An opinion piece by Reema Omer, ICJ Legal Adviser, Asia & Pacific Programme.
As the world observes the International Day of Victims of Enforced Disappearances, the Supreme Court is considering questions of law that will have far-reaching consequences for whether the hundreds of “missing persons” in Pakistan and their families have a chance to get justice: do civilian courts have jurisdiction to try serving members of the military for crimes under the Pakistan Penal Code, including human rights violations? If so, once regular criminal courts have assumed jurisdiction, are they obliged to accede to requests by armed forces to transfer jurisdiction to military courts?
These questions before the Supreme Court have roots in the landmark case of Muhabat Shah, which relates to the unacknowledged removal of 35 detainees from a Malakand internment center by the armed forces. In December 2013, the Supreme Court held that their removal amounted to enforced disappearance; no law provided cover for the unlawful conduct of the armed forces; and the government should act “strictly in accordance with law” against the army personnel responsible.
In March 2014, the Minister of Defense lodged first information reports (FIRs) under the Pakistan Penal Code for wrongful confinement against army officers suspected of “disappearing” the 35 individuals (enforced disappearance is still not separately criminalized in Pakistan).
A few days later, however, reportedly on the request of military authorities, the provincial administration of Khyber Pakhtunkhwa referred the matter to the military for further investigation and possible trial under the Pakistan Army Act, 1952.
In response, the Supreme Court constituted a five-member larger bench to consider the scope of civilian courts’ jurisdiction to try serving members of the military for crimes committed under the penal code, including human rights violations.
Since Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) in 2010, all branches of State are now obligated to implement its provisions.
Correspondingly, the Supreme Court has emphasized the importance of incorporating international human rights law and standards into domestic law through judicial pronouncements.
It is therefore pertinent to look at whether, under international standards, military officials should be tried by military courts when they are accused of perpetrating enforced disappearances.
In light of international law guarantees of trial before independent and impartial courts and the right of victims of human rights violations to an effective remedy, including under the ICCPR, there is growing acceptance that military tribunals are not competent to try gross human rights violations or other crimes under international law.
In fact, in cases of enforced disappearances, some international standards expressly prohibit trials of those accused of ordering or participating in enforced disappearances in military or special courts.
For example, the United Nations Declaration on the Protection of All Persons from Enforced Disappearance stipulates that those responsible for enforced disappearance shall only be tried by ordinary civilian courts, and not by any other special tribunal, in particular military courts.
The UN Working Group on Enforced or Involuntary Disappearances (WGEID) has also repeatedly noted that trials in military courts significantly contribute to impunity for enforced disappearances.
Following a visit to Pakistan in 2012, the WGEID recommended that suspected perpetrators of enforced disappearance, including members of security forces, should only be tried by ordinary courts, not military or special tribunals.
Three key factors have led to the prohibition on military courts trying military officers for enforced disappearances.
First, in cases of enforced disappearance where members of the military are implicated, there exists a fundamental conflict of interest, as the military acts both as the defendant and the judge.
Military courts, therefore, typically do not satisfy the requirement, including under Article 14 of the ICCPR, that cases must be heard before courts that are both independent and impartial, and are also be perceived to be so.
Second, witnesses and victims of enforced disappearances are often reluctant to testify or participate in proceedings before military tribunals, as they fear possible consequences for speaking about military abuses in front of military officials.
This especially resonates in Pakistan, where witnesses, victims, including family members of forcibly disappeared persons, and their lawyers have disclosed before courts, commissions of inquiry, and the WGEID that they are frequently subjected to threats, harassment and other victimization, allegedly by members of the military.
If witnesses and victims are reluctant to testify or testify truthfully in such climate of fear -real or perceived- this has an impact on the fairness and effectiveness of the trial.
Third, fair trials before independent, impartial civilian courts, in which the rights of victims and witnesses, as well as the accused, are protected are more likely to ensure those responsible for enforced disappearances are held to account.
Pakistan’s culture of impunity for human rights violations, in particular for enforced disappearances, is well documented. Despite credible allegations that hundreds of people have been forcibly disappeared by members of the security forces, not a single perpetrator has so far been brought to justice.
The Supreme Court now has an opportunity to remove a key impediment in holding perpetrators of “disappearances” accountable – one hopes it will make the opportunity count.