Case Watch: A Court in Pakistan Addresses U.S. Drone Attacks
By Jonathan Horowitz & Christopher Rogers
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
On May 9, 2013, the Peshawar High Court (PHC) in Pakistan ruled that United States drone strikes on targets in Pakistan illegally breached national sovereignty and were in “blatant violation of Basic Human Rights” and provisions of the Geneva Conventions. The court made its decision after adjoining complaints from a Pakistani political organization and Pakistani nationals acting on behalf of victims of the attacks. This is the first time a Pakistani court has ruled on the legality of the drone strikes, which have reportedly killed over two thousand people in Pakistan (see here and here) over the past several years. The court ordered Pakistan’s government to, among other things, ensure that the drone strikes cease; to take the matter before the Security Council in order to request the UN Secretary General to “constitute an independent War Crime Tribunal”; and to request that the Security Council or General Assembly pass a resolution condemning the drone strikes.
Though U.S. drone strikes have recently become more openly debated in Pakistan, the judgment still stands as a notable assertion of the powers of the judiciary into a realm traditionally dominated by Pakistan’s powerful military and intelligence establishment. Coming the same week as the country’s historic elections—the first ever transition of power between elected governments—the judgment could also be seen as more evidence of a strengthening of Pakistan’s civil and democratic institutions.
The judgment also arrived almost two weeks prior to U.S. President Obama’s major speech on drone strikes, although the new rules he set out for extraterritorial lethal targeting “outside areas of active hostilities” did not explicitly say they would apply to Pakistan. It will therefore be important to monitor not only the U.S. government’s reaction to the judgment and its implementation of the new rules, but also whether the newly elected Pakistani government will take steps to implement the decision—and the consequences for U.S. drone strikes and broader U.S.–Pakistan relations.
Whether or not it has an impact on the scope of the U.S. drone program, the PHC’s decision highlights critical legal questions at the center of the debate over the strikes and targeted killings. Is the United States permitted to use lethal force in Pakistan? Is the use of lethal force being appropriately deployed in such operations? If the U.S. drone strikes are in violation of international law, as many Pakistani leaders contend, what actions may, or must, Pakistan and the international community take?
On the first, the court cited Article 2(4) of the UN Charter which strictly prohibits “the threat or use of force against the territorial integrity or political independence of any state…” and determined the United State violated Pakistan sovereignty. The court recognized that Article 2(4) would be made moot if Pakistan consented to the U.S. strikes, but the court cited opposition to the strikes by the president of Pakistan, the prime minister and his cabinet and parliament. The court also dismissed any claims that the United States had received proper consent to carry out the strikes. It both called into question reports that former President Musharraf gave verbal consent to the United States and, implied that in any case, Pakistan would have had to provide written consent to the United States, which the court determined that Pakistan has not done. The court failed, however, to elaborate on why written consent would be required, and more broadly, missed an opportunity to elaborate on the scope and nature of the consent legally required for such operations.
The court also failed to discuss the fact that under the jus ad bellum doctrine of self-defense a state is allowed to violate the sovereignty of another state in response to an armed attack (or an imminent threat of an armed attack) if done in a necessary and proportionate manner. The court appeared to find that self-defense was inapplicable when it asserted that “[f]ew militants… have neither the potential nor any source of logistic, transportation or any other means to outreach the West…” Whatever the value of this analysis, the court’s rationale overlooked the possibility that U.S. drone strikes are conducted in defense of personnel in Afghanistan—not only in response to armed attacks or imminent attacks in the United States. Moreover, the court did not directly confront the U.S. argument that the capability of terrorists to conduct attacks across vast distances in short amounts of time requires the United States to employ an “elongated” concept of imminence that broadens the permissibility of using force in self-defense.
The court then addressed the separate issue of whether the U.S.’s use of lethal force was in accordance with both international humanitarian law and international human rights law.
The court—citing figures of 1,449 civilian deaths and 335 civilian injuries over the past five years in the North and South Waziristan—concluded that the majority of individuals killed have been civilians. This conclusion, which underlies much of the court’s analysis of international law, seemed based on a problematic assumption that all “foreigners” killed are combatants and that all other casualties are civilians. The court also provided little insight into the methodology used to gather these figures, other than noting that some of the figures came from “Political Authorities of North Waziristan Agency.” (There are consistent and credible reports of civilian casualties in US drone strikes, though the proportion of civilian deaths is likely a much smaller proportion of total casualties).
