It was all done in the dark. Neither their families, nor we, their lawyers, were told of their return.
Less than 2 weeks ago, on November 16, 2013, 6 Pakistani men were repatriated to Pakistan after being released from the Bagram Prison in Afghanistan by the U.S. government.
The Lahore High Court has ordered the government to provide details of their return. On 25th November 2013, the Pakistani government informed the court that they did not know where these 6 men are being held. Irate, Justice Khalid Mehmood Khan of the Lahore ordered the Secretary of the Ministry of Interior to be present in court on 26th November. Today, it transpired the Ministry of Interior were deliberately attempting to evade the court’s jurisdiction. Despite this, Justice Khan ordered that the detainees be given immediate and unconditional access to their lawyers and their families.
Despite these clear instructions, information regarding their return remains fuzzy. We can only be sure of one fact: The Pakistani government is currently holding the released detainees at an undisclosed location without access to their lawyers or their families. They are effectively continuing the state of illegal confinement that the men have already lived in for years.
***
In July 2008, Hamidullah Khan, a 14 year-old boy, travelled from Karachi to South Waziristan to collect his family’s belongings. His family was anticipating a military operation in the area and wanted to salvage what they owned. After he reached his village and collected the family possessions, he called his father in Karachi to tell him that he was coming home. That was the last they heard from him.
Three years earlier, in 2005, Umran Khan and Mohammed Riaz, friends from a village in Khyber Agency, travelled to Afghanistan for the holidays to do some sightseeing. They travelled in a taxi with two Afghan men in Jalalabad, not far from the Torkham border crossing. Their taxi was halted at an Afghan army check-point, where they were arrested and handed over to the U.S. military. The Afghan taxi driver and the two men they were riding with were free to go. They were taken to Bagram Prison and kept for 8 years. There was little tangible evidence to hold them.
During the entirety of their time at Bagram, Hamidullah, Umran and Mohammed were not charged, tried or provided access to a lawyer. The Pakistani government whose duty it is to protect them, failed to assist them in any way. On the rare occasions Pakistani consular officials graced the detainees with their presence, they were reportedly rude accusing the detainees of being terrorists despite little evidence to support their assertions. Now, the same government that ignored them is keeping them hidden from view.
***
Pakistan’s constitution expansively protects the rights of its citizens. Article 4 ensures that Pakistani citizens enjoy the benefit of their fundamental rights “wherever they may be”. Yet, for 11 years the Pakistani government has failed to uphold the rights of Pakistani citizens held at Bagram Prison. Now that they have returned, the Pakistani government is not making any efforts to correct their past failures. Instead, they continue to violate the fundamental rights of their own citizens.
In our report, published in September 2013, we found that the Pakistani government had failed to take necessary steps to secure the release of Pakistani citizens. Instead of negotiating their return regularly and at the highest levels, they only gave formalistic and tepid responses when prompted by the U.S. government. They failed to put in place a repatriation policy, prolonging the detention of Pakistani citizens at Bagram Prison.
There has been little pressure from the Pakistani government to secure the release of Pakistani citizens at Bagram Prison. By contrast, the Pakistan secured the release of 60 Pakistani citizens from Guantanamo Bay between 2004 and 2005. This was achieved by direct, high-level negotiations with the U.S. government. It reveals the benefit of a couple of meetings between high-level officials that take a strong stance during negotiations.
Instead of using tried and tested channels of communication, such as the Pakistan Ambassador to the United States or the National Crisis Management Cell at the Ministry of Interior, the Pakistani government has created an entirely new committee to negotiate the repatriation of detainees. This committee has had two internal meetings and only one meeting with the U.S Embassy in Islamabad. Through interviews with American government officials, we learned that the Pakistani government had “lost” documents vital to the repatriation of the Pakistani detainees.
To compound their failure and negligence, the Pakistani government is playing a waiting game with the United States instead of upholding the rights of its citizens. Pakistani officials are patiently waiting for the United States to pull out of Afghanistan before negotiating the release of Pakistani citizens. They believe that put on the back foot, the United States will be compelled to repatriate all the detainees.
The Pakistani government vastly underestimates the United States readiness to sacrifice the rights of Pakistani citizens for a false sense of security. When Obama was still running for President, he vowed to close Guantanamo Bay. Had I registered in time, I would have voted for him simply on that basis. When he was elected, one of his first official acts was to issue an executive order to close the Cuban gulag. But, 5 years on, Guantanamo persists. In the summer of 2013 it was, once more, in the international spotlight after prisoners reinitiated widespread hunger strikes protesting their confinement. Authorities at Guantanamo reacted by force-feeding detainees, a practice described as torture. It is now, more than ever, a symbol of the depths to which the United States is ready to sink in its “War of Terror”.
The U.S. also has no qualms about violating Pakistani airspace and bombing Pakistanis in the Tribal Areas using their drone flights. What makes Pakistani officials believe that the United States will not, simply, keep Bagram Prison open beyond 2014?
American government officials interviewed for our report were adamant that Bagram Prison will remain open post-2014. Too few detainees have been repatriated, and negotiations are proving difficult, not only with Pakistan, but with other countries as well. Other officials have publicly confirmed that it is extremely likely the prison will stay open post-2014.
The Afghan and U.S. governments are currently negotiating a security agreement governing the U.S. military footprint post-2014. The deal is not without its difficulties. Immunity from prosecution is a problem, although there are indications that the Afghan government might be ready concede that point. The authority to conduct night raids is a much more contentious issue and risks unravelling the negotiations. Nevertheless, there is little doubt that the United States will be staying in Afghanistan beyond 2014. There is equally little doubt that Bagram Airbase, the largest of its kind in the country, will remain under U.S. control. Everything indicates that Bagram Prison will remain open even after the 2014 military withdrawal.
Frustratingly, this diplomatic dance is completely unnecessary. The Pakistani government already has the diplomatic and legal upper hand. American government officials are acutely aware of the risk Bagram Prison poses to their international reputation. They do not want another Guantanamo Bay in Afghanistan. They are looking for ways out, including handing over the detainees to a reluctant Afghan government. The best way to secure the release of Pakistani detainees is certainly not to wait any longer. It is to offer them an escape route by negotiating regularly and maintaining a position respectful of citizens’ rights.
Furthermore, these men have never been charged, tried or provided access to a lawyer. The evidence against them is thin at best, and non-existent at worst. They are not even provided with the extremely minimal lawyer access granted to Guantanamo detainees.
Repatriation from Bagram Prison has been complicated and made more difficult by the misguided steps taken by the Pakistani government. The situation is clear: The United States is violating the rights of Pakistani citizens and has no evidence to hold them. The circumstances are ideal: The United States wants to avoid a second Guantanamo Bay in Afghanistan and is keen to repatriate those held at Bagram Prison. And, the solution is simple: Negotiate a comprehensive repatriation agreement with the U.S. government, resolving all previous difficulties and anticipating any new ones, to ensure that Pakistani citizens return home to their families.
Omran Belhadi is a caseworker at Justice Project Pakistan, a non-profit law firm which represents 11 Pakistani citizens in litigation before the Lahore High Court. He holds an LLB in European Law from the University of Warwick.
Justice Project Pakistan (JPP) is a non-profit human rights law firm, that provides direct legal and investigative services, to the most vulnerable prisoners in the Pakistani justice system, particularly those facing the death penalty, victims of police torture, mentally ill prisoners and victims of the “War on Terror”. This is JPP’s first post in a regular blog for Tanqeed | a magazine of politics and culture.
