Shoot the drones

Published: May 16, 2012

The writer is director of the British charity Reprieve

The question asked by the Foundation for Fundamental Rights (FFR) in its litigation filed in Peshawar last week is why the Pakistan government allows the US to kill its citizens — firing Hellfire missiles from Predator drones in sovereign Pakistan territory. I suspect that the Pakistan government will find it impossible to give an honest answer.

In 2008, former Chief of the Air Staff, Air Chief Marshal Tanvir Mahmood Ahmed said that the Pakistan Air Force (PAF) “is fully capable to stop drones’ flights and missile strikes”.Chief of Air Staff Air Chief Marshal Rao Qamar Suleman said a year ago that the PAF is prepared to shoot US drones down and waits only for the government to give the order.

It is, indeed, ludicrous to suggest that the PAF could not stop US drones from killing Pakistani citizens. Predator drones generally putter around at roughly 140 mph, well below their maximum altitude of 25,000 feet. A Pakistani F16 (paradoxically purchased from the US) can fly twice the speed of sound (1,500 mph) up to 60,000 feet; 70 years ago in World War Two, even a Spitfire could have done the job, at 600 mph and climbing to 51,000 feet.

I should say that, as an American, I would never advocate anyone trying to kill my fellow citizens. I don’t believe in violence, I believe in the rule of law. Neither am I going to tell the Pakistan government that it should shoot down drones, even though nobody would be harmed in the destruction of an American Unmanned Aerial Vehicle (UAV). However, as an American lawyer, it is my job to analyse the law. Pakistan is a nation of laws, and officials of any government — whether American or Pakistani — must follow the rules.

It grieves me to say that the US drone attacks on Waziristan are patently illegal. The drones, and those who fly them, are violating Pakistan law. I don’t believe in the death penalty, but Section 121 of the Pakistan Penal Code provides that “whoever wages war against Pakistan, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life…”

The Pakistan government is obliged to enforce this law, as well as the Constitution: Article 9 guarantees all citizens the fundamental right to “security of person”. Article 4 provides that “no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law”. The Oath of Office commits the president, the prime minister and other ministers to “preserve, protect and defend the Constitution of the Islamic Republic of Pakistan” and to “do right to all manner of people, according to law, without fear or favour, affection or ill-will”.

In other words, the primary duty of a Pakistani politician (as with political figures in any country) is to protect its citizens from harm. And Article 245(1) of the Pakistan Constitution provides that “[t]he Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war…”.

My own government tried for many months to avoid admitting that the CIA was waging war on Pakistan, though missiles were raining down. Of late, American officials have started to try to justify the unjustifiable: a US official announced that while courts are one option, drones also deliver justice. Such assertions (a snub to the rule of law) risk transforming the current tragedy in Fata into farce.

The legal question posed by the FFR lawsuit is therefore an intriguing one. The Pakistan government will no doubt try to dodge it, relying on Article 245(2): the “validity of any direction issued by the Federal Government [to the Armed Forces to defend the nation] shall not be called in question in any court”. That argument fails the plain English test: the government has not, apparently, given an order to defend Pakistan citizens from external aggression — rather, remaining devoted to inactivity. Article 245(2) therefore does not apply.

We will see, then, whether a judge issues the most obvious verdict: that the Pakistan government is duty bound to instruct the PAF to shoot the drones down. For my part, I hope my own government will render the issue moot by remembering the lessons of history. This illegal intrusion into Pakistan (supposedly targeting enemies who have crossed the border from Afghanistan) is no wiser than ‘Operation Menu’, President Richard Nixon’s 1969 bombing of Cambodia and Laos (which purported to target Viet Cong ‘terrorists’ who had slipped across the border from Vietnam).

The Nixon administration suggested that the Cambodian and Lao governments had given secret consent to this illegal war. If this was true, it did nobody any good. In the wake of Nixon’s bombing campaign, in order to neutralise American goals, Vietnam joined forces with the extremists in both countries: Cambodia sank into the twenty-year genocide of the Khmer Rouge; decades later, Laos still retains the totalitarian government imposed in 1975.

