In the middle of last year, Pakistani President Asif Ali Zardari promulgated two key presidential regulations aimed at quelling militancy in two of the country’s most restive areas. But the changes are both troubling and potentially counterproductive.
On June 23, Zardari promulgated the Actions (in Aid of Civil Power) Regulation, 2011 (AACP), which is applicable to the Federally Administered Tribal Areas (FATA) and the Provincially Administered Areas (PATA) of Pakistan.
Under AACP the Pakistani armed forces have the authority to intern militants and civilians tied to ongoing armed conflict in the border regions of the country. The objective of the regulations is listed as incapacitating “miscreants’– a troublingly broad categorization of individuals that implies wrongful behavior without analyzing the nature of the actual acts committed. It’s a draconian law that raises some serious questions.Enjoying this article? Click here to subscribe for full access. Just $5 a month.
Apart from running counter to the principles of natural justice, it violates the constitutional rights of Pakistanis and prevents Islamabad meeting its international human rights and humanitarian law obligations.
The problem is that the government defines the ongoing militancy as an internal problem of a criminal nature, involving acts of terrorism. The interned “miscreants” are therefore accorded very limited due process compared to what would be accorded to them under the rules of war. They are also liable to be punished for criminal offenses as defined by the state, which are not per se violations of international humanitarian law.
The new definitions come despite the fact that Pakistan is obligated to comply with common Article 3 of the Geneva Conventions, which is applicable inthe case of armed conflict that isn’t international in nature. Common Article 3 provides minimum standards of protections based on humanitarian concerns that can’t be derogated from – in any situation.
The objective is to protect civilians and combatants and ensure respect for the laws of war among all parties to a conflict. Internment and punishment of combatants, meanwhile, is supposed to be based on legitimate military objectives and any violations of humanitarian law. But under international law, internment is only permitted in very limited cases, while a number of rights and privileges are supposed to be enjoyed by the interned. In addition, any penal prosecution requires sufficient due process for combatants and the restriction of penal prosecution to criminal offenses related to the armed conflict. But this isn’t proving to be the case under the AACP. (Troublingly, these regulations were also made retroactive effect from February 1, 2008. This method of criminalizing past conduct is contrary to the principles of natural justice and international humanitarian law).
The new law also allows the armed forces to undertake law enforcement, something they aren’t intrinsically designed to do, and something they lack adequate training for. On top of this, the misuse of force by the armed forces is to be investigated from within the military hierarchy, while armed force personnel are given extensive evidence gathering powers. Any evidence provided by them is both admissible and deemed incontrovertible in a court of law, even if the evidence has been procured in contravention of the regular laws guiding evidence in Pakistan.