The South Asia Channel

Detainees and the death of due process in Pakistan

Detainees and the death of due process in Pakistan

At the start of his presidency, President Barack Obama outlined his vision for Pakistan and Afghanistan in a speech that emphasized the need for "security that can only come through the rule of law" and stressed that "a campaign against extremism cannot be won with bullets and bombs alone."  Yet for hundreds of Pakistanis the subsequent campaign launched jointly by the Pakistani and American governments has been used as a pretext by the Pakistani government to pursue its own counterterrorism agenda, which has delivered nothing but bullets and bombs.

While certain aspects of Pakistan’s counterterrorism campaign, such as the operations in the Swat Valley and South Waziristan, garnered significant attention in the U.S. and international media and among policymakers, less discussed is the missing persons’ issue in Pakistan–the hundreds of Pakistanis who have been picked up by the country’s intelligence agencies on suspicion of terrorist activity and detained without charge or trial and without access to family and lawyers.  According to estimates 71 were handed over to U.S. intelligence officials and transferred to the prison Guantanamo Bay, Cuba, while others ended up at the Bagram facility in Afghanistan, and many languish in secret detention centers in Pakistan as part of ongoing campaigns.

Pakistan’s civilian government remains weak and unwilling to hold its intelligence agencies accountable for their involvement in the enforced disappearance of Pakistani citizens.  Government officials often cite gaps in Pakistan’s criminal justice system that allow alleged terrorists to walk free as justification for the indefinite detention of people, especially Baluchi and Sindhi nationalists accused of involvement in persistent and sometimes violent separatist movements, many of whom are later found dead, bearing signs of torture.

In May 2010, Pakistan’s Supreme Court established a judicial commission with the mandate to investigate and recover the hundreds of persons who have gone missing.   The three-member commission consisting of retired judges managed to recover 134 people who had been unlawfully detained.  However, due to non-cooperation from military and intelligence officials, hundreds remain missing and disappearances continue unabated.  While no official statistics exist on the exact number missing, human rights groups and media reports indicate the number runs into the thousands from all four provinces, with a large majority picked up from Balochistan.  

In January 2011, the commission submitted its report to the government in which it clearly laid-out the role of Pakistan’s intelligence agencies in the enforced disappearances of citizens.  Three months later, nothing has been done to hold these all-powerful agencies accountable. 

While security concerns remain valid in the face of ongoing terrorist campaigns within Pakistan, there is little evidence to suggest that illegal detentions have made Pakistanis (or Americans, for that matter) safer.  In fact, a radical group in Baluchistan cited alleged U.S. involvement in the missing persons issue as the reason behind an American aid official’s abduction in Quetta two years ago.    

The enforced disappearance of Pakistani citizens is a gross violation of the rights afforded under the country’s constitution and is in stark violation of international law, including the right to due process, judicial review and habeas corpus.  It also violates Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the U.N. General Assembly in 2006, which prohibits the "the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State …followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law."

Yet the U.S. government, in supporting the Pakistani war on terror, has inadvertently aided those most responsible for the disappearances. In 2009-2010, the U.S. government spent less than $65 million on strengthening civilian law-enforcement capacity to combat terrorism in Pakistan.  In contrast, $700 million was allocated to the Pakistani military in 2010 alone to bolster its counter-insurgency capacity, which has relied considerably on aerial bombing campaigns, arbitrary detentions and extra-judicial killings, as alleged in a Human Rights Watch report last year, which accused the army of murdering 238 suspected militants in Swat since 2009.

The U.S. government’s continued support of the Pakistani military is in violation of the Leahy amendment, which prohibits Congress from authorizing funds to foreign militaries that violate international humanitarian laws.  It is time for U.S. legislators, human rights activists and media outlets to question not just their government’s support of the Pakistani military, but also the possible complicity of allied intelligence agencies with respect to extra-judicial detentions and deaths in Pakistan – according to a 2008 Amnesty International report on the missing persons in Pakistan, "Several individuals who…. were released from custody have subsequently stated that they were visited and interrogated by intelligence agents of other countries who cannot reasonably claim not to have known that these persons were arbitrarily detained."  The report went on to say that "the [United States] encouraged, condoned or acquiesced in grave violations of human rights and failed to use their influence to end them."  

Not only has the missing persons issue made a mockery of due process, but also of the American administration’s rhetoric regarding the rule of law in Pakistan.  This is a critical moment to redirect U.S. relations with the Pakistani public.  U.S. assistance in resolving the missing persons issue will do just that, as well as build Pakistan’s capacity to combat extremism and build a more durable civilian infrastructure over the long term.

Mehlaqa Samdani is an independent consultant who previously worked at the Center for Strategic and International Studies (CSIS).