Remembering the lessons of history, the US should end the drone war, and avoid driving Waziristan deeper into the morass.

Published in The Express Tribune, May 17th, 2012.

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Reader Comments (52)

  • Ali Tanoli
    May 17, 2012 - 12:11AM

    Why wasting time sir even unborn knows our almighty armees doller hungery allowed that …
    we are third class sub indian peoples are just to die for others intrest ….

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  • Falcon
    May 17, 2012 - 12:18AM

    Clive – A good article. As a whole, I agree with US concern about containment of terrorists, but drone is certainly not the most effective way to deal with it. The problems with Americans is that they want to control and dismantle everything directly Hollywood style rather than trying to resolve issues subtly through multiple layers of diplomacy ,policy, and structural frameworks. They are unable to realize through because of this quick results oriented vignette that militants have taken on so many forms across the globe with no hope of giving in any time soon and this approach has in fact lengthened their war.

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  • AS
    May 17, 2012 - 12:22AM

    A rather simplistic and reductionist legal analysis of an extremely complex issue.

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  • Ahsan Raza
    May 17, 2012 - 12:40AM

    Our People, Our Government, Even Our Army has no shame. They lead a convenient lifestyle in a state of apathy and choose to criticize those like Imran Khan who just speak out against what is thoroughly ILLEGAL and Immoral. And Plus, tactically and strategically it is equally damaging to the American efforts and interests because acts like these, no matter however hidden from the General American Public, inspire more acts of terror like the Taliban or Faisal Shahzad.

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  • mani qadir
    May 17, 2012 - 12:42AM

    Finally ! a voice of reason !

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  • Ali
    May 17, 2012 - 12:51AM

    Drones are indeed a counter productive strategy and in reality is undermining the war on terror, every home targeted and every civilian killed is used as a recruiting tool by taliban, i have seen it with my own eyes.

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  • Ali
    May 17, 2012 - 12:51AM

    Drones are indeed a counter productive strategy and in reality is undermining the war on terror, every home targeted and every civilian killed is used as a recruiting tool by taliban, i have seen it with my own eyes.Recommend

  • Imran Con
    May 17, 2012 - 12:58AM

    I wonder how such expertise of law is found only in you and not the people who count. Maybe your charity extends to fantasy.

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  • afzal
    May 17, 2012 - 1:01AM

    sir i salute u courage to explain pakistani their law . pakistan politician and generals are corrupt and dishonest, they will not do that.

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  • faraz
    May 17, 2012 - 1:19AM

    US objective is to bomb suspected hideouts in FATA; drone is just a tool. If drone is shot down, US air force will bring in the high altitude bombers and other sophisticated gadgetry which will leave PAF clueless. The fact is, as revealed by Wikileaks, that the Pakistani government and army have allowed US to conduct drone strikes. They don’t want to confront the militants fearing backlash. When US conducts drone strikes, army tells the militants to go to Afghanistan to take revenge; a win win situation for the army. Government should at least evacuate the civilian population from Waziristan and provide them proper residence in safer areas. This wont end for years to come

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  • M_ALI
    May 17, 2012 - 1:22AM

    clive smith, you are the man!!!!Recommend

  • LionOfPunjab
    May 17, 2012 - 1:24AM

    “…However, as an American lawyer, it is my job to analyse the law. Pakistan is a nation of laws..”LOL!!!! Sorry, i stopped reading your article after that gem! hee he heh he he he..it hurts my stomach.

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  • @plarkin
    May 17, 2012 - 1:38AM

    Well meant and well reasoned but the circumstances actually justify drone attacks for reasons that I’m about to list:

    The Pakistani state does not have a writ over the area that constitutes North Waziristan. The government is unable to pursue militants who are killing civilians and soldiers on both sides of the border.

    The population of this area does not accept the writ of the Pakistan state; therefore it would be a very foolish government that would expend its resources in defending people who are in open rebellion.

    The people being attacked are NOT innocent civilians but eager participants in a war against the states of Afghanistan and Pakistan

    I hope the judge listening to this case will throw it out with a ruling that it’s a federal matter and that the litigants lack standing to bring forward this case.

