Ahmer Bilal Soofi

Published Hilal Magazine

The dastardly attack by the Tehrik-i-Taliban (TTP) on Army Public School (APS) in Peshawar represents in essence an act of war against the state of Pakistan. With civilians the deliberate target of the brazen attack, the mass murder of 132 school children by a militant non-state actor unprivileged to use force under various provisions of Pakistani law undoubtedly also amounts to violations of both international humanitarian law and domestic law of conflict of Pakistan as well as the common law of war inherited by it upon its inception in 1947. In response to the ghastly attack, the government has constituted military courts as part of its National Action Plan to try jet black terror suspects waging war against the state and has amended the Constitution and the Pakistan Army Act, 1952 to enable them to function.

These courts are a necessary and proportionate measure in the current circumstances, and represent a naturally suitable forum for trying violations of domestic law of war akin to war crimes under the Rome Statute of the International Criminal Court. For continued domestic and international legitimacy, it is however imperative that they operate under internationally recognized due process principles and procedures elaborately laid down in the Pakistan Army Act, 1952 and the Pakistan Army Rules, 1954.

Since militant non-state actors like the TTP and its affiliates have avowedly and repeatedly renounced their loyalty from the state and its constitution, Pakistan needs to fight back against them to preserve its own constitution. It also needs to fight back to fulfill its international legal obligations under various United Nations Security Council Resolutions (UNSCR) including 1267 and 1373 by ensuring that its territory is not used by these non-state actors against any other state, and to demonstrate to the international community that it is both ‘able’ and ‘willing’ to counter these threats on its own.

This article posits that a de facto and de jure state of conflict between the Pakistani state and militant non-state actors including Al-Qaeda and the TTP and their affiliates effectively exists under domestic law, and that the appropriate legal framework for assessing prevailing circumstances is Pakistan’s domestic law of conflict and the common law of war. To this end, it identifies Pakistan’s domestic law of conflict as separate and distinct from the law of peace applicable in ordinary times of peace. Moreover, it suggests an objective jurisdictional and admissibility criteria for bringing cases before the military courts that maintains the right balance between fundamental rights and Pakistan’s international commitments to counter terrorism.

  1. Pakistan is in a Conflict State against Militant Non-state Actors

Although there has not yet been a formal declaration of conflict through invocation of emergency provisions of the constitution, such declaration is not necessary to constitute a state of conflict under the common law of war of England inherited by Pakistan in 1947 whereby it is based either on the subjective factor or intent of the parties to the conflict or upon an objective factor of the scope and extent of the hostilities.[1] Moreover, an executive determination or statement on the question whether a state of conflict has come into being is conclusive for common law courts of Pakistan that such a state has indeed come about.[2] In this regard, the subject-specific invocation of Article 245 of the constitution pursuant to which the current military operations are being conducted in and of itself signals the commencement of a conflict between the state and militant non-state actors with express intent to wage war against it. Further subjective and objective evidence that a state of conflict has been constituted in Pakistan can be inferred from the following:

  • Numerous statements from the TTP and its affiliates clearly expressing their intent to wage war against the state. In January 2014, for example, the TTP spokesman Shahidullah Shahid wrote a letter to the media stating, “TTP wants to give clear-cut message to the people of Pakistan that our war against the government is for implementation of Sharia’h…” While claiming responsibility for the blood-curdling attack on APS, the TTP issued a statement saying, “We [TTP] targeted the school because we want them [the Armed Forces] to feel pain. It’s a revenge attack…”
  • Scores of statements from highest level executive officials in the wake of the APS attack which are not merely rhetorical but actual representations of executive determinations that a conflict state has been constituted in Pakistan. On December 31, 2014, Prime Minister Nawaz Sharif stated on the floor of the Senate: “Pakistan is in a state of war. If we fail to take extraordinary measures, we may not be able to stop the brutalities in time to come.” Speaking in the United Kingdom on January 16, 2015, the Chief of the Army Staff General Raheel Sharif said: “Pakistan will soon surmount all problems including terrorism, despite multiple challenges. Pakistan is in a state of war. The military courts have been set up in accordance with the wishes of the people of Pakistan.” At a press conference on January 18, 2015, Federal Interior Minister Chaudhry Nisar said: “Pakistan is facing a tough time and is still in a state of war even after sacrificing the most in the war against terrorism. Pakistan is still passing through difficult times and is in war state.”
  • Several executive notifications and S.R.Os issued under the United Nations (Security Council) Act, 1948 proscribing militant non-state actors pursuant to UNSCR 1267 and 1373.
  • Proscription notifications issued under the Private Military Organizations (Abolition and Prohibition) Act, 1973.

