A senior judge in Pakistan has ordered police to formally investigate former CIA agents for allegedly authorizing a 2009 drone strike.
If the case moves forward, it may subject the U.S. embassy in Islamabad to sensitive police investigations and even result in U.S. citizens for the first time being charged with murder for covert drone strikes in the South Asian nation.
Last Tuesday, the Islamabad High Court ordered police to open a criminal case against former CIA Islamabad Station Chief Jonathan Bank and ex-CIA legal counsel John A. Rizzo for murder, conspiracy, terrorism and waging war against Pakistan.
The complainant is Kareem Khan, whose son Zahin Ullah Khan and brother Asif Iqbal were killed in an alleged December 2009 CIA drone strike in the mountainous Waziristan region bordering Afghanistan.
The case was lauded as the "first of its kind for directly implicating and naming a CIA official" by University of Hull international legal expert Niaz Shah.
However, the Pakistani police appear unlikely to comply with the judge’s order, having already refused on two previous occasions. “[We] are appealing the case in the Supreme Court of Pakistan,” Islamabad police superintendent Mirvais Niaz told TIME on Wednesday, citing jurisdictional disputes.
Mirvais maintains that the local Waziristan authorities should investigate the incident as that’s where the deaths occurred; Khan, a journalist, argues that an Islamabad bench should try the case as that’s where he contends the decision to launch the strikes was made.
However, the case appears to rest on whether Pakistan’s political apparatus is willing to pursue a sensitive legal action that police say may imperil U.S.-Pakistan relations.
According to court documents seen by TIME, not only does Khan's case implicate ex-CIA officials, it also calls for an investigation into the U.S. embassy in Islamabad, where Khan believes the drone strike was ordered.
“The Pakistani government has questions to answer about why they have fought the filing of this criminal complaint if they are indeed opposed to the drone strikes,” said Jennifer Gibson, an attorney with international legal aid charity Reprieve. “They’ve been fighting it in court at every level.”
Even if the investigation receives the green light, bringing ex-CIA officials to trial will be an onerous battle in Pakistan. Should Bank and Rizzo fail to appear, one recourse is the international police body Interpol, which can extradite former CIA officials to stand trial, says Mirza Shahzad Akbar, the Pakistani attorney leading case. However, cases against CIA officials seldom succeed, even when Interpol is invoked, for reasons of diplomatic sensitivity. (In 2005, Italy unsuccessfully forwarded a request to extradite CIA agents to Interpol, an action repeated by Germany in 2007 with a similar result.)
“It’s very difficult to get the CIA to come to court in Pakistan,” Akbar told TIME in March.
The CIA removed Bank from Pakistan after he received death threats following his public identification in Khan's initial $500 million civil lawsuit in 2010. He became chief of Iran operations but was removed for creating a “hostile work environment” and now works in intelligence for the Pentagon, the Associated Press reports. Rizzo, who Khan alleges authorized the strike that killed his family members, worked in Pakistan as a CIA lawyer and has since retired. Both are currently living in the U.S. and appear unlikely to return to Pakistan to stand trial.
CIA spokesman Christopher White declined TIME’s request for a comment on the case involving Bank and Rizzo.
As the case moves ahead, some see it paving the way for a possible multibillion-dollar class-action suit against U.S. officials. The U.S. has carried out more than 400 covert drone strikes in Pakistan, with the most recent on Sunday, according to data from the Bureau of Investigative Journalism. Since 2004, drone strikes in Pakistan have allegedly killed up to 3,945 people, including some 960 civilians. The U.S. counterterrorism strategy in Pakistan focuses on drones to uproot the Taliban, al-Qaeda and other militants in Pakistan’s fractious tribal areas.
In 2013, the Peshawar High Court, whose rulings apply nationwide, declared U.S. drone strikes illegal in Pakistan and demanded compensation for civilian victims. Likewise, in April 2012, Pakistan's Parliament issued a resolution that “no overt or covert operations inside Pakistan shall be permitted.” Neither the 2013 Peshawar court ruling nor the 2012 parliamentary resolution seems to have halted the U.S. drone campaign inside Pakistan.
Should the former CIA officials prove difficult to prosecute, civilians harmed by drones may pursue other legal channels. “The [drone victims] may also be able to sue the state of Pakistan for failing to protect them from harm caused by someone else. The state is responsible for protecting people and their lives,” said the academic Shah, who also serves as an advocate of the High Court in Pakistan.
Nonetheless, the political will to pursue drone-related litigation remains shaky in Pakistan, where many believe “tacit consent” allows U.S. drone operations to continue. In 2012, U.S. officials familiar with the drone program told the Wall Street Journal that Pakistan clears airspace and sends acknowledgment receipts after the CIA faxes upcoming drone-strike alerts to Pakistan's intelligence agency, the ISI.
In an interview with TIME, Pakistan's Foreign Ministry spokesperson Tasnim Aslam rejected the principle of tacit consent as a "rumor" and said Pakistan was continuing to pressure the U.S., both in private and public meetings, to end the drone program, given the success of its own counterterrorism operation in Waziristan, Operation Zarb-e-Azb.
"Drone operations without our permission are violating our sovereignty, and they result in collateral damage — killing off large numbers of innocent civilians — which creates more resentment," she said.
Nevertheless, in the leaked 2013 Abbottabad Commission report, the former head of the ISI appeared to publicly acknowledge Pakistan signing off on U.S. drone strikes: “It was easier to say no to them in the beginning, but ‘now it was more difficult’ to do so,” said the ISI's former director general Ahmed Shuja Pasha. The classified document reported that “The DG [director general] said there were no written agreements. There was a political understanding.”
U.S. President Barack Obama has said that the U.S. operates drones with the cooperation of foreign governments, in part to protect strategic alliances. In a 2013 speech at the National Defense University, which remains the Administration's most comprehensive and recent public statement on drone policy, Obama said “America cannot take [drone] strikes wherever we choose; our actions are bound by consultations with partners and respect for state sovereignty.”
Still, Pakistan’s Prime Minister Nawaz Sharif rebutted Obama’s speech a few months later, saying, "The government of Pakistan has made its position clear that drone strikes constituted a violation of Pakistan’s sovereignty, violative of international humanitarian laws, besides being counterproductive to our efforts for bringing peace and stability in Pakistan and the region."
Ultimately, the Islamabad High Court’s action may reveal more details of how the drone program operates in Pakistan and which state agencies, if any, interface with U.S. officials in the decisionmaking process. Pakistan’s courts, increasingly powerful and independent, have emerged as an important arena to wrestle for these answers.
For Khan, who is still desperate to learn who ordered the death of his brother and son, culpability is less important than accountability.
“The Pakistani government owes it to Kareem Khan, and the many other civilian victims of U.S. drone strikes, to honor the judgment. Justice and an end to drone strikes are long overdue,” said Gibson, the Reprieve lawyer.
In a statement after the judge’s order last week, Khan said, “I sincerely hope that authorities now will do their job and proceed against the culprits.”