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Only a tiny group among them went a In sum, the Salafist movement in the step further, embracing the lifestyle Netherlands is still controversial. Pakistan’s Anti-Terrorism and symbols of jihadists abroad as the The strand of political Salafism Courts only answer to their perceived sense of remains responsible for anti-Western, injustice and insecurity, and even put isolationist and radical opinions; By Huma Yusuf them into practice in the Netherlands.75 however, as stated by De Koning, The members of the Hofstad Group political Salafists and apolitical Selefies in the wake of the November 2008 legitimized their terrorist intentions with hold a different view on violence and terrorist attacks in Mumbai, Pakistani thoughts they took from notable Salafi- attitudes toward “infidels” compared President Asif Ali Zardari stated, jihadi clerics such as Abu Hamza al-Masri to the jihadists. Salafist criticism of the “Pakistan is committed to the pursuit, or Abu Muhammad al-Maqdisi. war in Afghanistan or the exploitation arrest, trial and punishment of anyone of women in Western media and society involved in these heinous attacks.”1 This still does not solidify a causal should not be equated to terrorism, Zardari’s emphasis on prosecuting relationship. Salafist mosques did but could be viewed as the voice of a accused terrorists in legal courts indeed function as an ideological hotbed group of highly critical and religious renewed interest in Pakistan’s anti- for potential radicals. The al-Fourqaan citizens that are searching for a self- terrorism court (ATC) infrastructure, mosque in Eindhoven was identified conscious position within Dutch a parallel legal system established in as a playground for jihadist recruiters. society.78 Moreover, both the NCTb and 1997 under the Anti-Terrorism Act to The members of the Hofstad Group, the AIVD signal a trend of adaptation dispense quick justice for those charged however, were not passive victims of and moderation (inspired by external with terrorist activities. Almost a year Salafist “hatemongers” from abroad. pressure from Dutch security services later, an ATC in Rawalpindi indicted On the contrary, militant Muslims such and local authorities as well as from seven men for providing weapons and as Samir Azzouz, Jason Walters or the Saudi regime) of Salafist excesses training to the Mumbai terrorists.2 The Mohammed Bouyeri were actively seeking and a growing resilience and resistance trial is still in process, and in January jihadist guidance once they had embarked against the seeds of violent jihadism.79 2010 an ATC judge in Rawalpindi on their course of radicalization. At some rejected petitions seeking the acquittal point, they even stopped visiting their Dr. Beatrice de Graaf is an associate of six of the seven who stand accused.3 Salafist mosques because it did not offer professor at the Centre for Terrorism them instructions to wage jihad in the and Counterterrorism at the Campus The Although the involvement of Pakistani Netherlands. They therefore constructed Hague (Leiden University). She is currently militants in the Mumbai attacks placed their own brand of umma-oriented carrying out a research project on the making the spotlight on ATCs, the government’s jihadism through texts and principles of National Security measures in Western decision to conduct military operations they found on the internet. countries. Her monograph Theater van de against Pakistani Taliban fighters angst was published in January 2010 and will in Swat in May 2009 and in South Indeed, the AIVD defined Salafism appear in English later this year under the Waziristan Agency in October 2009 as “anti-integrative, anti-democratic title, Counterterrorism as Performance: forced the government to revisit the and isolationist” in 2007 and again in The Battle Against Terrorism in the ATC infrastructure.4 As hundreds 2009.76 This definition, however, cannot Netherlands, Germany, Italy and the of militants either surrendered or be equated with terrorism. Salafism United States Compared. She supervises were arrested during the operations, is not a sliding scale from passive a database on terrorism research located at questions have risen about how they orthodoxy into violent orthopraxy. www.terrorismdata.leiden.edu. The author should be dealt with according to the On