Along with the foregoing evidence of conflict, the sustained and organized violence by militants against the state and its functionaries and citizens that has claimed the lives of over 60,000 civilians and 6,000 military and other state personnel conclusively raises an irrefutable legal presumption that a conflict state exists between the state and militant non-state actors including Al-Qaeda and the TTP and their affiliates. In the last few months alone, in addition to the APS attack, the TTP or its affiliated groups have claimed responsibility for a series of brutal incidents including Wagah border attack in Lahore martyring 90 people, Karachi airport attack martyring 43 people, Islamabad District Court attack martyring 27 people, Shikarpur attack martyring 60 people, and Lahore Police Lines attack martyring 10 people. Clearly, this systematic campaign of mass murder by the TTP and its affiliates constitutes war crimes against humanity under the common law of war as well as Article 8 of the Rome Statute of the International Criminal Court.

III. Domestic Law of Conflict of Pakistan and Common Law of War

Significantly, there exists a body of domestic law of conflict and common law of war to regulate the prevailing conflict state in the country. Pakistan’s domestic law of conflict and use of force is encompassed across various constitutional provisions, statutes and regulations, which are triggered in conflict situations along with the principles and precedents of common law of war derived from centuries of common law of England that Pakistan inherited upon its creation in 1947.

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Illustration A

At present, the following constitutional provisions, statutes, rules and regulations collectively constitute the fundamental domestic law of conflict and use of force of Pakistan:

  • 21st Constitutional Amendment and Constitutional Provisions relating to Armed Forces and state security: Articles 8 (3), 10 (3)(4)(5)(6)(7)(8)(9), 237, 245 & 256;
  • Provisions of the Pakistan Penal Code, 1860: Sections 121 – 140;
  • Provisions of the Code of Criminal Procedure, 1898: Sections 129 – 132;
  • Provisions of the Civil Procedure Code, 1908: Section 83;
  • Provisions of the Anti-Terrorism Act, 1997: Sections 4 & 5;
  • Protection of Pakistan Act, 2014;
  • Investigation for Fair Trial Act, 2013;
  • Action in Aid of Civil Power Regulations, 2011;
  • The Pakistan Army Act, 1952;
  • The Pakistan Army Rules, 1954;
  • The Pakistan Air Force Act, 1953;
  • The Pakistan Navy Ordinance, 1961;
  • Frontier Corps Ordinance, 1959;
  • Pakistan Rangers Ordinance, 1959;
  • North-West Frontier Constabulary Act, 1915;
  • The Police Act, 1861;
  • The Police Order, 2002;
  • The Security of Pakistan Act, 1952;
  • The Prevention of Anti-National Activities Act, 1974;
  • The Private Military Organizations (Abolition and Prohibition) Act, 1973;
  • The War Injuries Ordinance, 1941;
  • The War Injuries (Compensation Insurance) Act, 1943;
  • The War Risks Insurance Continuance Ordinance, 1969;
  • The War Risks Insurance Ordinance, 1971.

There is, at present, an urgent need to draw a conceptual and legal distinction between the foregoing domestic law of conflict of Pakistan and the ordinary law of peace of Pakistan. The former is applicable upon those militant non-state actors waging war against the state by attempting to over-awe it by targeting the infrastructure and personnel of its Armed Forces and its public officials and citizens, while the latter is apposite to deal with ordinary terrorists and criminals.  Crucially, in order to more effectively and robustly handle threats posed by militant non-state actors, Pakistan’s policymakers and its judiciary must realize that the sheer size and scale of militant insurgency, deployment of resources, duration and intensity of the conflict and the means and methods of these militants distinguish them from an ordinary criminal or terrorist of peace time. Such distinctions have been legally drawn by other countries facing similar threats. For example, the United States in the aftermath of 9/11 through landmark judgments of its superior judiciary in Hamdi v. Rumsfeld (2004), Hamdan v. Rumsfeld (2006) and al Bahlul v. United States (2014).

Militant non-state actors including Al-Qaeda and the TTP and their affiliates have unequivocally expressed their intent to assert and establish unlawful control on the territories of Pakistan through private armies and private military organizations. Driven by a murderous ideology, they take direct instructions from elements hostile to Pakistan and obey them, and have established channels to launder funds to procure arms. Through their express intent and overt acts, these militants have withdrawn their loyalty to the state in contravention of Article 5 of the Constitution. The constitutional contract that exists between a loyal citizen and his or her state has thus been breached by them. As a consequence, they can be classified under the definition of an enemy of the state not entitled or privileged to the constitutional guarantees accorded to someone who commits an offense but has otherwise not forsaken his or her loyalty to the state and its constitution. Pakistan’s state authorities and its judiciary must urgently make this differentiation.

