Testimony before International Commission of Jurists
Weekly Pulse
March 9-15, 2007
A special panel of the International Commission of Jurists (ICJ) in collaboration with the Human Rights Commission of Pakistan (HRCP) held a public hearing on March 5-6 in Islamabad to assess Pakistan’s response to acts of terrorism and its impact on human rights in the country.

Two of the ICJ’s eight-member ‘Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights,’ who conducted the hearing in Islamabad, were Justice Arthur Chaskalson, former Chief Justice and first President of South Africa’s Constitutional Court, and Prof Vitit Muntarbhorn, Prof of Law in Bangkok, Thailand, and UN’s Special Rapporteur on Human rights in North Korea.

It was in October 2005 that the ICJ had launched the 18-month initiative, and the panel’s visit to Pakistan and India, where it recently conducted hearings for the rest of South Asian states, is the 12th hearing so far around the world.

The HRCP Secretary General, Syed Iqbal Haider and Peoples Party spokesman Farhatullah Babar were the two prominent persons who testified before the Panel on Monday. The Tuesday session started with a presentation by the Human Rights Watch (HRW) representative in Pakistan. Later, I was offered the opportunity to make submission before the panel. Before I underline the salient points of my own submission before the panel, it is important to mention the important points made in other submissions.

Implications for Pakistan

In essence, these submissions were about the politico-legal consequences of Pakistan’s counter-terrorism effort by leading lawyers and political and human rights activists, especially with regard to the relationship between terrorism and the rule of law, on the one hand, and counter-terrorism and human rights, on the other.

Before me, the HRW representative dealt at length with the serious domestic human rights implications of Pakistan’s counter-terrorism campaign, including instances of forced disappearances and torture, and the denial of the right to defense and trial to detainees.

During the March 5 hearing, Syed Iqbal Haider, a former senator and Federal Law and Human Rights minister, had considered the United States responsible for the misuse of terrorism law in Pakistan, which, in his view, was being used to settle political scores and rivalries, and for arrests, disappearance and handover of innocent people to the US government for monetary returns. “Jihadis did not cause as much damage to India as they did to Pakistan, rather they brought this country to the verge of being declared a terrorist state,” Mr Haider observed.

For his part, Farhatullah Babar had recommended to the panel that intelligence agencies should be brought under the ambit of law and made answerable to parliament to end the practice of enforced disappearances and unprecedented violation of human rights. “All detention centres of the intelligence agencies must be made public and governed by law and no one should be held in secret or incommunicado,” he said.

Ground Realities

My own submission before the panel was based on a rather academic perspective on the issue of counter-terrorism and its human rights implications, emphasizing the complexities of the political and social ground realities in the country, especially in its tribal regions bordering Afghanistan. Some of the observations, including responses to questions by Justices Chaskalson and Muntarbhorn are as follows.

“The present issue of counter-terrorism and its impact on human rights in Pakistan has to be seen in a broader, historical context. What we are seeing today in Pakistan and the region is essentially an outcome of the 80’s internationally-sponsored anti-Soviet jihad in Afghanistan. The only difference being that freedom fighters of yesterday have become the terrorists of today.

“Since the United States had abandoned Afghanistan following the Soviet troop withdrawal, it has been relatively easier for it to brand those as Islamist terrorists whom it had supported in 1980s as Mujahideen liberators. On the other hand, in Pakistan’s perceptions, Mujahideen did not lose their liberating identity until the events of September 11, 2001. Therefore, it has been relatively more difficult for it to rephrase the Mujahideen as terrorists.

“Secondly, the situation in Pakistan’s tribal belt involves intricacies rooted essentially in the history of post-1979 warfare in Afghanistan. The country’s leadership has come under increasing external pressure to ‘do more’ to combat jihadi militancy in the region, which is not possible given the intricate nature of the ground reality there. Consequently, each time external pressure has become unbearable for the Musharraf regime, it has acted in desperation. This, in turn, has fuelled jihadi reaction, especially in the form of recent suicide bombings in the country.

“As for the legal implications of counter-terrorism in Pakistan, as long as the legal status of the detainees in Guantanamo Bay remains in a quandary, it would be difficult to expect a fair legal treatment of detainees in Pakistan, which considers itself a frontline state in the US-led war on terror. The problem has to be viewed in a comparative sense. For instance, Central Asian states like Uzbekistan have experienced similar problems in the aftermath of September 11, 2001, whereby counter-terrorism effort has, in fact, generated further state repression and, consequently, more religious extremism and terrorism.

Reporting Terrorism

“Another casualty of counter-terrorism in Pakistan is the freedom of expression. The country has no doubt seen a miraculous growth in the private satellite television channels in the past couple of years. Yet, insofar as reporting the facts on the ground is concerned, the situation is quite problematic. For instance, since the start of 2005, at least four major instances of bombings have occurred. Since reporters did not have access to the ground, and no first hand account by the media was available, the field was open to contending commentators to speculate whether the operation was undertaken by Pakistan army or the US/NATO forces deployed in eastern Afghanistan.

“There are a multitude of factors preventing the factual reporting of Taliban-infested regions bordering Afghanistan. First, it is very risky to report the facts from there. Recent instances of reporters being kidnapped and killed tend to discourage the media from reporting facts on the ground. State constraints constitute another obstacle in this respect.”

These were some of the observation made in my submission before the ICJ Panel, which summarized its own conclusions of the hearing in Pakistan on March 7. Following the public hearing, the Panel members held private meetings with senior government representatives in Islamabad, including the Ministry of Foreign Affairs, Ministry of Interior, Ministry of Law, Justice and Human Rights and the Law and Justice Commission.

Next month, the ICJ Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights will conclude its global hearings, and then make its findings and recommendations public in a comprehensive report.