What happened to the rule of law? US, Pakistan and Doctor Afridi

May 30, 2012

According to the Pakistani media, Shakil Afridi, the doctor who worked with the CIA to help track down Osama bin Laden, has been jailed not for his role in trying to find the al Qaeda leader, but for colluding with the Lashkar-e-Islam militant group and its chief, Mangal Bagh, based in Pakistan’s tribal areas bordering Afghanistan. Dawn newspaper cited court documents  showing that the tribal court which sentenced him to 33 years in jail  ”did not entertain evidence relating to Dr Shakil Afridi’s involvement with the CIA, citing lack of jurisdiction as the main reason….” (Afridi was sentenced under the Frontier Crimes Regulation (FCR), a British colonial-era law used to deal with Pakistan’s Federally Administered Tribal Areas (FATA)). Instead, Afridi – arrested on May 23, 2011 shortly after the May 2 raid by U.S. forces who found and  killed bin Laden in the town of Abbottabad – was convicted on the basis of “his love for Mangal Bagh”.  “The court held that the LI (Lashkar-e-Islam) had sought the support of foreign intelligence agencies across the border in Afghanistan to wage war against the state of Pakistan and that Mr Afridi’s association with the militant outfit proved his involvement in activities inimical to the state of Pakistan.”

For the purposes of argument let’s take this account at face value -  and at this point nothing about the Afridi case should be considered “true” in any meaningful sense.  (Under the FCR he has had no opportunity to speak in public and give his side of the story and if he were under trial in a fair court of law, he would have to be assumed innocent until proven guilty.)  If he was sentenced for links to Mangal Bagh, the question of whether he was a hero or a traitor in working with the CIA is irrelevant.  So too are  the ethics of running a fake vaccination scheme to try to find bin Laden – for which Afridi stands accused not as a traitor but a bad doctor.

The only factor which is directly relevant to his 33-year sentencing is his alleged links with Mangal Bagh. 

To make sense of this, go back to a story published by Declan Walsh at The New York Times on May 2, 2012.  “Dr. Afridi had a reputation for hustling as well as healing, and he faced multiple allegations of corruption and professional malpractice, according to officials, colleagues and government papers seen by The New York Times. At his private practice, several patients claimed he performed improper operations to make extra money, prompting a local warlord named Mangal Bagh to detain him for a week in 2008 until he paid a fine of $11,100.”

The Pakistani journalist Asad Munir had a similar story in the Express Tribune. “In 2008, on complaints from locals, reportedly Mangal Bagh summoned him and fined him one million rupees. After the fine was not paid initially, Dr Afridi was kidnapped by Mangal Bagh’s men and released only after it was paid.”

In other words, a man who paid off his kidnappers has been sentenced to 33 years in jail under a Raj-era regulation which gives him no right to a fair trial for alleged links to those same men.

There is very little you can say that is right about this – the fake vaccination scheme and indeed the illegality of working for a foreign intelligence service being not directly relevant to the case. (And even working for the Americans is mitigated by the fact that Pakistani newspapers published rewards offered by the CIA for information leading to the capture of bin Laden and other al Qaeda leaders.)

The doctor would not be the only one to pay off his kidnappers – it happens far more often than is reported. Nor, as someone pointed out on Twitter, would he be the only one to pay off militants – so do all the truckers taking NATO supplies into Afghanistan – if, and when, the routes are reopened by Pakistan.  And for good measure, if the Pakistan Army – operating under a parliamentary resolution to “give peace a chance” – wants to make deals with militants in the tribal areas, they will have to buy off some while targetting the others, as they have done in the past.  Are all those involved – or at least those who like the doctor are originally from FATA – to be tried under the FCR and jailed? 

Again, at risk of repetition, we do not actually know the truth. But what if we wake up tomorrow morning to read yet another version of the Afridi story? He was sentenced under what is widely recognised to be an unfair system.   The Frontier Crimes Regulation was created by the British to impose control on the tribal areas and keep its inhabitants outside of the rule of law introduced under the Raj , not to give the people living there rights as citizens. A conviction under an unfair law remains unfair regardless of the extraneous circumstances.

