AS we enter into an era of unending asymmetric wars against non-state warriors with a wide range of goals, we need to re-examine the rules of engagement.

For instance, when terrorists are trying to topple the state and all the institutions it rests on, should they be given the protection a constitution guarantees citizens? When we learn of the public beheadings and floggings being carried out by the Taliban in Swat and the tribal areas in the name of the version of Islam they want to impose, the temptation is to argue that they should be served a dose of their own medicine.

To an extent, this is already happening. Witness the case of the `disappeared` scores of people have been kidnapped and tortured on the suspicion that they are connected to one or the other of the terrorist organisations that have found Pakistan so hospitable. Several accounts have appeared in the press alleging that these suspects were locked up in safe houses run by various intelligence agencies for months, and subjected to the most appalling treatment.

Elsewhere, too, this erosion of personal liberties and the recourse to torture has raised questions about the moral foundations of modern states in a time of conflict. Images from Abu Ghraib, Guantanamo Bay and other infamous detention centres underline the dilemma we face. The question boils down to whether those wishing to inflict their agenda on the rest of us through the use of indiscriminate violence and unspeakable atrocities deserve the protection of the very state they seek to dismantle.

This question takes on added urgency in the wake of wholesale arrests of Lashkar-i-Taiba/Jamaatud Dawa members in Pakistan. In our legal system, the burden of proof rests on the prosecution. Can the state really build a solid case against 125 suspects? Do the prosecutors have the kind of proof that can stand up to the scrutiny of a court? And more to the point, should people sworn to pulling down the legal system be tried by its rules?

Given the reality of our inefficient, archaic legal process, we can safely assume that the majority of those being tried will get bail, and then be released on grounds of insufficient evidence. They will then go off and cause further carnage in Pakistan, and perhaps abroad. This has been the pattern thus far, and there is no reason to expect that things will be any different this time.

Another cause for concern is the fear these jihadis inspire. Some judges have refused to preside over the trials of terrorists. Similarly, witnesses have abruptly changed their testimony. Confessions have been deemed to be tainted because they are alleged to have been extracted under duress.

Given these practical difficulties in obtaining convictions in many cases of terrorism, how does society protect itself from these killers? In other countries, laws have been tightened to deal with terror suspects. Human rights activists have been rightly concerned about the possible misuse of such draconian laws. The Patriot Act that was made law by Bush in the aftermath of 9/11 contains provisions that have caused much hardship, especially among immigrant Muslim communities.

Those responsible for maintaining law and order argue that citizens must be prepared to surrender some freedom as a price for their security. Advocates of personal freedom maintain that if we give up our hard-won liberties, the terrorists will have succeeded to a large extent.

In Pakistan, where we are at the sharp end of the struggle against jihadi killers, the outcome of this debate can mean the difference between life and death. In Sri Lanka, the state has put human rights on the back burner as it has battled the Tamil Tigers. The army is now on the verge of victory, albeit at a huge cost in terms of Tamil misery. But as the government rightly argues, the Tamils in the north were being held hostage by the LTTE, and now the survivors have a reasonable chance of living normal lives once Prabhakaran and his evil gang are history.

Can we use this argument in our fight against the Taliban and their offshoots? In practical terms, the government does not have the kind of consensus the Rajapaksa regime has forged in Sri Lanka. In Pakistan, a large segment of the population is either ambivalent towards the jihadis, or support their cause, if not their methods. The media is full of Taliban sympathisers. Even moderate politicians like Nawaz Sharif advocate negotiations instead of force.

The problem with this approach is that it has been tried before, and has failed every time. What is there to talk about with people who want to deny girls an education? How do you negotiate with somebody who insists that women must stay at home, and be denied any public role in society? These basic rights are simply not negotiable. One can talk to people who want a greater share of the pie, or a bigger piece of land. But one cannot negotiate with people who want to drag us back to the dark ages by force. After all, we have the example of what the Taliban did when they were in power in Afghanistan.

So we return to the dilemma of how to treat these people are they citizens who deserve the same rights as the rest of us, or do we subject them to the rigours of the benighted law they seek to impose on society? If we descend to their level of barbarism, do we not become their mirror image? And yet, if we play by conventional rules, we run the real risk that they will win.

Striking the right balance is a challenge most democracies face in these troubled times. Across the world, there have been gross miscarriages of justice, and the innocent have suffered incarceration and disgrace. At least one innocent person in Britain was killed under new shoot-to-kill powers given to the police. But equally, many terror plots have been thwarted.

For my part, I am convinced that only a robust response will deter the killers who have now taken control of large swathes of Pakistan. They have only contempt for the existing legal system, as well as for the constitution, and have thus placed themselves outside its protection.

irfan.husain@gmail.com