Connect to share and comment

The global market for drones is booming. But what does the coming arms race mean for US national security interests — and the future of warfare? GlobalPost correspondents report from critical locations around the world, from Israel to Iran to Yemen to Brazil — where unmanned aerial vehicles are radically transforming combat and surveillance.

Pakistan drone victim protest
A Pakistani tribesman shows a photograph of a US drone attack victim during a protest in Islamabad on February 25, 2012, against the US drone attacks in the Pakistani tribal region. The protesters demanded an immediate end to drone attacks and compensation for those who lost relatives or property. (Aamir Qureshi/AFP/Getty Images)

Drone death lawsuit in Pakistan challenges legality of American strikes

Formal cases are rare, pushing courts to explore uncharted legal territory.

WASHINGTON — A case that pits US government policy on drone strikes in Pakistan against the body of international law is set in the besieged Northwest Frontier Province, where Noor Khan is the plaintiff in a lawsuit on behalf of his father who was killed along with more than 40 others while leading a tribal council.

Was this father, Daud Khan, and the other civilians' deaths ‘extrajudicial murder’ or ‘justified collateral damage’ in war? The question speaks to two starkly different legal conclusions and a fork in the road of international law when it comes to the use of drones, particularly amid the Obama administration’s expanded use of Unmanned Aerial Vehicles, or UAVs.

The drone attack in question — on March 17, 2011 — killed 42 people. Four were confirmed Pakistani Taliban members and the rest were reportedly civilians, including tribal elders such as Khan’s father who were attending the tribal council, which was focused on a conflict over mining in Northern Waziristan.

The assembly, known as a ‘jirga,’ has deep tradition in Pashtun culture and in this instance was aimed at settling the land dispute before it turned violent. But the gathering ended when suspected CIA drones fired several missiles at the meeting place.

More from GlobalPost: VIDEO: Pakistan anti-drone protest fizzles out but provokes strong emotion

“The debate in the US right now is over the issue of whether targeted killings are legal or not.”
~Hina Shamsi, NYU Law School

Khan’s family filed suit in the High Court of the Peshawar province against the government of Pakistan. Khan seeks redress in the form of action, asking the Pakistani government to pursue and criminally charge those involved with the strike, both inside and outside the country. He is arguing that the government failed in its legal duty to protect the life and liberty of its citizens, per Article 9 of the Pakistani Constitution.

The case currently awaits a final judgment and faces several hurdles, with the next hearing scheduled for Oct. 23. Khan's case is one of only a few petitions filed by a surviving relative over the killing of a civilian in an American drone attack and faces generally tenuous chances of success in a convoluted Pakistani legal system, a mix of of British common law and Islamic law divided into five jurisdictions, with higher and lower courts in each jurisdiction.

More importantly, the case will almost definitely fail to lay a finger on the United States government, the party ultimately responsible for the drone strike. Nevertheless, it is an apt lens through which to analyze great legal questions that extend beyond the case.

The lawfulness of predatory drone strikes dredges up a body of international legal questions. Drone strikes are state conduct, or at least “suspected” state conduct, and all state actors are bound by international law, which is comprised of customary practice and treaties. International law is rooted in both primary sources (i.e. principles of law rooted in treaties such as the UN Charter and the Geneva Convention) and customary international law (i.e. universally accepted practice).

At court in Pakistan, Khan’s quest for recourse over his father’s death hinges on a paradox: predatory drone strikes pose familiar legal questions, but answering those questions using existing laws treads unfamiliar territory.

Until now, international law and conventions have addressed the traditional combat context of war: troops in uniform killing other troops in uniform. As modern military methods shift from conventional warfare to combating terrorism through targeted killings, how do these laws apply to the US killing a terrorist disguised as a civilian?

What crimes, if any, does the US commit when a soldier carries out the killing from a cubicle using a joystick to operate the predatory drone? The answers to these questions will largely determine whether or not individuals like Khan are left empty-handed by the law.

When the United States targets and kills civilians with drones, it is bound by both domestic and international law. US domestic laws pose their own set of legal questions, mainly regarding oversight of drone operations by Congress, the US military and the CIA. However, even assuming that the United States’ conduct is completely justifiable under its own laws, the country must still answer to international law which binds states under a neutral set of conduct rules.  

“To my knowledge, there are no legal efforts underway to prosecute the US for the killings of civilians in its conflicts