Human rights, legally speaking, are not based on some unwavering and impossible standard.  Even international law reflects a sort of lowest common denominator approach to what is considered a human right.  Within that international law framework, certain rights termed non-derogable, are preserved regardless of the circumstances within a state and certain rights are flexible depending on a state’s internal circumstances.  This flexibility regarding enforcement is not arbitrary.  To qualify, a state must demonstrate in some sense, public emergency, which threatens the life of the nation in response to which action is made necessary by the exigencies of the situation.  This is also provided that actions are not purposefully discriminatory or in violation of those rights, from which there is no derogation permitted.

Pakistan is engulfed in a landslide of ongoing violence stemming from conflicts fed by political, ethnic and religious unrest, amongst other causes.  Much of the violence in present-day Pakistan may be identified as a manifestation of terrorism, as it is defined in Section 6 of the Anti-Terrorism Act, 1997 and elsewhere.  It goes without saying that terrorism is addressed by the state, in this case Pakistan, through counterterrorism measures.  The military and certain branches of law enforcement then carry out these measures, ranging from law enforcement operations to intelligence gathering to rehabilitation.

During counterterrorism operations, the following question naturally arises: what rights and protections are captured individuals entitled to receive?  Is it in the government’s best interests to forgo the enforcement of certain rights in a public emergency because the legal framework becomes more flexible for the state to carry out its national security goals?

As the Government of Pakistan strategizes a response to terrorism, should there be a concerted effort to devise mechanisms that, while not violating international human rights standards outright, do not adhere to them either?  For example, Pakistan is not permitted to torture individuals in custody.  However, the question is, what is meant by torture?  This strategic grey area is where the soft-violation of human rights can and, perhaps depending on who is asked, does occur to further Pakistan’s counterterrorism agenda. 

In assessing where to draw the line, Pakistan may learn from the Sri Lankan counterterrorism experience.  In Sri Lanka, traditional law and justice mechanisms are bypassed in favor of a parallel “voluntary” detention regime.  Individuals placed in this program are classified, for legal purposes, differently than those captured during routine law enforcement measures.  Program participants are required to sign a written statement expressing their voluntary admission, but current program entrants often claimed that they either have not signed anything or have signed documents in a language unfamiliar to them. 

Sri Lankan officials are restrained from even considering a criminal investigation in regards to these individuals for three months and may hold them for up to two years as “voluntary” surrenders in a rehabilitation program, skirting violations of their freedom of movement with the barest of deference to human rights.  Applying this in Pakistan, an enforced disappearance, for example, violates human rights, but a temporary hold for the purposes of rehabilitation, however effective in nature, will perhaps not be as sharp a transgression.

This type of assessment is naturally based on a balancing test and in this case a balance must be struck between the rights of the state and the rights of an individual.  If the individual is an anti-state or terrorist entity, while international standards may demand protection of their rights as humans, the state is likely less inclined to see them as human and therefore deserving of rights. 

So where does this leave the enforcement of human rights within a larger counterterrorism operation?  This question is dependent upon both the government and the military stating their goals for the counterterrorism operations along with a clear indication of how far the state is willing to go to achieve said goals.  Once this two-part understanding is achieved, the relevant legal framework may be designed or manipulated as the case may be, to serve such a purpose. 

Law is often underestimated as a tool in Pakistan, but working the legal system allows the state to have the cake and eat it too. Taking advantage of grey areas within international law standards will serve to strengthen Pakistan’s defense of its counterterrorism operations internationally.  Even further, a little legal elasticity will strengthen the measures themselves, keeping in mind the Sri Lankan example. 

Taking a cue from other states exploiting similar domestic and international legal loopholes, the flexibility of human rights enforcement is lucrative.  A state may travel down this grey road, capitalizing on ambiguities, whenever possible, to its advantage.  The key for Pakistan is to identify and take advantage of those loopholes without straying too far and outrightly violating any laws or standards.

The writers are researchers at the Research Society of International Law.

email:mairasheikh@rsilpak.org

email:  mogheeskhan@rsilpak.org