Authors: Amar Maruti Patil & Adithya Anil Variath
The recent escalation between two South Asian Nuclear Powers – India and Pakistan rattled the whole sub-continent and sent alarm waves across the whole world. It had major world powers keenly observing events unfolding between the two antagonistic nations. Terror attacks on India soil emanating from Pakistani soil is not new but as old as antiquity.
Right from the incursion of Jammu & Kashmir by armed tribesmen to this terror attack by Kashmiri youth radicalized and recruited by Jaish-e-Muhammad, the one distinguishing and defining moment post Pulwama terror attack is the unprecedented public outrage and political will to address the state-sponsored terrorism abetted by Pakistan and its Army. “Strategic Restraint” had become a bygone in the South Block with the political leadership ready to do away with restraint – political or strategic.
The pre-emptive non-military strikes carried out by Indian Air Force not just across the LOC but deep into Pakistani territory in Balakot in Khyber Pakhtunkhwa region was a defining moment and a break from tradition in dealing with cross border terrorism. This was the first time that air strikes were launched and terror hubs pampered and protected by the Pakistani Deep State struck. In response to these air strikes attacking terror installations, Pakistani establishment responded by launching air strikes on military installations in India. The F-16 fighter jets of Pakistani Air Force were chased by Indian Air Force as a response. In this chase, an Indian MiG 21 Bison fatally struck one Pakistani F-16 and in the action, the pilot had to eject as the damage was also caused to the Indian fighter jet. The pilot now trending across India and the whole word Wg Cdr Abhinandan Varthaman landed in Pakistan Occupied Jammu & Kashmir after ejecting from his cockpit. He was first apprehended by the bloodthirsty locals and then the Pakistani Army interrupted the unlawful act of the locals and took Wg Cdr in their custody.
In a strange course of events, the whole process of Wg Cdr getting apprehended and attacked by locals and then ensuing Pakistani Army custody was recorded and video graphed and the recording was paraded shamelessly on social media. An emotion of anxiety, fear, angst, vengeance and cautiousness gripped the Indian citizenry. In this whole gamut of events while the whole country was praying for the safe return of Wg Cdr the Geneva Convention on Prisoners of War was cited time and again in newspapers, editorials and TV debates. Whether the act of returning Wg Cdr amounted to a peace gesture or as stated in Indian Air Force briefing a gesture under the Geneva Convention? Whether the act deserved a much-touted Nobel Peace Prize for Imran Khan the World Cup winning captain of Pakistan Cricket Team who also happens to be its Prime Minister? Answering these questions would surely require us to be objective in our analysis of the International Law.
At the outset, it would be beneficial for the readers to point out that International Law in all its glory and magnificence with its inimitable prose and utopian conception is not binding and therefore in pure jurisprudential terms may not qualify as a Law. However, given the norm of that, a sovereign nation should keep its promise and words itself carries the weight of law. A dishonor of promise by a normal person would bring him no shame or isolation by the society at large however the dishonor of an obligation or promise in the comity of nations is a sure recipe for bringing ignominy to an entity at two levels as a country or establishment and as a citizen of that country.
Geneva Convention III relating to the Treatment of Prisoners of War (PoW) or International Humanitarian Law expressly lays down that Prisoners of Wars cannot be prosecuted. The Convention applies to all parties to an armed conflict, including civilians, injured combatants, and soldiers captured or no longer an active participant in the hostilities. Article 4(A)(1) of the Third Geneva Convention on the Treatment of Prisoners of War defines “a prisoner of war” as “Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied.…..”, IAF Wg Cdr being a member of the armed forces of a Party to the conflict comes within this definition of a prisoner of war.
The Third Geneva Convention on PoW lists down 143 articles dealing with the rights of prisoners of war, and the corresponding obligations of the detaining power. The Convention is based on the principle that detention is not a form of punishment, but only intents to prevent further escalation and participation in the conflict. They must be released and repatriated without delay after the end of hostilities with dignity. Article 13 provides that prisoners of war must at all times be humanely treated” and lays down that prisoners of war “must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.” A literal interpretation of the Article clears the smog and determines that the circulation of videos of the prisoner and humiliating treatment is a violation of the terms under Article 13. Article 17 says “No physical or mental torture, nor any other form of coercion may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.”
