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.”


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