the contrary, from 2005 onward, wishes to thank Daniël Meijer and Ineke Roex law. Salafist imams, including Fawaz Jneid, for their assistance in writing this article. have tried to put a brake on overly This article will explain why the ATCs enthusiastic jihadist emotions among have become especially relevant due to Muslim youth by steering them into Pakistan’s recent military operations in more apolitical and especially non- its northwest, provide the history of the violent action modes and sometimes country’s anti-terrorism legal policies even reported them to the police.77 and finally express significant concerns about the ATCs and the country’s overall 75 Kees van den Bos, Annermarie Loseman and Bertjan anti-terrorism judicial infrastructure. Doosje, Waarom jongeren radicaliseren en sympathie krijgen voor terrorisme: Onrechtvaardigheid, onzekerheid en be- 1 Asif Ali Zardari, “The Terrorists Want to Destroy Paki- dreigde groepen (The Hague: WODC, 2009). stan, Too,” New York Times, December 8, 2008. 76 “De radicale da’wa: De opkomst van het neo-radical- 2 “Seven Indicted for Planning, Aiding Mumbai Attack,” isme in Nederland”; “Weerstand en tegenkracht: Actuele Dawn, November 25, 2009. trends en ontwikkelingen van het salafisme in Neder- 3 “Pakistan Court Refuses to Acquit Mumbai Suspects,” land.” Also see Hans Moors and Menno Jacobs, Aan de Agence France-Presse, January 6, 2010. hand van de imam. Integratie en participatie van orthodoxe 78 De Koning, Zoeken naar een ‘zuivere’ islam, p. 378. 4 “Pakistan: The Swat Offensive Update,” Stratfor, May moslims in Tilburg-Noord (Tilburg: IVA beleidsonderzoek 79 NCTb, “Salafisme in Nederland”; “Weerstand en 22, 2009; Rahimullah Yusufzai, “Assessing the Progress en advies, 2009). tegenkracht: Actuele trends en ontwikkelingen van het of Pakistan’s South Waziristan Offensive,” CTC Sentinel 77 Buijs et al.; Alberts et al. salafisme in Nederland.” 2:12 (2009).

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ATC’s Re-Enter the Spotlight were declared proclaimed offenders by authorities also established new ATCs At the start of Pakistan’s recent an ATC and currently face charges of in the region, bringing the total number military operations in the northwest, it murder, attempted murder, kidnapping, of special courts in Peshawar and was unclear under what law suspected attacking government installations, Malakand Division to 11.14 militants should be prosecuted. The treason, and terrorism.9 government had not clarified whether These measures acknowledged that military operations against militants As the number of suspects in custody— the current ATC infrastructure, were constitutionally categorized as especially at the three interrogation particularly in the North-West Frontier law enforcement actions or operations centers in Fizagat, Khwazakhela and Province (NWFP), is ill-equipped to deal “in aid of civil power” under Article Malakand in the Swat Valley—soared, justly with the hundreds of suspected 245 of the constitution.5 In the latter human rights groups began to question militants awaiting trial.15 Indeed, case, the detainees’ fundamental rights the transparency of interrogation and since their inception in 1997, ATCs would be suspended for the duration detention procedures and the credibility have failed to fulfill their mandate, of the operation. Moreover, their trials of due process for arrested militants. as described by then Prime Minister would be conducted under the Action Reports that more than 250 bodies had Nawaz Sharif, to “impart timely and in Aid of Civil Power Ordinance (1998) been dumped on the streets of Swat inexpensive justice.”16 Riddled with that authorizes the establishment of also raised concerns about extrajudicial the same problems faced by the regular mobile military courts. The Supreme killings of terrorism suspects by the justice system—inadequate funding, Court, however, had previously ruled military.10 understaffing, trial delays, and that military courts should be replaced corruption—ATCs cannot be relied on with regular session courts.6 For that To ensure that terrorism suspects to ensure that suspected terrorists are reason, in October 2009 the Interior were dealt with justly and expediently, served justice. Ministry clarified that all militants the Supreme Court in August 2009 taken into custody during military announced the formation of