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Legality of Dr Aafia’s case

August 13, 2010



by Muhammad Umair Ikram

Dr Aafia Siddiqui’s incarceration, and subsequent trial and conviction, is a glaring example of USA’s complete disregard for human rights. Although, the US has ratified most of the international human rights conventions and adopted resolutions to the effect, the violation of international human rights law still persists. This article will discuss the legality of Dr Aafia’s case in light of the violation of different international laws by the US.
Under the banner of the “war on terror”, the US has taken extrajudicial steps that are in violation of not only the Universal Declaration of Human Rights (UDHR) 1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966, but also numerous other treaties and United Nations (UN) resolutions such as UN Convention against Torture (CAT) 1975, International Customary Laws against Torture, United Nations General Assembly (UNGA) Resolution 37/194 of 1982 for Principles of Medical Ethics, UNGA Resolution 43/173 of 1988 and UNGA Resolution 3452 (XXX). These treaties and resolutions ensure the protection of the inalienable rights of a person and also prohibit a person from being subjected to torture and other forms of cruel, inhuman and degrading (CID) treatment.
The detention of Dr Aafia is considered to be a violation of the fundamental human rights, as enunciated in the above mentioned conventions and resolution. Dr Aafia was arrested by the police in the Ghazni province of Afghanistan and handed over to the Federal Bureau of Investigation (FBI) on the grounds that she was an alleged member of Al-Qaeda. The FBI unlawfully transferred her to the US and once there, Dr Aafia was charged on numerous accounts such as the attempted murder of US officials and employees, assault and use of a firearm. All of the offences were in violation of the law as laid down in Title 18 United States Code (USC) sections 111 and 1114.
On February 3, 2010, the jury found her guilty on all above accounts. According to the verdict, she will face a minimum sentence of 30 years and a maximum of life imprisonment on the firearm charge. She could also receive a sentence up to 20 years for each attempted murder and armed assault charge, and up to eight years on each of the remaining assault counts. However, the final hearing is expected to take place on August 16, 2010.
Legally speaking, the US verdict is purely a violation of the International Human Rights Law. To begin with, the United Nations General Assembly (UNGA) Resolution 43/173 is important. Principle 11 of the resolution states that a person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial authority. A detained person shall have the right to defend himself or to be assisted by counsel. Principle 12 of the same requires that all information regarding the detainee should be recorded. Similarly, Principle 15 talks about the communication of the detained or imprisoned person with the outside world and in particular his family or counsel, which should not be denied. This shows that the US is completely oblivious to laws that apply to such situations.
In light of the above, the principle of audi altrem paltrem (no one should be condemned unheard) is important. Dr Aafia was not given the right to be heard by any judicial or other relevant authority and neither was she assisted by any counsel at the time of arrest. Furthermore, no information was given to the counsel about the time, place of custody, and law enforcement officials. More so, communication with the outside world, her family and counsel was denied. Her family and counsel were not informed about her transfer and whereabouts.
Article 36 of the Vienna Convention on Consular Relation (VCCR) 1963 is also of relevance. This is an international treaty providing foreign detainees with access to proper counsel. The US is a party to the convention. In the cases of Mexico vs United States and Germany vs United States, the International Court of Justice (ICJ) laid a lot of emphasis on the fundamental nature of the right of counsel and also issued a binding judgment stating that the US had breached its obligation. The refusal of the right to counsel to Dr Aafia is, therefore, not only a violation of the VCCR, but is also manifestly unfair.
An important aspect of Dr Aafia’s case is that she was subjected to torture. In this regard, the Convention against Torture (CAT) is relevant. Article 3 of CAT places a prohibition on states to extradite or transfer a person to another state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The US is well-known for its practice of “extraordinary renditions” which entails the extrajudicial transfer of a person to another state to inflict torture for interrogation purposes. The mental and physical condition of Dr Aafia is evidence of the fact that she was tortured to an utmost extreme by the US officials, which is, again, in violation of CAT. In addition, she was not provided with proper medical treatment that is certainly a derogation of the UNGA Resolution 37/194.
Recently, the Government of Pakistan (GoP) has ratified two conventions namely the ICCPR and CAT. In this regard, it is imperative that the GoP should take positive steps to initiate a further round of talks with the US regarding the release of Dr Aafia Siddiqui from detention. Dr Aafia’s fate will be decided at the next hearing. As her fundamental rights have been violated, the US has a duty to compensate her under, both, Article 8 of the Universal Declaration of Human Rights (UDHR) and UNGA Resolution 3452 (XXX). Together, they lay emphasis on a person’s right to an effective remedy.
It is evident from the above discussion that Dr Aafia Siddiqui has a strong case if given the proper recourse to justice.
The writer is associated with the Research Society of International Law.

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