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  • Ejaaz
    May 17, 2012 - 1:47AM

    “I suspect that the Pakistan government will find it impossible to give an honest answer.”

    I am sure the Pakistan government will be as if not more honest on this than your government has been.

    “However, as an American lawyer, it is my job to analyse the law. Pakistan is a nation of laws, and officials of any government — whether American or Pakistani — must follow the rules.”

    And therein lies why your entire article is pragmatically nonsense. Pakistan is not a nation of laws. We aspire to become a nation of laws. A lot of us are hoping to have Islamic laws governing us instead of the current hodge podge of residual colonial laws. It is unclear whether our PCO judiciary is legitimate and legal. The past and historical rulings of our Supreme court have proved to be truly disastrous for us. Unfortunately it is also unclear whether our executive, the convicted PM, is legitimate and legal. Our entire establishment has been lying to the people of Pakistan for the last 60 or so odd years, and there appears little reason to expect things will change now.

    I wish you the best in trying to get laws on the use of Drones to become more transparent and accountable since I suspect the technology driving them will only rapidly advance into robotic weapons that are going to be even more exotic and lethal. Their use is not “patently illegal” but is certainly controversial. Perhaps your efforts will make their use as patently illegal. We can only hope.

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  • Sarah
    May 17, 2012 - 2:14AM

    Thank you for a scholarly take on this issue. I don’t want to sound too pessimistic but much has been said and yet just two days back did Pakistani government finally give in to the demands of the reopening of NATO supply route. Lately I’ve been very disillusioned by our nonchalant attitude as a nation towards our state of affairs. Apparently those in the tribal belt are less human than us city-dwellers which is why it bothers us not one bit when their homes and funerals are bombed.
    (Off topic but) All we care about is worshipping are languages and culture; exploited by political parties preaching racial supremecy. We need to reassess our standing as a nation.
    Oh and the Army wouldn’t DARE shoot them drones. It’ll stop receiving aid from the US. Aid is more important than human life.

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  • You Said It
    May 17, 2012 - 2:31AM

    The Pakistan government is obliged to enforce this law, as well as the Constitution: Article 9 guarantees all citizens the fundamental right to “security of person”.

    The Pakistan government is also obliged to enforce its sovereignty on the tribal areas. It is also obliged to prevent terrorist groups from operating there. This obligation can thus join a long list of unfulfilled desires. Get in line, Clive.

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  • May 17, 2012 - 2:38AM

    Rule of law is what made USA one of the greatest nations on earth. Unfortunately, the same neglect is going to cause its demise. The question should be, who is actually going to benefit from any demise of USA? Pakistan, Iraq, Afghanistan, Syria, Libya, Iran or any other new (mis)-adventures out there, would obviously will end up like the Vietnam experience. But what is USA actually gaining from this cow-boy gun-trotting wars? Or whoever is using American military might in trying to subjugate the whole countries out there, what is their real agenda? The demise of USA will actually bring further chaos to the world as it did soon after the demise of USSR. The removal of powerful nations will actually invite the anarchy in this world. Instead of playing a responsible role of being a leader of peaceful world, USA is being led into believing all that fear-mongering, hate-mongering and war-mongering. Who are the ones doing that and to what ends? If it is anarchy some elements enjoy, then it is understandable cause they have never experienced or enjoyed the fruit of peace, love and co-existence. I think it all falls to the individual parents out there how they raise their kids and those kids turn out to be these self-hating, human blood-hungry and completely stupid individuals believing in the propaganda to wage war against masses of individuals out there. People justify the war as THE only way to peace when it is NOT. War takes down the biggest powers on earth. Just read history beyond Vietnam.

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  • G. Din
    May 17, 2012 - 2:46AM

    So, would you suggest a direct “hot” war, because it is pointless to declare a war “illegal”?

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  • Spud
    May 17, 2012 - 5:03AM

    If the terrorists stop attacking armies in Afghanistan from Pakistan then what you ask should be done. However of Pakistan army cannot stop this then drones will have to be used. The author fails to realise (a trait of liberals) most terrorists live among civilians endangering their lives. These civilians should advise the army of terrorist hideouts and rid themselves of them.