In the instant case of Wg Cdr, he was not just not protected from acts of violence but was also exposed to public curiosity. Moreover, the Pakistan establishment tried to score diplomatic points by spreading misinformation and propaganda videos about the well-being of Wg Cdr when in fact reports have emerged that he was not allowed to sleep for the first 24 hours of detention which is not just in violation of the Geneva Convention but also a blatant violation of human rights. He was further exposed to loud music and bright lights to disorient him and to extract valuable information from him. While the reality of Wg Cdr detention was aloof from the International World Order a concerted effort was made to showcase that in fact he was praising the Pakistani Army and claiming that it is a thoroughly professional army. Such maneuvering of events by the Pakistani Deep State brings to fore the nefarious designs and misinformation campaign in place. A Prisoner of War was used as a bargaining chip for deescalating tensions between the two Nations. It shows that the escalation of violence by Pakistan and its attempt to deescalate it on its own terms seems unilateral imposition of war and peace.
While Wg Cdr was safely repatriated to India his medical test reports are yet to come in. Where on one hand it is encouraging and nurturing terrorists to bleed India, on the other hand, it is trying to implant people in Indian media to project Imran Khan as the messiah of peace and humanity. The case for a Nobel Peace Prize for Imran Khan is not just preposterous and farfetched but also demeaning to the Institution of Nobel Prize itself. Imran Khan referred as “Taliban Khan” by many, for his subtle support for Taliban, is trying hard to show the International World Order that Pakistan is not the party escalating hostilities while actively nurturing terrorists on its soil.
One of Imran Khan’s Ministers has called for a religious war (Jihad) against a Kafir Hindu India (ignoring its own 4 million Pakistani Hindu Citizens). Such diabolical and inherent hatred is a case in point that the hostilities between India and Pakistan are here to stay and the sub-continent would continue to face its repercussions. No number of dossiers provided by India would address the terrorism issue nor would the temporary bans and an ostensible crackdown on terror by Pakistan would be able to fool India. Nobel Peace Prize is just a distraction to take away India’s attention from the root of this escalation the Pulwama Terror Attacks. Fulfillment of an obligation that too partly, is not a case for Nobel Peace Prize but for international introspection on state-sponsored terrorism.
With foreign help pouring in and no major world power objecting to India’s pre-emptive non-military strikes it seems that the International World Order has woken up to India’s right to defend its sovereignty and integrity by acting on home as well as foreign soil. With India’s break from tradition marks a paradigm shift from “Strategic Restraint” to Preventive Action, India needs to open more than one front to address Pakistan – educational, information, diplomatic missions, economic sanctions, et al. The key to engaging Pakistan is a united and strong Government back home and international commitment and cooperation at the global level.
Immediate broad-based Reforms needed in the Political system of Pakistan
Opposition parties have launched a comprehensive campaign to de-seat the PTI Government by its grand show of power on 16 October 29020 at Gujranwala. All major opposition parties attended the Jalsa, and opposition leaders delivered speeches, criticizing the PTI government and even the military.
In a democratic country, it is common practice for that opposition to criticize the ruling party. Pakistan, with no exception, has a long history of agitations, protests, strikes, criticizing, rallies, blames on the ruling party, from opposition parties. Even PTI also played a very aggressive role as the opposition party in 2014, against the Government of PML-N. It was the longest Dharna in the history of Pakistan, and the first time protesters entered into Parliament house, PTV, Pak. Secretariate and sensitive areas, etc.
But the current behavior of opposition since 16 October is even more severe and blame on Pakistan Military is rather unacceptable. However, PTI ministers are also giving irresponsible statements. The ruling party must maintain political temperature under control. The opposition wanted to create chaos and confrontation, but the ruling party should mild-down the conflicts and manage the situation to complete its tenure. Either the ruling party’s ministers, spokespersons, advisors are unaware of consequences or lacking the understanding of the real issue.
Till this moment, the masses of Pakistan are not convinced with the narrative projected by the opposition parties, but neither happy with the ruling party. The common man is concerned with the issue he faces daily – inflation, price-hike, jobs, health care, education, social justice, and welfare. The ruling party failed to deliver, and the common man kept suffering.
