ISLAMABAD -  The Islamabad High Court (IHC) Thursday directed the federal capital police to register a case against former Central Intelligence Agency (CIA) station chief in Islamabad, Jonathan Banks, and former CIA General Counsel John A Rizzo in the petition of Kareem Khan whose brother and son were killed in a drone strike on December 31, 2009, in a village of North Waziristan.
A single bench of IHC , comprising Justice Shaukat Aziz Siddiqui, issued these directions to the station house officer (SHO) of Secretariat police station for registration of an FIR against both the former CIA officials for their alleged involvement in the brutal killing of the petitioner’s son and brother by a drone strike.
During the hearing of the petition, Justice Siddiqui asked the Secretariat police station SHO if any cognizable offence was committed. The SHO replied the offence was cognizable, but it was not in the territorial jurisdiction of Islamabad police. Justice Shaukat directed him to act as per law if a cognizable offence was committed. With thos direction, the court disposed of the petition moved by Kareem Khan who is a permanent resident of village Machi Khel, Tehsil Mirali, North Waziristan Agency (NWA).
Advocate Shahzad Akbar who represented Khan in the court contended that the drone strike was made in North Waziristan, but the FIR could be registered here as the CIA station chief was based in Islamabad. He further argued that the decision of the civil judge dismissing the application on account of territorial jurisdiction was misconceived as under Pakistani law the FIR could be registered.
Khan had moved his petition through his counsel Mirza Shahzad Akbar advocate and made the Secretariat police station SHO, the city SP and ex-officio justice of peace, Islamabad, respondents.
He had stated in the petition that on December 14, 2010, he filed an application with the respondent SHO for registration of an FIR under Section 154 CrPC against Jonathan Banks, the then station chief of the Central Intelligence Agency (CIA) who was residing and functioning in the territorial jurisdiction of the said police station in Islamabad, for his alleged involvement in the brutal killing of the petitioner’s son and brother by a drone strike on December 31, 2009, in his ancestral village.
Kareem along with two other victim families, Sadaullah Khan and Maezol Khan who suffered similar brutality by the same accused and his accomplices, filed another application for registration of an FIR on July 19, 2011, against John A Rizzo who was general counsel of the CIA in USA.
“The respondent police station once again received the application, but did not register the FIR ,” he added.
He continued that over inaction of the police the petitioner moved an application under Section 22-A of CrPC before the learned ex-officio justice of peace, which was dismissed by him on 02-12-2013. The said order was challenged in the IHC through a writ petition which was disposed of with the direction to the justice of peace to decide the matter afresh.
“It was categorically held by this court in its order dated 11-02-2014 the justice of peace was directed to decide the case afresh after properly considering the relevant provisions of law. But the learned justice of peace, in utter violation of the directions of this court, dismissed the application vide order dated 11-04-2014,” he maintained.
“The reason given by the justice of peace that as the main offence of Section 302 of PPC was committed in Fata, the act of conspiracy cannot be probed in settled areas of Pakistan is a clear misconception of law and procedure. It is a settled principle of criminal jurisprudence that inchoate offences are tried and taken as one and not in piecemeal,” argued the counsel.
Mirza Shahzad contended that the petitioner, in his first application to Respondent No 1, described Jonathan Banks’ role in the murders of his son and brother. Specifically, he explained that it was Jonathan Banks and his clandestine network acting at the behest of the accused who conspired with the others and ordered a drone missile strike on his house, which killed Asif Iqbal and Zahinullah Khan (brother and son of the petitioner).
“The petitioner believes that the conspiracy to murder his son and brother and many other citizens of Pakistan in NWA was made in Islamabad where accused Jonathan Banks was stationed and was in cahoots with his other accomplices scattered in various parts of Pakistan and abroad.
He stated that the other accused, John A Rizzo, was acting as the general counsel of the CIA until recently. He worked with the CIA as one of their legal counsels from the 1970s and was in that position at the time of the initial drone attacks on Pakistan’s sovereign territory. He continued to work with the CIA until his retirement and continued to play a role in the conspiracy. At the CIA one of his roles was to approve a list of persons to be killed every month in Pakistan by the CIA using drones. John A Rizzo has already confessed to his crime publicly.
He prayed to the court to set aside the impugned order dated 11-04-2014 passed by the respondent justice of peace and order registration of an FIR against Jonathan Banks and John A Rizzo.
After the court's decision, Akbar, the counsel for the petitioner, issued a press statement, saying, “There is no doubt under Pakistani and International law that the US officials were committing murder through drone strikes in Pakistan and today’s decision simply vindicates this very point that the heirs of those killed in drone strikes had a right to proceed in similar criminal actions against the CIA officials and others involved. This remarkable order also highlights the strength of independence of judiciary in Pakistan which is truly protecting the rights of citizens of Pakistan under the Constitution,” he said.
Since 2010 Kareem has been running from pillar to post to get an FIR registered against the officials he claims are responsible for killing his kin.
“Kareem started his legal struggle to get justice in 2010 and since then the Islamabad police had been avoiding proceeding against the CIA officials involved in drone attacks,” Zarmeeneh Rahim, staff lawyer, Foundation for Fundamental Rights, told The Nation. FFR is an NGO, assisting Khan in his legal battle since several years.
According to Rahim, his organisation is funded by Reprieve and other organisations. Reprieve is a UK-based charity organisation.
It was learnt that Karim Khan’s whereabouts were kept secret, claiming a security precaution. “You cannot meet or talk to him on telephone, Rahim said.
However, she cited Khan’s reaction, “Today’s order is a victory for all those innocent civilians that have been killed in the US-led drone strikes in Pakistan and, as a citizen of Pakistan, I am sure people like me from Waziristan might be able to get justice for the wrongs being done to them. I ask the authorities to do their job now and proceed against the culprits.”
Mirza Shahzad Akbar, Khan’s council and one of two Reprieve fellows based in Pakistan, expressed his hope that the CIA officials would be arrested for carrying out drone attacks in Pakistan.
Lawyers believe that even if a case is registered against the CIA station chief, in the absence of extradition treaty with the US, Pakistan cannot demand handing over of the accused.
“We have no extradition treaty with the United States and even if the Foreign Office and FIA request Interpol to hand over the accused, it would be turned down,” Advocate Chaudhry Khalid Hussain told the Nation.
FO Spokesperson Tasnim Aslam, while talking to The Nation, said the court orders had not been received by the Ministry of foreign Affairs.
US Embassy spokesperson Meghan Gregonis said the embassy was aware of the matter, but avoided any comments. “For the moment I can tell you that we are looking into the matter,” she told The Nation on telephone.