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  • May 17, 2012 - 5:20AM

    “It grieves me to say that the US drone attacks on Waziristan are patently illegal. The drones, and those who fly them, are violating Pakistan law.”

    Sorry Mr. Smith, but Pakistan law doesn’t apply! Under the post-9/11 U.N. Security Council Resolution 1373 Pakistan has the binding sovereign obligation in international law to root out terrorists, terror havens, terror training camps, and terror financing from its territory. Demonstrable failure on Pakistan’s part to act – as in North Wazirstan – means Pakistan’s sovereignty is nulled when other nations do so.

    We don’t hear this argument from diplomats because since 2006 reports about Pakistan’s noncompliance with 1373 have been classified by the Security Council. However, if this “U.S. drone strikes are patently illegal” theme grows further, I wonder if that may change?

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  • Mariam
    May 17, 2012 - 5:49AM

    We’re sell outs. Even Americans are wondering why we arent doing anything about this.

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  • May 17, 2012 - 6:48AM

    “whoever wages war against Pakistan, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life…” unless good money is paid.
    “Chief of Air Staff Air Chief Marshal Rao Qamar Suleman said a year ago that the PAF is prepared to shoot US drones down and waits only for the government to give the order.” Did the army ask for a government nod before doing Kargil misadventure?

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  • bangash
    May 17, 2012 - 7:17AM

    I am sure drones will become perfectly acceptable to GHQ if US decides to pay more money in aid or transit fees per year.

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  • May 17, 2012 - 7:37AM

    http://tribune.com.pk/story/379824/shoot-the-drones/#comment-713447
    A must read for all our so-called liberals & human rights activists (who explicitly condone the use of drones to kill innocent people) and the ruling hypocrites + military junta (who are complicit in this drone-war, by not acting against the drones).
    Mr. Clive has exposed all such “Devil’s Advocates (or Ambassadors)” (whose affiliations, mostly, are with their foreign masters).
    This qualifies as a primer about the legal status of drone war and Pakistani govt’s (& military’s) responsibility to ensure that Pakistan’s people remain safe from these killer dragons.
    Seeing the origin of the writer (& comparing with conduct of our own so-called human rights activists / intellectuals), this article reminds of the famous Urdu verse by Allama Iqbal:
    “Hai Ayaa’n Yorish-e-Tataar Ke Afsane Se,
    Paasba’n Mil Gaye Kaa’be Ko Sanam Khane Se”

    Translation:
    “It is proved to all the world, from tales of Tartar conquerors,
    The Kaa’ba brave defenders found in temple worshippers.”
    We tribesmen will always remember you as a well-wisher & true human rights activist.

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  • Hasan Turi
    May 17, 2012 - 8:06AM

    @Faraz, With Imran’s election, drones will end, and supplies will end.

    America is no longer the superpower, but a defeated empire, collapsing as we speak

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  • Hasan Turi
    May 17, 2012 - 8:09AM

    We need a revolution in the country. This army is shameless, and has no honor. If they are complaining about respect, then they should know why they are desrespected. Things like Salala happen because Americans see that the Generals are not caring about drone attack victims and condoning it.

    A revolution is the need of the hour.

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  • Hasan Turi
    May 17, 2012 - 8:12AM

    @Faraz, If you are in a agreement that FATA should be treated with drone attacks, then when America leaves which they will, dont be confused if Pakistan breaks apart into all the different provinces. Would you be ok if drones were operated in Islamabad, Karachi, or Lahore?

    This is dividing the country, and can lead to civil war.

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  • faisal
    May 17, 2012 - 8:12AM

    @ Solomon2, very well said, bro.

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  • Thoughtful
    May 17, 2012 - 8:36AM

    I guess the author is saying ‘its illegal. What are you going to do?” answer ..whine and hold out a begging bowl.

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  • John B
    May 17, 2012 - 8:36AM

    This opinion column is written as a satire! Good one indeed.

    Sometime ago, some one said in comments. If my neighbor breeds mosquitoes that cause public health problems and he does nothing about it despite repeated requests, then there will come a time for me to act to eradicate the mosquitoes. The best comment on the drone issue.

