THE admission by Attorney General Irfan Qadir that as many as 700 detainees are being held in internment centres under the Actions in Aid of Civil Powers regulations promulgated in 2011 and in effect in parts of Pata and Fata has once again brought into the spotlight a little understood, or explained, part of the state’s attempt to fight militancy. First, the state’s, largely the security establishment’s, point of view. There exists within Pakistan a non-international armed conflict. Under the provisions of the constitution (Article 245) and the Geneva Conventions, the state has the right to detain and try individuals allegedly involved in armed conflict with the state. The law under which such individuals are detained and are to be tried provides safeguards against abuse. It grants the detainees certain rights. The problems with that narrative are many, however. Pakistan has not expressly declared that there is a non-international armed conflict taking place on its soil, even if that conflict is effectively treated as such. Why has Pakistan not made that declaration, which would help dispel many of the doubts about the powers under the aid-of-civil-powers regulations? Because presumably it would give the ICRC access to the conflict zones, a move the security forces have been reluctant to allow.
Next, the retroactive application of the law — detainees held from before the promulgation of the regulations are also covered by the regulations — the open-ended period for which detainees can be held and the low evidentiary threshold in a trial have all been criticised by human rights groups, both national and international. The problem is not, as the security establishment would argue, that the state’s hands are being tied by such criticism in the critical fight against militancy but that the instruments the state deploys in that fight, particularly the legal instruments, ought to meet a higher standard than ‘it’s necessary/what else can we do?’
There are in fact several things the state can do to help improve the image and implementation of the 2011 regulations. To begin with: own them more publicly, explain the safeguards built into them and their international acceptability and then, through more open and trans-parent implementation, demonstrate that practice is not a world removed from theory. Instead of trying detainees under the FCR, as the regulations allow, the government can set up a specialised judicial framework adequately staffed with judges and prosecutors in which detainees are given a fair trial. Failing that, the state will remain tainted by the stain of the Adiala 11, seven of whom are still under detention and yet to be tried under the regulations.