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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