What recourse do Pakistan's 'civilian drone victims' have?

In 2010, after three US Hellfire missiles killed his brother and his 18-year-old son, Karim Khan approached a Pakistani lawyer to help him.

Mr. Khan’s son Zainullah Khan and his brother Asif Iqbal both worked at schools in the region. Zainullah worked as a guard at a girls' school, and Asif worked as an English teacher in an area where both girls’ schools and schools that teach English are vulnerable to attacks by militants. Khan told the lawyer that both had chosen their jobs because they believed in the importance of education for girls.

“Karim called his son and brother ‘civilian targets,’ ” says Shehzad Akbar, the Pakistani lawyer attempting to take Khan’s case, along with 82 other families who claim to be victims of drone attacks, to Islamabad.

It’s a difficult task, made more difficult because the more than 3 million residents in Pakistan's Federally Administered Tribal Areas (FATA) have no access to legal recourse.

“Tribal areas are officially a part of Pakistan – and their residents are formally citizens of this country. But they have no access to Pakistani or international courts, and therefore no legal redress for losses incurred because of US-led drone strikes,” says Mr. Akbar.

Allegations of large numbers of civilian deaths have haunted the drone effort in Pakistan since its inception under President George W. Bush. Under the Obama administration, drone strikes have been at the core of the US strategy aimed at rooting out the Taliban and Al Qaeda from Pakistan's tribal areas, where militants have taken refuge to launch attacks in Afghanistan.

According to a report by Stanford, New York, and Columbia universities, the best available information from the Bureau of Investigative Journalism suggests that of the 2,500 to 3,000 people who have been killed since the first known drone strike in June 2004, anywhere between 450 and 881 were civilians, and another 1,300 people were injured. Those numbers are considered controversial because they rely on media accounts that often depend on the Pakistani government for information (reporters are not allowed free access to the tribal areas).

But Akbar holds up the 82 families hailing from North Waziristan as examples of the numerous nonmilitants who have lost their lives in drone operations – even as the Obama administration claims that the numbers are much lower and that civilian drone deaths have been rare since 2010.

The legal options

According to Akbar, civilians who claim to be victims of drone attacks have two options: either they can file charges against the CIA and the US government, or they can bring a case to the Pakistani authorities.

If it becomes provable that the US and Pakistan are not collaborating on the strikes, the general consensus in international law would be that US drone strikes are illegal, since there are "no UN resolutions, and the Americans have not declared war," says Akbar, regarding the first option.

But while the Pakistani government has verbally criticized drone strikes as an infringement on the country’s sovereignty, security agencies have shared intelligence with the US, and even allegedly allowed the US to operate drones from Shamsi Airfield in Pakistan until April 2011.

The CIA sends a regular monthly fax to Pakistan's Inter-Services Intelligence (ISI). Until the May 2011 US Navy Seal raid that killed Osama bin Laden, the ISI would acknowledge receipt in a return fax. Their new no-answer policy is seen as continued “tacit consent” with a “'we're upset with you'” note attached, reports The Wall Street Journal.

And as for the second option: Though FATA is run differently than the rest of Pakistan, “under the Constitution FATA is a part of Pakistan – so its citizens have the same rights as any other Pakistani, including the right to life,” he says, adding that this is an opening to help civilian victims in the area.

But assuming Pakistan could prove it had no part in the drone attacks and the government were to acknowledge its responsibilities under the constitution, it could bring this case to the International Court of Justice in The Hague, says Akbar. “States, not individuals like the drone victims, can bring cases to the ICJ,” says Akbar.

Colonial-era laws

Khalid Aziz, who has spent 30 years as a government official in Pakistan's northern Khyber-Pakhtunkhwa Province, says that won’t happen anytime soon, as Islamabad has yet to reform colonial-era laws that marginalize its tribal areas. 

“Laws passed in Pakistan's National Assembly are not applicable in FATA until the president extends them to the area,” says Mr. Aziz.

Instead, FATA continues to be governed by the Frontier Crimes Regulation, a set of colonial-era laws that were implemented by the British in the 1800s. The British implemented the laws to keep FATA as a buffer zone that held off a fast-expanding czarist Russia and the Pakhtuns in Afghanistan. The FCR has historically allowed ruling powers to carry out collective punishments. And residents of FATA have had no right to appeal detention, no right to legal representation, and no right to present reasoned evidence.

According to Mian Muhammad Ajmal, a former justice of the Supreme Court who spearheaded a committee to reform the FCR, it was not until the summer of 2010 that the government finally began to take action on his 2006 report. But experts say that it will take time to roll out the report's recommendations in FATA. And Mr. Ajmal admits that a reform of the law is different from its complete repeal.

“I still had to work within the confines of the FCR,” said Ajmal in an interview with the Monitor last year.

The former Prime Minister Syed Yousuf Raza Gilani announced that he would repeal the FCR in 2008 but the current government – which he used to head – has not made any progress on the case since.