ON April 4, the prime minister ordered the release of 19 ‘non-combatant’ TTP prisoners. By recognising the non-combatant status of such prisoners the release implicitly recognised the presence of Taliban ‘combatants’ in Pakistan. Later, the National Assembly passed the Protection of Pakistan (Amendment) Bill, 2014 (PPO). This time round, the law has explicitly recognised the category of ‘combatant enemy’.

While many in the media have lamented the PPO’s draconian nature, it is the resulting categorisation of TTP as ‘combatant enem[ies]’ which is problematic considering further that negotiations with organised armed groups of non-state actors (NSAs) moves them closer towards attaining the coveted status of belligerents under international law, especially when such militias exercise territorial control.

Under Article 1 of the Additional Protocol II (AP II) to the Geneva Conventions, a Non-International Armed Conflict (NIAC) encapsulates a typical civil war situation. While Pakistan has not ratified AP II, most of its provisions have attained the status of customary international law and are binding upon Pakistan. Furthermore, AP II codifies Article 3 of the Geneva Conventions which binds every state to provide at all times certain minimum human rights protections and guarantees.

Historically, Pakistan has denied the presence of an NIAC, probably because such an admission would result in an international recognition of the conflict which, consequently, would result in certain privileges, guarantees and treatment required to be meted out to NSAs — such as endeavouring to grant amnesty.

Interestingly, even under AP II, NSAs fighting the state are classified as ‘persons’ rather than as ‘combatants’. This is because, at the time of the AP II’s promulgation, most nations held serious reservations over according NSAs combatant status, thus granting them combatant immunity. States felt that providing such status would be an infringement of their own sovereignty, as a fighter with combatant immunity is immune from prosecution under the domestic criminal justice system and can only be tried for crimes violating the international laws of war.

Therefore, if TTP forces are categorised as enemy combatants, and any violence on their part against Pakistani armed and paramilitary forces and objects or civilian persons and objects is compliant with international humanitarian law (IHL) when conducted in the pursuance of a military advantage and necessity respectively, then under IHL there is a strong argument that TTP forces are immune from criminal prosecution. This would mean that TTP cannot be tried for using lethal force so long as it is complying with IHL norms in the pursuance of a military advantage not just in Fata but also in major urban centres of Pakistan.

Many experts are now arguing that, under the principle of reciprocity, combatant status should be extended to NSAs such as in transnational conflict having a global significance so that such actors come under the ambit of IHL and are adequately pressured to provide protections and privileges to captured state forces and civilians once under their control in return for being extended the same immunities and privileges.

The alternate approach to discrediting NSAs is by extending them a differential form of combatant status. This is the US approach, which has argued that Al Qaeda and its close associates — including the Taliban — are ‘Unlawful Enemy Combatants’ (UEC). This categorisation finds little support in pre-existing international law which classifies persons only into two distinct categories: combatants and civilians.

This novel classification has since been normatively trotted out in order to deprive fighters of privileges and immunities extended under IHL such as PoW status. By classifying certain NSAs as UEC, the US manages to easily target certain categories of individuals in peacetime situations which it otherwise would find near impossible to justify under conventional IHL.While civilians — as aggressors — can only be targeted under IHL if they are ‘directly participating in hostilities’, combatants can be targeted even if they are ‘actively engaged in hostilities’, even if not using force at the time.

This standard for targeting combatants is much broader, not requiring an impending use of force on the part of the person targeted. The US sees itself embroiled in a transnational armed conflict against terrorists thousands of miles away and thus wants to cast as wide a net as possible over the people it wants to target without any jurisdictional limitations, in order to promote what it perceives as furthering its own national interest. Pakistan, however, is not in the same boat and our political establishment should realise this fact.

While Pakistan finds itself in a pivotal role in the formation of international law, we need to ask ourselves: are we willing as a society to accept the TTP as a genuine military force which is eligible to be accorded a status reserved for state military institutions?

The writer is an associate professor of public international law at Lums.