On March 17th, 2011 a CIA-operated drone killed 44 members of Madakhel tribe Jirga in Datta Khel, which was resolving a Chromite mining dispute among two Waziri sub-tribes. Interestingly, according to news reports the Jirga was not the intended target and the predator was chasing a car and finally successfully executed 5 people without any trial or due process near the Jirga. While this predator was hovering in the area, its sophisticated cameras picked images of a bigger gathering. Without even having any intelligence or knowledge of its target, it fired four more missiles at the congregation. Why have doubts? If they are in Waziristan in a big gathering they must be Taliban. This is what is known as a ‘signature strike’. March 17th is just one example of killing on the basis of suspicion with the most sophisticated weapon of modern warfare. Signature strikes have so far targeted funerals, mosques, madrassas and other public places disregarding presence of civilians.
Just two days before the 2013 general elections, on 9th May 2013, a divisional bench of Peshawar High Court, headed by Chief Justice Dost Muhammad, for the first time explicitly and openly declared the US-led drone strikes in Pakistan illegal and in violation of several provisions of international law. The court declared the strikes are committing war crimes due to the high number of civilians killed, including women and children.
The scenario precluding this judgment was a very bleak one. The United States through its Central Intelligence Agency (CIA) had been targeting citizens of Pakistan within its sovereign territory through Unmanned Aerial Vehicles (UAVs), more commonly known as drones, since 2004. Independent sources had reported more than 3500 deaths in Pakistan as a result of drone strikes, of which more than 800 were civilians. The recent verified figures submitted by the political agents in North & South Waziristan for strikes between 2008-2012 is more than 1450.
The illegality of the CIA-led drone strikes was always conspicuous but the Peshawar High Court decision was the first time that they were judicially condemned, that the people of Waziristan were recognized for who they truly are- not terrorists and enemy combatants but civilian victims of American war crimes and the first successful legal challenge to the hitherto uncontested and relentless drone strikes.
Two days after this landmark judgment came the judgment of the people of Pakistan who elected Nawaz Sharif to be the Prime Minister of Pakistan for a third time. Sharif said during his election campaign “Drone attacks are against the national sovereignty and a challenge for the country’s autonomy and independence…We [will not] tolerate these attacks in our territorial jurisdiction”. Since getting into power, there have been 3 more strikes in North Waziristan killing over a dozen unnamed people. The real question now is how we move forward. There is little doubt that condemning drones has also become a political rhetoric for many politicians – and the government – without any concrete action. The issue of drone strike needs to be dealt with at two levels. First and foremost is the question of civilian victims. There is a dire need for an independent investigation on the ground which every stakeholder can trust in order to determine the definition of civilian victims as per international law and the number and identity of such victims. UN Special Rapporteur on Human Rights and Counter Terrorism Ben Emmerson QC is already conducting such an inquiry. Pakistan could either extend full support and give access to Ben Emmerson or constitute an independent panel with international presence to investigate on the ground taking all stakeholders account as well. After such determination comes the issue of compensation, which should be based on principles of justice and retribution. Those who are responsible for the wrongful act should pay for it, so if Pakistan has been either complicit in past or been omitting its responsibility to its citizens it should pay its share. Given their direct role in extra judicial killings, CIA and the US at the very least should compensate the victims.
The second step will be to stop these extrajudicial killings which neither domestic nor international law permits. As per the PHC judicial order, PM Nawaz Sharif needs to tell America categorically that Pakistan takes drones as a violation of its territorial sovereignty. In case of continuation of such strikes, Pakistan should not hesitate to take the matter to the UN Security Council. I agree with PM Nawaz Sharif that it would be futile to shoot down the drones – no good would come out of it. The question is whether or not Mr. Sharif has been able to convey to America that he and his nation cannot tolerate the killing of its population at the hands of Americans any further. And in case of confrontation, is he willing to challenge the US waging war against Pakistan through the appropriate international forums. Anything short of this resolve will not convince Americans that we are serious in asking them to stop the drone strikes.
Pakistan’s stance that drones are counter-productive has to go further from being rhetoric. Serious efforts are required on the government’s part to bring Waziristan into the fold. We need to adopt an inclusive approach for Waziristan so that if a Waziri child dies in a drone strike, the nation gets to know exactly what happened through independent and direct reporting and not through source reports from security services. The corrupt and archaic office of political agent and black laws such as FCR needs to be replaced with workable legislation implemented after consultations with all the stakeholders.
These steps are vital if PM Nawaz Sharif is serious on the issue of drone strikes and militancy in the area. Falling short would just be continuation of past practices where we have a government with two faces, one for America and one for its people.
Mirza Shahzad Akbar is Reprieve legal fellow in Pakistan, Director and Founder of Foundation for Fundamental Rights and a practicing human rights lawyer in Islamabad. He represents a number of families of victims affected by drone strikes.
