CommentaryFollowing global practice — including that of the U.S. military justice system — the Pakistan Army Act builds on maintaining good order and discipline among service members, as no military can effectively function without strict discipline. The court-martial, that is, trial by military officers of breaches of service-connected discipline, including crimes, sits at the heart of the military justice system. The rules of procedure, evidence, and other safeguards are available in the court-martial to the extent that the trial must meet the minimum standards of fairness. In some ways, the Pakistan court-martial system follows the civilian justice system, allowing defendants the right to an attorney during the trial and several layers of military and civilian appellate review of conviction and punishment. Yet, defendants do not enjoy the same protections in a court-martial as under civilian criminal justice.
International law, the law of war, and the law of human rights respect the service-connected discipline in the armed forces and therefore do not question the separateness of the military justice system. However, whether civilians can be tried under military laws is highly controversial, and most legal scholars and international institutions oppose court-martialing civilians except in the rarest circumstances. In Pakistan, the military does not enjoy a good reputation for its treatment of political leaders. Because of several military takeovers and the questionable deaths of two former prime ministers while the generals were in power, the military trial of another former prime minister signals continued hostility toward civilian rulers.
Former prime minister Imran Khan is a civilian who has not served in the Pakistan armed forces in any capacity. In 1996, Khan founded a political party, Pakistan Tehreek Insaf (PTI). He has been a celebrity figure in his quest for power, first among cricket lovers and later among retired military officials and suburban elites. Unfortunately, after losing the prime minister’s office in 2022, Khan forced his party members to resign from the parliament, dissolved the two provincial assemblies as a pressure tactic to demand snap general elections, turned to verbal abuse against rival politicians, accused the military generals of engineering his removal and murder attempts and preaching his supporters to fight for justice. In their combined behavior, Khan and his followers resist what they call an “imported government” and appear to battle an occupying military, leaving aside a more conciliatory democratic path to power.
This commentary argues that despite Khan’s egregious mistakes in undermining democracy, slating political rivals as thieves, and unleashing wild accusations against serving military officers, including the Chief of the Army Staff (COAS), any government decision to try Khan under the 1952 Army Act is the wrong option and contrary to international law obligations. A military trial of a world-renowned political leader would discredit the armed forces, agitate his followers to violence, worsen a faltering economy as international lenders perceive political instability, and bring unmitigated international condemnation.
The government of Pakistan and the military leadership must understand that international law is clear against trying civilians under the Army Act. However, if Khan faces legal consequences in regular courts, including imprisonment, the world will have little to contest.
The Case Against Imran Khan
In April 2022, Khan was ousted from power by a vote of no confidence in the national parliament. Since his ouster, Khan has blamed the military generals for conspiring with the opposition leaders to end his prime minister tenure prematurely. Khan first accused the U.S. of sponsoring the no-confidence vote, which fomented anti-Americanism among his followers. He asserted that the U.S. was punishing him for his trip to Russia. Khan was sitting with President Vladimir Putin the day Russia invaded Ukraine. Khan has retracted his accusations against the U.S. and hired a lobbying firm to burnish his image in Washington, D.C. However, Khan continues to hold the former Chief of the Army Staff (COAS) as the architect of his downfall in provocative speeches before charging crowds of his supporters. He also singles out the current COAS for his political woes.
Attacking Generals
Khan minces no words in calling the former COAS a traitor. To counter Khan’s accusations, the Director General of Inter-Services Intelligence (ISI) held a press conference to refute the Khan narrative. The ISI chief publicly disclosed how Khan had played a double game of overtly pressuring the military in speeches but covertly requested help restoring his government. Protesting the press conference, Khan escalated his fiery rhetoric against the military generals, saying that the ISI plans to kill him.
In November 2022, Khan was heading to Islamabad to demand snap elections when a man opened fire on the convoy, wounding Khan. Even though the man confessed that he acted alone, Khan named a serving ISI general, the interior minister, and the prime minister for the attempted assassination. Operating social media from foreign countries, the Khan digital warriors have been actively painting Khan as a God-send messiah for Pakistan and denigrating the generals as conspirators and assassins in humiliating memes. “You cannot suppress the truth (in social media),” says Khan.
A legion of evening talk shows, where unfounded chatter seamlessly mixes with the claimed information from undisclosed sources, have been laying the case that Khan opposed the appointment of the new COAS in November 2022 and that he conspired with retired military officers to stage an armed rebellion against the government to unseat the new COAS. Khan denies that he opposed the appointment but, in various interviews with foreign media, holds the new COAS responsible for persecuting his party members.
