PARLIAMENT has amended the Army Act, 1952 and the Constitution to sanction the creation of military courts for prosecuting terrorists and those who wage war, raise arms or are involved in insurrection against Pakistan. A long list of crimes qualifying as such are now reflected in the law with many categories suffering from ambiguity and over-inclusiveness.

Following these amendments, terror suspects can be stripped of their fundamental rights and may effectively be denied the right to appeal. Suspects may be prosecuted by a judiciary comingled with the executive branch under the Pakistan Army Act, the Pakistan Navy Ordinance, the Pakis­tan Air Force Act, and the Protection of Pakistan Act.

Military courts have been created on the premise they provide forums where terrorists can be effectively investigated and prosecuted. The argument is that civilian courts and enforcement agencies are unable to try suspects for reasons including lack of will or capacity, intimidation and fear.

There are reservations over the military courts’ ability to comply with the requirements of a fair trial in Article 14 of the International Covenant on Civil and Political Rights. This treaty requires many protections to ensure “a fair and public hearing by a competent, independent and impartial tribunal established by the law”.

Military courts may not be illegal but concerns remain.

Military tribunals have historically been employed in inter-state global conflict for prosecuting war crimes and related offences. The most prominent of these was the Nuremberg military tribunal which tried Nazi Germany’s military and judicial leadership. But lately, such forums have been criticised for not according adequate due process on two grounds: first, international human rights law, concurrently applicable to the laws of war, has evolved since Nuremberg and now requires greater legal protections during conflict; second, standing judicial bodies such as the International Criminal Court provide greater fair trial protections than many military tribunals.

The creation and functioning of the tribunals requires armed conflict and/or occupation of foreign territory. Military courts are employed to prosecute captured enemy combatants and civilians, including in occupied territories, for the commission of war crimes and related offences. With the terrorism threat, the US has formed controversial military commissions to try alleged transnational terrorists of foreign nationalities overseas by recognising an armed conflict.

However, when a state plans to try its own citizens for crimes on its own territory under military courts, displacing civilian courts with­­out the proclamation of a non-international armed conflict (NIAC), serious concerns are raised. Military courts intrinsically pose a challenge to the right to a fair trial. Conflating war and non-war crimes challenges the criminal justice system and can render constitutional guarantees worthless.

The presence of a conflict triggers application of the law of war, requiring the passing of sentences only by an “independent, impartial and a regularly constituted court”, that under international humanitarian law (IHL) affords all essential judicial guarantees.

Presently under IHL, military courts are not per se illegal. For example, “the Swiss military penal code grants national military courts jurisdiction to hear cases involving violations of humanitarian law applicable …[to NIACs], even if such violations are committed in another country and do not directly affect the interests of the Swiss Confederation”.

But many regional human rights bodies such as the European Court of Human Rights have held such courts to contravene the requirements of impartiality and independence because of the “close structural links” bet­ween the executive authority and military judges.

Concerns are raised that military judges are subordinate to military commanders of the concerned army corps and rely upon their evaluations for their promotions; or that they are officers who still belong to the army, which in turn takes its orders from the executive; or that they remain subject to military discipline and assessment reports are compiled on them by the army for that purpose.

Military courts here, hence, can be justified under international law, but only if they are solely employed to try the Taliban for war crimes during an internal conflict. Many scholars argue that during conflict, military judges are more qualified to try war crimes than civilian judges, as they are better able to assess guilt and innocence in the special context of a war.

But the Taliban should be tried as civilians and not as combatants for perpetuating war crimes. While such categorisation is insignificant with regard to the Peshawar attack, because civilians were made the object of attack, classifying the Taliban as combatants risks according them combatant immunity, which can prevent prosecution for lawful acts of war, such as targeting Pakistani armed forces while actively engaged in hostilities.

Conversely, civilians who directly participate in hostilities by targeting armed forces automatically commit a war crime unless acting in self-defence.

The writer is former legal advisor to the Ministry of Foreign Affairs.

Published in Dawn, January 20th, 2015

On a mobile phone? Get the Dawn Mobile App: Apple Store | Google Play