for his case, challenging both the US program and Pakistan’s complicity with the program. However, Khan’s appeals to Pakistan’s court, even if they are successful, will have no effect on the US government. Even if the Supreme Court of Pakistan held the US liable for damages to Pakistani citizens, the US government would not alter its position regarding compensation of Pakistani civilians.

However, such suits will continue to embarrass the US mission in Pakistan, as it did when a CIA station chief was recently exposed by Mr Khan’s suit, prompting his immediate removal from the country. While the US wishes to stabilise its relationship with Pakistan, the CIA shows no signs of minimising it use of drone strikes in Pakistan’s border region, which means a system of compensation for victims is absolutely necessary.

The US government should adopt a system of granting victims “condolence” or “solitia” payments adjudicated by the Department of Defense under the Foreign Claims Act, as they do in Afghanistan. The US should improve the existing deficiencies in the execution of the act, which can often lead to secretive or arbitrary settlement agreements. Further, claims should be made in US district courts by Pakistani civilian victims of drone strikes under the Alien Torts Statute, alleging that the drone strikes violate international law and require payment of compensation to victims.

The writer holds a Juris Doctorate in the US and is a researcher on comparative law and international law issues.