DR. AAFIA’S CASE: GOVERNMENT OF PAKISTAN VIOLATES BOTH NATIONAL AND INETRNATIONAL LAW

Ali Palh

Writer is Masters in Human Rights from Office of Human Rights and Social Development (OHRSD), working as Head of District Office, with   NonviolentPeaceforce, Sri Lanka.

apalh@nonviolentpeaceforce.org, nomipalh@yahoo.com

 

(What national and international standards and mechanisms protects Pakistani doctor)

 

Once read somewhere that an Ambassador of a country, based at Islamabad, commented for Pakistanis in this way:

 

“Price of a Pakistani oscillates between a bottle of whisky and a trip to United States; which has now been further degenerated into a trip to United Kingdom and a bottle of Pakistani gin.”

 

I remembered above words again when I was asked a question by one of my friends from Nigeria, during a dinner party at Colombo, Sri Lanka that how much time, you Pakistani people will take in delivering Dr. Abdul Qadeer Khan to United States, if US increases few dollars in your annual aid?

 

However, his sentence annoyed me; I controlled my anger and told him that if any Israeli asks me this question, I may reply him because Israel is one of the countries, which fight for its sovereignty and citizens. You, being a Nigerian should not ask me this question. What you Nigerians did when United States abducted Lanry Shiitu, a Nigerian citizen, from your country? Where was your nation and states’ sovereignty then? I asked him. 

 

I made him silent at that moment but realized that though he was a wrong man but he asked a right question. World says about us because we, Pakistanis have been doing that. It was also Pakistani, who allegedly entered into a US consulate in 1997 and claimed to help the US in capturing Aimal Kansi, allegedly involved in attack near the entrance of Central Intelligence Agency (CIA) headquarters in Langley, Virginia on January 25, 1993. 

 

Nobody knows how many Pakistanis have been abducted or gone missing since 11 September 2001 when United States declared it’s ‘War on Terror’. Either there is no official record or Pakistani Government is not willing to share that information with Pakistani public but media reports that there are eight people, who have been transferred to United States, who before reaching to US land, had to languish in different torture camps run by United States, now facing criminal charges in different US courts regarding their involvement in terrorist activities against US or their alleged association with international terrorist organization Al-Qaeda. Dr. Aafia Siddiqui is also from among these eight people, mentioned above. 

 

 

Dr. Aafia Siddiqi, a 36 year Pakistani national, American educated Neuro-scientist, who lived and studied in US for more than ten years and got PHD degree in Genetics from United Staes, allegedly disappeared from Gulshan-e-Iqbal, Karachi in March, 2003; while she was on her way to airport where she had to catch a flight for Rawalpindi along with her three children, aged between one month and 7 years. From 2003 till she surfaced from Afghanistan where she along with a teenage boy was arrested from Gazni province of Afghanistan after local national Afghan force became suspicious of their loitering outside the provincial Governor’s premises.

 

She has been accused of carrying documents describing the creation of explosives carrying sealed bottles and glass jars filled with liquids and gel. Other charge leveled against Dr. Aafia by American authorities is of attacking on American officials who came to interrogate her. According to American Authorities on 18 July, 2008, when a team of people including two FBI agents, one warrant officer, one American captain and one interpreter came to interrogate her, she who was hiding behind a curtain in the room, managed to take M-4 rifle of an America soldier, lying close to her and shot at American captain. American Authorities claimed that had interpreter not pushed Dr. Aafia Siddidi, she could have killed American captain. In return, American team, in their self-defense, fired at her which hit and wounded her. According to Alien Sharp, Dr. Aafia’s lawyer, who has been fighting Dr. Aafia’s case since 2003 and also assisting her defense lawyer Elizbath Fink reported to media that in that attack Dr. Aafia has lost her one kidney and one intestine. This has been confirmed by medical examination.   