Indeed, the masses do not love opposition, but neither the ruling party. It is their sufferings, which might help the opposition to convince them to stand the Government.
The majority of people are still admiring PM Imran Khan and believe that he is honest and a man of integrity. Yet, he failed to recover the economy or provide any relief to the common man. He was unable to recover to looted money from corrupt politicians of past governments. He also failed to punish the national criminals too. However, the people of Pakistan acknowledges his contribution toward foreign policy, Kashmir issue, and International relations, where Pakistan’s narrative was projected appropriately and improved the county’s image.
The people of Pakistan think that all wrongdoings by the ruling party are due to his wrong cabinet, nothing to do with PM Imran Khan himself. His economic team, imported and landed by helicopter, are failed to revive the national economy. Although the oil prices in the international market have dropped to record low levels, even minus yet, Pakistan could not improve its economy. Even due to the Pandemic, Global Financial Institutions have extended a helping hand, yet, Pakistan could not improve its economy. The Sugar crisis or Wheat crises are traced back to the ruling elite, and responsible is sitting on the right and left side of PM.
The intellectuals of the nations think that PM Imran Khan might be a pious person. Still, he is responsible for selecting his team – consisting of foreign nationals, dual nationals, elect-ables, corrupts, and incompetents ministers and advisors. It was his choice, and he could have refused to take anyone into his team if he was not satisfied fully. If there were some pressures from certain quarters, he should stand against such pressure. He should have judged the person before admitted into his team. He knows the importance of merit, and he has announced on several occasions the importance of merit. Even though if he misjudged anyone and admitted into his team, but it is never too late; as soon as he understands the person and found unsatisfactory, he can change immediately.
The country is passing through a very critical era, the geopolitics are changing too rapidly, challenges are enormous, and time is too short. Pakistan can not afford the luxury of any mistake anymore. The nation needs unity, the right policies, appropriate reforms, legislations, merit, and consistent hard-work. Attention may not be diverted and struggle with a clear focus and pre-set goals. Divide, intolerance, extremism, corruption, incompetency are the curse for a nation, must be averted.
Although PM Imran Khan is a visionary leader and has all the leadership qualities to lead the nation, but alone may not be able to achieve anything. A strong team, equipped with knowledge, wisdom, patriotism, honesty, and integrity, needs the time. Reforms based on proven successful experience, addressing the futuristic issues are required urgently. The nation has the potential to revive its past glories.
Power Politics and Democracy in Pakistan
Pakistan politics is boiling hot nowadays, as, all parties conference which was hosted by Pakistan Peoples Party resulted into formation of an alliances named as “Pakistan Democratic Movement”. The agenda of Pakistan Democratic Movement (PDM) was set to overthrow the “selected” but not “elected” government of PTI’s government under the leadership of Imran khan. PDM comprises of different activities like Parties corner meetings, protests and final and distinctive long March in the beginning of January 2021. The gathering of all opposition parties under a single umbrella is an achievement for opposition stake holders.
To implement the agenda of PDM, on 16 Oct 2020,A power show was arranged in which leaders told Imran Khan that his government’s is up. All the leading leaders including Maryam, Bilawal and Fazal Ul Rahmantook the stage to lash out at PM Imran Khan. Moreover, the PPP chairmen outrageously outspoken about the role of Military establishment in domestic politics. He referred to the PM Imran khan’s statement that
” civilian government and the military leadership are on the same page”, Bilawal said that the selected and selectors will have to come on the opposition page.“
The Ex Prime Minister, Nawaz Sharif Openly criticized the COAS, Qamar Javed bajwa and Intelligence agencies head by taking their names and accused them of bringing Imran into power.
The benchmark in civil-military relations in Pakistan merely states that civilians have a distinctive right to be wrong in political affairs. Mostly, pro-military advocates that civilian political leaders have not done their job in providing security, economic development and social cohesions. Civil-military relationships have seen many ups and downs in the past since establishment of Pakistan. In 70 years of age, Pakistan have seen thrice time Dictatorship and very less democratic rule. Generally, in Pakistan politics it is said
“ The road to power in Pakistan passes from Rawalpindi but not from the Parliament”.
