Court: Peshawar High Court (Pakistan)

Type of decision: Judgment

Date judgment: 9 May 2013

Case no.: –

Area of jurisdiction: –

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Claim: The state of Pakistan has woefully and wilfully failed to protect the life of its citizens against the drone strikes -in particular the life of Petitioner’s father- and is obliged to take all necessary actions, including stopping illegal drone strikes and safeguarding its citizens from target killing by an external force.

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Principle legal argument(s): Article 9 of the Pakistani Constitution safeguards and upholds the security of a person, Article 10A guarantees the right to due process and Article 14 guarantees the right to dignity of man and protection from torture, all read in conjunction with Article 4 of the Constitution.

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Type of reparation sought: The court was asked to order that the Pakistani Government no longer tolerates US drone strikes on its territory, protects the right to life of its citizen, provides redress for victims of drone operations and uses its customary law based ‘right to reparation’.

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On May 9 2013, the Peshawar High Court (PHC) in Pakistan released a judgment considering, among others, that United States’ drone strikes in Pakistan amounted to war crimes. This judgment also decides two other, almost identical writ petitions filed by Defence of Pakistan Council (DPC) and advocate F.M. Sabir. The court’s findings have been criticized for not providing a similarly important and in-depth analysis of how it came to many of its factual and legal conclusions. Nevertheless, this is the first time a Pakistani court has ruled on the legality of the drone strikes.

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Following a drone strike that took place on 17 March 2011 in Waziristan (North Pakistan) and which caused several civilian casualties, Malik Noor Khan (one of the victims’ son) filed a complaint against the Federation of Pakistan. The court was asked to order that the Pakistani Government no longer tolerates US drone strikes on its territory, protects the right to life of its citizen, provides redress for victims of drone operations and uses its ‘right to reparation’ for the wrongful act [p. 2-3].

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Drone strikes disrespect Pakistan’s territorial integrity

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Addressing the legal question whether or not the United States is permitted to use lethal force in Pakistan, the court starts off with underlining State’s’ obligation to respect the territorial integrity and sovereign equality of all states, laid down in Article 2 (4) UN Charter, the “United Nations Millennium Declaration” and the “Declaration of Principles of International Law Concerning Friendly Relations” [paras. 8-10]. It concludes that, in absence of Pakistan’s consent to carry out the strikes Pakistan’s territorial integrity has been violated by the US [ii, p. 18] and breached international law. Whether the purported violation of Pakistan’s territorial integrity could be justified by the US’s right to self-defense is not specifically taken into consideration, but maybe the court addressed this option rather revealed when it asserts that “Few militants, allegedly belonging to “Alqaida Group”, have neither the potential nor any source of logistic, transportation or any other means to outreach the West, carryout subversive activities and why for the last more than ten years no noticeable incident took place there…”[para. 16].

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Subsequently, the court addressed the separate issue of whether the US drone strike was in accordance with both international humanitarian law (IHL) and international human rights law.

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Drone strikes violate International Humanitarian Law

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While referring to 1949 Geneva Conventions and its Optional Protocol I, seemingly the court finds an international armed conflict to exist and reiterates the protected status of civilians and civilian objects, that mistakes must be prevented and civilian harm must be minimized when a drone attack is directed against a fighter – the latter being a lawful target under IHL [para. 11]. Without further elaborating on this issue, the court concludes that US drone strikes violate relevant provisions of the Geneva Conventions and that these strikes amount to war crimes [under i, p. 17]. The court does not explain why it considers the law of international armed conflict to be applicable, which is all the more unfortunate given that the government of Pakistan has not acknowledged that an armed conflict exists in the Waziristan region.

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Drone strikes violate human rights

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Reviewing the legality of the drone attacks, the court also addresses Article 6(1) of the International Convention on Civil and Political Rights (ICCPR) stating the inherent right to life of every human being [para. 12]. While not spending words on if and when human rights law allows the use of lethal force, ifand how it applies during an armed conflict, and how the US’s ICCPR obligations (applicable to people in the territory or jurisdiction of the state party) were triggered, the court determines that the US drone strikes are a “blatant violation of Basic Human Rights…” [under i, p. 17].

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Redress to civilian victims

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Having decided that the United States unlawfully breached Pakistan’s territorial integrity and violated both international humanitarian law and human rights law, the court set forth the consequences of its findings. Among others, it orders the United States to “compensate all the victims’ families at the assessed rate of compensation in the kind of U.S. dollars” [under iv, p. 19]. The United States however, was not a party to the case at hand and therefore it is questionable how the court could order the United States to provide relief. Also, the court ordered the Pakistani Government to request the UN Secretary General to constitute an independent War Crime Tribunal, “[…] mandated to […] arrange for the complete & full compensation for the victims’ families of the civilians of Pakistan both for life & properties at the rate & ratio laid down under the international standards” [under vii, p. 20-21].