 

Both stories of Dr. Aafia’s arrest from Afghanistan and later her attempt to fire at American official does not stand in front of the facts which have already been exposed to whole world by Amnesty International and a British journalist, Yvonne Ridley, who had reported one year ago that the missing Pakistani Dr. was detained in one of the American camps where she was being tortured and raped by American camp officials, refute above drama. US authorities had better contacted to any Pakistani Station House Officer (SHO), or Head Munshi, for making a better and believable story which could be equally believed by both Pakistani nation and international community. Dr. Aafia’s American lawyer is right when she says that story of Dr. Aafia’s arrest and her attack have happened in Afghanistan but case has been fabricated in the New York.

 

This is an open secret now that Dr. Aafia was disappeared from Karachi and Transferred to Afghanistan and this all happened with the collusion of both Pakistani and US intelligence agencies. Asian Human Rights Commission (AHRC) mentioned in its report that both Pakistani and American agencies accepted Dr. Aafia in her custody but later they denied.

 

Dr. Aafia is not the first Pakistani who disappeared and surfaced from American detention camps but hundreds of such cases of disappearances have been reported so far and nobody knows where they are now? Pakistani intelligence agencies are allegedly being held responsible for all these disappearances. This is still a question whether these agencies have abducted them by their own or with the consent of Pakistani Government/State. What have not done families and loved ones of the disappeared or missing people for their return. Sit ins in-front of parliament, protests, rallies, hunger strikes, petitions in courts but nothing has come out of them yet in this country. Not to talk about the return of the disappeared people but those who protested for them were even arrested and severely beaten by security forces. One such case is of a person who was stripped by security forces while he was protesting in-front of GHQ and demanding the release of his missing family member. This has further strengthened people’s believe who hold Pakistani agencies responsible for disappearances of their loved ones.

 

The involvement or hand of Pakistani agencies behind these missing makes all these disappearances, Enforced disappearances. Its definition reads: 

 

 

An enforced disappearance is one which takes place when a person is arrested, detained or abducted not by anyone else but by the state or its agents, who act for it, deny the custody of the person and conceal his/her whereabouts, keeping him/her outside the protection of the law.

 

Above definition exactly applies on disappearances which have been carried out in Pakistan. The Human Rights Commission of Pakistan (HRCP) reported these cases, raised voices against these human rights violations both at national and international level and provided legal aid to the families of disappeared people by taking them into Pakistani courts. Despite judicial scrutiny and orders, neither these people were released nor their whereabouts were disclosed and it further continued.

 

Background of these disappearances shows that when after September 11, 2001 United States declared ‘War on Terror’ and the Governments like Pakistan took its advantage and killed two birds with one stone by extending American ‘War on Terror’ against activists who were raising their voices for their rights. And, in Pakistan Balouch and Sindhis became its immediate targets. Since then till now, the total numbers of reported enforced disappearances have reached to thousands. Asian Human Rights Commission has also reported cases of illegal arrest, detention and disappearances which clearly violate the fundamental rights of citizens in Pakistan which are protected by Pakistani constitution. Federal Minister of the interior’s statement on 5 December, 2005 reported by AHRC says that 4000 people arrested and only 200 out them were produced to the courts. Human Rights groups, activists, lawyers, civil society groups, media, nationalists and international organizations believe that the real number of disappearances in Pakistan is much higher than what have been reported so far. All share this view that in Pakistan who disappeared either never return or if returned re-disappeared. The reasons behind the uncertain number of these disappearances are many which includes low literacy ratio, lack of access to media, fear of state and its agents, weak judiciary, unrestrained role of intelligence agencies of the country, continues emergencies, martial-laws, frequent suspensions of constitution, absence of any national human rights commission. These factors hamper the real reporting of enforced disappearances, their exact numbers and forced Pakistani people to remain silent

 

