Reposted from The Diplomat | February 28, 2012 | Pakistan's War Against "Miscreants" by Sikander Shah

By Sikander Shah

All this means that Pakistan is continuing to violate its human rights obligations, but is meeting little international pressure to curb abuses

In the middle of last year, Pakistani President Asif Ali Zardari promulgated two key presidential regulations aimed at quelling militancy in two of the country's most restive areas. But the changes are both troubling and potentially counterproductive.

On June 23, Zardari promulgated the Actions (in Aid of Civil Power) Regulation, 2011 (AACP), which is applicable to the Federally Administered Tribal Areas (FATA) and the Provincially Administered Areas (PATA) of Pakistan.

Under AACP, the Pakistani armed forces have the authority to intern militants and civilians tied to ongoing armed conflict in the border regions of the country. The objective of the regulations is listed as incapacitating "miscreants'- a troublingly broad categorization of individuals that implies wrongful behavior without analyzing the nature of the actual acts committed. It's a draconian law that raises some serious questions.

Apart from running counter to the principles of natural justice, it violates the constitutional rights of Pakistanis and prevents Islamabad meeting its international human rights and humanitarian law obligations.

The problem is that the government defines the ongoing militancy as an internal problem of a criminal nature, involving acts of terrorism. The interned "miscreants" are therefore accorded very limited due process compared to what would be accorded to them under the rules of war. They are also liable to be punished for criminal offenses as defined by the state, which are not per se violations of international humanitarian law.

The new definitions come despite the fact that Pakistan is obligated to comply with common Article 3 of the Geneva Conventions, which is applicable inthe case of armed conflict that isn't international in nature. Common Article 3 provides minimum standards of protections based on humanitarian concerns that can't be derogated from - in any situation.

The objective is to protect civilians and combatants and ensure respect for the laws of war among all parties to a conflict. Internment and punishment of combatants, meanwhile, is supposed to be based on legitimate military objectives and any violations of humanitarian law. But under international law, internment is only permitted in very limited cases, while a number of rights and privileges are supposed to be enjoyed by the interned. In addition, any penal prosecution requires sufficient due process for combatants and the restriction of penal prosecution to criminal offenses related to the armed conflict. But this isn't proving to be the case under the AACP. (Troublingly, these regulations were also made retroactive effect from February 1, 2008. This method of criminalizing past conduct is contrary to the principles of natural justice and international humanitarian law).

The new law also allows the armed forces to undertake law enforcement, something they aren't intrinsically designed to do, and something they lack adequate training for. On top of this, the misuse of force by the armed forces is to be investigated from within the military hierarchy, while armed force personnel are given extensive evidence gathering powers. Any evidence provided by them is both admissible and deemed incontrovertible in a court of law, even if the evidence has been procured in contravention of the regular laws guiding evidence in Pakistan.

Perhaps more worryingly, the regulations are ambiguously framed and allow the military complete discretion over all internment matters. Any person who is likely to commit an offense can be interned when it is considered "expedient" for peace in the defined area. As a result, individuals interned need not be directly connected to, or to have taken part in, any hostilities. Any person can be arbitrarily detained for 120 days without being charged, subsequent to which an oversight board, including two military officers, determines if further proceedings are mandated.

The regulations are also sweeping on the punishments that can be meted out. On the issue of punishment, for example, any act (or attempt to undertake an act) that threatens the peace, safety and defense of Pakistan is considered punishable. Spreading literature or delivering speeches electronically or otherwise in an effort to "incite" is considered an offense potentially punishable by death. The regulations also appear to apply to anyone, even though under international law the death penalty can't be imposed on anyone under the age of 18, or pregnant women.

In addition, anyone joining an armed group, even if they don't take part in hostilities, can be subject to capital punishment, while support for someone classified a miscreant, even if that support is simply offering refuge or providing medical assistance, can be subject to the same punishments as those undertaking hostilities. Meanwhile, the regulations effectively grant immunity to the military by stating that "no suit or other legal proceedings shall lie against any person for anything done or intended to be done in good faith." That's a broad remit.

There are some upsides to the regulations, on the surface at least. For a start, they direct the military to protect civilians wherever possible and to use force proportionally. They also prohibit torture and other "inhuman and degrading treatment." Proponents of the law argue, therefore, that this will bring about some transparency and accountability to military campaigns. However, fears that the regulations will allow the military to act with impunity under the garb of lawful sanction are gradually proving well-founded. Already, numerous cases have surfaced in which individuals have been abducted under the ambit of this legislation, and their whereabouts - and indeed the location of the detentions centers where they are held - aren't known.

Many are outraged by the political apathy apparent in all this, and are frustrated that politicians appear to condone such regulations as long as they don't receive any political flak for doing so. Meanwhile, the relative quiet among other nations' governments suggest they support the regulations as an effective measure for countering terrorism emanating from Pakistan.

All this means that Pakistan is continuing to violate its human rights obligations, but is meeting little international pressure to curb abuses. Pakistan has recently ratified the Convention against Torture and the Covenant on Civil and Political Rights, both of which are supposed to protect the principle of habeas corpus. But under the torture convention, arbitrary or incommunicado detention beyond a reasonable amount of time implies torture is being committed.

Ultimately, the AACP law is both facilitating Pakistan in violating its duty to protect the fundamental rights of its own citizens, while undermining stability. The sad fact is that this legislation is actually likely to create unrest, and in turn threaten international peace and security.

Sikander Shah is a legal fellow at the Institute for Social Policy and Understanding and an Assistant Professor of Law and Policy at LUMS University, Pakistan. He is an expert on human rights and humanitarian law.