special The Anti-Terrorism Act in Context operations and security sweeps in Swat, committees to monitor the ATCs One of the problems ATCs face in South Waziristan, and in other tribal and ensure the quick disposal of dispensing swift and credible justice is agencies such as Bajaur and Khyber anti-terrorism cases.11 Moreover, in that they have always been perceived would be tried under the amended Anti- November the government issued the as discriminatory. The Anti-Terrorism Terrorism Act in ATCs.7 Anti-Terrorism Amendment Ordinance Act (1997) is an extension of the (2009), which included new clauses to Suppression of Terrorist Activities Act To underscore that terrorists and facilitate the framing of charges against (1975), which was passed by Zulfikar Ali Pakistani Taliban supporters would be hundreds of alleged militants. As per Bhutto’s government to contend with answerable to the law, ATCs declared the latest amendment, “extrajudicial opposition and nationalist movements known militants as “proclaimed confessions” recorded by security in the NWFP and Baluchistan. Anti- offenders”—fugitives from the law—as personnel are admissible as evidence terrorism mechanisms have thus been soon as local courts resumed functioning in ATCs, the remand period is extended historically understood as means to in the wake of the military operation in from 30 to 90 days, and the burden of suppress dissent.17 Swat. In August 2009, a Swat-based proof has shifted to the accused.12 ATC identified the area’s Taliban chief In 1997, Sharif’s government Maulana Fazlullah and six of his aides By a special presidential order, the promulgated the Anti-Terrorism Act as proclaimed offenders and ordered amended act was also extended to the after years of communal and sectarian that they appear in court within a week Provincially Administered Tribal Areas violence contributed to political or face judgment in absentia.8 Similarly, (PATA), which include Malakand instability. The act established special in January 2010 Taliban spokesman Division where Swat is located.13 The courts and gave the police wide-ranging Muslim Khan and 23 other militants powers to arrest and detain suspects. who the government had in detention 9 “Muslim Khan, 23 Others Declared POs,” Dawn, Janu- The following year, in its judgment ary 31, 2010. in the Mehram Ali v. Pakistan case, the 5 Ahmer Soofi, “The Legal Challenge,” Dawn, October 3, 10 Jane Perlez and Pir Zubair Shah, “Pakistan Army Supreme Court declared 12 key sections 2009. Said to be Linked to Swat Killings,” New York Times, Sep- 6 See Liaquat Hussain v. Federation of Pakistan. In its 1999 tember 14, 2009. situated, with the approval of the President, so directs.” judgment on the Liaquat Hussain case, the Supreme 11 “Special Committees to Monitor Anti-Terrorism 14 Personal interview, Colonel Waheed Hamid, Inter- Court directed that civilians cannot be tried by military Courts,” Daily Times, August 4, 2009. Services Public Relations, Islamabad, Pakistan, Febru- courts; that special courts cannot perform parallel func- 12 Khalid Kheshgi, “Anti-Terror Ordinance May Be Ex- ary 2010. tions to regular courts; and that the Action in Aid of Civil tended to Malakand,” The News International, November 15 Ibid. According to the Inter-Services Public Relations, Power Ordinance (1998) does not extend to the creation 6, 2009. the exact number of detainees awaiting trial has not been of courts. For more information on this case, see Shabana 13 “Anti Terrorism (Amendment) Ordinance 2009 determined because suspected militants are constantly Fayyaz, “Responding to Terrorism: Pakistan’s Anti-Ter- Extended to PATA of NWFP,” Associated Press of being transferred between ATCs, and from the settled rorism Laws,” Perspectives on Terrorism 2:6 (2008). Pakistan, November 17, 2009. The order reads: “Under areas of the North-West Frontier Province to the Feder- 7 “Militants to Get Fair Trial, Says Rehman Malik,” Article 247 of the Constitution, no Act of Parliament or ally Administered Tribal Areas. Dawn, October 28, 2009. Provincial Assembly shall apply to a Provincially Ad- 16 “Anti-Terrorism Act Promulgated,” Dawn, November 8 “Anti-Terrorism Court Declares Fazlullah a Fugitive,” ministered Tribal Area (PATA) or any part thereof un- 29, 1997. Indian Express, August 19, 2009. less the Governor of Province, in which the Tribal Area is 17 Fayyaz.

