Internees must be prosecuted

Published September 20, 2014
The writer was the federal minister for law during the 2013 caretaker set-up.
The writer was the federal minister for law during the 2013 caretaker set-up.

WITH the military’s Zarb-i-Azb operation having completed its third month and several strides taken towards combating domestic terrorism the discourse must now shift to longer-term initiatives. The extremist group Islamic State is proof that Pakistan needs an effective prosecutorial and judicial framework to process the cases of thousands of detainees interned during present and previous military operations in the country.

Abu Bakr al-Baghdadi has proclaimed himself ‘caliph’ of the Muslim ummah. He was in fact a former detainee at the Camp Bucca detention facility in Iraq between 2005 and 2009; a facility which at one point held between 20,000 to 30,000 suspected militants.

Camp Bucca — as well as other similar detention facilities — was instituted under UN Security Council Resolution 1546 as a means of interning suspected terrorists and militants while the interim government struggled to set itself up in Iraq.

The internment framework under Resolution 1546 was, from the outset, intended to be a provisional measure and as such lacked any coherent means and procedures of effecting prosecutions against those interned. Thus, when the US initiated its withdrawal from Iraq in June 2009, the Camp Bucca population went down from almost 30,000 to 180. Among these tens of thousands of released internees were not only Baghdadi himself but also his inner cadre and a host of the most radicalised extremists eager to resume their violent ways.

If a detention framework does not lead to an effective prosecution framework militancy will never subside.

In Pakistan’s Swat operations, hundreds of suspected terrorists and Al Qaeda associates have been rounded up and interned under the Action in Aid Of Civil Power Regulations 2011, issued by the then president Asif Zardari invoking his executive-cum-legislative powers under Article 247 of the Constitution. They provide for the legal regime of prolonged internment explicitly, notwithstanding other provisions of the Constitution including those relating to fundamental rights.

These AACPR are — like the Iraqi model — a provisional measure and, under the Constitution, linked to the duration for which the notification under Article 245 is intact. In other words, if the notification for Swat issued under 245 is withdrawn, the government would have to immediately open the gates of the internment centres and release all internees as the AACPR will cease to apply with the withdrawal of notification. To get a fuller picture, combine this with the possible release of hundreds of Al Qaeda suspects by the Afghan government from several detention centres this year as the US withdraws.

It is imperative, therefore, that Pakistan does not allow its border areas along the Durand Line to descend into the same kind of anarchy that the onset of IS has left Iraq in. For this, both the provincial and federal governments need to sit together and develop a comprehensive strategy for the effective de-radicalisation and prosecution of internees.

This may require the appointment of at least 50 judges, the recruitment of as many as 50 investigation officers and prosecutors and the setting up of judicial complexes to logistically try them so that they are afforded legal representation along with other due process guarantees.

Above all, a clear political decision regarding the application of the relevant law under which they need to be tried needs to be made. For example, should they be tried under the Anti-Terrorism Act? Then the notification to extend the ATA to Fata and Pata needs to be made. Should they be tried before the courts under the Protection of Pakistan Act? Again, similar notification is required. Should there be a new dispensation of special courts established by the president under Article 247? All these questions are assuming importance and both KP and the federal government have no plan, no thoughts and no way forward on these issues.

On the other hand, the courts — declining to accept intelligence-based battlefield evidence — are inclined to release detainees and it is evident that the federal and provincial governments are oblivious to the threat this poses. If the American experience at Camps Bucca, Cropper and Taji in Iraq has taught the world anything it is that if a detention framework does not lead to an effective prosecution framework then the threat never subsides and military victories are reversed.

The AACPR, so heavily relied upon, are only an interim measure meant to be replaced or augmented by a more permanent prosecutorial regime. As such, one cannot derive a durable solution from them ipso facto. The danger therein lies in this: should the courts — or possibly the government itself out of sheer frustration — release all the detainees simultaneously, Pakistan could experience another IS-style surge of terrorism. These militants, hardened and further radicalised during — or possibly by — their internment would then be free to regroup and regain the ground they lost under the Swat operation and now Zarb-i-Azb. Add to this the US withdrawal later this year and a similar release of detainees from facilities in Afghanistan, and the situation could deteriorate rapidly.

Already IS has attempted incursions into the Pakistani extremist fringe, distributing pamphlets and other promotional materials in Peshawar and neighbouring refugee camps and gaining the support of Jamaatul Ahrar, a splinter group of the Pakistani Taliban. Should the internees be released without caveat the stability of the entire region could be jeopardised.

Pakistan is still in a position to construct a new judicial framework to ensure that it does not repeat the mistakes made in Iraq and to provide for the effective prosecution of detainees while maintaining necessary due process guarantees.

Pakistan should also insist on the US and Afghanistan ensuring that terrorist suspects in Afghan detention centres are not released like the ones in Iraq, and, instead, are made to go through a robust prosecution mechanism. Pakistan should suggest that the security agreement between the US and Afghanistan include an obligation to properly prosecute those in detention centres or de-radicalise them. Otherwise their release will pose a direct threat to the stability of Pakistan’s border areas.

The writer was the federal minister for law during the 2013 caretaker set-up.

Published in Dawn, September 20th , 2014



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