The conviction of Idrees Khattak, a leading Pakistani human rights defender, by a military court in a secret trial, is a gross miscarriage of justice, said the ICJ today.
According to news reports, Idrees Khattak was convicted on charges of espionage and sentenced to 14 years’ imprisonment.
Idrees Khattak was forcibly disappeared by the Pakistani Military Intelligence in November 2019. His whereabouts remained unknown until June 2020, when military authorities informed the Commission of Inquiry on Enforced Disappearances that he was being tried under the Official Secrets Act, 1923.
“Idrees Khattak was subjected to the serious crime of enforced disappearance and instead of bringing the perpetrators of this violation to account, the Pakistani military kept him arbitrarily detained and has now convicted him in a military court in a secret, sham trial,” said Sam Zarifi, ICJ’s Secretary General.
Idrees Khattak was charged on multiple counts related to spying and other conduct “prejudicial to the safety or the interests of the State” under Section 3 of the Official Secrets Act.
Sections 2 and 59 of the Pakistan Army Act, 1952, gives military courts jurisdiction to try civilians for certain offences under the Official Secrets Act.
The alleged conduct for which Idrees Khattak has been convicted dates back to July 2009 – ten years before his enforced disappearance – and relates to his monitoring of violations by the military.
In January 2021, the Peshawar High Court dismissed a petition challenging the jurisdiction of the military courts in this case.
On 2 December 2021, it was reported in the media that Idrees Khattak had been convicted for espionage and sentenced to 14 years’ imprisonment. The military court’s judgment against him has not been made public.
Idrees Khattak does not have the right to appeal the conviction or sentence before civilian courts and only has the limited right to appeal before a military court of appeals.
Under international standards, including the International Covenant on Civil and Political Rights (ICCPR) to which Pakistan is a party, civilians such as Idrees Khattak must not be subject to the jurisdiction of military tribunals.
The ICJ has found proceedings before Pakistani military courts fall well short of national and international laws requiring fair trials before independent and impartial courts:
- Judges are part of the executive branch of the State and continue to be subjected to military command;
- The right to appeal to civilian courts is not available;
- The right to a public hearing is not guaranteed;
- A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied; and
- The death penalty may be implemented after unfair trials.
Pakistani authorities should immediately release Idrees Khattak and ensure reparation for his enforce disappearance. If there is real and credible evidence implicating him in a cognizable crime, he should be tried by a civilian court and his right to a fair trial should be fully respected, said the ICJ.
Sam Zarifi, ICJ’s Secretary General, email@example.com
Reema Omer, ICJ’s senior international legal advisor (South Asia), firstname.lastname@example.org
A group of 10 independent experts appointed by the UN Human Rights Council have characterized Idreek Khattak’s case as “emblematic of a series of documented enforced disappearances in Pakistan, where many human rights defenders are similarly silenced for their legitimate work of monitoring, documenting and advocating against a range of human rights violations and attacks against minorities.”
In July 2017, in its Concluding Observations after Pakistan’s first periodic review under the International Covenant on Civil and Political Rights (ICCPR), the UN Human Rights Committee stated that it was concerned by the jurisdiction of military courts over civilians and allegations of fair trial violations in military courts’ proceedings.
The Human Rights Committee recommended that Pakistan “review the legislation relating to the military courts with a view to abrogating their jurisdiction over civilians and their authority to impose the death penalty” and “reform the military courts to bring their proceedings into full conformity with articles 14 and 15 of the Covenant in order to ensure a fair trial.”