War vs criminal justice

Legal eye

The writer is a lawyer based in
Islamabad.

The Brussels attacks this week are the latest reminder that the fight against terror is going to be a long haul. With Europe becoming the focus of IS attacks, European states will need to adopt a model to fight terror best suited to their needs.

So far the world’s response to terror has been knee-jerk anger. And the angry model to fight terror is the war model. The US adopted it after 9/11 and there has been no looking back since. Multiple wars later, terrorism hasn’t receded and the jury is out on whether the war model provokes or quells terror.

When Western right-wingers speak of excluding Muslims from their midst, we worry about the compounding effect of terror on the overwhelming majority of peaceful Muslims who are its foremost victims anyway. But other than concern for expatriates, travellers and students, one worries whether leaders of powerful states have got their solutions to terror right. We all know that in this age of technology the world has become smaller and more interdependent. Can the world now be re-divided into silos on the basis of religion or nationality?

One cringes when leaders of the ‘free world’ speak of building walls to shut the ‘undesirables’ out. The opposition to such ideas is part moral and part rational. From a moral perspective, racial profiling is wrong. Treating almost 22 percent of the world population as enemy or suspect because a miniscule minority from amongst those who claim to adhere to Islamic faith is perpetrating terror in the name of religion is unfair. But the rational argument is stronger. Do you help or hurt the fight against terror by painting evil all Muslims spread across the world?

But this is how wars work. The question of fairness takes a backseat. You divide your world into friends and enemies. The enemies have to be dehumanised to justify use of lethal force. The problem the world is faced with today is that this war model doesn’t squarely fit the problem of terror and yet, out of ideas, that is the model the world is employing.

In times of war laws fall silent, Cicero had said. Can those fighting a war switch their humanism on and off at will? One minute you’re trying to kill someone you deem pure evil, who in turn is trying to kill you. Here your humanism is switched off. The next minute when you capture him can you be expected to recognise that his human rights are inalienable and he is to be deemed innocent until proven guilty? All wars witness war crimes. But the problem is particularly thorny when it is hard to distinguish friends from foes, as is in nonconventional warfare.

The law of armed conflict exists in a paradox to begin with. It seems disingenuous to expect armies to cause minimum damage while trying to kill the enemy. Then there is the conflict between humanitarian law and human rights law. How do you expect armies to treat with honour and dignity those they capture alive? These conflicts exist but are tolerable in wars between states. The challenge becomes acute if you adopt the war model to fight citizens. Here the need to strike the right balance between humanity and military necessity is greater.

With the US opting for the war paradigm instead of the criminal justice paradigm post-9/11, the world’s focus on due process and fundamental rights dithered. Torture became coercive interrogation. Extraordinary rendition replaced kidnapping. Scholars began manufacturing moral justifications for torture in extraordinary situations. To get around the problem of treating prisoners of war humanely, we began twisting the definition of PoWs to exclude terror suspects. Since 9/11 the world has seen a contraction of rule of law and humanism.

Pakistan has followed the US in adopting the war model to fight terror, which is more perilous given that our terrorists are mainly Pakistanis. Since the promulgation of Suppression of Terrorist Activities (Special Courts) Act, 1975, we have experimented with specialised anti-terror legal regimes. We have shown a proclivity for catchall definitions of terror and conviction-friendly tribunals, instead of defining terror narrowly to address ideologically-driven terror and fixing our investigation and prosecution systems to improve conviction rates.

We adopted the Anti-Terrorism Act, 1997 in the face of growing sectarian violence in the 1990s, and then the Armed Forces (Aid to Civil Power Ordinance), 1998 that established military courts after Hakim Saeed’s murder. These laws accepted the logic of military necessity at the expense of human rights. The Supreme Court in the Mehram Ali case declared portions of the ATA ultra vires of the constitution and in the Liaquat Ali case rejected the concept of military tribunals trying civilians. We thus continued to drudge along under the criminal justice model.

After 9/11 the problem of terror grew in Pakistan as well. We relied on the military option in dealing with Fata and later Swat. Post-Swat there emerged the need for a legal framework to detain and try those captured during the military operation. That led to adoption of the Actions (In Aid of Civil Power) Regulations, 2011, for Fata and Pata. This framework was designed to accommodate military necessity, and treated fundamental rights as partly alienable. To what extent it has been used to try those captured in Swat and Fata is unknown.

Under General Kayani the military kept pushing for a more effective legal regime to deal with terror, but one that stayed within the four corners of the criminal justice paradigm. We saw promulgation of the Fair Trial Act, 2013, the Anti-Terrorism Amendment Act, 2014 and the Protection of Pakistan Act, 2014. Together these instruments provided for use of military and intelligence agencies as prime instruments of internal security. They provided for broader detention powers, secret surveillance of citizens and transformation of intelligence into evidence etc.

As this new criminal justice framework came into play, curtailing protection of fundamental rights and allowing broader arbitrary powers to the military and police, two-year sunset clauses were built within the PPA and amended ATA. This was in implicit recognition of the fact that employment of extraordinary coercive powers by the state was a limited time desperate measure to fight terror and was not otherwise in consonance with the rights guaranteed by the constitution.

That was pre-APS. After APS the mood changed. The military realised that, for the moment, the debate about balancing military necessity with humanism had no resonance with the public. Thus even without trying to use the amended criminal justice framework, it opted for the war model. We had a very brief debate about military courts, laced with blind patriotism that equated love for our children with support for military justice, and with the 21st Amendment and an amended Army Act we moved on from criminal justice to the war model.

That is water under the bridge. Why has there been no focus on fixing the broken criminal justice system since the adoption of the war model? In Karachi, where the army and the Rangers have done a swell job in bringing a semblance of normalcy and safety to the city, the DG Rangers is seeking his own police stations. What is the game plan here? Are we going to wrap up the traditional police and criminal justice systems and replace them with instruments of war and military justice for all times to come?

If not, shouldn’t we be thinking of how to transition back from the war model to criminal justice – the only sustainable model in the medium to long term? The two-year sunset clause within PPA and amended ATA becomes effective this year. The sunset clause within the 21st Amendment will go into effect early next year. The clock is ticking. The pendulum will have to swing back. Will it smack us in our faces when it does because we are looking the other way?

Email: sattar@post.harvard.edu