WAR ON TERROR AND CHALLENGES FOR CRIMINAL JUSTICE IN PAKISTAN PH.D. THESIS Submitted by Zafar Iqbal Reg. No. NDU-PCS/PH.D/S-11/014 Supervisor Dr. Farkhanda Zia Mansoor Department of Peace and Conflict Studies Faculty of Contemporary Studies National Defence University Islamabad 2016 WAR ON TERROR AND CHALLENGES FOR CRIMINAL JUSTICE IN PAKISTAN PH.D. THESIS Submitted by Zafar Iqbal Reg. No .NDU-PCS/PH.D/S-11/014 Supervisor Dr. Farkhanda Zia Mansoor This Dissertation is submitted to National Defence University, Islamabad in partial fulfillment for the degree of Doctor of Philosophy in Peace and Conflict Studies Department of Peace and Conflict Studies Faculty of Contemporary Studies National Defence University Islamabad 2016 Certificate of Completion It is hereby recommended that the dissertation submitted by Mr. Zafar Iqbal titled “War on Terror and Challenges for Criminal Justice in Pakistan” has been accepted in the partial fulfillment of the requirements for the degree of Ph.D. in the discipline of Peace and Conflict Studies. ____________________ Supervisor ____________________ External Examiner Countersigned By ____________________ ____________________ Controller of Examination Head of the Department iii Supervisor’s Declaration This is to certify that Ph.D dissertation submitted by Mr. Zafar Iqbal titled “War on Terror and Challenges for Criminal Justice in Pakistan” is supervised by me, and is submitted to meet the requirements of Ph.D. degree. Dated: _________ Dr. Farkhanda Zia Mansoor Supervisor iv Student’s Declaration I hereby declare that the thesis submitted by me titled “War on Terror and Challenges for Criminal Justice in Pakistan” is based on my own research work and has not been submitted to any other institution for any other degree. Dated: _________ Mr. Zafar Iqbal Ph.D. Scholar v ABSTRACT The US launched War on Terror (WOT) with an intent to bring the perpetrators and abettors of the 9/11 incident to justice in its own terms and satisfaction. The US became the sole judge in its own cause, ousted Taliban government and eliminated Al-Qaeda leadership. This approach of retributive justice demonstrated the US hegemony and pursuit of realism. Pakistan joined the WOT in the wake of US threats but became the subject of terrorism and ultimately turned into a battlefield in the fight against terrorism. National and internal security of Pakistan was jeopardized. Performance of the agencies of criminal justice system became subject of open public criticism. Consequently, the Armed Forces had to assume the responsibility of national security and administration of justice, which is against the principle of tricotomy of power enshrined in the constitution. This research proposes that the WOT has collapsed the whole edifice of criminal justice system in Pakistan. In order to analyse this proposition, the research explores causes of WOT and examines American rationale for initiating WOT. The study also explores effects of WOT on national security and criminal justice system of Pakistan as well as different parameters of its criminal justice system vis-à-vis terrorism. It also discovers different theories of crimes and examines utility of different theories of punishments in deciding terrorism-related cases. The study also discovers history and evolution of security and anti-terrorism laws of Pakistan and the effects of amendments introduced after 9/11 on the criminal justice in Pakistan. The research also examines role and efficacy of courts martial as an alternative mechanism for criminal administration of justice in terrorism cases. The study is mainly based on qualitative analysis and extensive review of literature on the subjects of national security, peace and conflict, international humanitarian law, legal theories and analysis of the laws relating to terrorism. The dissertation has been organized into seven chapters, with separate introduction and conclusions. The study does not prove the hypothesis to the hilt. Nevertheless, it concludes that the criminal justice system of Pakistan did not succeed in meeting the challenges of WOT and play its effective role in eradicating the menace of terrorism through justice. The study recommends that WOT may be successfully fought through a comprehensive strategy based on equal cooperation, ownership and devotion of all the stake-holders. vi ACKNOWLEDGMENTS I express my deep gratitude to Dr. Farkhanda Zia Mansoor, Professor of Law in the International Islamic Studies, Islamabad for supervising, steering and rendering intimate guidance in completing this Ph.D dissertation. My research work would not have been accomplished without her painstaking assistance. I also extend my thanks to Dr. Ishtiaq Ahmad Choudhry, Head of the Department of Peace and Conflict Studies, Faculty