Prime Minister Imran Khan during his recent US visit talked about swap of Dr Shakil Afridi and Dr Aafia Siddiqui. In an interview to an American TV channel, the prime minister said that in Pakistan, he (Dr Shakil) is considered a spy and it is a very emotive issue here.

“We also have someone in US prison, a frail woman called Afia Siddqui and we could negotiate a swap,” the prime minster said.

This reply of the prime minister has brought to focus the issue of Dr Shakil Afridi, a former surgeon who was picked up by a Pakistani intelligence agency in May 2011 on charges of helping the American CIA to trace the Al-Qaeda chief Osama bin Laden through a fake vaccination campaign.

Similarly, the issue of Dr Afia Siddiqui also keeps surfacing from time-to-time. She was convicted by a US court in 2010 on multiple charges including attempted murder and assault of US personnel and has now been serving 86-year sentence.

A petition filed by her sister Fauzia Siddiqui has been pending before the Supreme Court of Pakistan seeking directives for the Pakistani government to negotiate with the US government for her transfer to Pakistan.

This latest development has generated debate whether prisoners swap can take place between Pakistan and US.

Pakistan is not a party to any multilateral prisoners’ exchange instrument to which the US is signatory nor Pakistan and US governments are having any bilateral agreement on this subject.

Presently, there is no single international legal framework that governs all international transfers of sentenced persons.

One of the important multilateral treaties on prisoners exchange is the Inter-American Convention on Serving Criminal Sentences Abroad which was adopted by the Organisation of American States (OAS) General Assembly in Nicaragua on Sept 6, 1993, and entered into force on Dec 4, 1996.

The US government had ratified that convention on April 17, 2001. Under Article XV of the Convention, it shall remain open to accession by any other state apart from the member states.

Presently, only India and Kingdom of Saudi Arabia are two countries outside the OAS, which have also submitted their instruments of accession to this convention. While India had accented to this convention in 2014, it had mentioned that a transfer request shall be denied if the sentenced person has been convicted for an offence under military law; or the transfer of sentenced person is prejudicial to the sovereignty, security or any other interest of India.

This convention is applicable under certain conditions including: the sentence of a prisoner must be final; the sentenced person must consent to the transfer; the act for which the person has been sentenced must also constitutes a crime in the receiving state; the sentenced person must be a national of the receiving state; the sentence to be served must not be the death penalty; and the administration of the sentence must not be contrary to domestic law in the receiving state.

The most prominent multilateral instrument on prisoners’ exchange is the European Convention on Transfer of Sentenced Person, which had entered into force on Jul 1, 1985. While the Council of Europe had initiated this convention it is also open to signature by states outside Europe.

So far 24 countries outside Europe have ratified this convention including India and USA, which ratified it in 2018 and 1985, respectively. This convention is aimed at facilitating the social rehabilitation of prisoners by giving foreigners convicted of a criminal offence the possibility of serving their sentences in their own countries.

Under the convention transfer may be requested but either state in which the sentence was imposed or the state of which the sentenced person is a national. The transfer shall be subject to consent by the two states as well as that of the sentenced person.

One aspect of international transfer of a sentenced person is clear in different legal instruments that the sentenced person to be transferred must be having some link to the State to which he or she is to be transferred and this link is often described as the requirement that the sentenced person shall be a “national” of the state concerned.

In the case of Dr Shakil Afridi, he is not having any link to the US except the allegation that he had helped the CIA in tracking down Osama bin Laden.

Even the allegation of Dr Afridi supporting the CIA could not so far be proved in any court of law. He was convicted by an assistant political agent (APA) on May 23, 2012 on different counts of aiding and supporting banned outfits including the Bara-based Lashkar-i-Islam.

He was sentenced to 33 years imprisonment on different counts along with fine of Rs320,000. The APA, in his capacity as additional district magistrate, had found him guilty of conspiring to wage war against the country, concealing existence of a plan to wage war against Pakistan and condemnation of the creation of the state.

About the charges of assisting the US, the APA, in his order, stated: “Though the JIT contains evidence of the involvement of accused in activities wherein he has been shown acting with other foreign intelligence agencies, all this evidence could not be taken into account for the lack of jurisdiction and with the recommendation that it may be produced before the relevant court for further proceedings under the law.”

The FCR (Frontier Crimes Regulation) Commissioner, the appellate forum under the erstwhile FCR, in March 2014, upheld his conviction but reduced his sentence to 23 years and fine to Rs220,000.

Aggrieved with that judgment he had filed a revision petition before the erstwhile Fata Tribunal, which was the third and final judicial forum under the then FCR. The government had also filed a petition before the tribunal against reduction in his sentence.

Those petitions continued to linger on before the tribunal for many years without any progress and finally the tribunal ceased to exist after the repealing of the FCR last year. Now, the said petitions are pending before the Peshawar High Court.

Experts believe that if the Pakistan’s government is really interested in swapping Dr Shakil Afridi with Dr Afia Siddiqui, it has to either sign a bilateral agreement with the US government or enter into any multilateral treaty to which the US is also a signatory.

Published in Dawn, July 29th, 2019