Pakistan is clearly in the throes of a conflict being ravaged in every nook and corner of the country. The object of this conflict is to overthrow the government and seize the apparatus of the state through brute force and bloodshed by inflicting maximum harm to the life, liberty and property of the citizens and by endangering the security and integrity of the nation and its institutions. Quite obviously, this is not an ordinary criminal enterprise by any standard but an open conflict that needs to be addressed as such under the paradigm of the domestic law of conflict of Pakistan and the common law of war.

  1. The Way Forward with Military Courts

There is no prohibition under international law to establish military courts to prosecute specialized offences against the state such as waging war. While permitting military tribunals, the Human Rights Committee in its General Comment 32 on Article 14 of the International Covenant on Civil and Political Rights (ICCPR) states that “trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the state party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.”

As a responsible member of the international community, Pakistan has an obligation to counter terrorism under binding UNSCRs including 1267 and 1373. This, crucially, creates an obligation on the entire state including its federal and provincial governments and on all its arms including the judiciary, Armed Forces, Police etc. Therefore, an acquittal by Anti-Terrorism Court on whatsoever grounds is viewed internationally as inability on the part of the State to fulfill its international obligations. If on account of poor prosecution or defective investigation, non-state terrorist suspects are acquitted or their trials are inordinately delayed, it has a cumulative effect on the state’s international commitments. Military courts, politically, have been set up within this larger context to enable the state to fulfill the obligations it owes to the global community. However, they do not offer a permanent solution and their establishment to meet the exigencies of the current situation of conflict should in fact be a catalyst for much needed reform of the state’s criminal justice system within the next 2 years. Perhaps most importantly, only very selective cases should be referred to these courts.

In this regard, an objective jurisdictional and admissibility criteria for referring cases to the military courts must be formulated by the Federal Government and forwarded to the provincial apex committees.  It is suggested that a suspect may be tried by these courts if he or she:

  • Belongs to the TTP or any of its affiliates; or
  • Belongs to Al-Qaeda or any of its affiliates; or
  • Belongs to internationally proscribed terrorist organization under UNSCR 1267; or
  • Belongs to a prohibited private army under Private Military Organizations (Abolition and Prohibition) Act, 1973; or
  • Falls within the definition of ‘enemy’ under Pakistan Army Act, 1952; and
  • Is involved in an act akin to war crime under Article 8 of the Rome Statute of the International Criminal Court; or
  • Owns or claims responsibility for a terrorist strike on religious basis; or
  • Declares war against the state on religious basis; or
  • Is apprehended during active combat; or
  • Is charged with the offense of waging war under Section 120 Pakistan Penal Code, 1860.

The Pakistan Army Act, 1952 and the Pakistan Army Rules, 1954 contain extensive due process and fair trial provisions such as Section 122 Pakistan Army Act, 1952 whereby rules of evidence in proceedings before the military courts shall be the same as those in civilian criminal courts. Nevertheless, by way of caution, the government must undertake a due diligence review of these provisions to ensure that they conform to international standards for military courts or tribunals. It also retains the option and the flexibility to institute administrative oversight mechanism for the military courts to enhance their domestic and international ­­­­legitimacy.

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Illustration B

The Constitutional Amendment establishing the military courts has been challenged before the Supreme Court of Pakistan for violating the basic structure of the Constitution by unduly restricting individual fundamental rights. The exact contours of the basic structure doctrine remain nebulous in our constitutional scheme. Although the Court has in the past acknowledged its existence, it has never given the force of application to the basic structure doctrine, which is highly anti-democratic in nature and in its application will certainly contravene Article 239 (5) of the Constitution whereby “no amendment of the Constitution shall be called in question in any court on any ground whatsoever.”

The military courts have been set up in the legally permissible zone of Article 245 and should be viewed as a necessary and proportionate measure under the law of conflict paradigm. Given the exigencies of conflict situation and its operational imperatives, the Constitution expressly pauses or freezes implementation of enforcement of fundamental rights during notification under Article 245 when laws like those establishing military courts post APS attack can be validly enacted and enforced.

[1] Dalmia Cement v. National Bank of Pakistan, Int’l Chamber of Commerce, Arbitration Tribunal, Dec. 18 1976, 67 ILR 611, 613.

[2] Ibid.