Pakistan Denies it is Involved in a Non-international Armed Conflict (NIAC)

In Uncategorized on April 10, 2011 at 11:40 pm

The Pakistani government, during its military operations in the northern tribal regions, continues to deny captured detainees the rights afforded to them under International Law.  According to the ICRC one of the specific challenges in improving compliance to the IHL during a non-international armed conflict (NIAC) is the “denial of applicability of IHL” by one or more parties to the hostilities.  According to a recent Dawn report, the Pakistani government has refused the ICRC permission to access detention facilities in the Federally Administered Tribal Area (FATA) and the province of Khyber Pakhtunkhwa. Not surprisingly the Pakistani authorities have argued that common Article 3 of the Geneva Convention “is not applicable to the situation in Pakistan and that ICRC cannot visit prisons and detention centers in Khyber Pakhtunkhwa and Balochistan to monitor prisoners arrested during the five-year-long conflict.” The Pakistani government is describing its military actions in the north in terms of  law enforcement operations. However, Pakistan’s stance towards the ICRC  neither mirrors past Gov’t statements regarding the nature of the conflict nor the reality on the ground. For one, the intensity and the scale of the violence goes far beyond the threshold of domestic disturbances or tensions required in order to trigger the application of IHL. Secondly, militant organizations operating  in the north, including the Tehreek-e-Taliban Pakistan (TTP), have shown to be, to varying degrees, fairly organized armed groups with sufficient command and control structures. Even presently, certain militant groups effectively control significant portions of territory in the northern tribal regions of the country. Therefore, the “armed” and “military” nature of the conflict in the north cannot be denied. Nor, moreover, can the “minimum humanitarian protections”, enshrined in common Article 3 of the Geneva Conventions (and those provisions of AP II that are part of international customary law), be denied to detainees held in connection with the armed conflict.

Pakistan cannot escape from its obligations under IHL even if under its domestic law it characterizes the militants as criminals and their capture and detention as part of a law enforcement process. Moreover, Pakistan’s recent ratification of the ICCPR and UNCAT further underscores the necessity of the Pakistani government to respect the dignity and rights of those it detains. This move, therefore, is clearly an attempt by the Pakistani government to deflect scrutiny and attention to possible abuses carried out in context of the Pakistani militaries’ detention policies.

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