PESHAWAR: A disagreement over definitions is preventing the International Committee of the Red Cross (ICRC) from monitoring the plight of hundreds of prisoners arrested under charges of militancy and insurgency in Khyber Pakhtunkhwa and Federally Administered Tribal Areas.The government has refused to allow the committee to visit jails in Khyber Pakhtunkhwa and Balochistan.

The ICRC that monitors International Humanitarian Law (IHL) violations in hostile regions thinks its mandate applies to Pakistan's north-west where conditions for an “armed conflict” exist.

It is noteworthy that this contention is indirectly backed by numerous assertions of the government, which has declared more than once that the region is 'conflict-hit'.

However, when it comes to giving ICRC access to prisoners allegedly arrested for perpetuating that conflict, the authorities would rather not call it a conflict; instead it says it is an ongoing 'operation' against common criminals or anti-social elements.

Hence, the government argues that Article 3 of the Geneva Convention is not applicable to the situation in Pakistan and that ICRC cannot visit prisons and detention centers in Khyber Pakhtunkhwa and Balochistan to monitor prisoners arrested during the five-year-long conflict.

“Our delegates' last visit to the prisons in Balochistan was in July 2008 and to Khyber Pakhtunkhwa in October 2009,” said ICRC Communications Delegate Michael O Brien.

He said the ICRC needed access to detention centres to collect data about the number of prisoners; whether or not they were mistreated; to help re-establish their links with families; brief prison authorities about the conditions and so on.

The issue of allowing ICRC access to detainees, he said, was still under discussion with the government because his organisation was pressing for the application of IHL in the conflict-hit areas of the province and Fata. However, the government did not recognise its applicability.

“We have talked to everybody, but they don't recognise it,” he said.

After operation Raah-i-Raast in Malakand Division in 2009, it was reported that the security forces arrested hundreds of suspected militants detained in five detention centres.

That the number of those in custody or prison could go up to thousands is possible. For instance, the Human Rights Commission of Pakistan in its 2010 report quoted independent sources that over 2,600 people were arrested in Malakand Division in 2009.

Members of their families and independent human rights groups have accused the security forces of extra-judicial killings and of killings in custody. The security forces have denied these allegations.

Just recently, the bodies of two brothers from Shabqadar were recovered along with three others from Mardan District. Relatives of the brothers allege that the siblings were arrested from Khanewal, Punjab, and were in the custody of security forces for the last nine months.

Similarly, over 20 suspected militants were killed during an “encounter' in Lower Dir in July 2010. Their relatives claimed that they were in custody of security forces.

However, these allegations have not been verified by an independent human rights body or commission.

Nonetheless, human rights bodies are concerned about reports of extra-judicial killings and about delays in bringing suspected militants before the court.

Kamran Arif, a lawyer and ex-chair of HRCP Peshawar chapter, says the government should give a fair trial to all detainees arrested on charges of militancy and insurgency.“The government should produce these people before court,” he said, adding that international bodies should have access to detention centres and prisons.

The provincial Minister for Law and Parliamentary Affairs, Barrister Arshad Abdullah, said the government did not oppose the application of the humanitarian laws, but cautioned that the issue needed to be viewed in the Pakistani context.

“The prosecution lacks credible evidence; if humanitarian law is applied, all suspected militants will be acquitted,” he said, adding that this was the reason the government did not produce them before the court.

“Some 28 suspected people have been tried in the anti-terrorism courts in this province of which 26 were acquitted and only two were partially convicted. But those may also be acquitted by the high court,” he said.

He was unaware of the number of prisoners arrested on charges of terrorism and militancy. He also said that he was not aware that the ICRC wanted access to the prisoners.

Mr Abdullah said that before producing the detainees, the legal system needed to be properly equipped.

He was optimistic that federal government would formulate the required anti-insurgency laws in the next three months. Once the law was formulated, he said, proper detention centres would be set up in the province and families and humanitarian bodies would be given access to the detainees.