Many in the West view Pakistan as a safe haven for transnational terrorist organisations, and India is attempting very hard to exploit this global opinion. In reality, however, terrorist violence kills more innocent civilians and security personnel in Pakistan compared to all of Europe in any given year. Regrettably, Western societies ignore the causalities of terrorism inside Pakistan and apply different standards for valuing Pakistani life.

Sikander Ahmed Shah

Pakistan, however, must keep its eyes on the ball. Today, it is uncontested that terrorism is a very serious internal threat to Pakistan, and geopolitics aside, Pakistan must seriously realise that its national and international obligations for combating terrorism are not mutually exclusive. By implementing its domestic laws on combating terrorism against minority groups, while in concert respecting the fundamental human rights and freedoms of individuals enshrined in the Constitution, Pakistan can automatically comply with virtually all of its counterterrorism international legal obligations.

The domestic framework to censure groups promoting terrorism is more punitive as compared to the UN regime.

The present UN framework for combating global terrorism materialised in the wake of the Sept 11 attacks with the adoption of the binding UN Security Council Resolution 1373 passed under Chapter VII of the UN Charter. This resolution was meant to thwart terrorist groups in holistic ways and called on all states to adjust their national laws for the purpose of ratifying all international conventions on terrorism. The UN General Assembly has also routinely acted to support the Security Council and strengthen this regime. For example, in 2006 it adopted the UN Global Counter-Terrorism Strategy for preventing and combating the menace of terrorism and for the purpose of strengthening the role of the UN in this regard.

UNSC Resolution 1373 established the UN Counter-Terrorism Committee, which is a subsidiary body of the UNSC and is assisted by its Executive Directorate, with the objective of promoting cooperation between states for combating transnational terrorism. It is not, however, a sanctioning body nor does it maintain a list of terrorist groups or individuals. This role is actually performed by another subsidiary UNSC body — the “Security Council Committee (established) Pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh), Al Qaeda, and Associated Individuals, Groups, Undertakings and Entities”. It is this body that banned JeM in 2001 and other groups like Lashkar-e-Taiba due to their purported links with Al Qaeda and the Taliban.

The domestic framework for censuring organisations promoting terrorism under the Anti-Terrorism Act 1997 (as amended) is actually more severe and punitive when compared to the UN regime. For many in the human rights community, this law has been perceived as being indefensibly draconian, critiqued for the inordinately broad definition of the term ‘terrorism’ and for the excessively broad scope of its ancillary offences. The act also provides law-enforcement personnel with inordinate discretion to determine which organisation “is concerned in terrorism”, and once proscribed, an organisation has its offices sealed, its accounts frozen and subjected to intense financial scrutiny, and its property and materials seized.

While individuals under the ATA are not blacklisted in exactly the same way as by the UN sanctions committee, the censuring and criminal liability of members of proscribed organisations under the ATA is nonetheless more severe. Simple membership in a proscribed organisation results in a fine and conviction of up to six months — with the bar for what constitutes ‘membership’ inordinately low. Indeed, as per Section 11-A, an organisation is “concerned in terrorism” if it — tautologically — is “otherwise concerned in terrorism”. Any active involvement in a proscribed organisation such as by providing financial support, soliciting funds or delivering religious sermons publicly can result in both a hefty fine and imprisonment ranging anywhere from between one to five years.

The dilemma in relation to combating terrorism that Pakistan faces is not really one of balancing its international obligations with domestic ones, but of balancing the human rights obligations owed to its citizenry with its national security imperatives.

Extremist violence predominantly emerges from socioeconomic deprivation, something for which the government must be held accountable; however, in the short to medium term the government must act to defend its legitimate writ and to comply with its positive obligations to protect religious and ethnic minorities from systematic acts of terrorism committed against them with impunity by radical groups. While the ATA — and particularly its illogical description of an “organisation concerned [with] terrorism” — must be improved to provide the necessary levels of due process to those charged under it, it can and should be used effectively by the government to clamp down on extremist organisations and individuals who sow the seeds for promoting terrorism against minorities within the country.

