Pakistan Airports Security Force: to court-martial or not to court-martial?

On December 3, 2019, The Express Tribune of Pakistan reported that members of that country's Airports Security Force  (ASF) would be subject to trial by court-martial for misconduct at Islamabad International Airport. While there seems little doubt that the reported conduct (if proved) is concerning, this raises some interesting questions about whether court-martial is the appropriate forum.

The ASF was established by the Airports Security Force Act 1975. While the ASF was placed under the authority of Pakistan's Ministry of Defence following the hijacking of a Pakistani civil aircraft at Islamabad in March 1981, it seems clear that it is a civilian law enforcement agency - not a military force.

So if that is so, how is it that members of the ASF are subject to trial by court-martial? It seems that the answer lies in section 5 of the Pakistan Army Act 1952, which provides that:

"The [Federal Government] may, by notification, apply all or any provisions of this Act to any force raised and maintained in Pakistan under the authority of the [Federal Government [or a Provincial Government]]." (Notes omitted.)

While this writer has not been able to locate the notification in respect of the ASF, there are indications in the publicly available material that such a notification has been issued.

So what we have here is (another) civilian agency which has been made subject to military law...

Principle 6 of the Yale Draft of the UN Draft Principles Governing the Administration of Justice Through Military Tribunals states that:

"Military courts have no jurisdiction to try civilians except where there are very exceptional circumstances and compelling reasons based on a clear and foreseeable legal basis, made as a matter of record, justifying such a military trial. Those circumstances only exist, where:
(a) Such a trial is explicitly permitted or required by international humanitarian law;
(b) The civilian is serving with or accompanying a force deployed outside the territory of the sending State and there is no appropriate civilian court available; or
(c) The civilian who is no longer subject to military law is to be tried in respect of an offence allegedly committed while he or she was serving as a uniformed member of the armed forces or he or she was a civilian subject to military law under paragraph (b)."

Without doubt, the application of the Pakistan Army Act 1952 to members of the ASF is not consistent with Principle 6. While Principle 6 is not binding at international law, it does represent  an international benchmark agreed to by experts in military and human rights law from many jurisdictions. The Government of Pakistan would do well to consider whether it is really necessary to extend military law to these civilian law enforcement personnel, or whether it would not be more appropriate to adopt and enforce a civilian code of conduct along the lines of Chapter XII of Pakistan's Police Ordinance 2002.