Taking drones to court

Last month, a Pakistani lawyer acting on behalf of three victims of drone strikes, filed a criminal complaint in Pakistan against John Rizzo, the former acting legal counsel of the CIA, for allegedly approving strikes within Pakistani territory that caused the death of innocent civilians. While there is no way at present to verify the claims, it is certain that drone strikes have caused significant loss of innocent life in Pakistan. Research last year by the New America Foundation showed that on average about 20 percent of the victims since 2004 were in fact non-militant civilians, though that number appears to be decreasing.

If the aim of the lawsuit is to seek compensation for the loss of innocent life, then it makes sense to target the Americans, the presumed authors of the strikes. However, if the eventual aim of the claim is to seek justice for victims, then one should ask why Pakistani generals or politicians who are well within the reach of domestic courts and who have reportedly consented to such strikes, and even possibly allowed Pakistani airbases to be used to launch the drones, are not named as co-defendants.

To be sure, some voices have been raised in this direction but examples are few and far between: Tehrik-i-Insaaf chairman and former cricket star Imran Khan has highlighted the Pakistani government and army’ s complicity in the matter and petitioned the Supreme Court to declare drone strikes a war crime. And the head of the Lashkar-e-Taiba (LeT)-linked charity Jamaat-ud-Dawa, Hafiz Saeed, has filed a petition in the Lahore High Court against the strikes (at present, the court has adjourned its ruling on Mr. Saeed’s petition and given the government some time to prepare its case). Generally, though, there does not appear to be much visible appetite in the local media or Pakistan’s legal fraternity for naming local parties as defendants.

One need not be a legal expert to appreciate that a Pakistani court deciding against American officials will have little impact — such a court cannot in practice exercise meaningful enforcement powers over foreigners who will likely not set foot on Pakistani soil any time soon. Any arrest warrant that may be issued by a Pakistani court or even by the Interpol against foreign officials like Rizzo will in fact most definitely be ignored by the United States. This holds true in reverse too; when the U.S. wanted to arrest Mir Aimal Kansi on charges of killing two CIA agents in 1993, it took an American FBI operation to make indictment a realistic possibility, not an international arrest warrant.

So, if the aim of these lawsuits is to deter drone strikes and compensate innocent victims, then a more effective strategy would be to apply pressure domestically. This implies proceeding against those on whom Pakistani courts can credibly impose punitive sanctions. A well prepared and publicized lawsuit filed against key people in the civil and military administration may attract more attention locally, and would in any event provide a more likely outcome than pursuing the tremendously difficult task of bringing CIA operatives to trial.

Obtaining evidence of domestic complicity may be challenging, but is not impossible; regardless of what they may claim in public, there is ample evidence that Pakistan leaders have in the past condoned drone strikes. President Asif Ali Zardari is alleged to have said in private that the loss of innocent life as a result of drone strikes does not bother him. Similarly, U.S. embassy cables released by the anti-secrecy website WikiLeaks noted that army commander Gen. Ashfaq Pervez Kayani asked the U.S. to increase drone strikes during Pakistani military operations in South Waziristan in 2008. Of course, Rizzo is also on record for having approved drone strikes, but the difficulty in proceeding against him (assuming the legal case has merit) would not be one of evidence, but of enforcement.

If a domestic court ends up convicting certain powerful people in Pakistan and makes them liable to pay compensation for aiding and abetting drone strikes, it would be difficult for the Pakistani military and civil government to continue to plead innocence and deny complicity. A court order imposing financial penalties on them may also incentivize those responsible for acquiescing to strikes to either seek an indemnity from the U.S. government for any such claims that the Pakistani government is ordered to pay by a court, on the basis that it is mainly for the latter’s benefit that the government previously tolerated the strikes; or, alternatively, to withdraw their consent. If it is the latter, then if the U.S. still persists despite consent being revoked, the Pakistani government would be within their rights to lodge a formal international claim for reparations in the International Court of Justice (ICJ), alleging that the United States has breached Pakistan’s sovereignty and it must therefore pay compensation to victims and the state, as such breach is causally responsible for loss and injury in Pakistan. However, only a state can raise this claim in the ICJ, rather than victims or lawyers.

Of course, America will most likely not halt the drone program despite what foreign or supra-national courts tell them to do, but they may be forced to re-evaluate the magnitude of drone strikes if they have to bear significant financial costs and international legal pressure for compensating victims.

As such, it is anyone’s guess why criminal complaints have only been filed against those associated with carrying out or approving the drone strikes in other countries but not, as would make perfect legal sense, against those local collaborators who aided and abetted the strikes.

One reason of course could be publicity; as Gary Solis of Georgetown has pointed out, naming foreigners in an arrest warrant may attract much more international attention. If so, then proceeding against Rizzo or other Americans would make sense, however it will not likely alter the Pakistani government’s calculations nor will it win any redress for victims. And so, it should only form part of the strategy to win compensation, not be the only recourse.

Until then, by only naming foreign individuals rather than locals, the military and civilian government can have their cake and eat it too; the lawsuit channels the frustration of the victims towards the American role in drone strikes, but distances domestic parties from any allegation of complicity. In the long run though, and as this Janus-faced strategy becomes more visible, it also becomes increasingly untenable. And it is more likely that eventually, Pakistan’s government will have to answer for its past actions.

Dawood Ismail Ahmed is a doctoral candidate in international law at the University of Chicago.  He has previously practiced as an attorney in the London offices of the international law firm, Linklaters.