Recently, political parties are criticizing the disturbing role of Military establishment in national politics. This is not a new phenomenon but a common tool of opposition parties to maneuver the narrative. If we turn the pages of history then it is revealed that the leaders of prominent parties are production of military giant.
”The current ruling party PTI chairmen addressing a press conference in the capital said that election 2013 was massively rigged and accused the army of helping the PML-N to win the elections and paved the way for Nawaz Sharif to become a Prime Minister for third time and name brigadier Ranjha for personally supervision of the job to ensure the PML-N as a single largest party.”
But, it was the same Imran Khan, who praised the Army and showed consent to invite them for the supervision of elections. He has identified and analyzed the situation that without establishment support, it was impossible to come in power and it is evident how both parties are supporting each other for their interests. The prominent support came on the screen when prime minster and cabinet fully supported the extension bill of Chief of Army Staff.
There is power politics running even within the military institutions over the extension of present chief of army staff because some of Generals were not showing willingness over this action. A group of personnel, who are not satisfied with the extension of Bajwa, is striving to exert pressure on government. The dissent forces are playing cards by using old and manipulative tools to achieve real motives. The same thing was happening when Imran Khan was on strike and frequently using Word “third empire “ to decide the political future of Pakistan.
“With old techniques and new faces, backdoor forces are playing out their roles to prove that politics is a dirty garbage of road, to create opportunities to come out of box for more stakes to protect individual as well as a specific group interests.”This implies that military is not for war but to fix the broken system. The tactics have been changed but the objectives are same as it were to consolidate more power. Although, constitution of Islamic Republic of Pakistan provide a straight forward directions about the functions of institutions and military is nothing to do with political affairs except defending borders. Undoubtedly, Pakistan is a security state and surrounded by the hostile environment. Pakistan military is should be taken on board while deciding the security issues but they should not be allowed to interfere in the political issues of state.
When we look towards the Pakistan democratic Movement, we see the politicians are the people who have been ruling the Pakistan for almost 20 to 30 years particularly in Sindh, Punjab and Center. Most of them have visited the jails over corruption allegations and pro Imran people argue that they are pressuring the government to get rid of all cases filed against them. On the other hand, PM is not taking this movement seriously as government is fully backed by establishment. In addition to this, PM khan called it a interests group which want NRO from government to protect their historical corruption. In contrast, Pakistan Democratic Movement openly calling for a traditional democracy in Pakistan. Interestingly, this group consists of left, right, central and extremist religious parties. It is a golden opportunity for opposition parties to exploit the economic conditions as government is in difficult situation to handle the economic conditions. The price hike, unemployment and bad governance is adding fuel into the fires for government. Shrinking Economy under the IMF policies demanding high taxes for regulations.
The question is that if political parties are serious about democracy then they should come to the Parliament and make such arrangements which could fulfill the gaps particularly in electoral process. It is no doubt that real democracy exists where representatives are elected not selected. If the political leaders are really keen to fix the system then they should join the hands to move forward for the betterment of Pakistan but not for personal interests. If it does not happen and same situation prevails as it has been prevailing in the past then powerful and hegemon institution would never let the political parties to fix the system.
Human rights violations in India
In yet another damning report, the United Nations’ High Commissioner for Human Rights, Michelle Bachelet expressed `concern over restrictions on Non-governmental Organisations, arrests of activists and implications of Citizenship Amendment Act.
She `appealed to the Government of India to safeguard the rights of human rights defenders and NGOs, and their ability to carry out their crucial work on behalf of the many groups they represent’. She `expressed regret at the tightening of space for human rights NGOs in particular, including by the application of vaguely worded laws that constrain NGOs’ activities and restrict foreign funding’. Besides, she `cited as worrying the use of the Foreign Contribution Regulation Act (FCRA), which a number of UN human rights bodies have also expressed concern is vaguely worded and overbroad in its objective’. The Act prohibits `receipt of foreign funds “for any activities prejudicial to the public interest’. But, it leaves vague definition of the `public interest’ ad `prejudicial’ to wild imagination of police officers.