Khan and his party advocates built a powerful narrative that there would be a huge public outcry if the government arrested Khan in any of more than a hundred cases registered against him for fraud, corruption, and terrorism. The party leaders claimed that Khan was the red line the military should not dare cross. For months, Khan fortified himself in his Lahore residence with militant supporters armed with petrol bombs and slings. Khan devotees called him the Che Guevara of Pakistan, determined to resist the law enforcement agencies, and his protests started acquiring the contours of an armed struggle against the military to obtain what Khan called “real freedom,” comparing generals with Genghis Khan.
On May 9, 2023, Rangers, a paramilitary force, arrested Khan from the premises of the Islamabad High Court with an unnecessary show of force. Hours before his arrest, Khan, in a video message, had identified an ISI general by name for plotting to kill him. As Khan had warned, his supporters protesting the arrest launched a fierce armed attack on military installations in various cities. In Lahore, they looted and torched the house of the Corps Commander. In Rawalpindi, the marchers stormed the military headquarters. In the Mianwali Airbase, the protesters set ablaze a replica of an air force aircraft. In Peshawar, the Khan fans set the historic Radio Pakistan building on fire and burned the records. Rather than condemning the attacks, Khan charged ISI with false flag arson meant to damage the PTI.
The May 9 attacks on military assets proved costly for Khan. The media houses and prominent journalists lost sympathy for a celebrity leader who brought them high ratings and revenues. Khan’s political party began to fall apart like the proverbial house of cards. Several core members resigned from party positions, and some loyalists that founded the PTI left Khan to join other parties. Khan blamed ISI for forced divorces from his party. “I will fight alone to the last ball,” says Khan, reminding the listeners of his grit for winning a contested cricket match, an analogy that Khan uses ad nauseam.
Alienating Politicians
In addition to losing generals and journalists, Khan has deliberately alienated political party heads, repeatedly calling them thieves and dacoits. “I would rather talk to the enemies of Pakistan,” says Khan, but not to corrupt political leaders, a stance that appeals to his followers. In an ironic twist, Khan has been arguing since his ouster from power that the military must not be politically neutral, making a metaphysical argument that humans must make decisions rejecting evil and accepting good. Since all political leaders except Khan are crooked, the argument goes, the military must side with Khan, an honest man. This logic is offensive to his political opponents and foolishly invites the military generals to disrupt democracy by making choices. Assured of his self-righteousness, Khan does not understand that the army leadership might side with his political opponents under his logic.
Khan has also alienated democratically elected politicians in his party, PTI, telling them they won the 2018 elections not because of their effort but because of Khan’s intense popularity among voters, a claim that carries some merit. During his term, Khan was inaccessible to party parliamentarians. Soon after his ouster, a group of party members refused to resign from the parliament when Khan demanded that all party members resign, a catastrophic strategy that enfeebled Khan in his demand for snap elections. Khan had already alienated wealthy party members who financed his 2018 campaign and even household expenses since Khan has not worked to make a living since quitting playing cricket, a claim that Justice Wajihuddin Ahmed, a PTI founding member, made about Khan.
By frustrating party members with his error-filled political moves, annoying the top generals with allegations of the ISI planning to murder him, and denigrating the heads of more than a dozen political parties, Khan paved the way for his isolation in almost all parts of the playfield. He now faces a possible court-martial that this commentary opposes as a matter of international law.
The Case Against Court-Martial
The Pakistan Army Act of 1952 allows the courts-martial of civilians. Like the U.S. Uniform Code of Military Justice enacted in 1951, the Pakistan Army Act is devised primarily for military service members. In the U.S., even serving members may not be court-martialed for crimes and acts unrelated to military service. Applying military law to civilians is highly restricted in most legal systems, and the legal presumption runs against trying civilians before military officers. As the prime minister, Khan permitted civilians’ trials under the Army Act.
The Army Act, when enacted, had no provision for court-martialing civilians. However, General Ayub Khan in 1967 and General Zia ul Haq in 1977 amended the Army Act to extend its reach to “persons not otherwise subject to this Act.” These amendments draw in insurgents and terrorists and their aiders and abettors, committing crimes against military assets and public property “used for the purposes of the State” and bridges, railways, wireless installations, and other properties used to produce essential commodities. The broad language of the amendments opens the door for prosecuting civilians, including political workers and their leaders, who destroy public properties.
