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The Legal Implications of Adopting A Conflict Paradigm In Pakistan

This report was published by RSIL in 2015 and was the outcome of an expert meeting which took place on 6 May, 2015 at the RSIL offices in Islamabad on the applicability of international humanitarian law to domestic counter-terrorism operations in Pakistan. The session focused on discussing, from a strictly academic perspective, if a state of armed conflict exists in Pakistan according to objective legal criteria, and the political advantages and disadvantages of the State of Pakistan adopting a conflict paradigm in catering to contemporary threats.

Traditionally, the State of Pakistan’s response to counter-terrorism could be regarded as falling exclusively within the domain of a ‘law enforcement’ paradigm with regular law enforcement agencies responsible for maintaining law and order and the civilian anti-terrorism courts serving as the forum for trial of terrorist offences.

Recently however, the nature and scope of the threat has changed dramatically, representing a truly existential threat to the security and well-being of the State as a whole. Metastasizing from a spate of isolated incidents to a nation-wide menace, contemporary terrorism in Pakistan is a much-changed beast from the phenomenon which first gave rise to the anti-terrorism courts under the Anti-Terrorism Act, 1997. In responding to this accelerated threat, the state has arguably shifted into a de facto ‘conduct of hostilities’ paradigm.

The Research Society of International Law, Pakistan has been conducting research in the field of counter-terrorism for over a decade and houses a team of researchers whose mandate is to find solutions to combating terrorism within the constitutional framework. However, we have been convinced by these recent developments that this is the right time to make a compelling case before the stakeholders about the distinction between the law of peace and the law of war.

In our opinion, the State may consider adopting a conflict paradigm that relies on domestic law of conflict to comprehensively justify its actions legally. The scope of our domestic anti-terrorism framework is too limited to cater to large-scale military operations, detentions, and the prosecution of enemy fighters. However, Pakistan’s domestic law of war, rooted in the Constitution as well as several military laws, affords the necessary flexibility to comprehensively cater to contemporary threats.

In promoting a greater awareness of the legal implications of adopting a conflict paradigm in Pakistan, it is hoped that this report will benefit a broad range of participants in the domestic public sector. The research and diverse views presented in this report is intended to add value to domestic and international discourse of contemporary issues in Pakistan. It is hoped that this will enable policymakers to better craft internal policies and legal responses to these issues in a way which conforms to Pakistan international legal obligations, thus solidifying its reputation as a responsible and proactive participant in the international community. Similarly, it is hoped that through this report, members of the international community will be able to better understand the milieu within which Pakistan frames its domestic responses.

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Research Team

SUPERVISORS

Ahmer Bilal Soofi, President RSIL and Advocate Supreme Court of Pakistan

Ali Sultan, J.D. (Virginia) Executive Director RSIL

EDITOR

Jamal Aziz, LL.B (Lond.), LL.M (UCL)

CONTRIBUTORS

Abid Rizvi, B.A.-LL.B (LUMS), LL.M (U.Penn), B.L.P (Wharton)

Fahd Hasan Qaisrani, LL.B (Lond.)

 

Table of Contents

1. The Conduct of Hostilities and Law Enforcement Paradigms
2. Law Applicable to Non-International Armed Conflicts
3. Determination of a State of Conflict in Pakistan
4. The Pros and Cons of Adopting an Armed Conflict Paradigm in Pakistan