(First Published On Asia Despatch Website 29/11/2010)
It is important that there is a process of litigation where innocent civilians caught up in drones (unmanned aerial vehicle) attacks can hold a state or states to account. For too long governments have avoided answering to international law simply dismissing the lives of innocent men, women and children as “collateral damage”. Drones were introduced to Pakistan in 2004 and those who have suffered as a result of being wrongly targeted had names and lives. As Asia Despatch points out one such person is Karim Khan whose son 18 year old Zain Uddin and brother 32 year old Asif Iqbal were killed in such an attack http://www.asiadespatch.com/2010/11/first-family-of-drone-victim-surface-demands-us-cia-for-compensation T
This “targeted” killing is carried out by the US Central Intelligence Agency, CIA in North Waziristan. It is aimed at insurgents and the technology is claimed to minimise civilian casualties but more often than not drones are hitting families with no ties to militants simply trying to get on with their day to day lives in what has become one of the most dangerous places on earth. Mr Khan now plans to litigate with the help of his Council Barrister Shahzad Akbar against the US and CIA Chief in Islamabad Jonathan Banks.
It will be interesting to see how the process regarding international law will be applied in this situation and what possible obstacles will be put in place to protect the CIA and government agencies within Pakistan. I spoke with Paul Wolf a US human rights “anti-war” attorney based in Washington DC who has worked with cases from Iraq. He had this to say about the drone case “what he wants to do won’t work because the US government has sovereign immunity and so does the CIA director while acting within the scope of his official duties.” Paul did however offer the following point, “I wonder if any European countries are involved in these predator attacks? The UK just announced a settlement for Guantanamo prisoners, in which the UK was involved in their abductions somehow. The UK passed a law called the Human Rights Act in 1998, waiving sovereign immunity for certain war crimes, in the European Convention on Human Rights. I am not sure if any other European country allows these kind of cases or just the UK.”
Recently UK detainees from Guantanamo Bay held as part of the “war on terror” and released without charge began to take legal action not against US authorities who detained them but the UK government who they alleged were complicit in supporting the use of torture. As expected to avoid embarrassment the UK government paid out “hush” money thus silencing victims with no admission of liability, (story covered in Asia Despatch on the following link) http://www.asiadespatch.com/2010/11/uk-government-gives-payouts-to-former-guantanamo-detainees/
From my own experience of attempting international litigation the following thought comes to mind, if attempts are made to use the American legal system then ruling of FNC “forum non conveniens” may be declared through a court.” FNC basically means “not agreeing” and is a mainly common law legal doctrine where for example a court in America could throw out a case stating a person should be able to get justice in their own country in this case Pakistan. FNC is a doctrine of the conflict of laws, applies between courts in different countries and between courts in different jurisdictions in the same country. There could also be the accusation of “forum shopping” that is seeking the best venue where those taking a case may be seen to gain advantage, this may include suing abroad, seeking higher levels of compensation for example. Though why shouldn’t a litigant do this?
The drone case will be interesting as I can forsee a situation where complicity could be an issue in a legal case. To what extent did the government of Pakistan give permission for drones to be carried out on its soil and therefore are they also liable? In that case an American judge could argue the case should be heard in Pakistan and could end up a different case aimed at national rather than international bodies. American authorities may well defend their corner by saying Pakistan gave permission for drone attacks.
A recent example of FNC are the global haemophilia cases, those infected round the world with contaminated blood used as treatment for a hereditary clotting disorder. This litigation involved thousands of patients taking action against four US multi- national plasma companies that knowingly supplied countries with blood infected with HIV and hepatitis viruses that had been collected from US prisons violating many safety laws. There was a hope from victims that the US government could be held to account for policies that failed to uphold safety and killed and injured an estimated 50,000 worldwide.
The haemophilia cases from the UK (classed as the “worst medical treatment disaster it the history of the National Health Service, 4,700 infected, around 2,000 dead) were thrown out of America by a judge in Chicago on FNC after several years and put back to the UK. The UK legal aid system did not support victims as cases were seen to be too costly and the number of victims too high, this is one negative aspect of a “class action” where a group of people litigate. Evidence from government documents acquired by campaigners showed that the UK government knew the treatment to be infected, where the blood was sourced and turned a blind eye to serious safety violations. When cases were dismissed from American courts, the US lawyers then acted to negotiate for a “no liability” out of court settlement from the US companies and those involved were warned it would be an extremely low payout which could be less than 10,000 US dollars.
Haemophilia campaigners continue to fight for compensation from the UK government as many of those infected were unable to join the US class action anyway due to legal time limitations. Some had received a small settlement in 1991 but based on a life expectation of 5 years. Haemophiliacs are now living longer but with severe and chronic disabilities due to infection. Sometimes the reality is that justice does not prevail especially when you are dealing with a so called “superpower”.
There are also the Bhopal cases in India where a cloud of toxic gas from a chemical factory hit the city killing an estimated 20,000 and injuring 600,000. Again this involved litigation for alleged negligence against a US corporation Union Carbide (taken over by Dow Chemicals). Victims received little compensation and there has been a lack of support from the Indian government in relation to accepting their part in ensuring that foreign companies with outlets in India were following adequate safety procedures http://www.asiadespatch.com/2010/11/death-by-the-corporations-and-the-contaminated-blood-trade/
To get back to Mr Karim, I hope he uses the media to continue to highlight his case as drone attacks generally receive little attention outside of national borders where incidents occur unless they happen to kill known members of Al Qaeda or Taliban. Few hear of the civilian casualties and many in the west accept the actions as they are aimed at insurgents. What government and corporations don’t like is negative publicity and unfortunately the wheels of justice turn very slowly so its useful to keep cases in the public eye. It is time that international human rights organisations were more vocal on the devastating use of predator drones. It is good that someone has the courage to come forward and hopefully challenge those who promote their use. Even if current legislation makes a case look difficult to pursue, the law can always be tested, as the saying goes, “where there is a will, there is a way”. I suspect that unless that happens, for some time to come the US government will not only continue to target Pakistan but argue a reason for moving their drones into other additional countries too.
Carol Anne Grayson is an independent writer/researcher on global health/human rights and is Executive Producer of the Oscar nominated, Incident in New Baghdad. She is a Registered Mental Nurse with a Masters in Gender Culture and Development. Carol was awarded the ESRC, Michael Young Prize for Research 2009, and the COTT ‘Action = Life’ Human Rights Award’ for “upholding truth and justice”.