Even though it might be politically hard to swallow, the government must act against influential leaders of radical organisations engaged in spreading hate and terrorism — and not just against those which it classifies as involved in anti-state activities — by designating them as “proscribed persons” under Article 11EE of the Fourth Schedule of the ATA. This would allow the government to constantly monitor and keep under tight surveillance such proscribed persons and punish any violators who misuse religious institutions to provoke terrorist violence against the most venerable segments of society.

The writer is former legal adviser to the Ministry of Foreign Affairs.
Published in Dawn, January 9th, 2017

This story was originally published by Dawn, Pakistan

Recently, Mullah Akhtar Mansour was killed in a US drone strike in Balochistan. In response, Pakistan expressed deep concern, terming the attack as “crossing a red line” because it was the first time that a drone strike had been conducted outside Fata, hundreds of miles away from any region in Pakistan, currently experiencing internal conflict.

It should be stated at the outset that US drone attacks in Pakistan cannot produce an international armed conflict, nor can a non-international armed conflict (NIAC) exist in Pakistan in which the US is a legitimate warring party under international law. The former kind of conflict cannot exist between the two states as they are not engaged in any hostilities against each other and, in fact, project themselves as allies. Similarly, an NIAC between the US and Tehreek-i-Taliban Pakistan (TTP) cannot exist because under the laws of war only a host state can enter into such a conflict with domestic armed groups.

US drone strikes in Pakistan are in fact one-way attacks, where there is no exchange of fire between US forces and TTP. An armed conflict can only exist if there are sustained or protracted attacks and counterattacks between warring parties. Combatants are required to be actively engaged in hostilities with each other, with the intensity of violence passing a particular threshold. However, because TTP cannot fight back against UAVs and because there are no US armed personnel stationed in Pakistan that TTP can target, such requirements of engagement are not met.

A zone of conflict is the territory within which there are active and sustained hostilities and where the laws of war are fully operationalised. In addition to exchange of attacks and intensity and duration of assaults, armed conflicts also possess a spatial dimension. Thus, war in one country does not translate into a global war between all states or between citizens of hostile states residing abroad.

The law of war is being directly challenged.

Thus a ‘red line’ was indeed crossed when Mullah Mansour was killed near Quetta, one of Pakistan’s biggest urban centres. There is complete absence of any form of armed conflict in Quetta. It is true that Quetta, like Pakistan’s other urban centres, has witnessed acts of local terrorism. But such sporadic violations of domestic criminal law do not by themselves produce an armed conflict, which requires a far higher threshold for the exchange of force, the intensity and duration of violence, and the organisation of armed groups that qualifies them as fighters engaged in an armed conflict.

In the same vein, these sites of attacks are hundreds of miles away from any active conflict zones. In summary, the law of war is inapplicable in such parts of Pakistan; to hold otherwise would be to take a position unsupported by international law, and one which will lead to future violations of the Constitution — not to mention the law of armed conflict.

Today, the law of war is being directly challenged by terrorists and hegemonic states alike. While terrorists don’t see themselves as bound by this corpus of law, powerful states like the US are also trying to contort it for military expediency.

International Humanitarian Law (IHL) recognises that war is a reality, but seeks to limit its adverse effects on civilians and combatants alike by incorporating important legal standards and parameters that warring parties have to abide by. The existence and delimitation of a spatial dimension of a conflict zone is one such powerful constraint built into IHL to protect against unnecessary escalation of violence and the use of unnecessary, disproportionate force, especially in areas far removed from the conflict zone, and to prevent the supplanting of the human rights regime and its protections unless absolutely required.

By making a mockery of the requirement of a conflict zone, the US government — by arguing it can target anyone, anywhere because the whole world is a global battlefield — challenges IHL in the most fundamental way. In a sense, the US is arguing that it can create an armed conflict and a conflict zone at any location where it conducts a drone strike. In other words, the location is determined by who is targeted in its view, and not the nature of hostilities in the region.

If this contorted and asymmetrical version of IHL is adopted, it would displace human rights law and the domestic laws of a state wherever the US conducts drones strikes at whim. This would end up depriving the people of targeted states of fundamental procedural and substantive due process protections — inclusive of all essential civil and political rights — that guarantee life, liberty and property and which are considered non-derogable under the US constitution.