of Contemporary Studies, National Defence University, Islamabad for his encouragement and intellectual support to complete this study. I also owe my profound thanks to Mr. Muhammad Idrees and Mr Muhammad Ramzan, who helped and assisted me in compiling the data, typing and composing this dissertation. My sincere appreciation and profound gratitude are also due to Mr. Abdul Sattar for his very valuable editorial advice. I must also acknowledge the support of my parents, sisters, brothers, wife and children, who remained deprived of my due care and attention. Without their encouragement and moral support, it was difficult for me to complete this work, especially when it was undertaken along with my hectic official assignments. In particulars, I owe special thanks to my sisters, who rendered many valuable suggestions for successful completion of this dissertation. Finally, I bow my head before Allah Almighty, who created me amonghst the best of creatures, bestowed upon me His countless blessings and gave me the required wisdom and vigor to sucessessully undertake this difficult but rewarding assignment. vii To Parents, Brothers, Sisters and Family viii TABLE OF CONTENTS ABSTRACT…………………………………………..………………………………........ vi ACKNOWLEDGEMENTS……………………………………………………………….. vii DEDICATION……………………………………..……………………………………… viii ABBREVIATIONS AND ACRONYMS ………………………........................................ xiv LIST OF TABLES………………………………………….…….……………….………. xvii INTRODUCTION 1 Statement of the Problem ………………………………………………………… 16 Hypothesis ……………………………………………………………………. 17 Independent and Dependent Variables …………………………………………... 17 Research Questions ………………………………………...…………………….. 17 Significance of the Study ………………………………………………………… 18 Justification and Likely Benefits ………………………………………................ 20 Objectives and Scope of the Study ……………………………………………. 20 Research Methodology …………………………………………………………… 21 Limitation of the Study…………………………………………………………… 22 Review of Literature ……………………………………………………………... 23 Organization of the Study ….…………………………………………………….. 30 CHAPTER 1 WAR ON TERROR AND THE UNITED STATES PURSUIT OF MILITANCY IN 34 PAKISTAN 1.1 Background and causes of WOT ………………………………………................. 36 1.1.1 Theory of Realism ……………………………………………………………….. 40 1.2 Reasons for US Pursuit of Militancy in Pakistan after 9/11……………................ 43 1.3 US Rationale for WOT and Pursuit of Militancy in Pakistan…………………….. 48 1.3.1 Just War Theory …………………………………………………………….......... 50 1.3.2 UN Charter and the Security Council Resolutions……………………………….. 52 ix CHAPTER 2 EFFECTS OF WAR ON TERROR ON THE NATIONAL SECURITY AND 59 CRIMINAL JUSTICE IN PAKISTAN …………………………………………………. 2.1 Internal Security ………………………………………………………………….. 60 2.2 Resurgence of Militancy ………………………………………………................. 65 2.3 Drone Attacks…………………………………………………………………….. 66 2.4 Economic and Political Debacles ………………………………………………… 67 2.5 Humanitarian and Internally Displaced Persons (IDPs) Issues…………………… 69 2.6 Allegations of Human Rights Violations ………………………………………… 71 2.7 Missing Persons Syndrome ……………………………………………................ 73 2.8 Application of International Humanitarian Law ………………………................ 77 2.9 Effects of WOT on Criminal Justice System in Pakistan ……………………….. 81 2.10 Major Terrorism Incidents during 2007-2015 ……………………………………. 85 CHAPTER 3 THE CRIMINAL JUSTICE SYSTEM OF PAKISTAN - DIMENSIONS AND 97 PARAMETERS VIS-À-VIS TERRORISM ……………………………………………. 3.1 Broad Parameters of Criminal Justice System in Pakistan ……………................. 98 3.1.1 Role of Police, Law Enforcement and Prosecuting Agencies …………………… 99 3.1.2 Role of Courts…………………………………………………………………….. 104 3.1.3 Role of Prisons …………………………………………………………………… 108 3.1.3.1 Offence or Crime ………………............................................................................ 110 3.1.4 Nature and Extent of Offences or Crimes as Acts of Terrorism in Pakistan……... 111 3.2 Theories of Crimes……………….......................................................................... 113 3.2.1 Biological Theories ………………………………………………………………. 113 3.2.2 Psychological and Socio-psychological Theories………………………………… 114 3.2.3 Sociological Theories…………………………………………………………….. 114 3.2.4 Crime-specific Theories………………………………………………………….. 115 3.3 Theories of Punishment……………….................................................................. 117 3.3.1 Theory of Retribution ……………………………………………………………. 118 3.3.2 Theory of Reformation and Rehabilitation ………………………………………. 119 3.3.3 Theory of deterrence …………………………………………………………….. 120 x 3.4 International Legal Standards………………......................................................... 121 CHAPTER 4 HISTORICAL EVOLUTION OF CRIMINAL JUSTICE SYSTEM AND PRESENT 134 STATUS OF SECURITY AND ANTI-TERRORISM LAWS ………………………… 4.1 Security and