On May 9th the Peshawar High Court ruled that drone strikes in Pakistan, undertaken by the United States, were illegal and should be considered a war crime. Chief Justice Dost Muhammad Khan and Justice Musarrat Hilali were on the two-judge bench that heard the petitions.
The case was brought by the Foundation for Fundamental Freedoms, a legal rights charity based in the country, on behalf of the families of victims killed in a 17 March 2011 strike on a tribal jirga [community assembly] in the Datta Khel area. The jirga had been called to resolve a dispute over a chromite mine; the attack killed over 50 people, the majority of whom were civilians, and provoked an outcry at the time. The Pakistani military chief, General Ashfaq Parvez Kayani was quoted as saying: “It is highly regrettable that a jirga of peaceful citizens, including elders of the area, was carelessly and callously targeted with complete disregard to human life,”.
Chief Justice Dost Muhammad Khan’s judgment in this case was strongly worded and found that drones strikes constituted a violation of Pakistan’s national sovereignty; that the Pakistan government should take immediate steps to prevent further attacks and the US should pay compensation to the families of those killed and injured. At paragraph 22 (i), the judgment stated
That 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, cognizable by the International Court of Justice or Special Tribunal for War Crimes, constituted or to be constituted by the UNO for this purpose. (emphasis added).
The broader impact of this judgment though was limited by the fact that Pakistan went to the polls shortly after it was issued. The election was subsequently won by Pakistan Muslim League-Nawaz, led by Nawaz Sharif. Shortly after the election, Sharif was quoted as saying “We will sit with our American friends and we will certainly talk with them on this [drone] issue.”
He was sworn in as Prime Minster on 1 June, after the US launched its first post-election drone strike, which is believed to have killed the deputy leader of the Taliban, Wali ur-Rehman, near Miranshah, in North Waziristan, on 29 May. Sharif’s first speech emphasised the need to end drone strikes, saying: “This daily routine of drone attacks, this chapter shall now be closed,’’ … ‘‘We do respect others’ sovereignty. It is mandatory on others that they respect our sovereignty.” The Pakistan Foreign Ministry issued a statement which said:
The government of Pakistan has consistently maintained that the drone strikes are counterproductive, entail loss of innocent civilian lives, have human rights and humanitarian implications and violate the principles of national sovereignty, territorial integrity and international law.
So far so good. But the reality is that in the death of Rehman, the US chose a target bound to be popular amongst those within the military and security services in Pakistan. Consideringthe significance of the drones issue in the recent election campaign, the financial relationship with the US and the talks with the Taliban, among other issues, this strike leaves the new Government in a difficult position, both domestically and internationally. It will be interesting to see how Sharif negotiates this issue in both spheres and whether this marks the shape of the US’ relationship with the new Government in Pakistan going forward.