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Chris Rogers

Chris Rogers

Posted: December 3, 2010 03:28 PM

"The United States is a nation of laws," President Obama has declared, insisting that the US will uphold the rule of law in its fight against terrorism. Yet when it comes to drone strikes abroad, the US has not demonstrated that it is living up to this principle.

One Pakistani victim of a US drone attack is now shining the light of law on drone strikes --a practice dramatically escalated under the Obama Administration. Mr. Kareem Khan, who lost his son and brother to a drone strike last year, served notice this week that he intends to sue US government officials in Pakistani court, specifically Secretary of Defense Robert Gates, CIA Director Leon Panetta, and CIA Islamabad Station Chief Jonathan Banks.

Despite many doubts as to the viability of the lawsuit, the move highlights the utter lack of legal justification for drone strikes and redress for victims. It challenges the US and Pakistan to admit to the strikes, clarify how they define combatants, and provide victims with the recognition and help they deserve.

As my organization CIVIC documented in a year-long study of Pakistani war victims, drone strikes kill and injure innocent civilians in Pakistan, provoking anger and outrage. Adding insult to injury, neither the US nor Pakistan investigate the death and damage suffered by civilians, nor provide assistance or compensation to victims.

The clandestine nature of the strikes compound the lack of legal clarity and is a major obstacle to ensuring civilian harm is properly addressed. Secrecy prevents transparency and accountability. Refusal to provide a clear legal justification for the strikes increases the risk of abuse and the likelihood of harm to civilians. The resultant legal vacuum will also inevitably be exploited by other states and organizations to justify and expand their own use of extrajudicial killings. The US is setting a dangerous precedent.

Undeniably, the litigation pursued by Mr. Khan faces significant legal hurdles. For instance, because of an antiquated and oppressive colonial-era legal regime, it is unclear whether Pakistani courts would have jurisdiction over matters arising in the Federal Administered Tribal Areas (FATA), where all of the strikes have taken place thus far. It's also unclear how a suit could proceed against US officials likely to refuse to cooperate in the proceedings.

There are powerful political dynamics to consider as well. The judiciary is a fickle institution in Pakistan--at times doggedly asserting its independence and standing up for the rule of law--and at others acceding to pressure from the political and security establishment.

However, simply getting courts in Pakistan to exercise jurisdiction over the matter could be considered a success. And an important and oft overlooked fact in victims' favor is that CIA officials lack immunity under international law of war because they are not members of the armed forces. They can therefore be prosecuted for their actions under states' domestic laws (just as al-Qaeda and Taliban detainees are prosecuted under US domestic law).

The suit also points to the potential for litigation against Pakistani government officials, a route Mr. Khan may very well pursue. It is widely known that Pakistan not only consents but cooperates in US drone strikes--potentially in violation not only of international human rights obligations but also of Pakistan's own laws and constitution.

Imagine, for a second, that the US were to permit Mexico to use fighter jets to bomb American gun dealers that sold arms to Mexican drug cartels--a hypothetical fairly analogous to the situation in Pakistan. Never mind issues of state sovereignty; how could the US--and thus Pakistan--ever allow another country to come on to its territory and extrajudicially kill its citizens?

It is easy to imagine places like North Waziristan as the 'wild west', full of militants armed to the teeth, beset by chaos and violence. But the reality is that there are ordinary people in these areas. They are Pakistani citizens with legal rights, trying to earn a living, raise their children, and live their lives.

Kareem Khan, a university graduate and journalist who works with a number of major media outlets, insists that neither he nor his family are militants. His brother was also university educated--a rarity in FATA--and instead of leaving their villages, he chose to remain and work as a teacher in the local government school.

When a missile comes streaking into their homes, victims like Kareem Khan are not only devastated by their losses, but want justice, as many of us would. At the very least, they want someone to answer for what has happened to them. Hopefully, Mr. Khan's legal action will bring his family and other victims closer to achieving justice and finding answers--and take the US and Pakistan closer to truly being nations of laws.