Now consider what might happen next. Because the FCR gives authorities pretty much the power to do as they like,  Pakistan has also retained greater  flexibility to do as it chooses with Afridi than if he had been tried in the regular legal system.  He can be included as a bargaining chip in negotiations with America over the reopening of NATO supply routes – closed after Pakistani soldiers were killed in a cross-border attack last year.

Indeed, former Inter-Services Intelligence chief Asad Durrani has suggested that Afridi could be swapped for Aafia Siddiqui, the Pakistani neuroscientist jailed in the United States for  activities related to terrorism.  To be clear – a man sentenced under an unfair system could be swapped for a woman the United States believes – and Pakistan disputes this – was tried and sentenced after a fair trial?  Durrani even suggested that she might be awarded the highest military decoration given by Pakistan. “…we may also start owning up our heroes and swap them with theirs. It would be nice to award a Nishan-e-Haider to someone still alive, and a female at that!”

Does it look ugly? Unethical? Illegal?

But there is a mirror here.  The United States also stands accused of bending the law in order to describe drone attacks in Pakistan’s tribal areas as legal.  The use of drones can be - arguably -justified for other reasons. They cause fewer civilian casualties than other military operations including non-drone airstrikes or artillery shelling.  They cause fewer deaths than the militants whom they are used to eliminate.  And there is a frustrating hypocrisy among those who condemn drones while not also condemning military operations, Pakistani Taliban violence, or indeed the FCR itself, whose abolition would go a long way to resolving the problems in the tribal areas.   But the US insistence on setting itself up as judge and jury on the legality of its drone programme, without any real transparency, is deeply corrosive.  It leaves little moral authority for insisting that the rule of law be upheld in Pakistan. And that is one of the greatest casualties of the long war since the Sept. 11, 2001 attacks. When the last vestiges of respect for the rule of law are lost, the war is lost.

In a lengthy piece about the children of militants,  Australian al Qaeda expert Leah Farrall calls for them to be treated humanely and extends her argument out into a discussion of how our failure to do so shows how far our approach to counter-terrorism has gone astray since 9/11. Quoting Australia’s National Counter Terrorism White Paper, she notes that it says, “to be effective Australia must pursue a principled and proportionate response that promotes and upholds the values we seek to protect. The Government does not support the use of torture or other unlawful methods in response to terrorism. Terrorism is a crime and the Government will pursue terrorists within proper legal frameworks and in accordance with the rule of law.”  (my italics). She then adds, “I can’t tell you how many times in dialogues I’ve ended up with nothing else left to say in trying to explain the ‘war on terror’ except for ‘but we’re not like that…”” 

In the case of Doctor Afridi, two wrongs do not make a right. There is nothing worse than the moral equivocation – and I have seen this cropping up in Twitter debates amongst others – that cites Guantanamo to justify the treatment of Doctor Afridi. By extension, if someone is unfairly jailed by one country, am I supposed to believe it is fine to be unfairly imprisoned in my own?  Under the rule of law, each individual is entitled to a fair trial regardless of what happens to anyone else.  What has happened in the last 11 years that has led to this? Have we reached the stage that rather than calling for a fair trial, Afridi could instead be included in the haggling over the price the United States and NATO pay per truckload of supplies going through Pakistan into Afghanistan? 

Or as Leah Farrall said more succintly on Twitter, “Anyone who claims the war on terror is being won is a great big fat liar.”

12 comments

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Only in Pakistan would a man who (unwittingly) helped catch a mass murderer get a 33 year prison sentence.

Contrast the speedy trial and incarceration of Dr. Afridi with the litany of excuses given by the Pakistani authorities on why they cannot arrest or detain Hafiz Saeed.

