Karachi airport attack in June 2014 was part of armed conflict between state and proscribed organisations, rules SHC

Dismissing insurance companies’ lawsuits against international foreign airlines and cargo companies for multi-billion rupees damages, the Sindh High Court (SHC) on Wednesday ruled that the terrorist attack on the Karachi airport in June 2014 was a part of the protracted and intensified non-international armed conflict between different proscribed organisations and the State of Pakistan, involving our armed forces.

The EFU general and IGI insurance companies had filed lawsuits for damages against foreign international airlines and cargo companies in relation to various cargos destroyed on June 9, 2014, at the Karachi airport during an armed attack by a group of terrorists.

The plaintiffs submitted that various cargo consignments which arrived at different airlines had been destroyed due to the terrorist attack and since the plaintiffs had settled their insurance claims to different clients whose consignments and cargoes were destroyed in the warehouses at the airport, they, being the insurers, were now entitled to claim those amounts from the airlines and cargo companies in terms of the property law and the Carriage by Air Act.

They submitted that the state itself had mentioned the incident as a terrorist attack in which precious lives including those of law enforcement agencies’ personnel were lost, besides causing other collateral damage, however, a terrorist attack does not fall within the purview of an armed conflict or an act of war as mentioned in the Rule 18(2)(c) of the Act, which exempted liability of the carrier in purview of armed conflicts and acts of war.

A counsel for the defendants submitted that the attack at the Karachi airport was not an isolated incident of a terrorist attack but at the relevant time, the state of Pakistan was at war with terrorist groups and armed militias, thus the Rule 18(2)(c) of the Carriage by Air Act 2012, which exempted the carrier from damages in an act of war of armed conflict, was fully applicable to the case.

The defendants’ counsels argued that the defendants were not liable to pay any monetary claim to the plaintiffs because the loss or damage to different consignments and cargoes did not result from any negligence, act or omission either on the part of the carrier or its agents, but solely due to the armed confrontation between the law enforcement agencies of Pakistan and armed militants, which was a force majeure beyond control of any of the parties. A single bench of the SHC headed by Justice Mohammad Faisal Kamal Alam, after hearing the case, observed that the attack on the Karachi airport could not only be termed as a terrorist attack but it was rather part of a wider armed conflict within the State of Pakistan.

The high court observed that the attackers were personnel of a proscribed organised group that was engaged in a series of hostilities, ranging from suicide bombings at public places to organised attacks on the armed forces of Pakistan, defence installations and even religious places, and as per the official figures, thousands of civilians and servicemen had lost their lives. The SHC observed that the attack on the Karachi airport was not a sole incident committed by some disgruntled persons or entities but in fact it was one of the numerous 27 attacks carried out by the organised armed group and its peripheries, in a planned manner, in which, commercial aircrafts and other facilities were damaged at the Karachi airport.

The high court observed that the vicious cycle of violence had been spread over many years, reaching its peak of escalation and intensity, particularly, after the traumatic incident which took place at the Army Public School in Peshawar, in which innocent teachers and students lost their lives, and under a constitutional amendment, military courts had to be established.

The SHC observed that tangible evidence existed that at the relevant time, these armed groups were also supported by foreign governments with the defined object to create fear amongst the public at large, paralyse the administration, and pose an existential threat to the state.

The high court remarked that it was an undeniable fact that the situation that was prevalent in the country when the Karachi airport was attacked, if looked at in a holistic perspective, would constitute part of a large-scale violence perpetrated against the state of Pakistan by proscribed organisations, and it would not constitute isolated terrorist activities but rather a non-international armed conflict (NIAC), or at least it may be categorised as a hybrid phenomenon, where repeated acts of terrorism in furtherance of defined objectives translated into a non-international armed conflict.

The SHC observed that one of the proscribed organisations mentioned in the list of the National Counter-Terrorism Authority (Nacta) had claimed the responsibility of the attack on the Karachi airport and undisputedly, the gun battle between the armed group and law enforcement agencies lasted for hours, during which severe damage was done to aircrafts and other facilities at the airport including the warehouses of defendants, where the consignments and cargoes of different entities and persons, including those who were clients of plaintiffs, were destroyed.

The high court observed that the very act of terrorism at the Karachi airport was a part of the protracted and intensified non-international armed conflict between different proscribed organisations and the State of Pakistan, involving the armed forces of the state. The court observed that the term war or armed conflict used in the above provision of the Carriage by Air Act included non-international armed conflict (NIAC). The SHC observed that the protection given to carriers in Rule 18(2)(c) of the law was applicable to the undisputed facts of the present suits as the term war and armed conflict as contained in the above rule included the NIAC.

Dismissing the lawsuits, the high court observed that different facilities at the Karachi airport, including warehouses of the defendants were destroyed as a result of intense fighting between terrorists and law enforcement agencies’ officials, which was a result of non-international armed conflict; thus the defendants were not liable to pay any amount or compensation, as claimed in lawsuits to the insurance companies.

It is pertinent to mention that as many as a dozen of armed militants of foreign origin had stormed the Karachi airport on June 9, 2014 and were killed by army commandos and personnel of other security forces during an operation lasting about five hours. Around 25 people, including personnel of the Airport Security Force, police and Rangers, were also martyred in the operation.