The Legal Boundaries of Sovereign States in Detaining Political Leaders

To what extent can a sovereign state limit or disregard international legal obligations in the treatment of a detained political leader? Can Pakistan’s international obligations outweigh the internal political turmoil or will The Former Prime Minister, Imran Khan, be another Aung San Suu Kyi, Alexi Navalny or Mohamad Morsi. To answer this question one needs to understand the dichotomy of sovereignty and international law; can one supersede the other?

The Former Prime Minister of Pakistan, Imran Khan, held office from 2018 till 2022; although there have been multiple criminal cases that have been filed against him since his position was revoked the most notable ones are as follows. On the 31st of January Imran Khan and his wife, Bushra Bibi, were handed a 14 year sentence in a case of selling illegal state gifts, this verdict came a day after he was handed an additional 10 year sentence in a case regarding him leaking state secrets (1).

In 2022, in relation to the multiple ‘toshakhana’(gift depositary) references Khan admitted to having sold 4 state gifts which reportedly had him profiting 36 million rupees; in response The election Commission of Pakistan disqualified him under Article 63(1)[initially introduced by General Zia-ul-Haq] of the Constitution of Pakistan. (2) This article deals with the disqualification of a member of parliament and while the superior judiciary of Pakistan(namely the High Courts and Supreme Court of Pakistan) have catered to a very narrow approach in hopes of not infringing on an individual’s right to contest in an election, some amendments made to these articles have caused some resistance. When General Pervez Musharaf took control in 1999 he introduced a set of 3 additional clauses under the Legal Framework Order of 2002.(3) This allowed a different approach to be introduced but the courts reasserted the need to maintain both the integrity of Pakistani Elections and the right to take part in those elections. This article was amended yet again during the 18th amendment of the Constitution of Pakistan however this time it was done so by a democratically elected parliament that largely reaffirmed Zia’s and the court’s initial purpose for this article. Thus Khan’s disqualification was decided while keeping in mind his very apparent right to contest in elections.

The second case mentioned above is most commonly known as the ‘cypher’ case;(4) it is important to note that the ten year sentence for Imran Khan and the former Pakistan Tehreek-e-Insaaf(PTI) Cabinet member Shah Mehmood Qureshi came while Khan was serving a three year sentence for a prior conviction for a corruption case. The Cypher itself was a conversation between the former Pakistani ambassador to the USA, Asad Majeed Khan, and the assistant secretary of state for the US Bureau of South and Central Asian Affairs, Donald Lu on March 7th 2022, 2 weeks after Khan’s visit to Moscow. While Khan has recently limited his negative rhetoric against Washington he previously stated that his removal from office and his three year sentence was aided by the Democrat government in the United States of America as well as the military in charge in Pakistan. The cypher in question allegedly had information proving Khan’s claims but the courts ultimately interpreted it as the announcement of state secrets and ruled against him and Qureshi. This establishes the fact that Pakistan’s duty to maintain the integrity of International law is overshadowed by the need to preserve sovereignty, however they deem fit.

While many cases against Khan have led to a conviction, up to 150 remain pending, including the case surrounding the Al-Qadar-trust, (5) a charitable organisation that he and his wife set up in 2018. The facts of the case indicate that an alleged bribe was accepted from a property dealer in the form of a piece of land worth an estimated 7 billion rupees. Both parties have stuck to their claim that the land was a charitable donation and not a bribe. Multiple representatives of Imran Khan, including his sons, have reached out to international forums in hopes of assisting Khan with his mounting legal troubles. These representatives have put forth claims of wrongful convictions as well as gross human rights violations against the Government of Pakistan. In order to examine these claims we’ll be referencing the report published by Amnesty International in 2024.(6) The first claim that needs to be examined is the fact that all the trials that have been conducted for Imran Khan, after his August 5th arrest, have been ‘jail trials’ within Adiala jail. These trials are a clear violation of article 14(1) of the International Covenant on Civil and Political Rights(ICCPR). Although this article of International law as well as the Criminal Procedural Code of Pakistan 1898 do allow the exclusion of public reporters and onlookers there needs to be a very specific reasoning that was not constructed here. Due to the constant petitions filed by Khan’s lawyers the government had to provide some reasoning hence they brought up an alleged threat to his life citing the assasination attempt in late 2022. While many international forums, including Amnesty International, found that these prerequisites had not been met, in 2023 the Islamabad High Court ruled in favor of a jail trial consequently exacerbating claims of violation of Pakistani and International law.

