A Balancing Act

A Balancing Act

The US has a shoddy reputation regarding the treatment of civilians at the hands of its military overseas. While US military actions in conflict zones largely go unchecked, their domestic activities are a different story. The Posse Comitatus Act (1878) is a US federal law limiting the executive’s use of the army or air force for domestic law enforcement in peacetime. The logic of this act lies in the potential abuse of the army as a police force by the government’s executive branch.

In contrast, Pakistan’s military presence in civilian arenas enables the government to call on the armed forces whenever the civil apparatus might falter, a regular occurrence during civil unrest. It further allows for a rapid, efficient response to national crises. This unique relationship between the government and the armed forces can result in serious concerns: for the military to function as both the civil and military apparatus can lead to imbalance and further militarization of the region. But without the military assuming the government’s role in troubled zones, we run the risk of losing those regions entirely.

While the circumstances of the armed forces in the US and Pakistan are vastly different, the principle remains the same: the military acting as a police force can have conflicting consequences.

Article 245 of our Constitution lays out the armed forces’ functions, including defending Pakistan against external aggression or threat of war and, subject to law, act in aid of civil powers and institutions when called upon to do so. In 2011, former president Asif Zardari passed the Actions (in Aid of Civil Power) Regulation, allowing the military freer rein in FATA and PATA. The AACP granted the armed forces the power to detain militants and civilians with limited due process of law.

Given the military’s powers can the civilians ensure due process?

But then Pakistan is embroiled in a ‘non-international armed conflict” in North Waziristan under Operation Zarb-i-Azb. This military deployment is not in peacetime, and would not contravene the prohibition enshrined even under the US constitutional system. While necessary for the success of the operation, the implementation of military justice poses questions regarding the administration and future militarization of the region. Zarb-i-Azb is arguably the most effective and decisive action of the past decade against domestic militants. However, if the maintenance of a democratic nation is the goal, then we should take all steps to ensure minimal militarization of these regions after the conflict.

The first step is to ensure adherence to international human rights and international humanitarian law (IHL) standards during military operations. In this regard, Common Article 3 of the Geneva Conven­tions, which sets minimum standards of human rights protections for all in conflict, is exceptionally important. Customary norms codified in Additional Protocol II to the Geneva Conventions provide moderately detailed directions and guidance for the military on how to provide necessary protections and safeguards during internal conflict. In this regard, IHL’s fair trial guarantees for military tribunals and courts are illustrative.

A further consideration regarding militarization is the Protection of Pakistan Act (POPA) 2014, which mandates a much broader scope for military involvement. Under it, the military is engaged throughout Pakistan, not solely in conflict zones, but also in peacetime environments. It allows the defence forces wide powers, such as treating suspects as militants, entering private spaces, searches without warrants and using lethal force with minimal safeguards. Some politicians and human rights groups have voiced their concerns that many of these powers potentially conflict with the human rights enshrined in the Constitution.

While IHL allows for increased military activity in non-international conflict zones, international human rights law is not so forgiving of such wide military powers in non-conflict zones. Therefore, the fact that POPA allows the military certain supreme powers in a non-conflict scenario raises concerns of accountability and transparency for many. Critics argue that if the military is granted such a wide writ, how can the civilian government ensure oversight and due process of law?

Few Pakistanis would deny the necessity of increased military involvement in these times. However, the necessity to guard against state abuse of power and potential militarization remains. While we cannot achieve a peaceful Pakistan without the strength of the army, we should aim always to maintain a democratic Pakistan. This will not be possible without the constant assurance of civil-military balance of power. If the civilian institutions of law enforcement and courts crumble, we’ll have little chance of recovering the region from more militarization and strife.


This article was previously published in DAWN and it is being republished here with permission.

Sikander Ahmed Shah

Author: Sikander Ahmed Shah

The writer is former legal advisor at the Ministry of Foreign Affairs and is part of the law faculty at LUMS.

Author: Hafsa S. Ahmad

The writer is a political scientist and policy specialist.