AS the world observed the International Day of Victims of Enforced Disappearances, the Supreme Court faced 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 (PPC), including human rights violations? If so, once regular criminal courts have assumed jurisdiction, are they obliged to accede to requests by the armed forces to transfer jurisdiction to military courts? These questions before the Supreme Court have roots in the Muhabbat Shah case, which relates to the unacknowledged removal of 35 detainees from a Mala*kand internment centre by security forces.

In December 2013, the Supreme Court held that their removal amounted to enforced disappearance; no law provided cover for the un**lawful conduct of the armed forces; and the government should act “strictly in accordance with law” against the army personnel responsible. In March 2014, the defence minister lodged FIRs under the PPC for wrongful confinement against army officers suspected of ‘disappearing’ the 35 individuals.

Civilian courts should try cases of missing persons.
A few days later, however, reportedly on the request of military authorities, the KP administration referred the matter to the military for further investigation and possible trial under the 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 rights violations.

Since Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) in 2010, all branches of state are bound to implement its provisions. Correspondingly, the court has stressed the importance of incorporating international human rights law and standards into domestic law through judicial pronouncements.

We must therefore 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 rights violations or other crimes under international law.

In fact, in enforced disappearances, some international standards prohibit trials of those accused of ordering or participating in enforced disappearances in military or special courts. For example, the UN Declaration on the Protection of All Persons from Enforced Dis*ap**pearance stipulates that those responsible for enforced disappearance shall only be tried by ordinary civilian courts, not by any other special tribunal, in particular military courts.

The UN Working Group on Enforced or Involuntary Disappearances has repeatedly noted that trials in military courts significantly contribute to impunity for enforced disappearances. Following a 2012 visit to Pakistan, the WGEID recommended that suspected perpetrators, including security forces’ members, should only be tried by ordinary courts.

Three key factors must be considered here.

First, where members of the military are implicated, there exists a conflict of interest, as the military acts both as defendant and 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 independent and impartial, and perceived to be so.

Second, witnesses and victims 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 are frequently subjected to threats, harassment and other victimisation, allegedly by military personnel. If witnesses and victims are reluctant to testify truthfully in such a climate of fear this has an impact on the fairness and effectiveness of the trial.

Third, fair trials before independent, im*partial civilian courts, in which rights of victims, witnesses, and the accused are protected, are more likely to ensure those responsible for enforced disappearances are held to account.

Pakistan’s culture of impunity for rights violations is well documented. Despite credible allegations that hundreds of people have been forcibly disappeared by the security forces, not a single perpetrator has so far been brought to justice.

The Supreme Court has an opportunity to remove a key impediment in holding perpetrators of ‘disappearances’ accountable. One hopes it will make the opportunity count.

The writer is a legal adviser for the International Commission of Jurists.