The very idea that some would suggest that Dr. Afridi was treasonous says a lot about Pakistan. If this man committed treason, then by definition, that would make Osama Bin Laden an asset of the Pakistani state. Are Pakistanis willing to openly admit that Osama was a guest of the state? And if that’s not the case, then what treason did this man commit? And aren’t those who protected Bin Laden (most likely inside the PakMil establishment) truly guilty of treason?

In Pakistan, murderers are defended by government lawyers and those who help catch them are jailed. Nothing says more about the priorities of Pakistanis than the jailing of the good doctor.

Posted by True.North. | Report as abusive

Well he was a threat to the nation. He colluded with a terrorist group whose name no one knew until now. Then he killed Benazir Bhutto. He shot down the plane in which Zia Ul Haq was riding. He caused the floods a year ago that almost wiped out Pakistan. He tried to watch an IPL cricket game. He ogled at Kayani and Musharraf. And to top all that he led the CIA to find Bin Laden, who was the most honored and precious guest who had to be protected at all costs. He is an enemy of the state while being a friend of the States. That shows his duplicity and double dealing which does not fit with the moral value and character one expects in Pakistan. So now he pays for it by being protected from the evil US for 33 years. After that he will be left free. That is free of hands and legs. He deserved his just punishment.

Posted by KPSingh01 | Report as abusive

This is a balanced article but it assumes that the tribal court details provided are accurate regarding the Mangal Bagh caper. The court plea according to some Pakistani media sources such as Geo News suggest that Dr. Afridi was doing a double-agent role on the Pak-Afghan conflict and that was the case rather than on the ransom offer which his family is claiming was the case. So there is reason for us to wait and withhold judgement. Pakistan is being cornered by the US and many seem to think that this strategy will force them to change their ways. In my opinion such bullying seldom works with mixed moral record on the part of the US as well (as the authors here have noted)

Posted by SaleemAli | Report as abusive

Myra,
Yours is the best article on Dr Afridi episode and also requires well informed comments.
The jirga(jury in english) trials are usualy held against criminals who are accused of murder, and where no witness is prepared to provide evidence in the open court, although adequate info is avilable against the accused. The accused under no circumstances receives a death sentence and usualy ends up in life sentence.

Tribal jirgas have no jurisdiction in non tribal territiries. If what is alleged about Dr Afridi with regard to his involvement with CIA amounts to treachery and therefore has no longer the protection from the Afridi tribesmen. He has broken the Pashtun code and choosen death on his own accord. Pakistan jails can not provide him any protection.

In my opinon there is more to the affair than the eye can see, or what is being poured out by the Pakistan and the American Govt. The involvement of a so called democracy and the country of law USA undertakes extra judicial killings,this is going to increase the lawlessness both in Afghanistan and Pakistan. Let us wait for the next moves from the contrahands of the USA and the Talibans?

Rex Minor

Posted by pakistan | Report as abusive

From the one side of their mouths, Pakistanis complain about Guantanamo’s laws, and from the other side of their mouths the Pakistanis have been maintaining their own version of Guantanamo laws in the NorthWest Frontier. Pakistan deliberately created this legal black hole in the NorthWest of the country, in order to more effectively manipulate events there and crush opponents to the rulers in Islamabad.

While the US is legitimate in seeking military tribunals for an enemy like AlQaeda, how can Pakistan call itself an ally in the War on Terror if it’s treating those who helped nab Bin Laden as an enemy of the state? Pakistan is saying that spying on Osama amounts to spying on Pakistan, and that fighting against AlQaeda amounts to fighting Pakistan. It’s clear that Pakistan is upset that Dr Afridi has killed the Goose That Laid the Golden Eggs – as long as Bin Laden was still alive, Pakistan could receive more money and aid. But now that the Golden Goose has been taken away, Pakistan is furious and on the warpath.

Pakistan is no ally, it is the most treacherous of enemies.

Posted by san-man | Report as abusive

The Apache Geranimo trusted the Americans and he landed in a reservations, Dr Afridi trusted the new American generation who launched operation ‘Geronimo’ and also landed in the prison, probably to stop him from telling the world as to who was the poor old guy who vanished from the seen and is most probably in Gutanemo prison now.