Related to the May 9 attacks, the military appears to have sufficient evidence to show that the Khan supporters and party members conspired and perpetrated assaults on military assets in Lahore, Rawalpindi, and Mianwali. The military can also make a credible case by pooling the Khan speeches against the ISI and the COAS for targeting the army. The government claims to have evidence that Khan has repeatedly been instigating party workers to violence and preplanned the attacks on the military buildings if he was arrested.
However, the question is not about the sufficiency or credibility of the evidence against Khan. Even if the case is foolproof, Khan’s court-martial is still contrary to the international law obligations that Pakistan has committed to uphold. More specifically, as discussed below, the International Covenant on Civil and Political Rights prohibits the trial of civilians under the Army Act.
International Covenant on Civil and Political Rights
Pakistan signed the International Covenant on Civil and Political Rights in April 2008 and ratified it in June 2010, thus subscribing to the obligations the Covenant imposes on contracting states. A democratically elected government brought about adherence to the Covenant to establish military accountability after ousting General Pervez Musharraf, who had toppled a democratically elected government in 1999 and ruled Pakistan for nearly ten years.
The Human Rights Committee, which enforces the Covenant through its rulings in concrete cases brought to its jurisdiction, has interpreted Article 14 of the Covenant to exclude military trials of civilians. Article 14 guarantees every person charged with a crime “to a fair and public hearing by a competent, independent, and impartial tribunal established by law.” An assertion that a confidential court-martial of any person by a panel of military officers violates the Covenant. Any such broad interpretation would hold that all army trials of service members, let alone civilians, are unlawful under international law.
The Human Rights Committee does not question the lawfulness of courts-martial of service members. However, the Committee’s jurisprudence concerning civilians has evolved. Initially, the Committee conceded that the courts-martial of civilians could be consistent with Article 14 in exceptional cases, provided the tribunal is competent and independent and the procedural due process meets the minimum criminal justice standards. However, with the adverse reports coming from military trials in Egypt, Nigeria, Chile, Lebanon, and many other countries and because of a deeper entrenchment of human rights in legal communities, the Committee now considers that trying civilians in military courts is incompatible with various rights in the Covenant, including Article 14.
Pakistan has not accepted the jurisdiction of the Human Rights Committee to hear individual complaints. As such, Khan would have no access to file a complaint against a conviction in a court-martial. Nonetheless, the Committee’s rulings and interpretations of the Covenant are binding on Pakistan and its military courts, even if Pakistani citizens cannot personally access the Committee.
The legal communities in Pakistan oppose civilian trials under the Army Act. The high courts in Pakistan recognize the Covenant obligations, but whether the military courts will is unclear. In 2020, without mentioning the Covenant obligations, the Peshawar High Court overturned the sentences, including capital punishment, of 200 defendants convicted by military courts. The defendants faced charges of massacring students and teachers in a military-run school. The human rights organizations and the Pakistan Bar Council, the premium regulatory body of lawyers, oppose civilian trials in military courts.
Conclusion
After losing power in a constitutional vote of no confidence, Khan has been protesting to demand snap elections, delivering inciteful speeches against political rivals, intelligence officers, and the head of the armed forces. On May 9, upon Khan’s arrest, the PTI operators looted and torched military assets in coordinated attacks in various cities. Since the PTI senior members deserted the party after the May 9 arsons, Khan has lost goodwill and political clout to negotiate with rival politicians. Through verbal attacks on the ISI and the military leadership, Khan has lost support even among retired military officers who had been his most ardent followers.
Khan faces ostracization. In such trying times, a broad political and military consensus is building to try Khan under the Army Act for inciting followers to attack the symbols and assets of state institutions. However, even if the evidence for Khan’s crimes is irrefutable, international law does not allow his prosecution in an army court. If the military court does try and convict Khan, the Pakistan Supreme Court, aware of the country’s international obligations, will likely refuse to uphold his conviction and punishment. It would be lawful, and perhaps necessary to deter future adventurism, for the government to charge Khan with incitement to violence in a civilian court.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at legal.scholar.academy@gmail.com Suggested citation: L. Ali Khan, Court-Martialing Imran Khan Is in Violation of International Law, JURIST – Academic Commentary, June 14, 2023, https://www.jurist.org/commentary/2023/06/court-martial-imran-khan.
This article was prepared for publication by JURIST. Please direct any questions or comments to commentary@jurist.org