PAKISTANI INTELLIGENCE AGENCIES AND DISAPPEARENCES

Pakistani Intelligence agencies are allegedly being held responsible for all cases of disappearances. There are reports which say that people were seen abducted and heard screaming while they were being taken by agencies. This has raised question in Pakistani public, lawyers, civil society and human rights groups who all together are demanding from the government to restrain the role of Pakistani intelligence agencies. These agencies include Inter-Service Intelligence (ISI) and Intelligence Bureau (IB). One question is almost common on everyone’s tongue that who these agencies are accountable to? There is no clear picture that which division or ministry oversees or controls these agencies. Some statements say that these agencies work under the Prime Minister of the country, others say, they come under the defense ministry. Let us assume these agencies work under Defense ministry. Then, question arises if these agencies had been under Defense Ministry, Secretary Defense had never told to High Court in one case of disappearance that the ministry exerts only administrative control, not operational control, over these agencies. Therefore, the secretary categorically refused to the Court (High Court) that Defense Ministry is unable to get these agencies to comply the orders of the Court in the cases of disappeared people.

 

Another question is if these agencies had been working under Prime Minister then Muhammad Khan Jonejo, Prime Minister of Pakistan in 1988 would have not been sent home because of ordering inquiry of ‘Ojri Camp’ incident which was managed by Inter-Service Intelligence (ISI). Apart from it, there are many examples which show that these agencies had never ever worked under Prime Minister of the country. Benazir Bhutto, one of the Prime Ministers, once accused Pakistani agencies for toppling her government is its best example. Recently, Prime Minister Secretariat issued a notification and placed both ISI and IB under Interior Ministry but later just after few hours due to immense pressure, it was said it will continue working under Prime Minister. Therefore, it is unclear for the people that who has operational, financial and administrative control of these spy agencies. Increasing external criticism and alleged role of agencies in enforced disappearance has strengthened calls for proper control of Pakistani agencies by Prime Minister or executive as such agencies like of other countries like Mossad, RAW, CIA etc. are being controlled in other countries of the world.   

  

NATIONAL AND INTERNATIONAL LAW AND ENFOCED DISAPPEARENCES

A Government that detains a person in secret, incommunicado, denies the custody of the person violates his/her rights to be brought before a court and to be able to challenge the legality of his/her detention. Writ of habeas corpus protects such individuals against unlawful exercise of state or government power. These rights are crucial to the very concept of the rule of law and the prohibition of arbitrary detention work as a key safeguard against torture and other ill-treatment. The rights to judicial review specifically to habeas corpus are binding on all states as customary international law, and not subject to derogations even in times of emergency. Such a petition has been filed by relatives and friends of Dr. Aafia in High Court, Islamabad which has asked Interior Ministry about the reasons of her detention.   

 

Pakistani Constitution, in following articles protects its citizens against enforced

Disappearances:

 

  • Articles 9 and 10 of the Constitution of Pakistan provide for freedom from arbitrary detention. (However, there is exception of ‘Preventive detention’ which is not compatible with international law).
  • Article 199 provides the right to habeas corpus.
  • Article 184 (3) empowers the Supreme Court to take up any matter it considers of public importance with regard to the enforcement of human rights.
  • Under Article 199(1) (c) Provincial high courts have the power to issue orders to provincial authorities with regard to the enforcement of fundamental rights upon receipt of a complaint from any person;
  • Under Article 199(2) this right may not be curbed.  

In terms of Human Rights Law, each enforced disappearance violates a vast range of human rights which include disappeared person’s right to security and dignity; his/her right to human conditions of detention, right to legal aid, fair trial, and family life. The list of rights does not end here. The conditions under which these people are being kept and subjected also violate disappeared person’s right not to be tortured or not to be subjected to other cruel, inhuman or degrading treatment or punishment. These rights are not protected only by international law but both Pakistani and US constitution also guarantee these rights. There are reports which confirm that some of them who disappeared never returned but still their families are not ready to mourn their deaths and living on the ray of hope that one day their loved-ones will return. This is violation of disappeared persons’ right to life, one of the important and fundamental rights. These disappeared people are being under inhuman conditions and being tortured and abused violates a very important right, ‘Right not to be tortured’ which is an absolute right and can never be suspended under any circumstance. However, right to life which is one of the important rights, can be suspended or snatched by due process of law in any country where capital punishment is permitted by the law but no individual, government or law can justify torture, inhuman and degrading treatment under any circumstances. Right not to be tortured is even not allowed in any emergency or war situation.

