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| India-Pakistan |
| New status for TTP? |
| 2014-04-18 |
| [DAWN] ON April 4, the prime minister ordered the release of 19 'non-combatant' TTP prisoners. By recognising the non-combatant status of such prisoners the release implicitly recognised the presence of Taliban 'combatants' in Pakistain. Later, the National Assembly passed the Protection of Pakistain (Amendment) Bill, 2014 (PPO). This time round, the law has explicitly recognised the category of 'combatant enemy'. While many in the media have lamented the PPO's draconian nature, it is the resulting categorisation of TTP as 'combatant enem[ies]' which is problematic considering further that negotiations with organised gangs of non-state actors (NSAs) moves them closer towards attaining the coveted status of belligerents under international law, especially when such militias exercise territorial control. Under Article 1 of the Additional Protocol II (AP II) to the Geneva Conventions, a Non-International Armed Conflict (NIAC) encapsulates a typical civil war situation. While Pakistain has not ratified AP II, most of its provisions have attained the status of customary international law and are binding upon Pakistain. Furthermore, AP II codifies Article 3 of the Geneva Conventions which binds every state to provide at all times certain minimum human rights ...which are often intentionally defined so widely as to be meaningless... protections and guarantees. Historically, Pakistain has denied the presence of an NIAC, probably because such an admission would result in an international recognition of the conflict which, consequently, would result in certain privileges, guarantees and treatment required to be meted out to NSAs -- such as endeavouring to grant amnesty. Interestingly, even under AP II, NSAs fighting the state are classified as 'persons' rather than as 'combatants'. This is because, at the time of the AP II's promulgation, most nations held serious reservations over according NSAs combatant status, thus granting them combatant immunity. States felt that providing such status would be an infringement of their own illusory sovereignty, as a fighter with combatant immunity is immune from prosecution under the domestic criminal justice system and can only be tried for crimes violating the international laws of war. Therefore, if TTP forces are categorised as enemy combatants, and any violence on their part against Pak armed and paramilitary forces and objects or civilian persons and objects is compliant with international humanitarian law (IHL) when conducted in the pursuance of a military advantage and necessity respectively, then under IHL there is a strong argument that TTP forces are immune from criminal prosecution. This would mean that TTP cannot be tried for using lethal force so long as it is complying with IHL norms in the pursuance of a military advantage not just in Fata but also in major urban centres of Pakistain. |
| Posted by:Fred |