ANALYSIS: Trying Musharraf

It is true that in traditional international law, a head of state enjoyed immunity from prosecution for acts that he or she committed during his or her rule. However, the law on the subject has undergone a sea change in recent years

If former General-President Pervez Musharraf thinks he can escape retribution for the human rights abuses he committed during his nine years of absolute rule by hiding in the United Kingdom, then he is sadly mistaken: his tormentors appear determined to pursue him there.

Lord Nazir Ahmed, a British peer of Pakistani origin, is planning to bring a case against him for “war crimes” on account of those abuses. He has revealed that a number of families who had suffered at Musharraf’s hands have approached him for the purpose. According to him, these families suffered directly as a result of his policies towards FATA, Balochistan, Waziristan and Lal Masjid.

Backed by a “victim support group”, Lord Nazir plans to sue Musharraf at the World Court or in British courts. Given the fact that under international law, heads of State enjoy immunity from prosecution for acts committed during their rule and that the crimes of which Musharraf is accused were mostly committed against Pakistani nationals, can foreign courts try him?

At the outset, two clarifications are in order. First, Lord Nazir cannot sue Musharraf for “war crimes” (which relate to violations of laws or customs of war such as ill-treatment of civilian population of any occupied territory or ill-treatment of prisoners of war) because he has not violated them. He can however prosecute the latter for human rights abuses which he committed in violation of domestic or international laws.

Secondly, he cannot sue Musharraf at the World Court because individuals on their own are not entitled to seize it. Only states can do it on behalf of their citizens. He also cannot do so because the Statute of the World Court does not permit an individual or a group of individuals to bring a suit against another individual (or a group of individuals) which appears to be the case in the present situation.

Can the British courts try Musharraf? That depends on whether they can establish their jurisdiction. It is true that in traditional international law, a head of state enjoyed immunity from prosecution for acts that he or she committed during his or her rule. However, the law on the subject has undergone a sea change in recent years. He or she can no longer claim immunity in cases relating to human rights abuses. The case of former Chilean dictator Augusto Pinochet who was accused of numerous cases of torture (The Retting Report found his government responsible for the death of at least 2,279 persons and the Valech Report for the torture of at least 30,000 persons is relevant here.) The Spanish government sought his extradition for alleged authorisation of torture of 79 Spanish citizens by him between 1973 and 1983. He was arrested in 1998 under an international arrest warrant in the UK where he had gone for medical treatment and placed under house arrest.

Pinochet’s attorneys pleaded immunity from prosecution on the ground that he was a former head of state and that Chilean law provided him immunity. There was a hard fought court battle lasting sixteen months at the end of which the House of Lords rejected the immunity plea on the ground that it was not available in international crimes such as torture. It also invoked the principle of universal jurisdiction to try Pinochet for his extradition to Spain.

Subsequently, the International Tribunal for former Yugoslavia used the same principle to try the former Serbian dictator Slobodan Milosevic for crimes against humanity. It is noteworthy that scholars consider the emergence of this principle as the most significant development since the decision in the Nuremberg trials; more significant than the decision in the Noriega case where the US federal court refused to grant immunity and asserted its jurisdiction on the ground that smuggling of drugs by Noriega was not connected with the business of the state and that the crime took place on US territory.

It is undeniable that British courts can invoke this principle in Musharraf’s case as well. The fact that Pakistan’s National Assembly has not accorded indemnity to Musharraf for the wrongs that he committed during his rule may also be handy in this regard. There is plenty of evidence against Musharraf for human rights abuses, particularly the confession that he made in his autobiography that he sold Pakistanis to the US in exchange for dollars.

There is a strong prima facie case against him. However, its success will depend on the quality of evidence presented before the court and how it is argued. It is noteworthy that whereas in the Pinochet case the court adjudicated on the latter’s extradition and his trial for torture was left to Spanish courts, here its task will be to try Musharraf for human rights abuses. In this regard, the fact that Musharraf handed over British nationals of Pakistan origin picked up from Pakistan will help British courts in sentencing him.

What will be the attitude of the British government towards the case? Will it be helpful or obstructive? A study of its attitude towards the Pinochet case may be quite instructive in this regard. Since British courts are free, it could not influence them. However, given the services that Pinochet had rendered against communism, Jack Straw, the Home Secretary, let him go on the ground of his supposed fragile health. In the present situation also, the British government cannot influence courts. However, given the services that Musharraf rendered in the “war against terror” and the immunity from adverse action that he enjoys as a result of the international deal that he struck, the British government is likely to find ways and means to help him escape justice as it did in the case of Pinochet. Incidentally, it is already providing him security which no former head of state or government currently residing in the UK or even living former British prime minister enjoys.

Finally, the question arises whether or not Lord Nazir is justified in going after Musharraf. This question is pertinent because a controversy is currently raging here: whether or not Musharraf should be tried for high treason. According to a recent Gallup poll, 70 percent of Pakistanis want him to be tried and awarded a severe punishment. A minority of people however do not favour such a course of action. They think that it is time to move on and focus on burning issues such as terrorism, the economy and governance which confront us today rather than complicate things by resurrecting the sordid past. They also allege that those who are seeking Musharraf’s trial are imbued with a spirit of vendetta against Musharraf. Finally, they hold that Musharraf’s trial will not go down well with the army, resulting in negative consequences for democracy.

These arguments are no more than rationalisations. Their acceptance means that we would have accountability of military dictators only when the cows come home. Let us not forget that those who oppose Musharraf’s trial are the same people who opposed the restoration of CJ Iftikhar Chaudhry and wanted Musharraf to continue as President. They are averse to change and want the status quo to continue. It is true that Musharraf’s conviction will not eliminate Bonapartist tendencies in the army as repeated army interventions is a complex phenomenon and much needs to be done to stop them.

However, Musharraf’s conviction will be a first major step in that direction. Since it is highly unlikely that the ruling coalition in Pakistan will put Musharraf on trial, we should welcome Lord Nazir’s attempt to prosecute Musharraf in British courts and that includes “political realists” as well.