 

CONVENTION AGAISNT TORTURE:

United Nations’ Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) was adopted by the U.N. General Assembly in 1984 and went into force in 1987. As of April 2006, 141 countries have ratified this Convention including United States which has ratified it in October 1994. Under this convention, a party to the convention is obligated to comply with its provisions like another domestic law. In case of US, its Constitution treat these international treaties as “the law of the land.” This Convention against Torture is the most important international human rights treaty that deals exclusively with torture and not only prohibit the signatories but compels governments who ratified it to investigate all allegations of torture, to bring to justice the perpetrators, and to provide a remedy to victims of torture. Torture, in this, is defined as an extreme form of cruel and unusual punishment committed. What US authorities allegedly have done with Pakistani Dr. Aafia Siddiqui at Bagram camp, Afghanistan falls under above definition. Therefore, it is primary duty of US government to investigate what has happened with Pakistani Doctor in Bagram camp, Afghanistan and then bring the perpetrators to the justice. 

 

COMMITTEE AGAINST TORTURE: AN INTERNATIONAL TREATY BASED MECHANISM

The Committee Against Torture is an international treaty based mechanism, meets twice a year, in May and November, reviews the reports of countries which ratify the Convention Against Torture (CAT). Countries which ratify the treaty are obliged to report the Committee every four year. In its sixth monthly review meeting, this Committee examines each report of all parties and addresses its concerns and recommendations to the country in the form of “concluding observation.” Those who attend the meetings of the committee or have got an opportunity to attend can know very well that how the representatives of countries face NAMING AND SHAMING situation in front of whole international community regardless of country’s power, position and size, if that country’s government or its officials violate the Convention. Until now, United States record of submitting report is not good. Most recent report was submitted in May 2005 which was several years over due after last report US submitted in 1999. The Committee up to now has expressed its concerns about many issues and violations done by United States both inside and outside of the country. These issues include police ill-treatment in US prisons by both US police and prison guards allegedly based o discrimination, cases of sexual assault upon the female detainees by law enforcement officers. Many complains of violation of article 16 of the Convention by using electro-shock devices and restraint chairs as a method of restraint and holding minors with adults in the regular prisons. Detention camps established and administered by United States outside of country have also invited much criticism of both Torture Committee and international community.   

 

UN CONVENTION FOR THE PROTECTION OF ALL PERSONS FROM ENFORCED DISAPPEARANCES

The UN adopted the International Convention for the Protection of All Persons from Enforced Disappearance on December 20, 2006. One of the strongest human rights treaties ever adopted by the United Nation whose some of the provisions appear for the first time and introduce important new standards which aim to prevent enforced disappearances in the country, which signs and ratify it. This convention intends to uncover the truth behind the occurring of disappearances and delineates the duties of the country to punish the perpetrators providing remedy to the victims and their families. However, both United States and Pakistan are not parties to it but still morally it is their duty to respect that convention. This Convention’s article 1 says, ‘No one shall be subjected to enforced disappearance. While article 2 strongly says that under no circumstances, whether state of war or threat of war, or any emergency an enforced disappearance can be justified. Regarding state responsibilities; its article 3 talks about appropriate measures including investigation and justice to the victim.

 

VIENNA CONVENTION ON CONSULAR RELATIONS

Under Vienna Convention on Consular Relations, it is United States’ obligation to provide Dr. Aafia Siddiqui, consular access. Though, Pakistan Ambassador in United States, Hussein Haqani has already requested American government for it. The Vienna Convention on Consular Relations sets forth signatory nation’s obligation to detained foreign nationals. United States is also party to it and adopted both Vienna Convention and Optional Protocol in 1963. Apart from consular access, this convention ensures many other rights of detained person. Article 36 of Vienna Convention on Consular Relation require that detained foreign nationals be informed ‘without delay’ of their right to confer, communicate, and seek representation by their consulate throughout their detention. Under this convention, United States is obligated to provide all rights mentioned in the article 36 and rest of the convention to Dr. Aafia Siddiqui. Also provide access to recently formed five peoples’ Senate’s committee which will go to United States and see and meet Dr. Aafia and other seven Pakistanis detained in American jails.

