“Science, when all else fails, could serve as [the] ombudsman of death.”
Operation Zarb-e-Azb has been going on in full swing for the last year and a half and is now closer to achieving its strategic and military objectives. The operations are being conducted under the legal space afforded by Articles 245 and 247 of the constitution of Pakistan. It is under this legal mandate that the armed forces can be called in to act in aid of civil power.
The invocation of Article 245 has the effect of disengaging the fundamental rights found in the constitution to allow for military action. Under international human rights law, in times of crises such derogations from human rights are permissible. This is how the legal machinery operates to authorise armed action by a state’s armed forces, whether to thwart external aggression or suppress internal hostilities.
However, this does not mean that the state has carte blanche in the areas that the armed forces operate in. Even in conflict-like situations, which arguably exist in the Federal and Provincially Administered Tribal Areas (Fata/Pata), a basic level of humanitarian protections is afforded by International Humanitarian Law (IHL) or the Law of Armed Conflict.
IHL, recognising the existence of armed hostilities, allows for the lawful targeting of members of organised armed groups or those civilians who have lost their protection by directly participating in hostilities. Furthermore, it allows for the internment/detention of persons, without charge, for the duration of the conflict. Internal conflicts can last years if not decades. It is here that the national approach to dealing with those affected by this conflict needs development.
In Pakistan, internment is permitted for Fata/Pata under the Actions (in Aid of Civil Power) Regulations 2011. The regulations, in line with IHL, allow for internment for the duration of the operations under Article 245 of the constitution. The regulations also provide a mechanism for transferring internees to law-enforcement agencies for prosecution. We have already seen a number of internees being transferred to the military courts established subsequent to the 21st Amendment to the constitution and amendments to the Pakistan Army Act. However, all successful prosecutions hinge on the quality of evidence produced at trial.
For individuals captured on the battlefield or from designated operations areas, the evidence is difficult, if not impossible to obtain and produce in court. Soldiers are not trained to collect evidence or even record witness statements. There are no battlefield forensics teams, with the ability to collect, analyse and report on admissible evidence.
Even if documents or other forensically viable material are picked up by soldiers, the issue of chain of custody and preventing evidence tampering needs to be dealt with before such evidence can be utilized in court. Similar problems were faced by the International Criminal Tribunal for the former Yugoslavia (ICTY). It is for these reasons that most convictions, even in the military courts, are based on confessions rather than any other form of evidence.
In recent times, what we have unfortunately come to realise is that Pakistan fails to gather admissible battlefield forensics. Battlefield forensics is a material collection process designed specifically for the troops in the field who are fighting terrorism on the front lines. How can a country that has witnessed numerous suicide attacks, cold-blooded assassinations and multiple militant ambushes conveniently ignore modern techniques of investigation?
The advancement in the field of collecting scientific evidence has increased ten-fold. Developed countries have adopted novel techniques of evidence collection on the battlefield. These include: foot and ear printing, dental interventions, skeletal anomalies, tattoos, facial reconstruction, personal effects, and handwriting.
Today, countries like the US and Canada are heavily dependent on their respective battlefield forensics labs, established in conflict zones such as Iraq and Afghanistan. After collecting evidence from the battlefield these labs are involved in analysing, storing and sharing of the biological data with the concerned authorities. The compilation of biometric data helps these countries take preventive measures against any suspected activity.
For instance, in 2010, the US used such data to capture 775 ‘high value’ targets. A Nato course has been developed in Hungary to train Weapons Intelligence Teams (WIT). These teams collect evidence from conflict zones once the area is deemed safe and are trained to complete their task within half an hour, to ensure safety. Similar training is imparted to US teams in Afghanistan. A 15-day course prepares operators to go on the ground and become first line investigators.
It is high time Pakistan’s law-enforcement agencies trained their personnel in collecting forensics by means of sophisticated and improvised evidence collection and analysis techniques from the battlefield. The reliable data, once gathered, should be transferred to facilities such as those established in Punjab and Malakand for further examination.
The Punjab Forensic Science Agency maintains international standards and can boast to be one of the few of its kind in the world. Personnel are also being trained in Khyber Pakhtunkhwa under the new regional Forensic Science Laboratory (FSL). Such work brings a lot of hope for the introduction of scientific techniques of gathering evidence to be used to prosecute the detainees of Operation Zarb-e-Azb, making the operation a lasting success.
Battlefield forensics will help prosecute militants and provide justice to detainees in internment centres. Any military success on the battlefield remains meaningless in the absence of an elaborate and effective mechanism to prosecute detainees. This is what Camps Bucca, Cropper and Taji in Iraq have taught the world.
Pakistan must, therefore, construct an adequate legal framework in furtherance of Article 245 of the constitution to empower military forces on the ground to gather evidence. Alternatively, embedded independent investigative units could be set up with state-of-the-art equipment and training to collect battlefield forensic evidence. Such a framework should already have been in place but in view of the protracted conflict it is still not too late.
Consequently, Pakistan must now prioritise putting in place legal and scientific mechanisms to effectively deal with persons captured on the battlefield.
The writers are lawyers at the ‘Conflict Law Centre’ based at the Research Society of International Law.