Pakistan Resorts to Century-Old British Colonial Law to Quell Insurgency

by Joshua Foust on 7/21/2009 · 5 comments

The Pakistani government has begun to target members of the Mehsud tribe for the crimes of Baitullah Mehsud, the Washington Post reports:

“They just said, ‘You are a member of the Mehsud tribe, and we are going to seal up this business,’ ” Mehsud recalled. “My crime is that I belong to the Mehsuds.”

Beyond the frustration of closing a business he ran for nine years and the sting of losing an income averaging $1,400 a week, the most vexing part of Mehsud’s situation is that he is on the wrong side of the law. The Pakistani government has declared war on Taliban commander Baitullah Mehsud and his network of several thousand fighters in the nearby tribal district of South Waziristan. And under regulations formulated a century ago by British colonial rulers, Pakistan’s tribes are still bound by a legal concept known as “collective responsibility,” under which any tribal member can be punished for the crimes of another.

The crackdown on the Mehsuds was spelled out in an order from the top political official in South Waziristan, Shahab Ali Shah, on June 14. Because the Mehsud tribesmen had not handed over Taliban fighters, Shah wrote, he was satisfied that they had acted “in an unfriendly and hostile manner toward the state” and that the tribe’s “people and their activities are prejudicial to peace and public tranquillity.”

The Post doesn’t quite get around to explaining that the collective punishment provisions within the Frontier Crimes Regulations are, technically, violating international law (and during conflict are considered War Crimes). While the Post reporters play up the humanitarian side of the story, it’s important to remember that this was the point of the FCR: to create an intolerable situation within the tribe, or to punish the entire tribe so severely, such that future militancy would be unlikely. Given the history of the Mehsuds in the 20th century, it’s a safe bet that treating them as outsiders barely above the status of animals hasn’t done much to make militancy unattractive and integrate them into the State—despite the best efforts of entrepreneurial Mehsuds who are now having their businesses shut down.

Now, the issues posed by the FCR are not new to readers of this blog. Fourteen months ago, we discussed the problems posed by the Northwest’s antiquated security framework, which had done little more than assure a cycle of conflicts, retributions, and cease-fires. Last September we discussed how the Pakistani government’s insistence on enforcing the FCR would only lead to more extremism. And earlier this year we discussed some alternative models for how the Pashtun areas of Pakistan could be integrated into the state, and how that would diffuse some of the class warfare that is driving a portion of the insurgency.

And then there’s also patience. A charismatic Islamic fundamentalist militant leader from Waziristan is about as rare as a tsunami—it happens once every couple of decades, wreaks tremendous damage, but then things settle back to normal. This has been a particularly violent outbreak of militarism, and the government’s response has so far been more violent than in the past, but so far at least it has remained well within the bounds of history.

That doesn’t excuse the Pakistani government’s behavior, however—they spent years deliberately underestimating the extent of the problem, and years more refusing the pony up the resources to tackle it. They still are. Closing down legitimate businesses, which actually give Mehsuds and other Pashtuns a stake in the legitimate political and economic institutions of Pakistani society, is about the worst thing they can do. History or no, it’s time for them to try something other than a century-old system of retribution and maybe look to establish a permanent solution that brings Pashtuns into the state, instead of violently forcing them to the outside.

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This post was written by...

– author of 1848 posts on 17_PersonNotFound.

Joshua Foust is a Fellow at the American Security Project and the author of Afghanistan Journal: Selections from His research focuses primarily on Central and South Asia. Joshua is a correspondent for The Atlantic and a columnist for PBS Need to Know. Joshua appears regularly on the BBC World News, Aljazeera, and international public radio. Joshua's writing has appeared in the Columbia Journalism Review, Foreign Policy’s AfPak Channel, the New York Times, Reuters, and the Christian Science Monitor. Follow him on twitter: @joshuafoust

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Samz July 21, 2009 at 4:44 pm

One of the most interesting aspects of the current crisis is that it provides the best opportunity yet to get rid of the FCR and grant the people of FATA their basic human rights, at least legally speaking.

When I was there in April it was amazing to see the Taleban’s systematic dismantling of much of the old feudal and tribal structure–as far as i could tell almost all of the maliks and zamindars had fled FATA, the Talebs’ courts had replaced many of the old jirgas, and the ideology of global jihad was jostling the old ‘leave us alone’ mentality.

This means that, if the government actually succeeds in regaining and retaining control, Islamabad could actually get rid of FCR immediately. under art. 247 of the constitution, the president has sole authority over the FCR system, and Zardari could abolish it with a stroke of the pen, and immediately extend the authority of the High Courts and Supreme Courts to the people of FATA, extend the Political Parties Act, and basically enfranchise the 3-5 million people living there (does anyone have accurate numbers of the residents?).

Now, there may be political obstacles to abolishing the old system immediately, but there has never been an opportunity like this to seriously get rid of this terrible law.

Having said that, we’re now hearing that many people in Swat, including some ANP officials who should know better, are complaining that the military is building a cantonment in Mingora. Well, if the military is to secure AND hold, I don’t see what alternative there exists. But it’s hard to shed the habit of distrust, especially when it involved the feckless and reckless Pakistani military.

Joshua Foust July 21, 2009 at 4:55 pm


I agree with you fully. If the Pakistani government takes this as a chance to dismantle the FCR and bring about the full political integration of the tribal areas, then I’ll take back every mean thing I’ve ever said about them and issue a public apology. But I don’t think they will — most of the Pakistani elite were writing off the “Pashtun problem” as a poor-people problem out in the sticks until they advanced into Buner… then the gloves came off, in a manner of speaking. I think there remain such deep seated prejudicial attitudes toward Pakistan’s Pashtuns that it still isn’t very likely they’ll take the comparatively radical step of integrating the Pashtuns into the national political system. Especially with Zadari being as weak as he is.

As for the cantonment… well, history repeats itself. The well is pretty much poisoned at this point (to abuse a cliché), so it will take a tremendous amount of effort on the part of PakMil to build up good will. And they’re not particularly good at, or even necessarily inclined to do it. That’s a big problem, and it’s why I worry that in a few months we’ll be back to business as (violently) usual.

Wil Robinson July 22, 2009 at 2:35 am

Wanted to leave a comment on your poppy post, but the comments page didn’t work…

anyway, I liked your comparison to addressing a symptom instead of the problem. Sort of like addressing burqas instead of female education.

Do you have experience in Afghanistan? I surfed through your posts and was pleased at some well-informed views (of course, of which, I mostly agree…)

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