The Act, which was adopted in 2010 and was amended last month, has had a detrimental impact on the right to freedom of association and expression of human rights. Amnesty International was compelled to close its offices in India after its bank accounts were frozen over alleged violation of the FCRA. Bachelet noted, `The FCRA has been invoked over the years to justify an array of highly intrusive measures, ranging from official raids on NGO offices and freezing of bank accounts, to suspension or cancellation of registration, including of civil society organizations that have engaged with UN human rights bodies. ..Constructive criticism is the lifeblood of democracy. Even if the authorities find it uncomfortable, it should never be criminalized or outlawed in this way.’
India keeps the UN in dark: The UN Human Rights Committee oversees implementation of the International Covenant on Civil and Political Rights to which India is a party. The Committee found that India did not `show the specific nature of the threat or risks posed, and limit its responses to those necessary and proportionate to address such threat or risks’ . India was bound to explain to the Committee that it was invoking `national security and protection of public order as a reason to restrict the right to freedom of association’.
The Committee noted that `more than 1,500 people have reportedly been arrested in relation to the [CAA] protests, with many charged under the Unlawful Activities Prevention Act – a law which has also been widely criticized for its lack of conformity with international human rights standards’.
Bachelet drew attention to arrest and continued detention of the 83-year-old Catholic priest Stan Swamy, a long-standing activist engaged in defending the rights of marginalized groups, despite his poor health. She urged India `to ensure that no one else is detained for exercising their rights to freedom of expression and peaceful assembly, and to do its utmost, in law and policy, to protect India’s robust civil society’.
A bird’s eye view of India’s anti-human laws: India claims to be the “world’s greatest democracy”. But, the shiny face of democracy has been disfigured by repressive Indian laws like: (1) Indian Armed Forces (Special Powers) Act, (2) Terrorist-Affected Areas (Special Courts) Act, (3) Terrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), and (2) Prevention of Terrorism Act, 2002 (POTA).
The aforementioned laws clothed police and security/armed forces with emergency powers without explicitly abrogating people’s fundamental rights under the Indian Constitution (a fundamental right cannot be usurped or altered).
POTA is successor to TADA. The TADA remained in force between 1985 and 1995 (modified in 1987) under the background of the Punjab insurgency and was applied to whole of India. The Act had a sunset provision for lapsing after two years post-commencement, which it did on 24 May 1987. The POTA is just old wine in new bottle. It does not repeal fake cases under TADA. Indian media termed POTA as “draconian’. Verily so as penalties under this law are akin to those stipulated in Draco’s code of 610 BC to forestall future revolts by common men. The code provided death penalty for even trivial offences like stealing an apple, or an earthenware utensil.
The POTA attaches evidentiary value to the telephonic, telegraphic and internet conversations. The brutality of the law was brought into limelight when S. A. R Geelani, a Kashmir lecturer in Delhi University was implicated for attack on the Indian parliament (December 13).
POTA was employed to frame cases against several other Kashmiri leaders _ Yaseen Malik, Syed Ali Geelani et al. Despite his frail health (ailing kidney, heart with right ear subjected to micro-surgery), Malik was arrested on March 25 under POTA for receiving ISI’s money when he was addressing a press conference at the Hurriyat office. The court acquitted him with observation that there is not an iota of believable evidence against him.
Syed Geelani and his journalist son-in-law, Iftikhar Gilani also were detained under POTA. Funny charges on senior Geelani included: (1) “Being a member of Jamaat-e-Islami, he criticised US war against Afghanistan, and described himself as Pakistani”.
Iftekhar Geelani was detained for violation of Official Secrecy Act for possessing information about Indian troops’ movement of pre-1996 period. The alleged information was available on the internet. Having failed to make a case against him, police charged him under the Pornographic Act!
POTA features: In what follows, we would review significant features of POTA. It usurps Constitution-of- India safeguards for fundamental rights (part 3, articles 13-35). The rights include “life and liberty of the person” (article 21) and “freedom of expression” (article 19). The POTA also violates article 21 which provides that “no person shall be deprived of his life or personal liberty except according to procedure established by law”.