 

Compliance of this convention is very important for United States for many other reasons. It will protect the interests of US citizens especially when they are facing a potential threat abroad. Consistent compliance of Vienna Convention will help in maintaining and enhancing the feelings of reciprocity among international community and the effective conduct of foreign relations. It will also uphold United States’ commitment in the international community to the rule of law. Before it, United States has violated Vienna Convention three times in three different cases of foreign nationals. In case, United States or any country violate Vienna Convention and refuse to give rights to any foreign national that country can go to International Court of Justice for it.

 

 

PAKISTAN’S OBLIGATIONS

Dr. Aafia’s Siddiqui who was allegedly abducted from Karachi along with her three children by Pakistani intelligence agencies and then transferred to US authorities who kept her in Bagram detention camp for five years without any charge, access to legal aid, communication with her family. Besides, it has been allegedly reported that she was tortured and raped by American soldiers or security personals. By transferring a Pakistani national in this way to a foreign country, both Pakistan government and its intelligence agencies have violated Pakistani constitution which provides protection to its citizens. This is also violation of international human right law which prohibits a transfer of any citizen to a foreign country in this way. Pakistan who is signatory to United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) whose Article 3 requires that no State party return, expel, or extradite a person to another country where there are substantial grounds to believe the he/she would be subjected to torture. And, in case of Dr. Aafia, Pakistan clearly knew that United States authorities would detain and torture her.

 

However, we agree that being a just signatory to the Convention against Torture CAT Pakistan is not bound for reporting or appearing before the Committee for Torture but still being a signatory Pakistan is obligated to respect its provisions. As far as Torture is it is cruel and inhuman and not allowed under any circumstances even if country has not signed the Convention. International Customary law that prohibits a country from committing torture, degrading and inhuman treatment to anyone either its citizen or not. Pakistan which is member of Human Rights Council, pledged, during its candidature to HRC, that it will sign and ratify all human rights conventions. Promote and protect human rights, and bring the human right violators to the book.   

 

POSSIBLE LAWFUL PROCESS IN DR. AAFIA’S CASE

In Dr. Aafia Siddiqui and other such cases, United States and Pakistan government had better followed a legal process acceptable to US, Pakistan and whole international community. Abducting a national of a country is not a good practice. It violates international law. United States has been (still is) a country which kidnaps other countries brings them to Syria, Egypt, Jordan and Afghanistan for torturing them. In this regard, US have not even spared its close neighbor Canada. It abducted a Canadian citizen, Maher Arar and sent him to Jordan where he was tortured despite having no evidence of his ties with any activity which could pose threat to US security. Following foreign nationals who been abducted by United States since 1950.

 

               I.      Morton Sobell from Mexico by the United States in 1950

             II.      Manuel Noriega from Panama by the United States in 1989  

           III.      Humberto Álvarez Machaín from Mexico by the United States in 1990

           IV.      Mir Aimal Kansi from Pakistan by the CIA in 1997

             V.      Martin Mubanga from Zambia to Guantanamo Bay by the United States in 2002

           VI.      Lanre Shittu From Nigeria by the United States government

 

 

In above all cases United States was supposed to follow extradition agreements with the countries of above nationals instead of kidnapping them. Extradition is the official process by which one nation or state requests and obtains from another nation or state the surrender of a suspected or convicted criminal. Between nation states, extradition is regulated by treaties. Between sub-national regions (for example, the individual states of the U.S.), where extradition is required by law it is more accurately known as rendition.

