Transitional justice!!

[Silent Spectator]

Transitional justice
By Babar Sattar

[The writer is a lawyer based in Islamabad. This article first appeared in The News International on June 06, 2009.]
Let us assume that we succeed in the battle against insurgency being waged in Swat. How will we transition from war to peace and reconstruct the post-conflict community whose social fabric has been ravaged by violence, hate and anger and whose means of livelihood have been destroyed due to prolonged hostilities and fighting? True, the armed forces must employ tactics in the battle against the Taliban that minimize collateral damage to civilians, the government ought to efficiently implement a comprehensive policy to generously accommodate and facilitate the victims of violence and misfortune who have been displaced from their homes, and our nation needs to continue to demonstrate its altruistic spirit to empathize with and help fellow citizens from Swat with material and emotional support. While all this is necessary, such simplistic prescription to win the 'hearts and minds' of local populations in insurgency-infested areas is not sufficient. Experiences of post-conflict societies elsewhere suggest that workable indigenous mechanisms need to be thoughtfully contrived in order to establish justice during transitions from war to peace.
Once the present phase of the military's fire brigade operation to capture and decapitate the Taliban in Swat is concluded, maintaining peace in the post-conflict zone will emerge as a major challenge. And solutions such as raising 10,000 strong police force comprising ex-military personnel to guard Malakand or establishing a permanent cantonment in Swat will not prove adequate on their own. We will need a holistic approach to transition Swat back to peace through a just process, the components of which must include (i) imposing sanctions through a penal justice system capable of prosecuting and convicting hard-core criminals and insurgents, (ii) a truth commission deciphering the causes of the Swat conflict and how we got to a stage where three million residents needed to be displaced to capture less than 5000 hard-core militants, (iii) rehabilitation of displaced citizens together with reconstructing their means of livelihood, (iv) reintegration of non-hardcore quasi-combatants within the communities and reconciliation amongst the community, and (v) rebuilding state-led institutions of governance in the post-conflict region.
De-radicalization and normalization of Swat will take time. For one, it is exceedingly hard to distinguish the insurgents from the local civilian population. While there are no trustworthy statistics available at the moment, there is a sense that hardcore militants in Swat are not more than a few thousand. Now that the resolve of the country and its military to eradicate the throat-slitting terrorists from our midst is becoming unambiguous, the locals who weren't committed fanatics are likely to part ways with the Taliban. We need to extinguish the treat posed by the hardcore militants while separating them from the less culpable tangential accomplices who sided with the Taliban because they were confused, misled or coerced. It is thus imperative to separate militants from the hesitating supporters or accomplices in order to apply state sanctions on the former while trying to reintegrate the latter within the community. Such reintegration will need to be braced with an effective process of reconciliation in order to pre-empt another spiral of violence provoked either due to the recovered semi-Taliban being sucked back into militancy elsewhere or by the desire of the victims of the present cycle of violence to seek revenge.
The reconciliation and rehabilitation program to bring the community together will need to be multi-pronged. The entrenched institution of jirga within the Pukhtun culture can serve as an indigenous initiative led by tribal and community leaders to heal wounds, determine reparations for property damage, and bring people together to build peace. But a crucial prong of a rehabilitation program will need to be state-sponsored and built on the realization that (i) various categories of combatants or Taliban supporters are not equally culpable, and (ii) many such quasi-combatants or semi-Taliban might even be victims themselves. For example, there will be a need to set up special programs for the misguided youth and juvenile offenders to ensure that they are cleansed of an ideology of hate and don't return to violence. If the state can establish educational and vocational training centres for youth, especially those suspected of being ex-combatants, the state would be able to monitor a vulnerable group over an extended period of time while also empowering such youth with the tools and skill-set to break-away from an unfortunate past.
As a subset of transitional justice, disarmament and demobilization of semi-Taliban in the immediate term might be easier than their reintegration in society. We need to realize that on the one hand it is in no one's interest to condemn considerable portions of local population in Swat or elsewhere in the tribal areas as Taliban or militants that must be eliminated. And on the other hand the sway of such semi-Taliban toward Talibanization is a consequence of life experiences, a depraved religious ideology, social norms, economic factors and imprudent state policies and will require time and effort to be neutralized. If the throat-slitting Taliban are to be eliminated, we will need to focus on eliminating Talibanization and a crucial test for that will be recover and rehabilitate those presently teetering at the brink of Talibanization. This brings us to the first two components of transitional justice: the need to subject hardcore militants to legal sanctions and the need for the state to indulge in truth telling (and how the two are interlinked).
In 2007 we witnessed the Lal Masjid imbroglio: gun-trotting vigilantes occupying a children library, abducting foreigners and shutting down music shops in Islamabad. When confronted by the state – in an ill-conceived and delayed operation – the military action claimed many lives, including those of commandos carrying out the operation. Yet, there has not been a single conviction for the crimes carried out by the Lal Masjid brigade and Abdul Aziz was recently released by the apex court to receive a hero's welcome back at Lal Masjid. Earlier this week Lahore High Court ordered the release of Hafiz Saeed – the head of Jamaatud Dawa widely suspected of having inspired or abetted the Bombay terror attacks last year that brought Pakistan and India to the brink of war. When a justice system fails to put miscreants and offenders in correction facilities, it encourages crime and criminals by diluting the deterring effect of law on the one hand, and on the other encourages law-enforcement agencies to indulge in extra-judicial killings as the only effective way of putting criminals away. Are Pakistan's legislation, court system and criminal law jurisprudence fundamentally incapable of holding accountable perpetrators of terror and their intellectual mentors preaching an ideology of hate, violence and intolerance?
That Abdul Aziz and Hafiz Saeed are innocent until proven guilty is a fundamental tenant of our law and justice system. But why is it that despite a tremendous rise in terrorist activity and increase in the number of arrests made in relation thereto, no one ever gets convicted? Are intelligence and law-enforcement agencies not able to gather information and evidence in a manner that can be used in a court of law? Are they unwilling to share information with prosecutors and the courts that they deem sensitive from a national security perspective? Are they incapable of confronting all facets of the terror infrastructure still alive and well in Pakistan? Or are they deliberately equivocal about the utility of non-state actors in line with our three-decade old flawed defence and strategic thinking? And this is where the issue of truth-telling by the state becomes an essential plank in transitional justice. Hillary Clinton admitted before a senate committee that the US had helped nurture, finance and arm the Taliban and other mujahideen during the Soviet invasion of Afghanistan and had later forgotten about the stingers floating across Pakistan. It was thus part responsible for the mess in the region. Such admission is a crucial first step in amending mistakes of the past.
If Pakistan wishes to dismantle the jihadi infrastructure that continues to fuel insurgency in the tribal areas and terror across the country, the state must admit its original sin. We cannot confront or isolate militancy in Swat, while the militant ideology prospers in Waziristan, Southern Punjab and Muridke. A comprehensive approach to fighting terror and extremism in Pakistan can only be built on the admission that a flawed approach to national security and defence strategy led to the inception of a jihadi project, where the state patronized militant groups, trained them in guerrilla warfare, fed them on an obscurantist brand of religion and armed them with modern weapons funded by foreign money. Such acknowledgement will enable the state to confront the crimes of today, without simultaneously trying to cover up those of yesterday that can be traced back to its own doorstep. It will allow agencies to divulge information before our courts that will lead to convictions of terrorists and their patrons. And it will help today's military and political leaders to explain how we wound up in a situation where a population of almost three million people had to be evacuated to confront a few thousand militants and the steps that we will take now to never let this happen again.
[Courtesy The News]