    What about my neighbors right to breed mosquitoes? This is what the author is arguing here.

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  • narayana murthy
    May 17, 2012 - 9:34AM

    “It grieves me to say that the US drone attacks on Waziristan are patently illegal.”

    Illegal? Clive are you drunk?

    USA is dealing with a country where law does not prevail. A country that harbors Osama, dawood Ibrahim, Saeed hafeez, Mullah Omar and Zawahiri.

    There’s nothing illegal in dealing with a en illegal entity called Pakistan. Pakistan becomes legal the day it starts killing terrorists instead of protecting them.

    So, there’s nothing illegal here. Get your head straight. It’s a war. it’s a war on Pakistan’s shenanigans.

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  • gp65
    May 17, 2012 - 9:38AM

    @Falcon: “The problems with Americans is that they want to control and dismantle everything directly Hollywood style rather than trying to resolve issues subtly through multiple layers of diplomacy ,policy, and structural frameworks. “

    Indians know how ineffective the approach suggested by you is based on repeated incursions by Pakistan on our territory.

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  • rafiq
    May 17, 2012 - 10:24AM

    i think if somehow tribles gets hold of decent rocket launchers they would do the job thereself…….

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  • Wellwisher
    May 17, 2012 - 10:59AM

    Drone strikes, I understand, are conducted in areas where Pakistan government’s writ does not run. Is the Government enforces any of its Law in those areas? One should give honest answer.

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  • Rana
    May 17, 2012 - 11:00AM

    Thank you Mr. Clive for showing human side for most neglected people in Pakistan. I believe, if States stick to the Law and Principle, no one can destroy them.

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  • May 17, 2012 - 12:32PM

    Pakistani laws jurisdiction does not extend to US and vice versa. Why should US care about Pakistani laws?

    The only institution which is not performing here is the PAF, which is supposed to shoot down the drone. Civilian Government is powerless in Pakistan, we all know who rules the roost in Pakistan. So, blaming them is of no use.

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  • najeeb
    May 17, 2012 - 12:33PM

    Drones have killed 85% top terrorists and 15% others,some of which were accomplices of the terrorists.The credit of end of authoritarian regimes of Russia, Japan, China, South Korea, Vietnam ,Poland, Yugoslavia,goes to the Americans. One day history will appreciate USA.

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  • ukmuslim
    May 17, 2012 - 3:35PM

    usa is doing a job which pak is suppose to do. its not illegal.

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  • faraz
    May 17, 2012 - 4:02PM

    @Hasan Turi

    If you are from Turi tribe, you should Google what Imran had to say about sectarian violence in Kurram.

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  • M. Ahmed
    May 17, 2012 - 4:40PM

    @najeeb

    US also created authoritarian regimes in the Philipines (Ferdinand Marcos), Iran (Raza Shah Pahalvi), Iraq (Saddam Hussain), Pakistan (Ayub Khan, Yahya, Zia & Musharraf), Saudi Arabia and all the skeikhdoms.

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  • Zeta
    May 17, 2012 - 4:45PM

    Well Written article, fully agreed.
    Don’t pay heed to some dollar loving liberal minded and indian trolls here supporting the drone strikes.

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  • faraz
    May 17, 2012 - 5:04PM

    @Hasan Turi

    Well Imran has nothing to say about the role of army in propagating jihadi groups. He is silent over strategic depth policy. So I would be shocked if, after coming to power, he confronts the army and forces it to follow his policy regarding terrorism and foreign policy. If a person cant take on the army, how can he take on US?

    After 6 months of supply blockage, we have no option but to reopen it, and US has conceded nothing. US is our largest trade partner, and IMF/World bank loans can’t be obtained without its approval. And NATO includes 48 countries that follow US policy decisions. NATO won’t split with US over Pakistan.