The question then turned to whether such killings of civilians violated international law. The court ultimately determined “yes” after referencing provisions of international humanitarian law, the Genocide Convention, and the International Covenant on Civil and Political Rights (“the civilian casualties… is an uncondonable crime on the part of U.S. authorities,” the decision read). The court’s reasoning, however, lacked specificity and legal rigor. For example, the court referenced Protocol I Additional to the Geneva Conventions, which is applicable in international armed conflict. But the court did not justify why it was relying on international humanitarian law or why it was relying specifically on the law of international armed conflict to solve the dispute. Perhaps it was claiming the protocol reflected customary international law. It’s unclear; and given that the government of Pakistan has not acknowledged that an armed conflict exists in this region, the court’s decision to rely on the law of armed conflict was all the more important for the court to elaborate on.
The court was also unclear whether it viewed the civilian casualties and damaged property as violating international law because such harm was intentional (i.e., the United States intended to target civilians and civilian property as such), indiscriminate (i.e., the United States did not know whether what they were targeting was civilians and civilian property but attacked them nonetheless), or disproportionate (i.e., the United States legitimately targeted an individual but the collateral damage to civilians and civilian property was not proportionate to the military advantage gained by the attack).
The court’s reference to the United Nations genocide convention indicated that it believed intent played a major role in the civilian deaths—though the court didn’t go as far as saying that the United States committed genocide. Yet even if the United States had intentionally killed civilians in drone strikes—which would undoubtedly be a war crime in an armed conflict—reliance on the genocide convention seems misplaced given that there is no evidence such intentional killings would constitute genocide, which is a wholly distinct crime, with separate elements, under international law. At the same time, the court seemed to regard all U.S. “signature strikes”—a practice that targets individuals or groups of individuals based on their behavior instead of their identity—as being “disproportionate,” without providing evidence that such strikes had resulted in disproportionate civilian deaths. Signature strikes certainly raise important legal concerns that targeting criteria fail to properly distinguish between civilians and combatants, but they are not inherently disproportionate. More evidence regarding targets and casualties in specific strikes would be required to come to such a conclusion. Finally, the court did not explain how the U.S.’s ICCPR obligations, which apply to people in the territory or jurisdiction of the state party, were triggered, nor did the court explain the overlapping relationship between the United States’ human rights obligations and its obligations under international humanitarian law.
Having decided that the United States unlawfully breached Pakistan’s sovereignty and violated both human rights law and international humanitarian law, the court set forth the consequences of its findings. The court ordered the United States to “compensate all the victims’ families at the assessed rate of compensation in the kind of U.S. dollars.” The United States was not, however, a party to the case and therefore it is questionable how the court could order the United States to provide relief. More interestingly, the court essentially ordered the government of Pakistan to assert its sovereignty in a more robust manner, both in its diplomatic communications to the United States and through the United Nations. The court did not explicitly order forceful retaliation against the next U.S. drone strike, but it did say that Pakistan had the legal obligation to “shutdown” the program and claimed that Pakistan had “every right to ask the security forces… to shot [sic] down the intruding drones.”
In addition to its assessment of rules pertaining to the use of lethal force under international law, the court’s ruling may face several challenges if appealed to the Supreme Court. First, as a matter of domestic law, Pakistan’s constitution bars the High Court from exercising its jurisdiction in the Tribal Areas, which includes North and South Waziristan. Second, Pakistan is a dualist country, meaning that there must be implementing legislation to make the treaties that it ratifies enforceable in its courts of law. The constitution does not include international treaties and conventions as a source of “law” from which High Courts derive their jurisdiction. For these reasons, the PHC should have cited violations of Pakistan’s domestic law, rather than international treaties and conventions.
All in all, the court’s decision dealt with a wide range of important and complex legal issues. Most importantly, the court drew greater attention than has been done to date about the roles and responsibilities that countries like Pakistan, rather than the United States, have in protecting the rights of the people in its territory who are being subject to extraterritorial use of lethal force. Unfortunately, however, the court’s conclusions are significantly undermined by the fact that it did not provide a similarly important and in-depth account of how it came to many of its factual and legal conclusions.
Until January 2019, Jonathan Horowitz was a senior legal officer for the Open Society Justice Initiative.
Christopher Rogers is a senior program officer with the Open Society Foundations’ Middle East, North Africa, and Southwest Asia Program.