The second claim is over the lack of adequate time and resources provided to Khan’s lawyer when preparing their defence. An example of this was during the cypher case. Both Khan and Qureshi were indicted on 14th January 2024, and although neither signed the indictment documents, the prosecution were allowed to present their case from the next day. Similarly, during the illegal marriage case the hearings lasted from 1st-2nd February and both Khan and Bushra Bibi were convicted on the 3rd of February. The more severe problem arose when Khan’s lawyers were not allowed to submit certain video evidence during the swift trial rendering their case weak. Lastly, during one of the ‘toshakhana’ cases, Khan’s request for calling on witnesses was denied (7) by the presiding judge while such requests for the prosecution were more than often accepted.

Another issue pointed out by Amnesty International is the pattern of cases against Khan. The three Toshakhana cases raise concerns over ‘double Jeopardy’ which is prohibited under Article 14(7) of the ICCPR and Article 13(1) (8) of the constitution of Pakistan; section 403 of the Criminal Procedural Code (CrPC) also disallows an individual from being tried again for a crime they have already been indicted or acquitted for.

Lastly, but arguably the most talked about issue is the conditions within Khan’s jail cell. Khan,71, although has not cited any major health concerns, has faced multiple attacks on his humanitarian rights through multiple alarming conditions. Khan, although initially granted weekly calls with his sons, is not given the adequate resources and time to actually contact them. His son Kasim Khan argues that “we have been unable to speak to our father”(9) . Kasim also states that the ‘poor conditions’ faced by their father include a two hour limit on access to daylight. There have also been concerns regarding constant surveillance within his cell in Adiala jail that clearly violates Article 14(1) (10) of the Pakistani Constitution that protects the privacy and dignity of a man. Kasim also argues that when a phone call is arranged no prior notice is given even though there is a substantial time difference, as both of Khan’s sons live in The United Kingdom. Similarly, on the eve of Khan’s two years of imprisonment, his political party announced their plans of going to the United Nations to put forth claims of ‘torture’ and violations of fundamental rights.(11) These claims are arguably quite serious if the United Nations is being used as a forum to air out such alleged crimes.

While going over the history of the circumstances that have led to the call for Khan’s release it has become important to ascertain the grip of international law on The sovereign jurisdiction of Pakistan. We must then examine the geopolitical climate of the area, extent and reach of international pressure, legal obligations, and the political state of the country.

The geopolitical climate directly reflects on the leverage Pakistan has; in other terms Pakistan’s ability to contribute to the global economy plays a large role in the extent of international pressure exuded. The most recent example of The Pakistani government potentially expecting some international leniency is in the form of the “landmark” tariff deal(12). This agreement now allows Pakistan to export oil to the United States under a lesser tariff. This essentially gives Pakistan the ability to export more oil by potentially being charged 15 to 20 per cent. This reciprocal deal highlights the growing diplomatic ties between the two nations. Although the deal itself is not being questioned for the sake of this essay, the potential political leniency that may be expected is. Although there might not be a direct link between economic favours and less international pressure this could appear to be a balancing act. On the other hand, it may be argued that as the US recalibrates its South Asian policy, many analysts still believe that President Trump and his allies may still call for the release of the Former Pakistani Prime Minister. (13)

While understanding the geopolitical climate the next step to construct the hypothesis is to ascertain the grip international entities and Pakistan’s legal obligations have on its government. The initial deconstruction of this statement leads to examining the monterey funds Pakistan receives from its major allies and the impact it has on Pakistan’s decision making capabilities. The first nation that may be examined is China and the China-Pakistan Economic Corridor(CPEC). (14)

CPEC is a flagship project under China’s Belt and Road Initiative (BRI), involving over $60 billion in investments. Much of this is financed through loans and commercial arrangements with Chinese banks. This initiative has redirected Pakistan’s infrastructural priorities and arguably also impacts the way they strategize geopolitically. Hypothetically if China was to benefit from the release of a set amount of political prisoners the Pakistani government will be more likely to release them due to their arguable financial dependence. Thus to protect Chinese investments and maintain strong ties, Pakistan may temper policies or actions that would otherwise antagonize China.

The USA, although a more cautious partner in recent years, still engages in military and counterterrorism cooperation. Then to what extent can an appeal to Washington impact the decisions made by Pakistan. We must understand that if an appeal to The US is made, it will be made by private entities, political parties, or Khan’s own family and not the Government of Pakistan. This dichotomy makes it difficult to analyse which appeal is more likely to be granted. While the earlier mentioned political and economic ties between both countries are apparently on the rise to what extent can the US assist the Former Prime Minister without jeopardizing the diplomatic ties between the nations. While the PTI leaders remain optimistic (15) It is difficult to judge whether the USA will risk its ties with the Pakistani military. For the sake of this essay if it is believed that the US indeed what Khan out then Pakistan must consider possible sanctions, impact on International Monetary Fund(IMF) negotiations, Risk of sanctions or downgrading of human rights rankings, and the overall risk of a tainted reputation.