    I don’t support drone strikes. But I don’t consider TTP a reflection of pushtoon nationalism. I think TTP should be dealt with force or dialogue, but not considered legitimate representative of tribals. Tribal are the real victims of the war between army, Taliban, jihadi groups and US. I think tribal areas should be brought into mainstream, FCR be abolished, and tribal be treated as first rate citizens and not some warriors which can be used to achieve defense policy goals. In the presence of a huge army, we don’t need armed tribals. The concept of unpaid tribal warriors protecting our Western border is shameful and exploitive.

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  • vasan
    May 17, 2012 - 5:24PM

    Many comments appreciate Clive’s showing of human side. I wonder what they say about the beheading of 20 pak soldiers in Miran Shah and exhibiting them publicly by the Taliban. Dont they deserve to be droned. Considering the cost and terrain, drone seems to be the perfect answer. Why cant Pak realise that the Taliban are blackmailing Pakistan with violence to force Pak not to cooperate with the US in WOT. If Pakistan stops the cooperation, Taliban violence may stop temporarily. But talibanisation of Pakistan will proceed at a much faster rate,Recommend

  • Kanwal
    May 17, 2012 - 7:50PM

    Drone attacks are illegal, extrajudicial killings. Full stop. No matter how you mutate the international law. And yes, pakistan should bring them down.

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  • masuma
    May 17, 2012 - 9:16PM

    Mr Clive!
    please don´t argue for shooting the drones. we are fed up with wars and
    self distruction schooling.we want peace & development for our people.
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  • Pungi
    May 17, 2012 - 10:12PM

    Thankyou Mr. Clive Stafford Smith …since people like you are alive v r hopeful for good relations with U.S.A…!
    Giver Respect & Have Respect..!

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  • Hasan Turi
    May 18, 2012 - 12:38AM

    @Faraz, The sectarian strife has happened because there are Western agents in the tribal areas in the form of NGOs. These NGOs are actually trying to break FATA up by creating Sunni-Shiite rift. I know of this personally. Imran Khan made a correct assessment of the sectarian problems, but now it has subsided. Foreign agents are trying to recruit Turis to work for them against the other tribes. This has stopped since Pakistan put a clamp on visas after Raymond Davis issue.

    TTP is a group that came to be when Mushraf sent army into FATA in 2004. Before that, there was no TTP acting against Pakistan. Whatever your opinion is, the point is militancy will exist and grow until Pakistan pulls out of WOT.

    If supply lines are opened, then this will be a long list of crimes Pakistan is responsible for. You speak in business terms, and forget that with this mind-set, then you should also understand the repercussions for Pakistan. Pashtuns in AfPak are being massacred, and if Pakistan is giving helping hand in this, long term prospect of a unified Pakistan is out of question.

    When Pashtuns are being treated as third class citizens where Salalah attack causes government outcry, but drone attack does not, problems will only grow. Nothing is a one way street.

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  • faraz
    May 18, 2012 - 4:15AM

    @Hasan Turi
    The idea that NGO’s and agents recruited from Turi tribe are responsible for sectarian terrorism is one of most bizarre thing I have ever heard in my life. Ever! You couldn’t conceal your bias; try with a different name next time.

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  • Hassan
    May 18, 2012 - 11:18AM

    Shame on our leaders who even don’t dare to say drones are illegal. the day we decide that law will be equal for anyone weather a mullah, political leader or general we will be on our way to prosperity.

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  • yousaf
    May 18, 2012 - 11:44AM

    @author :: In every ‘western’ there always is ONE good man,telling others not to be cruel to the wretched ‘enemy’.The rest keep on doing their job.Till the END

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  • Iron hand
    May 18, 2012 - 2:57PM

    @Tribal Insafian: Tell us tribesman, how should the world deal with the terrorist menace that lives, trains, and launches attacks from your tribal territory? What is your proposed solution to the problem?

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  • Hasan Turi
    May 20, 2012 - 5:34AM

    @Faraz

    You assume that one can not be critical of their own country, their own faith, and their own tribe. The NGOs have been active in FATA + KP, trying to forment sectarian strife. Turis are not the only ones falling into the trap- Maseeds are too.

    Do not get angry when you read such words. Extremism will increase in Pakistan as long as Pakistan is a part to WOT. It is un-Islamic for Pakistan to be part to WOT. WOT is really WOI.

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