Rex Minor

Posted by pakistan | Report as abusive

Oh please! Anyone who has spent a little time reading Myra’s blog knows that she comes from a long line of white female groupies of Pakistan; Christine Fair (before she began to feel jilted), anyone? A bit of the macho mustache twirling and faux military airs goes a long way with some. No wonder that Shaukat Aziz thought that he could seduce Condoleezza Rice; seeing how the likes of Myra get easily taken in. This pathetic excuse for Afridi’s conviction has as much credence as the ludicrous claim that tax collection in Pakistan has gone up 25%. But Myra has served her useful idiot role and given the internet Pakistanis a straw to grasp at.

Posted by Samiyam | Report as abusive

Pakjabis are running all of NWFP and Balochistan like reservations. Don’t lecture about Geronimo after what you did to Akbar Khan Bugti. Baloch and Pashtuns trusted the Pakjabis and have landed up in reservations. Then Pakjabis cunningly tell the outside world “Oh, those Pashtuns and Baloch, they are only happy living backward lives! They live under backward laws because they want them! We are only giving them what they want!”

Posted by san-man | Report as abusive

Myra, It brought a smile to my face reading this narrative about Dr. Afridi, a hustler and triple agent. He officially worked for GoP, had lucrative business with militants and part time agent of CIA. It is unfortunate that nobody introduced him to President Zardari, where he could outshine some of the leading lights. I’m sure that he would do roaring business even behind the bars. Myra, your focus on due process is misplaced unless the applicable law is specified. There are many laws: FCR, Common law, Sharia law, International human rights and laws related to WOT. Each has its own process. I would leave it at that.

Posted by Matrixx | Report as abusive

The gringos have exausted all their resources. They seem to be having problems everywhere, at home from the mexicans, in Afghanistan from the talibans and in Pakistan from the Pakjabis. No supply route and no escape route, armoured cars and other equipment stranded on Pakistan highways and Pakjabi military is now refusing to provide any security for the 100,000 strong marines stranded to be brought home. Zardari has also let us down and is not willing to buy the stranded material at half its value. And now they have just test fired a stealth missile which could prevent next mission with our stealth helicopters? The solution is to allow same sex marriages at federal level; this should atleast make the marines happy in the hindukush! Leave Dr Afridi in prison for a while, CIA boys will do something to bring him out of Pakjabis hands. They must be torturing him as we trained them to learn about what realy happened in the city ofAbbotabad!

Rex Minor

Posted by pakistan | Report as abusive

The entire debate about legalities is ridiculous. Law does not realistically apply in war because the agressor always ignores it, and this is war, not crime. The AQ may be called “terrorists”, but that’s only because they are a mobile nation-state, not a land-based nation-state, and they do have their own organized government. This is WAR, not CRIME, and is being fought with military weapons and tactics, not a series of street muggings, burglaries or random homicides, and as such is not an activity subject to civilian police arrest and a fair trial. Apparently a lot of supposedly intelligent people haven’t yet woken up.

The opening salvos in this war were the attacks on the USS Cole and Kenya consulate, and these were handled quite gently. The real kicker came with 9/11, which was certainly equivalent in its ferocity and effect to the Japanese attack on Pearl Harbor, when as I remember it, (I was alive at the time) nobody disputed that as an act of war. War is an all-or-nothing effort by large numbers of combatants to achieve power, not a gang of criminals trying to make money illegally. As such it is a no-holds-barred effort and to argue that “we don’t want to be like them” condemns you to destruction. Remember WWII when Chamberlain proclaimed “I have this day made a legal agreement with Herr Hitler”. Then London was bombed mercilessly. Only 50 million people died in that one. Or have you never studied history?

Posted by lexus | Report as abusive

No, we have not forgotten history but thought that the dmons of wars are over! You are still out there and have forgotten how the japanese treated the allied forces, and later to avoid such cruelties Geneva conventions were established.

Rex Minor

Posted by pakistan | Report as abusive