Daily Times

The National Defence University, where I also go occasionally to waste the time of the good folks there, holds an annual National Security Workshop (NSW), essentially for parliamentarians. I think this event numbers is close to topping my ‘most useful’ list of things to do. This year’s NSW is drawing to a close and, as part of the grand finale, participants are expected to share their views on some aspect of governance. This year it is the turn of the National Action Plan.

I have the honour of mentoring one or two of the groups this time round. And they have chosen as their subject, Military Courts. Attending their discussions, I found myself constrained to offer advice. Thus I am writing this piece to share those views here, on this forum.

To begin with, Military Courts are an anachronism and an aberration to the modern concept of justice. Having said that, with some reluctance, I must also admit that circumstances sometimes render even aberrations a necessity. Our current state, in which injustice rules, judges, investigators, prosecutors, and witnesses are all under threat, is perhaps one in which the aberration is a necessity.

The groups under my mentorship agreed. Nevertheless, they did have some apprehensions. Foremost was whether capital punishment falls within the ‘doctrine of necessity’? If it does, how, then, are we to justify this to the international community? How can we avoid being ostracised as well as having our Generalised Scheme of Preferences (GSP plus) status revoked? The latter point is pertinent given that such a move would exacerbate our already precarious economic situation. Since I have no intention of debating the ethics or efficacy of capital punishments here, I move beyond.

In legal parlance there is a term Amicus Curiae, which is Latin for ‘friend of the court’. Usually a well reputed judge or lawyer sits not as a member of the court but in an advisory capacity, whereby his opining represents a matter of record. This could be the way forward for our military courts

That we are at war is more or less an established fact. This is a war. The enemy is the most insidious one there can be, “The Enemy Within”. Relentless and cruel to the extreme; we are at war. However, in wars, soldiers fight each other on the battlefield. And, those operating behind enemy lines are required to declare themselves. Only then do the Geneva Conventions apply.

Pointing out current American practices as well as the socio-legal safeguards the US has emplaced by executing blatant injustice by way of military courts, but far from US soil, is a very poor example to quote. Moreover, Washington enjoys a unique status, even at the UN; which we don’t. However, before the world body overtly began to do the US bidding, we have the example of UN-approved Military Trials after WW II, notably at Nuremberg.

While the precedent for “War Crimes” trials was set at Leipzig after WW I — it was at Nuremberg where concepts of War Crimes, Crimes against Humanity, and War of Aggression crystallised into international jurisprudence. Consequently, the first step to justify recourse to Military Courts and Capital Punishment is to establish that these courts are set up to deal with War Crimes.

Definitions of War Crimes as set out in UN manuals are: “intentionally killing civilians or prisoners, torture, destroying civilian property, taking hostages, perfidy, rape, using child soldiers, pillaging, declaring that no quarter will be given, and serious violations of the principles of distinction and proportionality”.

Is there anything in this list that our terrorists have overlooked? I see nothing missing. They are committing all of the above and then some. Our defensive argument has to hinge on proving that:  a) we are at war; and b) that those engaging us in this war are guilty of War Crimes. If we can establish these two facts — we need not worry about the international community or, indeed, our GSP plus status.

However, at Nuremberg, the four states which contributed to the trials all provided a judge to preside over each hearing. The Russians were the only ones who produced soldiers as judges; which posed some difficulties, even at Nuremberg. The film, Judgment at Nuremberg deals with precisely this subject.

Most non-military personnel hold the view that no judicial representation exists within our military court system. Actually, this is not strictly true. It is mandatory for every military court to grant procedural access to a member of the military judiciary, the Judge Advocate General, JAG Branch, where all members must have a law degree. Yet this is not without problems. For while these learned folk may know the law — they may not be jurists and, consequently, may not comprehend “beyond reasonable doubt” — a concept to which, I am not sure, should be strictly adhered.

As at Nuremberg, one solution might be to have a high court judge as a member of each military court bench. Here again we are likely to face our psycho-social complexities pertaining to our old friend, the ego. In other words, a high court judge may find it below “His Lordship-ly” honour to sit on a military court.

But, where there is a will, there is a way. In legal parlance there is a term Amicus Curiae, which is Latin for ‘friend of the court’. Usually a well reputed judge or lawyer who sits not as a member of the court but in an advisory capacity, whereby his opining represents a matter of record. Our military courts could, while retaining the compulsory member of the court from the JAG Branch, have a reputable lawyer as per Amicus Curiae.

Any Pakistani advocate willing to take on this ‘challenge’ will only have his reputation enhanced. While our military courts will enjoy genuine civilian judicial presence and, one hopes, also a jurist present.

The writer is a retired brigadier. He is also former vice president and founder of the Islamabad Policy Research Institute (IPRI)

Published in Daily Times, October 11^th 2017.