The writer is the author of International Law and Drone Strikes in Pakistan: The Legal and Socio-political Aspects.
Published in Dawn, July 3rd, 2016

This story was originally published by Dawn, Pakistan

This month the Indian ministry of home affairs released the draft of the proposed Geospatial Information Regulation Bill, 2016. Still in its preliminary form, it has created a furore both at home and abroad.

The bill aims to regulate `the acquisition, dissemination, publication, and distribution of geospatial information of India which is likely to affect the security, sovereignty, and integrity of India`, and proposes severe penalties for the `incorrect` depiction of the `territory` of India by persons `within` India or Indians living abroad.

The bill represents a broad undermining of international law and a violation of the bilateral arrangement vis-à-vis Kashmir.

Pakistan`s ambassador to the UN, Maliha Lodhi, has raised concerns with the secretary general and Security Council that the bill seeks to unilaterally depict the disputed territories of Jammu & Kashmir (J&K) as being within Indian territory, and to punish those representingthe correctscenario.

The Line of Control (LoC) is the current demarcation of territorial control within Kashmir. First established under the 1949 Karachi Agreement, it was further reified in the 1972 Shimla Declaration under which Pakistan and India agreed that the `line of control resulting from the ceasefire of Dec 17, 1971, shall be respected by both sides without prejudice to the recognised position of either side. Neither side shall seek to alter it unilaterally, irrespective of mutual differences and legal interpretations` It further states that `[pjending the final settlement […J neither side shall unilaterally alter the situation and both shall prevent the organisation, assistance or encouragement of any acts detrimental to the maintenance of peace and harmonious relations`.

The LoC is reproduced in UN maps, along with a legend describing it as agreed upon under the Shimla accord, with J&K`s final status remaining in dispute. While official maps published by the Survey of Pakistan do not reproduce the LoC, they correctly depict J&K as disputed. By contrast, the official Survey of India`s maps incorrectly depict the entirety of J&K as well as Gilgit-Baltistan as Indian territories.

Pakistan ought to adopt the UN`s practice of marl(ing the LOC on its own official maps with a legend unequivocally declaring the status of J&K as being undecided. Rather than compromising the Kashmiri cause, this would, instead, clearly state the ground realities: that the LoC exists and shall be recognised until such time as the territorial status of J&K can be resolved. This is critical; under international law, while official maps might not conclusively resolve a boundary dispute between two states, they nonetheless have probative value, and can be relied uponby states when attempting to advance their positions.

The proposed bill is yet another attempt by India to unilaterally assimilate J&K contravening international law. That the territorial status of Kashmir is unresolved is not in dispute; however, India, by its recent actions, has sought to force a resolution of the situation to its own benefit.

The attempt to construct a fence in Indiaheld Kashmir also violating international law is an example of India`s unsettling tendency to chip away at provisions of previous agreements. This latest attempt to undermine recognition of Kashmir`s status is another instance of India violating the Shimla pact in spirit and in operative text.

The accord is intended to maintain the status quo until a permanent solution is devised.

The bill seel(s to unilaterally alter this.

From a historical perspective, the Karachi Agreement was a multilateral one, mediatedby the UN; the Shimla pact concluded as a bilateral arrangement, with India choosing to expel the UN Military Observer Group in India and Pakistan and maintaining that the Kashmir issue existed wholly between the two countries. Now it seems India is taking steps to force a permanent resolution one entirely for its own benefit, at the expenseof the Kashmiri people, and in violation of international law.

Kashmiris` right to self-determination has been recognised under international law and sanctified by numerous UN resolutions.

However, under this bill those living in India-held Kashmir can face criminal penalties for portraying that J&K`s territorial status remains unresolved, or be forced to accept the version of `truth`imposed by India all of which runs counter to self-determination andits peacefulfurtherance.

Under the international law for boundary delimitations, the doctrine of `acquiescence can come into play: if one state party knowingly does not raise objections to the other`s illegal act, it can be seen as having acquiesced to the other party`s illegalities.

Pakistan should strongly protest the bill which goes beyond the scope of domestic lawmaking into the realm of international law to ensure that India does not subsequently claim Pakistan acquiesced to its position.

Sikander Shah is former legal adviser, Ministry of Foreign Affairs, and law faculty at Lums.
Abid Rizvi is an expert on international law.

This story was originally published by Dawn, Pakistan