In terms of Pakistan’s legal obligation it has been discussed above that Pakistan remains a signatory of many International law charters including the ICCPR, and while organisations have raised concern over the possible violations of such charters what is Pakistan obligated to do. For starters there are very few legal courts where Pakistan can be questioned seeing as they are not a member of the International Criminal Court(ICC). So while organisations like the United Nations may release statements, unless the United Nations Security council passes a resolution(which they are not likely to do) it is nearly impossible for any international body to compel Pakistan to release Imran Khan.

The Domestic political state as well as the pressure it can provide for the government to take an important decision is also worth examining but what supersedes that assumption is the role of the judiciary; is the Pakistani Judiciary then the Protector of the Constitution or a compromised arbiter? The constitution of this nation allows the Judiciary to act as an equal and independent branch of the state, while the superior courts are entrusted to maintain the accessibility to justice and to uphold the fundamental rights of individuals, their history is marred by selected accountability, indifference, as well as interference from the government or the military(16).  As discussed above although Khan’s convictions and jail trials appear to be legally sound they raise legitimate concerns over the right to due process[Article 10(a) (17).

Arguably the most defining element of Pakistan’s domestic jurisdiction is the pervasive role of the military in civilian governance. From the alleged removal of Prime Ministers to influencing elections and managing foreign policy, the Pakistan Army and Inter Services Intelligence (ISI) have long acted as de facto power centers. While they remain a power, either implicitly or explicitly, it becomes unclear as to what the roles of each branch of state are; consequently resulting in a lack of separation of power, as well as the inability to provide fair and adequate justice to the people of Pakistan. Hypothetically, If the courts and the governments are influenced by the Military, and it is the Military that is being accused of indicting Imran Khan, then how is it expected of Khan and his lawyers to plead in front of a court they believe cannot act freely? This delicate balance of understanding domestic politics while expecting fair justice is what has brought us to question the ability of foreign powers to intervene. A sovereign nation like Pakistan should ideally be self reliant when it comes to providing fair verdicts without the need for international or diplomatic pressure to be exerted.

It is argued by many journalists that in 2018, Khan remained the Military’s favourite candidate,(18) hence it is not recent that the Military has become too influential, it is now that their favourite candidate is not reflective of the popular vote. During the February 2024 elections, Khan’s party, although not under its original name, won a surprising number of seats despite Khan’s incarceration. Thus, while the law enforcement agencies continue their crack downs on protests and rallies (19) as recent as 5th August 2025, the sentiment remains everchanging. However, it has not been enough to extract any actual results as Khan and the majority of PTI leaders remain behind bars.

To further clarify the stance International Law holds it is vital to examine article 2(7) of the UN Charter (20) that explicitly upholds the principle of non-interference in domestic affairs but carves out exceptions for actions under Chapter VII (21). These exceptions are triggered when there are violations of human rights, peace and security. While it may be argued that Khan’s treatment is internal and Pakistan’s sovereign borders disallow any international interference, this clause of the charter may allow a distinct scenario where international law may have a binding impact. Similarly, according to the Lotus principle(Permanent Court of International Justice, 1927); states are free to act however their domestic law prescribes unless it is prohibited by binding International law hence why Pakistan can argue it has discretion in internal prosecutions unless international law expressly forbids specific acts. These acts could potentially be arbitrary detention. While sovereignty remains an absolute concept holistically, the general application has evolved over time. Modern human rights law and jus cogens norms(22)  limit absolute sovereignty. In the case of Minister of Justice and Others v Southern African Litigation Centre and Others,(23) where the Court states that it agrees with the following sentiment: “As State sovereignty is increasingly viewed to be contingent upon respect for certain values common to the international community, it is perhaps unsurprising that bare sovereignty is no longer sufficient to absolutely shield High officials from prosecution for Jus cogens violations”. This progress in sentiment allows us to discern that the garb of national sovereignty can no longer shield clear violations of Human rights of any individual; including past heads of state.

While examining the different influences involved in the political and legal climate of Pakistan it is likely to be determined that while the equilibrium of the two major opinions remains leveled neither set of entities appear to have a clear manifesto. While Washington appears to be in talks with Khan’s representatives they are also likely to host Field Marshal General Asim Munir in the coming days (24) making it difficult to ascertain their stance in the coming days. Although the shifting tide of international politics influences the decisions made by the ruling military, it cannot compel them to act. As such, this influence remains, as the term implies, merely influential. While it may very obviously be determined  that Pakistan’s sovereignty outweighs its need to comply with International law, this does not come without the risk of detrimental harm to their diplomatic ties with nations and bodies championing International Human Rights.

Bibliography:

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