ZARB-i-Azb is primarily being undertaken to disarm and eliminate the private armies of the Tehreek-i-Taliban Pakistan (TTP), Al Qaeda and Uzbek militants. It is, thus, clearly an exercise to enforce Article 257 of the Constitution which in no uncertain terms prohibits the functioning of any private army or militia within the territories of Pakistan. The troops deployed in the operation are therefore fulfilling their oath to uphold the Constitution.
Plainly, Zarb-i-Azb is a military operation in aid of civil power under Article 245 of the Constitution. Although the legal notification for military operations with respect to Fata and Pata had been issued as far back as 2008, the political decision to conduct the present military operation was taken after the breakdown of talks with the TTP and its affiliated groups.
Pakistan’s law to counter terrorism can be divided into two distinct categories: one comprising the law of conflict to regulate operations; the other the law to regulate peace and handle incidents of terrorism committed during peacetime. In so far as the law to regulate conflict is concerned, Article 245 of the Constitution and Section 5 of the Anti-Terrorism Act 1997, pursuant to which the armed forces are called up in aid of civil power, effectively constitute our domestic law of conflict, in addition to the Action in Aid of Civil Power Regulations 2011 (AACPR) and certain provisions of the Pakistan Army Act 1952.
Groups being targeted by Operation Zarb-i-Azb must be treated as enemies by all institutions.
Significantly, from a legal point of view, the directive of the federal government to commence the military operation also triggers Pakistan’s domestic law of conflict. In this context, the Pakistan Army Act defines ‘enemy’ in Clause 8 of its Section 8 as “any person in arms against whom it is the duty of any person subject to this Act to act”.
In legal terms, this means that there is a legislative declaration to treat an adversary — a term which has non-legal implications — as an ‘enemy’ — a more definite term under the law — once the armed forces are called in aid of civil power. Notification under Article 245 of the Constitution denotes the federal government’s executive determination of an adversary falling in the legal category of enemy. This is critical to note because it sets forth a legal compulsion that if the armed forces are deployed and invited to act against any enemy of state, then all institutions of the state must immediately accept the legal status of an adversary as enemy.
In other words, the TTP, Al Qaeda, the Haqqani group etc and all other private armies against whom Zarb-i-Azb is being carried out must be treated as an enemy by other state institutions including the judiciary and executive and to some extent the media as well as a matter of legal compulsion, as opposed to this being a politics- or a faith-based choice.
Let this be made clear that any citizen deemed as an enemy by virtue of Section 8 of the Army Act when invoked under Article 245 of the Constitution shall not be denied fundamental rights as a general rule. He will have the right to file a petition against his arbitrary arrest and entitled to a fair trial. However, if an ‘enemy’ against whom the armed forces are mobilised happens to be a foreigner, he will be classified as an ‘enemy alien’. Accordingly, a foreign national deemed an ‘enemy alien’ cannot file a petition in any Pakistani court unless the federal government permits it under Section 83 of the Code of Civil Procedure 1908. The newly passed Protection of Pakistan Bill also disentitles an enemy alien from the protection of several fundamental rights.
A related question here is whether or not an individual who has denounced the Constitution and is thus ideologically alienated from it, should also fall in the category of enemy alien. It bears attention that such individuals have ideologically alienated themselves from the Constitution on record through video messages or other forms of public messages. Although this situation certainly requires further legal elaboration, it is not too distant from the category of enemy alien. Whereas the latter is territorially alienated, the former — the ideologically alienated individual — that the military is mostly confronted with is alienated from the state by his beliefs. This merits future discussion.
From a legal standpoint, the IDPs pose yet another challenge. No relevant law or regulations have yet been enacted despite the government confronting an enormous challenge on this front. Here, the government could turn to the War Injuries Ordinance 1941 which gives it an additional administrative option to define the period of hostilities and also provides a mechanism for compensation for war injuries. The War Risks Insurance Ordinance 1971 provides an additional legal basis for such compensatory framework.
In order to ensure that the gains from Zarb-i-Azb are not subsequently lost in our criminal justice system, the government may also want to formally notify the private armies of non-state actors as unlawful private armies under the Private Military Organisations (Abolition and Prohibition) Act 1974. This will certainly facilitate the government in prosecuting their arrested members.
From the perspective of international law, Zarb-i-Azb represents the implementation of Pakistan’s various treaty obligations including UN Security Council Resolution 1373 which mandates all member states of the UN, including Pakistan, to “deny safe haven to those who finance, plan, support, or commit terrorist acts, or provide safe havens” and to “prevent those who finance, plan, facilitate or commit terrorist acts from using their respective territories for those purposes against other states or their citizens”.
Importantly, in order to abide by our obligations under international human rights law, the use of force in military operations must be reasonably exercised within the bounds of the law of armed conflict. In this context, the AACPR regulates the use of force by providing for its calibrated use during military operations under the legal principles of necessity, distinction and proportionality.
The writer is a former caretaker federal law minister.
Published in Dawn, July 12th, 2014