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Pakistan-US relations in the High Court
Stopping the Drones
by BINOY KAMPMARK

Alternate realities in the conflict Pakistan is waging against insurgents in its tribal areas tend to be regular affairs. Intrinsic to them is the contorted relationship the country has with the United States, three bits domestic violence to two bits political expediency. This produces unhealthy effects, if one is to see Pakistani sovereignty as a creature that has been abused and discredited during the course of its campaign against “terror”.

One way U.S. foreign policy expresses this violent, anti-sovereign streak is through the use of drones in calculated, devastating strikes on a country deemed an ally. This has been the bane of several Pakistani parties who have campaigned against their continued deployment. Former Pakistani cricketer and Pakistan Tehreek-e-Insaf chairman Imran Khan made it a key policy platform claiming that the umbilical cord of aid has to be severed with Washington.

At stages during this year and the last, he even suggested that such drones would actually be shot down under his orders. The language of his campaign has been powerful – a Pakistan freed of bondage at the hand of their U.S. masters. Even U.S. authorities took note of them on his travels last October, when he was taken off an international flight from Toronto to New York for questioning. The interrogation brief was predictable: his views on jihad and the deployment of drone strikes (Guardian, Oct 27, 2012). A U.S. state department spokeswoman blandly claimed that any pressing “issue was resolved. Mr. Khan is welcome in the United States.”

The Pakistani high court in Peshawar evidently agreed with Khan in a ruling handed down last Thursday. Chief Justice Dost Muhammad Khan cast a keen and clinical eye over the use by the U.S. of drones in Pakistani tribal areas, making various observations that should prompt concern from the drone lobby in Washington.

The case arose because of a suit brought by Shahzad Akbar of the Foundation for Fundamental Rights (FFR) on behalf of families of victims killed in a U.S. drone strike on March 17, 2011. More than 50 died in that particular attack. Local leaders who had gathered to discuss problems associated with a chromite mine perished. For the Chief Justice, the strikes “are absolutely illegal and a blatant violation of sovereignty of the state of Pakistan.” They amounted to war crimes at international law. There had been no evidence that General Pervez Musharraf had given the green light for their deployment when in power, nor was it a legitimate entitlement for a government to allow the killing of its own citizens without due democratic process.

The response of drones was also markedly disproportionate. Self-defense could hardly be a solid basis for killing 3000 Pakistanis given that “not a single… terror incident… anywhere in the USA” stemmed from Pakistan since the “global war on terror” was declared.

The justice’s recommendations proved dramatic: taking the grievance to the U.N., either through the Security Council or the General Assembly, getting a favourable outcome, that, if not complied with, would see a severance of “all ties with the USA and as a mark of protest deny all logistic and other facilities to the USA within Pakistan.”

This, as it turned out, was one part of the judicial shopping list. Other recommendations touched upon the need of the Pakistani air force to shoot the drones down after making an initial warning. (Politeness can be so important.) An independent war crimes tribunal should be requested under the auspices of the U.N. via a request by the Pakistani government and “complete and full compensation for the victims’ families” arranged.

The judgment tends to back the observations of Ben Emmerson Q.C, U.N. special rapporteur monitoring human rights in counterterrorism programs. According to Emmerson, the Pakistani authorities had never given consent of any sort for CIA strikes to be undertaken in tribal regions. “As a matter of international law the U.S. drone campaign in Pakistan is therefore being conducted without the consent of the elected representatives of the people, or the legitimate government of the state” (Salon, Mar 16).

There remains widespread suspicion that the deployment has received consent of sorts from the Pakistani intelligence services in a Faustian pact made with the CIA to eliminate the Pashtun militant Nek Muhammed, a Pakistani ally of the Taliban marked for termination by the authorities. On the announcement of Muhammed’s death in June 2004 courtesy of a Predator drone, Pakistani authorities claimed credit for an attack they never mounted (New York Times, Apr 6). A bloody conspiratorial precedent was set

Khan’s party did not get the numbers in the election needed to claim power. That honour fell to the “tiger”, former Pakistani Prime Minister Nawaz Sharif, who declared victory on Saturday as leader of the Pakistan Muslim League (PML-N) party. In what was a first for the struggling 65-year old state, one civilian government completed a full term for another to take over. Encouragingly, the anti-drone stance was also adopted by Sharif’s PML-N, though the tides of Pakistani-U.S. relations tend to be inscrutable. Either spineless capitulation or robust defiance are on the cards, and if we are lucky, a mixture of both.

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com