TADA was meant to suppress the Sikhs’ freedom movement. POTA is intended to stifle Kashmiris’ freedom movement. Due to heavy opposition from the NHRC, human rights organisations and political parties POTA was not introduced as a bill in parliament. Instead, it was promulgated as POTO, Prevention of Terrorism Ordinance.
POTO became POTA on March 26, 2002. POTA as a modified version of TADA, with similar inconsistencies in protection of human rights.
The POTA violates international-human-rights standards, which provide the framework for international protection and promotion of human rights. It is also incompatible with international human rights standards and treaties, particularly the International Covenant on Civil and Political Rights (ICCPR), to which India is a party.
India has signed but not yet ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to validate torture under POTA. However, notwithstanding non-ratification, adherence to international human rights standards has been upheld by the Supreme Court of India in a number of decisions (for example, Vishaka & Others vs. State of Rajasthan & Others: 1997(6) SCC24).
The Telegraph Act makes intercepts inadmissible as evidence. But POTA allows it. Other rights-suffocative features of POTA include: (1) vague definitions, (2) insufficient pre-trial and trial safeguards, (3) threats to freedom of association and freedom of expression. Ensuing paragraphs highlight the features.
VAGUE DEFINITIONS: Section 3(5) of the POTA, while criminalizing membership of a “terrorist gang” or a “terrorist organisation,” does not clearly define what these terms mean. The crime is considered complete upon proof of membership.
Thus POTA provides for criminal liability for mere association or communication with suspected terrorists or expressing political opinions without the possession of criminal intent. Obviously, the section is repugnant to ` the right to freedom of association’ enshrined in Article 22 of the ICCPR.
Section 3(8), purports to punish those in possession of information of material assistance in preventing a “terrorist acts”. Failure to provide such information is punishable by up to three years’ imprisonment.
Section 4 of POTA allows legal presumption that if a person is found in unauthorized possession of arms in a “notified area,” he/she is automatically linked with terrorist activity. This along with other provisions undermines the basic right to be presumed innocent until proven guilty.
ARREST: Section 48(2) provides for pre-trial police detention for up to 180 days. This provision contradicts Articles 9(2) and 9(3) of the ICCPR which require that all arrested people be promptly informed of the charges against them and that they are entitled to trial within a “reasonable time”, or release.
TORTURE: Torture in police custody is a well-known fact. Section 32 provides that confessions, even those under duress or torture, made to police officers are admissible in trial. This violates Indian Evidence Act, article 14(3) (f) of the ICCPR and article 20(3) of the Constitution of India.
Section 56 of the Ordinance provides for protection from punishment and blanket immunity to police officers who use torture or cruel, inhuman or degrading treatment during interrogations. POTA obviously contradicts India’s repeated promises that she is dedicated to eradicating torture”.
Efforts on the anvil to refine POTA are nothing but palliatives to cure police brutality. Hence, they are not worth discussing. When asked about the POTA, in an interview to The Hindu, Dato’ Param Cumaraswamy, former United Nations Special Rapporteur on Independence of Judges and Lawyers said: “Past experience had shown that draconian legislations did not provide much safety to the state against terrorists or militants but were used only to protect the safety of the government in power”. He added, “My concern is that extensive powers given to the executive can always be abused without there being any independent judicial review”.
Conclusion: India uses its draconian laws to gag dissent. The Hindu-monk chief minister of India’s northern state of Uttar Pradesh regards a cow as a citizen. He directed the police to register cases under National Security Act for offences concerning a cow. One hundred and forty cases were soon registered to terrify the Muslim.
The inescapable conclusion from the above analysis is that the POTA is meant to gag political dissent and crush freedom movements. It baffles one’s imagination that POTA has the same goal as Draco’s code had 2, 613 years back that is “crush common men’s revolt by use of brutal force”. POTA is unnecessary in view of India’s other equally draconian laws like Indian Armed Forces (Special Powers) Act and Terrorist-affected Areas (Special Courts) Act. These laws allow pre-trial detention of “suspected militants” without disclosing reasons and house searches without warrants. An arrestee is considered guilty until he is proved innocent. An appeal against POTA lies to the inaccessible Supreme Court.
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