Should military courts try terrorists? It is a moot point despite the precedent set at the end of the Second World War.
All the rules changed when the US started the so-called war on terror. The Patriot Act did away with that very basic legal right: habeas corpus, the writ that allows the court to determine whether the custodian has lawful authority to detain a prisoner. The US also set up military courts to try suspected terrorists.
Here are the main points to keep in mind about those military courts when considering Pakistan’s decision to set up similar ones to try terrorist suspects. The US was essentially looking at non-American enemies and the courts could operate out of US overseas bases in Guantanamo, Abu Ghraib and others in Iraq and Afghanistan.
Neither point applies to Pakistan. The country is essentially looking at the enemy within. This makes it extremely difficult to even refer to its fight against extremist violence as a “war”. However horrendous the crimes committed, they cannot really be called war crimes.
In the context of terrorism, I, like many others, have long held the view that basic principles of law and strict technicalities must be modified. Considering that the kind of direct evidence necessary for obtaining a criminal conviction may not be available to convict a terrorist, the maxim “innocent till proven guilty” might need modification.
A minor violation of human rights during investigation of a terrorism offence should not become the grounds for setting a suspect free. But when I, and other like-minded people advanced this argument, we were thinking of trial by the judiciary, not by military courts.
However, due process is time consuming and, in the case of a suspected terrorist, it should be accelerated and serve as a deterrent. The case against the death penalty for convicted terrorists argues that individuals programmed to launch suicide attacks are hardly likely to be deterred by death.
This is a valid argument but there is also the flip side – the majority of those who are caught and tried are more likely to be the back-office people – those who programme others to undertake suicide attacks. Most of these people are likely to be deterred by death.
One of the big problems of Pakistan’s ongoing battle against terrorists is that they have been targeting law enforcement personnel – investigators, prosecutors, lawyers, the judiciary and their families. It is physically impossible to provide everyone with adequate security, so the investigators, prosecutors, lawyers and judiciary are seen as wary of ensuring the accused are justly punished. Consequently, our record of convictions is deplorable.
This is the context within which the military courts appear a viable alternative. Headed by serving military officers, who are likely to be more secure and are also programmed to risk their lives, these courts are less likely to be deterred by terrorist threats and will act with speed.
This was illustrated after the 2009 military operation in Swat, when the army captured about 1,700 extremists and rescued almost 100 teenagers who were being programmed to undertake suicide attacks.
The teenagers were enrolled in a programme called Sabaoon, a Pushto word that means the crack of dawn. Headed by a team of psychiatrists, Sabaoon began the process of reclaiming the young men. This was a phenomenal success and, within two years, all of them were rehabilitated into the community. The programme has, since, been expanded to Balochistan and other tribal areas of the Khyber Pakhtunkhwa province.
But the suspected terrorists are still in what is technically illegal custody. Neither the central nor the provincial authorities were prepared to prosecute and punish them. And the army cannot release them to recommence their terrorist activities.
Admittedly, both central and provincial governments have since changed. But nothing in their performance so far inspires one with the confidence that they will do any better than those who were in office in 2009.
Even the death penalty, reimposed for convicted terrorists by prime minister Nawaz Sharif after the Peshawar school massacre, does not really help much. Whether one is in favour of the death penalty or not, the fact is that since the moratorium on it was lifted, the only terrorists that have been executed are those who were tried by the military.
While I must admit that the idea of making soldiers responsible for meting out justice makes me uneasy, the alternative is horrifying.
Given the circumstances, frankly and very reluctantly, I do not see a choice, at least for the moment, in the issue of whether or not military courts should try terrorist suspects in Pakistan.
Brig Shaukat Qadir is a retired Pakistani infantry officer