23 march 2010 . Vol 3 . Issue 3 of the law unconstitutional and called complain that they are working in the government to ensure the counsel’s for amendments.18 the poorest conditions—they have no security.29 offices, stationery, legal resources such Since then, the Anti-Terrorism Act as an archive of judgments, or clerical Judicial or Political Expediency? has been amended in 1998, three staff.24 Many of these problems stem Beyond the impact security concerns times in 1999, once in 2001, twice in from the fact that the government has have on ATC verdicts, a long history 2002, and once in 2004, 2005, 2007, not allotted enough funds for the ATC of political victimization through anti- and 2009. These amendments were infrastructure, a problem that plagues terrorism cases continues to undermine usually to increase the range of crimes the Pakistani legal system at large. the credibility of convictions. covered by the act.19 In addition to Moreover, since they work for a parallel According to Judge Syed Hasan Shah terrorist activities, the act covers arms system, state prosecutors employed Bukhari of Karachi’s ATC I, until a trafficking, kidnapping, hijacking, by ATCs cannot even utilize the scant democratic government was elected extortion, sectarian violence, targeted resources available to the regular in February 2008, most ATCs were political killings, and until last year session courts. As a result, ATCs issuing convictions on the authorities’ gang rape.20 have failed to deliver on their primary instructions, rather than on the basis of mandate—quick justice.25 transparent trials.30 Significant Dockets and Security Concerns The variety of cases covered by the ATC trials are also delayed due to The fact that ATCs are vulnerable to Anti-Terrorism Act contributes to the security concerns. In cases where political influence is exemplified by current backlog in ATCs nationwide. suspects are accused of heinous crimes, several famous cases. For example, in For example, in the southern port in-camera trials are conducted in jail. November 1999 a case was registered city of Karachi, which has largely Arranging logistics for such hearings can against the recently deposed Prime escaped the wave of terrorist attacks lead to prolonged delays.26 Additionally, Minister Nawaz Sharif in the Karachi that plagued the northern and western complainants and witnesses often refuse ATC, and he was eventually sentenced parts of Pakistan in 2009, there are 35 to testify against the accused. Since to life imprisonment for conspiracy suspected Pakistani Taliban militants extensive militant networks support to hijack a flight that was carrying awaiting trial in the ATCs.21 However, most terrorism suspects, witnesses fear General Pervez Musharraf from Sri 56, 54, and 89 cases, respectively, are being targeted during ATC trials.27 Lanka to Pakistan.31 In December 1999, pending in ATC I, ATC II, and ATC Musharraf introduced amendments III—the three special courts in the city— Separately, personal security concerns to the Anti-Terrorism Act, extending making it unlikely that the 35 suspected on the part of judges, state prosecutors, offenses cognizable by the ATC and Pakistani Taliban militants will be tried and defense counsels frequently lead creating a new ATC in Karachi. The this year.22 to the postponement of hearings. In crimes that Sharif was accused of January 2010, for example, Khwaja committing were not previously In fact, ATCs nationwide have been Sultan—the defense counsel for Zakiur cognizable before ATCs, and without facing significant dockets since 2001.23 Rehman Lakhvi, who is accused of the amendments would have been filed These are worsened by the fact that the plotting the 2008 Mumbai attacks— in regular courts.32 By turning to the courts are severely understaffed and petitioned the Rawalpindi ATC to ATCs, Musharraf successfully sidelined lack basic resources. The post of the transfer Lakhvi’s case to an ATC in his political rival. judge for Karachi’s ATC II, for example, Lahore citing security concerns. In has been vacant for more than six his petition, he claimed that he feared Similarly, former Baluchistan chief months. For their part, state prosecutors Indian intelligence officials would minister and President of the Baluchistan target him during his long commute

