Can’t kill, detain or release militants? Frame a legal policy

While the military describes the status of the General Kayani-commissioned report on the video depicting the gunning down of six civilians by men in uniform as ‘ongoing’ and insists it will figure out – eventually – what to do about those found guilty, there’s no explication of what this may be. And privately, officials say they can do little to restrain troops who witness the atrocities committed by the militants and know that the criminal justice system is unlikely to punish them.

Interestingly, the military seems more worried about the impact the release of militants has on subsequent operations than about its trigger-happy troops. The operating logic appears to be that released militants terrorise local populations through public executions and floggings, which lead to a loss of public support for the military and the government. And once public opinion is set dead against the military, one may as well forget about any local support for follow-up operations.

The Swat operation

Until Human Rights Watch blew the lid off the Swat operation – the cases of torture, the extra-judicial killings and the unspecified detention centres – and started asking questions about the legality of the Pakistan Army’s conduct, few had been actively worried about the fate of the ‘militants’ captured.

That the 2,600 militants captured during the Swat operations were in blackhole-like detention centres, closed to even the ICRC; that the Anti-Terrorism Act and the Pakistan Penal Code don’t extend to FATA and the Frontier Crimes Regulations isn’t equipped to address terrorism weren’t issues many were fussed about.


But it appears the khakis have now woken up to the problems of detaining suspects without legal authorisation and the weaknesses of the existing system.

Word is, the military is now keen to have the Anti Terrorism Act amended so that suspected militants captured in even remote areas can be punished by the courts, even if it means passing on suspects to the police or other law enforcement agencies.

Among the military-backed amendments are provisions to set up anti-terrorist courts in areas such as Swat, the prosecution of militants as “anti-state elements” and for them to be processed in batches of 20, rather than individually.

But while rights activists concede – like the US report – the weaknesses of the criminal justice system and are open to the idea of changing the law to empower the military, they’re insistent that change be funnelled through existing state structures and apparatuses, however flawed.

“I don’t buy this argument [that extra-judicial killings by the military or LEAs are a corollary to the weaknesses of the criminal justice system]; it is an echo of what the police used to say to justify encounters,” says Human Rights Commission of Pakistan (HRCP) director IA Rehman.

“Obviously, the government’s capitulation to and flabbiness in dealing with militants is a problem, the weaknesses of the legal system are problems, but you need a concerted strategy to deal with those within existing parameters, not an off-the-cuff strategy featuring extra-judicial killings because that will only alienate more sections of society,“ he argues.

For Rehman, it’s still a battle of hearts-and-minds. “The lionising of the killers of Salmaan Taseer and Shahbaz Bhatti by Pakistani society is as much of a problem as the lack of political will; possible collusion between the agencies and terrorists is a problem as is weak prosecution. But you can’t hope to resolve these problems outside the sphere of the law, by killing these people,” he reasons.

All that’s required, he says, is for all the stakeholders to evolve a concerted counterterrorism strategy. The rest – the patchy laws, the lack of political will and the excesses committed by the security forces – will follow.

Published in The Express Tribune.