INSIGHT: AQ Khan, again! —Ejaz Haider

The government seems to have thought it best to agree to more freedom for him while limiting his movement. No one, not least Khan himself, can afford him being abducted by a foreign intelligence agency

Dr AQ Khan, according to last Friday’s verdict by the Islamabad High Court, is a “free citizen” after a nearly five-year detention. Comments have begun pouring in, both positive and negative. Let’s consider some facts.

There are three aspects of the Khan proliferation episode: legal, political and normative. First, the legal.

It has been argued, and to the extent of a narrow legal technicality, correctly, that Khan did not breach any law. Pakistan is not a signatory to the Nuclear Non-proliferation Treaty; nor is it a member of the Nuclear Suppliers Group. This being so, his activities did not violate any legal code to which the State of Pakistan may have acquiesced.

End of story? No.

But let’s hold our breath on that question for a while and look at domestic law. Did Khan not violate any domestic laws, given that there is a legal regime against the export of nuclear and/or nuclear-related materials? No, we are told, because these laws were formulated after the Khan episode and do not have retrospective effect.

All right, then. What about laws relating to Official Secrets Act? Please remember that arguments mounted in defence of Khan on the basis of legal technicalities do not, by the very virtue of such defence, deny his involvement in proliferation activities. What they do instead, and this is crucial, is to invoke realpolitik and question his legal detention on that basis by, yes, invoking the limitation of law.

This is why such arguments invariably refer to proliferation by the United States and other countries, one example of that being the nuclear cooperation deals signed by the US, France and Russia with India.

What is conveniently ignored is the fact that this legal nicety, if it may be so called, is perched on the politics of proliferation. The point: the issue is not just legal.

Clearly then, it is only correct that the merits or otherwise of the IHC verdict — based on a ‘mutual agreement’ between Khan and the federal government which, according to the court, cannot be made public in line with a request by the petitioner and the respondent — be seen not just in light of the legal but also the political.

The political side also brings into play international law and treaties. The international legal regime becomes important, regardless of whether Pakistan is a signatory to its provisions or not, because the regime begins to apply to Khan not in relation to the State of Pakistan or the latter’s culpability, but Khan’s own alleged involvement in the proliferation racket.

Other states have laws dealing with the movement — export and import — of nuclear-related materials. This body of laws can always be invoked against Khan. Let us not forget that one of the ways in which General Pervez Musharraf (retd) handled the Khan episode was by (a) assuring the international community that the State was not complicit in Khan’s activities, and (b) shielding Khan from international legal scrutiny because that could have exposed Pakistan’s nuclear secrets.

This was the main reason for Khan’s detention after he confessed to his activities and was pardoned by then-President Musharraf. The arrangement also helped Pakistan make the claim that the Khan episode, having been properly handled by Pakistan itself, was now closed.

It was a tough sell to the international community and the policy was based on increasing the comfort level of the international community while denying Khan any freedom that most certainly would have kept the issue alive. The idea was to placate international concerns by assuring the interlocutors that Khan would not be allowed to roam around freely but that he was no one’s but Pakistan’s business.

Given the seriousness of the situation, the issue was handled admirably; no one can deny that.

As one can judge by statements from the US and other countries, the court verdict has managed, predictably, to lower that comfort level again. Resultantly, it is an even tougher sell for the government, despite the Foreign Office statement, that Khan is history.

Internationally, Khan remains problematic because he is alleged to have directly induced at least two states, both signatories to the NPT, to violate their multilateral legal-normative obligations. This, just to remind those who invoke the legal argument, is enough to get him nailed if the State of Pakistan does not stand between him and the international community.

The third aspect relates to the normative. Pakistan did not sign the NPT and it worked towards acquiring a nuclear weapons capability. In doing so, while it did not breach any laws, it did go against the non-proliferation norm. It had thus to face coercion by the international community. It took that punishment but acquired the capability.

But after Pakistan acquired the capability, and herein lies the paradox, the politics of this acquisition required that Islamabad practice non-proliferation. Khan, through his actions, breached not only that normative acceptance but also the basic tenet of nuclear strategy — i.e., that a state does not share its nuclear secrets with another.

Just in case the argument is not clear so far, even in legal terms, domestic (Official Secrets Act) as well as international (inducing at least two states to commit breach of their treaty obligations), Khan could still be pinned down.

At this point, we arrive at another political expediency. And Khan’s release, through a mutual agreement, relates to that.

The civilian political government had to decide what to do with Khan. It could either invoke the Official Secrets Act and take the matter to its logical conclusion or strike some deal with Khan, in line with the earlier pardon, which would give Khan back some rights in return for a disposal of the petition he had filed against his house detention.

The government has taken the latter course. Pinning Khan down by invoking the Official Secrets Act could have opened a can of worms. The government seems to have thought it best to agree to more freedom for him while limiting his movement. No one, not least Khan himself, can afford him being abducted by a foreign intelligence agency. Monitoring his activities 24/7 is inevitably part of the agreement, which is why the prosecutor is reported to have said that “security measures” for Khan will say in place.

In fact in some ways the verdict is more a symbolic gesture in terms of restoring Khan’s “honour” than real “freedom” in terms of what all he can do unhindered.

Whether Khan will keep his end of the bargain is unclear at this stage. What is certain, however, is that a refusal by both sides to come out with the details of the deal means neither side wants public, legal or international scrutiny of the contents of the agreement.

Finally, the timing of the court verdict is interesting, come as it did just days before the four-day visit to Pakistan by Richard Holbrooke, President Obama’s special representative for Afghanistan and Pakistan. Is there signalling involved here too, in addition to other factors that forced the government’s hand in making the deal?

If there is, we need to discuss what exactly Islamabad wants to do with the US and whether such a policy has been adequately debated. But that’s another topic.

Ejaz Haider is Op-Ed Editor of Daily Times and Consulting Editor of The Friday Times. He can be reached at sapper@dailytimes.com.pk

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