18 For a detailed discussion of the evolution of anti- to Adiala Jail, where Lakhvi is being 29 “LHC Refuses to Transfer Lakhvi’s Trial,” The Nation, 28 terrorism laws in Pakistan, see Charles Kennedy, “The tried. The Lahore High Court refused January 23, 2010. Creation and Development of Pakistan’s Anti-Terrorism to transfer Lakhvi’s trial, but has asked 30 Personal interview, Syed Hasan Shah Bukhari, judge, Regime,” in Satu Limaye et al. eds., Religious Radicalism Anti-Terrorism Court I, Karachi, Pakistan, February and Security in South Asia (Honolulu: Asia-Pacific Center 24 Personal interview, Buriro. 2010. for Security Studies, 2004), pp. 387-412. 25 Kennedy, p. 15. According to the amended Anti-Ter- 31 On November 10, 1999, Lieutenant-Colonel Atiq-uz- 19 Ibid. rorism Act, cases should be investigated within seven Zaman Kiyani submitted a written complaint to the SHO 20 “Rangers in Karachi to Get More Powers,” Dawn, days, and subsequently disposed within seven days. Airport Police Station, Karachi, alleging that Nawaz January 5, 2010. Under the Anti-Terrorism Act, the Moreover, ATCs should only be assigned one case to dis- Sharif had conspired to hijack Flight PK-805, thereby Rangers, a paramilitary force, were authorized to detain pose of at a time. eliminating then COAS Pervez Musharraf. Karachi’s anyone suspected of violent activities for 90 days with- 26 Personal interview, Mobashir Ahmed Mirza, special ATC I convicted Sharif of the charges of hijacking and out charges. public prosecutor, Anti-Terrorism Court III, Karachi, terrorism under Section 402 PPC and Section 7(ii) of the 21 Personal interview, Irfan Bahadur, deputy superin- Pakistan, February 2010. Mirza describes, for example, Anti-Terrorism Act. He was sentenced to life impris- tendent, Special Investigation Unit, Karachi, Pakistan, how state prosecutors ask the court to arrange transport onment and fined Rs. 500,000. The Sindh High Court February 24, 2010. for them from their offices to the Karachi Central Jail. upheld the ATC’s decision. While serving his sentence, 22 Personal interview, Muhammad Khan Buriro, spe- Days may pass before the car requisition is granted. Sharif entered into a deal with Musharraf and agreed to cial public prosecutor, Anti-Terrorism Court I, Karachi, 27 Personal interview, Buriro. remain abroad for 10 years and desist from political ac- Pakistan, February 2010. 28 “Lakhvi’s Counsel Fears Attempt on Life,” Dawn, tivities. 23 Kennedy, p. 15. January 14, 2010. 32 Kennedy, pp. 398-401.

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National Party Sardar Akhtar Mengal the right to be tried in a public place, from where most known militants hail. was declared a proclaimed offender with a full defense, as well as the right Even if militants who claim FATA for taking army personnel hostage by to be presumed innocent until proven residency are arrested in the settled Karachi’s ATC V in June 2006.33 He otherwise. parts of the NWFP, they cannot legally was then arrested during a rally in be tried by ATCs and instead have to November 2006, a day before General For these reasons, Peshawar High be transported to their tribal agency to Musharraf was due to visit Baluchistan. Court advocate Ghulam Nabi challenged face justice under the Frontier Crimes According to Amnesty International and the Anti-Terrorism (Amendment) Regulation.40 Although the government the Asian Human Rights Commission, Ordinance 2009 under Article 199 of wants to try all militants in the ATCs, Mengal, who is a champion of the the constitution in December 2009, in the few situations where charges Baluch nationalist movement, was declaring that it violated basic human have been framed against FATA-based illegally detained until his release in rights.37 terrorism suspects in ATCs, their May 2008, when all charges against him defense counsel has succeeded in having were dropped by the provincial Sindh Conclusion the charges dropped on the basis that government.34 Although the Anti-Terrorism Act residents of the tribal belt are subject to is flawed, observers in Pakistan are judgment under the FCR.41 Human Rights Violations currently concerned about shortcomings Mengal’s case illustrates how trials in the state’s anti-terrorism mechanisms If, as President Zardari stated, in ATCs can lead to human rights that allow known militants to go free the Pakistan government is truly violations. Indeed, as soon as the Anti- without facing charges in ATCs. For committed to punishing militants, the Terrorism Act was passed in 1997, example, the decision to pursue a case authorities must assess the credibility human rights groups such as Amnesty against a terrorism suspect is left to the and capabilities of the anti-terrorism International rejected the