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RECENTLY, Defence Minister Khawaja Asif said that Operation Zarb-i-Azb would continue till peace and tranquillity were permanently restored to Fata. The director general of ISPR, however, was more specific when he announced on June 13 that the operation was highly successful and was entering its final stage.
The DG ISPR highlighted the achievements of the operation, pointing to the 2,763 ‘terrorists’ killed, 837 militant hideouts cleared and 253 tonnes of explosives recovered during the operation. Previously, the military spokesman had told the media that 90pc of the area had been cleared of militants.
The conclusion of the operation should witness the replacement of the bulk of military units with law-enforcement bodies in the region. At the same time, however, it is important to deliberate upon and plan for the various challenges that the state will face in maintaining peace and security in the region.
A key challenge in Fata is the dispensation of justice.
One key challenge will, of course, be related to the dispensation of justice, for which a key component will be the effective criminal prosecution of militants and terrorists who have committed war crimes and crimes against humanity in Fata and the adjoining areas. Military courts and tribunals can pass sentences in this regard, though civil courts would be preferable. If military courts and tribunals are used, however, then they must fulfil the requirements of a regularly constituted court, which affords all the judicial guarantees as enumerated in Common Article 3 of the Geneva Conventions of 1949.
The Peshawar APS school attack and similar assaults against the civilian population are clear examples of grave war crimes committed by the Taliban, for which punishment must be meted out and, where appropriate, reparation provided by the state to the victims. However, the state must better develop standard operating procedures to investigate and report on violations and provide justice to victims of conflict. In cases where the state provides financial compensation, transparency and accountability in the determination of civilian losses will go a long way in reinforcing the legitimacy of this exercise.
Effective peace-building also requires the removal of draconian and over-inclusive legal provisions currently operative in Fata. Many laws go against fundamental rights. For instance, Chapter VII of the Action in Aid of Civil Power Regulation, 2011, titled Offences and Punishment, can be interpreted to prosecute innocent civilians, including children, who are caught in the midst of conflict, for waging war against the state. This offence is subject to capital punishment.
Similarly, individuals who have not committed any acts of terrorism or war crimes but have been misled into providing general support to the Taliban movement in Fata, are exposed to disproportionate punishment. While Pakistan is not obligated to grant amnesty to such individuals or militants in an internal conflict under international law, political expediency dictates that goodwill and reconciliation, and winning the hearts and minds of the local population, would bring about more favourable outcomes in the long run.
International humanitarian law encourages amnesty, as does the Security Council, the General Assembly and the UN Commission of Human Rights (now replaced by the UN Human Rights Council). This is evidenced by the passage of numerous resolutions encouraging amnesty and related measures in the aftermath of conflicts in Afghanistan, Croatia, Kosovo, Bosnia and Sudan, among others. Further, amnesty as a practice also finds strong support under the Islamic laws of war.
It is evident that long-term and sustainable peace-building can only be achieved in Fata if its inhabitants are accorded all civil, political, social and economic rights guaranteed to citizens of Pakistan under the Constitution. Fata residents also need to have access to the judicial system of Pakistan for the effective realisation of such rights.
The autonomous status accorded to Fata by the British Raj and inherited by Pakistan, and the executive control exercised over the region through the Frontier Crimes Regulation still in place, were attempts to further colonial imperatives in pre-Partition times by depriving Fata inhabitants of a universally recognised legal system. Contrary to popular belief, this ‘Fata exceptionalism’ did not arise out of respect for the independence of the fierce warring tribes whom the British Empire could not defeat. It arose out of realpolitik.
Fata’s integration into Pakistan’s constitutional system may commence through the culmination of the Fata reform initiative. Indeed, the Fata Reform Commission has recently deliberated on extending the jurisdiction of the Supreme Court to the tribal areas.
Fata is of increasing importance to Pakistan strategically, economically and politically. For starters, both the Tapi and CPEC projects would traverse this region. Therefore, the government must handle Fata’s reintegration with care and tact, not only for the benefit of the inhabitants of the tribal areas, but also for the prosperity of the country as a whole.
The writer is the former legal adviser to the ministry of foreign affairs.
Published in Dawn, July 5th, 2015
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