I once attended a seminar on the law governing the use of Unmanned Aerial Vehicles— “drones”—at an eminent university in the United Kingdom. I expected the discussion to be essentially on legal principles with perhaps a passing reference to US-led drone strikes in northern Pakistan. However, I was surprised to discover that not only did Pakistan occupy centre stage in the debate, but also that a number of academics present at the seminar, strongly advocated the use of drones irrespective of the threat to civilian lives it may entail.
One academic praised the drones for their precision and the fact that they allowed for a ‘riskless’ war; another doubted the capacity or intention of the Pakistani legal system to punish terrorists and argued that some ‘collateral damage’ was permissible in the circumstances; another suggested that as long as the war against terror was a ‘just’ war, the means through which it was foughtwas not of concern. Another still, asked, in an anguished tone, if he and hundreds of innocent people were expected to sacrifice their lives at the altar of legal niceties?
More than the discussion itself, the underlying, unspoken assumptions were unsettling. It seemed that for a western audience, Pakistani people, the country’s legal system and indeed the State itself were guilty of terrorism in varying degrees. If they were not terrorists themselves, then they had harboured terrorists and were liable for that. It further seemed that lives of innocent Pakistanis were not at par with those of innocent westerners. If drones allowed western powers to target terrorists without putting themselves at risk, then killing a few Pakistanis was not a terrible price to pay.
However, my discomfort, or indeed that of any Pakistani, would be justified only if we held a different view. Do Pakistanis value all lives equally, irrespective of whether they are Shia, Ahmadi, Christian or Hindu? Do we mourn over a blast in Waziristan as we do over one in a major city? Do we wish for alleged terrorists to be condemned only after due process of law? The sad truth is that the answer to these questions is a resounding ‘No’. And what we see in the west is merely a magnified reflection of our own selective humanity.
The recent establishment of military courts for trying terrorists, is perhaps the most interesting demonstration of the commonalities between the Pakistani and western attitudes towards drones. The west extols the precision of drones, insists that civilian casualties are few and that drones are necessary to curb terrorism. Similarly, the Pakistani supporter of military courts argues that trials in these courts are speedy; that military men are so adept at delivering justice that false convictions are almost unlikely and that, even if there are some, it is a small price to pay for ridding the country of terrorism.
Interestingly, however, this supporter of military courts in Pakistan seems not to care that the person brought to trial before a military court may not have the opportunity to engage a lawyer or to provide a defence for himself. Or if he is allowed these rights, the trial itself may be so speedy that there may not be an opportunity of answering the allegations against him. Most importantly, he is not too concerned that sentencing a man to death without allowing him a right of defence is tantamount to murdering him on the street.
Ultimately, the distance between the westerner seeking to eliminate terrorists through drone attacks and the Pakistani leaving his own countrymen at the mercy of military courts, is negligible. Both are motivated by fear and a desperate need for personal security and both have stripped their imagined enemy of his essential humanity. I was particularly amused to note that Pakistani values conveniently changed with their position in the drama: whilst standing in the dock with the accused, they expected legality, fairness and compassion. However, when cast as prosecutors, they were not prepared to offer the same to suspects.
It is important to clarify that I do wish to see terrorists punished but only after a fair trial as guaranteed under Article 10A of the Constitution. More importantly, however, I wish to safeguard innocent persons who may be believed to be terrorists due to the prejudices and the presumptions of the tribunal trying them. Military courts, in as much as they dispense with the transparency inherent in a mainstream legal system and believe, without adequate proof, that all persons appearing before them are terrorists, are unlikely to meet the requirements of a fair trial.
Many will argue, that the right to a fair trial is a luxury that Pakistan cannot afford. They will undoubtedly remind me of shortcomings in our legal system, which allow the culprit to remain unpunished. I will say to them that, this calls for strengthening the legal system rather than sidestepping it so that it becomes even weaker over time. They will then argue that strengthening the system takes time,which Pakistan does not have. I simply ask, if shortage of time means that we resort to myopic measures that, will in all likelihood, backfire on us?
An important point raised at the seminar for the use of drones which applies equally to military courts, is their respective chance of success. The idea of ‘success’ implies an objective: Is the objective to kill persons who are likely to be terrorists or to comprehensively restore peace? If the objective is merely to destroy numbers then both drones and military courts are the way forward. However, if peace is desirable then it is important to remember that neither drones nor military courts will eliminate terrorism—at best they may delay the backlash. Pakistan’s long term and only true hope lies in strengthening its legal system. There are simply no shortcuts.
The writer is a Barrister and an Advocate of the Supreme Court of Pakistan. An earlier version of this article appeared in DAWN.