formation of discretion of the apprehending security infrastructure. Funneling hundreds of special courts.35 officials. There is currently no system suspected militants through the parallel in place to determine on what basis courts will require the drafting of clear There continues to be concern that law some detainees are freed, while others detention and interrogation protocols, enforcement personnel resort more are charged with terrorist activities.38 financial investment, inter-provincial frequently to torture and extrajudicial coordination, and appropriate human executions if given wide-ranging Terrorism suspects who remain in resource allocation. In their current powers. In particular, by placing time detention are transferred into the care incarnations, ATCs—even if they deliver limits on the investigation process, of joint investigation teams, comprising convictions—cannot offer legal recourse ATCs can make investigating officials officials of the Inter-Services against militant activity in Pakistan. prone to falsifying evidence and using Intelligence (ISI), Federal Investigation coercive methods with suspects. A Agency, Intelligence Bureau, and Huma Yusuf is the Features Editor of Dawn. 2009 amendment to the Anti-Terrorism police. These teams then determine com, the website of Pakistan’s leading Act, which permits “extrajudicial whether local police officials should English-language daily. Ms. Yusuf holds an confessions” to be used as evidence, frame charges against the suspect, who MSc. in Comparative Media Studies from has been seen in some quarters as an would then be tried in the nearest ATC. MIT and a BA from Harvard University. invitation for investigators to torture During this process, terrorism suspects She is the recipient of the All Pakistan suspects.36 are often transferred between locations Newspapers Society “Best Column” Award and interrogation cells. Investigating (2007-2008) and the Prix Lorenzo Natali The courts themselves are perceived as intelligence officials and police for Human Rights Journalism (2006). She lacking independence, as judges are held personnel have to gather evidence writes on terrorism and security, women’s accountable to the executive. Moreover, without having access to the area in rights, and media trends. ATCs deny terrorism suspects the right which the suspect was first arrested. to equality before the law, as procedures As a result, the charges they frame are differ significantly from regular courts. often based on eyewitness accounts of 40 According to Article 247 of the constitution, no act Terrorism suspects are also denied military personnel. For this reason, it is of parliament applies to FATA. Instead, a unique set of expected that most suspected militants laws drafted by the British in 1848 and known as the 33 “ATC Declares Mengal Proclaimed Offender,” Dawn, who were apprehended in recent Frontier Crimes Regulations (FCR) are enforced. As per June 11, 2006. Mengal’s private security guards detained military operations and are due to face the FCR, the doctrine of collective responsibility, where- two army personnel at his private home after they tried trial in ATCs will be acquitted or face by an entire tribe is punished for crimes committed on 39 to tail Mengal as he dropped his children off at school. mild sentences. its territory, applies. A federally appointed political agent 34 Peter Tatchell, “Pakistan’s Nelson Mandela,” Guard- is also empowered to arrest individuals without specify- ian, March 28, 2008; Latif Baloch and Ishaq Tanoli, Moreover, the Anti-Terrorism Act does ing charges; detain members of a suspect or absconder’s “Mengal Freed; Worried About Missing Workers,” not technically apply to residents of the tribe; or blockade the absconder’s village. The FCR has Dawn, May 9, 2008. Federally Administered Tribal Areas, been criticized for violating human rights, and in August 35 “Legalizing the Impermissible: The New Anti-Terror- 2009 the Pakistani government made some amendments ism Law,” Amnesty International, October 1, 1997. 37 “Anti-Terrorism Law Challenged in PHC,” Daily to the regulations. For more information, see Syed Irfan 36 Personal interview, Iqbal Haider, co-chairperson of Times, December 24, 2009. Raza, “Amendments to Frontier Crime Regulation Ap- the Pakistan Human Rights Commission, Karachi, Paki- 38 Personal interview, Hamid. proved,” Dawn, August 13, 2009. stan, February 2010. 39 Personal interview, Haider. 41 Personal interview, Hamid.

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