To ban or not to ban?

Sikander Ahmed Shah

MANY in the West view Pakistan as a safe haven for transnational terrorist organisations, and India is attempting very hard to exploit this global opinion. In reality, however, terrorist violence kills more innocent civilians and security personnel in Pakistan compared to all of Europe in any given year. Regrettably, Western societies ignore the causalities of terrorism inside Pakistan and apply different standards for valuing Pakistani life.

India has consistently attempted to ban and blacklist the founder of Jaish-e-Mohammad (JeM) Maulana Masood Azhar through a United Nations Security Council sanctions committee. Such efforts have been repeatedly blocked by China which is acting in support of Pakistan as the latter views India’s attempts as politically motivated and intended in the long run to discredit the genuine Kashmiri freedom movement. Indeed, the ban seems to only serve a symbolic purpose. It would mean no more than a global travel ban and an asset freeze; in any case Azhar has been living mostly under protective custody, and JeM is already classified as a terrorist organisation — banned by both Pakistan and the sanctions committee, and subject to a strict UN sanctions regime which Pakistan is presently bound to enforce regardless of Azhar’s status.

Pakistan, however, must keep its eyes on the ball. Today, it is uncontested that terrorism is a very serious internal threat to Pakistan, and geopolitics aside, Pakistan must seriously realise that its national and international obligations for combating terrorism are not mutually exclusive. By implementing its domestic laws on combating terrorism against minority groups, while in concert respecting the fundamental human rights and freedoms of individuals enshrined in the Constitution, Pakistan can automatically comply with virtually all of its counterterrorism international legal obligations.

The domestic framework to censure groups promoting terrorism is more punitive as compared to the UN regime.

The present UN framework for combating global terrorism materialised in the wake of the Sept 11 attacks with the adoption of the binding UN Security Council Resolution 1373 passed under Chapter VII of the UN Charter. This resolution was meant to thwart terrorist groups in holistic ways and called on all states to adjust their national laws for the purpose of ratifying all international conventions on terrorism. The UN General Assembly has also routinely acted to support the Security Council and strengthen this regime. For example, in 2006 it adopted the UN Global Counter-Terrorism Strategy for preventing and combating the menace of terrorism and for the purpose of strengthening the role of the UN in this regard.

UNSC Resolution 1373 established the UN Counter-Terrorism Committee, which is a subsidiary body of the UNSC and is assisted by its Executive Directorate, with the objective of promoting cooperation between states for combating transnational terrorism. It is not, however, a sanctioning body nor does it maintain a list of terrorist groups or individuals. This role is actually performed by another subsidiary UNSC body — the “Security Council Committee (established) Pursuant to Resolutions 1267 (1999), 1989 (2011) and 2253 (2015) concerning ISIL (Da’esh), Al Qaeda, and Associated Individuals, Groups, Undertakings and Entities”. It is this body that banned JeM in 2001 and other groups like Lashkar-e-Taiba due to their purported links with Al Qaeda and the Taliban.

The domestic framework for censuring organisations promoting terrorism under the Anti-Terrorism Act 1997 (as amended) is actually more severe and punitive when compared to the UN regime. For many in the human rights community, this law has been perceived as being indefensibly draconian, critiqued for the inordinately broad definition of the term ‘terrorism’ and for the excessively broad scope of its ancillary offences. The act also provides law-enforcement personnel with inordinate discretion to determine which organisation “is concerned in terrorism”, and once proscribed, an organisation has its offices sealed, its accounts frozen and subjected to intense financial scrutiny, and its property and materials seized.

While individuals under the ATA are not blacklisted in exactly the same way as by the UN sanctions committee, the censuring and criminal liability of members of proscribed organisations under the ATA is nonetheless more severe. Simple membership in a proscribed organisation results in a fine and conviction of up to six months — with the bar for what constitutes ‘membership’ inordinately low. Indeed, as per Section 11-A, an organisation is “concerned in terrorism” if it — tautologically — is “otherwise concerned in terrorism”. Any active involvement in a proscribed organisation such as by providing financial support, soliciting funds or delivering religious sermons publicly can result in both a hefty fine and imprisonment ranging anywhere from between one to five years.

The dilemma in relation to combating terrorism that Pakistan faces is not really one of balancing its international obligations with domestic ones, but of balancing the human rights obligations owed to its citizenry with its national security imperatives.

Extremist violence predominantly emerges from socioeconomic deprivation, something for which the government must be held accountable; however, in the short to medium term the government must act to defend its legitimate writ and to comply with its positive obligations to protect religious and ethnic minorities from systematic acts of terrorism committed against them with impunity by radical groups. While the ATA — and particularly its illogical description of an “organisation concerned [with] terrorism” — must be improved to provide the necessary levels of due process to those charged under it, it can and should be used effectively by the government to clamp down on extremist organisations and individuals who sow the seeds for promoting terrorism against minorities within the country.

Even though it might be politically hard to swallow, the government must act against influential leaders of radical organisations engaged in spreading hate and terrorism — and not just against those which it classifies as involved in anti-state activities — by designating them as “proscribed persons” under Article 11EE of the Fourth Schedule of the ATA. This would allow the government to constantly monitor and keep under tight surveillance such proscribed persons and punish any violators who misuse religious institutions to provoke terrorist violence against the most venerable segments of society.

The writer is former legal adviser to the Ministry of Foreign Affairs.

Published in Dawn, January 9th, 2017

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