 

United States’ authorities could have informed Pakistani Government about charges against Dr. Aafia Siddiqui and shared her alleged affiliation and association with Al-Qaeda instead of abducting her and keeping her in detention without letting her family know about her whereabouts. Then, Pakistan Government could have investigated and bring charges against her in any Pakistani court. In case United States believed that Pakistani courts were unable or unwilling to prosecute Dr. Aafia Siddiqui and acquitted her. United States, as a last legal resort was to request Pakistani government for her custody as per EXTRADITION AGREEMENT, if such agreement exists between two governments or countries for exchange of criminals or accused and satisfy following conditions:

 

-The relevant crime is sufficiently serious.

-There exists a prima facie case against the individual sought.

-The event in question qualifies as a crime in both countries.

-The extradited person can reasonably expect a fair trial in the recipient country.

-The likely penalty will be proportionate to the crime.

 

 

In this situation, if Pakistan had believed or suspected that Dr. Aafia was transferred to United States, she could have been subjected to Torture and inhuman treatment in United States or any country where US wanted Pakistan to transfer her. It was right of Pakistani government to refuse her extradition. In this case, Pakistan could ask from United States a diplomatic assurance which could have ensured that the accused would not be subjected to torture or any inhuman treatment in recipient country. Even then, if Pakistan had believed that charges which were extended against Dr. Aafia are political, Pakistan could have privilege to refuse US’s request for Dr. Aafia’s extradition.  

 

Pakistan Government’s responsibilities never end here. Under the Vienna Convention on Consular Relations it is right of Pakistan government to claim rights of a detained national to confer, communication, legal support and communication from a foreign government, which in Dr. Aafia’s case is United States which has this obligation to comply with the Vienna Convention and give Pakistani Consular based at United States access to her. Not only this but to her lawyer and family access to her. In case, United States does not allow Dr. Aafia’s family or lawyer access to her will violate Vienna Convention on Consular Relations and United States has already record of violating Vienna Convention three times. Another concern in cases like Dr. Aafia is of American executive’s influence on American Courts. In case, Dr. Aafia proves innocent and released. She may not get compensation for all illegal acts of torture and inhuman treatment done with her by US administration from US courts because it is allegedly reported that when such cases go to American courts and victim try to obtain compensation from the US government for their disappearance and torture, Bush Administration has asked judges for dismissal because National Security could be harmed if the administration were held accountable in US courts. In this case, Pakistani government can take her case with United States government fro remedy and compensation.

 

United States is known as a country that has a history of supporting human rights principles and values. World still believes US as a global human rights leader and if it will abuse human rights of both its own nationals or citizens of other countries it may tarnish its image both within outside and at world level. If United States really wants to end terrorism it should follow legal processes instead of adopting illegal methods. No doubt US has played a leading role in establishing an international system of human rights protection over the past half-century but if United States itself is reluctant to submit to it for its own conduct then no country in future will do what US demand from them.

We call on the Government of Pakistan not only to end enforced disappearances immediately but make efforts to reveal their whereabouts and get them released that will end human rights violations involved. The best way will be promptly bringing them in Pakistani courts, charging them with recognizable criminal offences, and if their remand is taken and detained at official places. Their access to lawyers, their families and the courts need to be ensured and given them fair trials. Responsibility of Pakistani Government does not end here. Those officials who does not obey court’s orders and are responsible of such heinous crimes of hiding truth should be brought to justice irrespective of rank and status. This will give an opportunity to the government of Pakistan to honor the commitments which Pakistan Government has made at international level regarding the promotion and protection of human rights.

 

We all call on Pakistan government to listen voices of both at national and international level and ratify all relevant international human rights treaties which protect rights violated by enforced disappearances like UN Convention for the Protection of All Persons from Enforced Disappearance. Also, ratify those conventions which Pakistan Government has already signed in April 2008 including the International Covenant on Civil a Political Rights (ICCPR) and the UN Convention against Torture. This is also highly recommended that the Government of Pakistan should sign the Rome Treaty of International Criminal Court with the true intention of ratifying it afterward.

 

Finally, it is duty of the Government of Pakistan to expedite its efforts to assist Dr. Aafia against charges which have been brought against her in American courts and try to get her released and bring her back to Pakistan. And, never allow any country to invade its sovereignty.

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