In Pakistan, tribal laws under fire
A jailed toddler and the hunt for Al Qaeda in Waziristan have renewed a debate on tribal law.
Zarmineh Khan, a 2-year-old girl, has been sentenced to spend three years of her childhood behind prison bars in Pakistan. She and 15 relatives, including women and other children, have been in jail since May because of alleged criminal activity by Zarmineh's uncle, who has fled.
The family is a victim of an enduring practice of collective punishment set up by the British in the 19th century to control unruly Pashtuns in the semiautonomous tribal region bordering Afghanistan.
Zarmineh's case has been brought into focus by the spotlight on Pakistan's hunt for Al Qaeda in the region. Some 600 foreign militants are operating in South Waziristan, where it is believed that Osama bin Laden and his deputy, Ayman al-Zawahiri, may be hiding.
The recalcitrance of tribal leaders to help track down the foreigners has provoked increasingly harsh tactics from Pakistani authorities. Zarmineh's case has added to doubts about the fairness and efficacy of the tribal system of punishment, reigniting calls to reform or abolish the laws that govern the relationship between tribe and state.
"Under the tribal laws, the government has the absolute power to detain or even kill anybody," says Latif Afridi, a lawyer and former legislator. "It is a draconian law adopted by the British Raj and now needs to be changed."
Pakistan's federal laws do not apply in the tribal region. Instead, the area falls under the controversial Frontier Crimes Regulation (FCR). The executive authority of the state is exercised by the government-appointed "political agent," who simultaneously wears the hats of both the executive and the judiciary.
Traditionally, Pakistani military forces have not been allowed to operate freely in the region. Instead, the political agent's access to tribesmen is through maliks, or tribal elders, who work to persuade fellow tribesmen. The loyalty of some maliks is bought with monthly stipends and construction contracts.
To persuade tribesmen to hand over or withdraw support for Al Qaeda "guests," the government used maliks to offer both carrot and stick: Obedience would be rewarded with money, refusal would trigger collective punishment.
However, this time the malik system broke down.
"Some maliks and tribal elders would promise to take action against the militants in the jirgas [councils] in the morning and have lavish meals with militants in the evening," says tribesman Farid Khan.
When nothing concrete was done about the foreigners, out came the stick - and it was aimed collectively at the Yargul Khel clan.
The authorities levied heavy fines and economic sanctions against tribesmen, seizing their property and impounding vehicles. After the March military operation in the capital, Wana, bulldozers tore down homes of wanted local militants, families suspected of hosting foreigners, and their relatives.
"My only crime was belonging to the Yargul Khel tribe," says Javed Khan, one of the victims of the collective punishment. "I do not support Al Qaeda. I did not shelter anybody, but I was arrested, my shop was sealed."
Pakistani authorities say tribesmen were given fair warning that the tribal laws would be used if they failed to hand over the militants.
"When I was a student of history, I used to think ... let's abolish these old tribal laws. But now that I am ... directly dealing with tribesmen, I feel otherwise," says Asmatullah Gandapur, the political agent in South Waziristan. "These laws work effectively because they are made according to the attitudes of locals, tribal customs, and traditions."
Advocates of collective punishment argue that it reflects the collective decisionmaking of the tribes. They also argue that it is the price the tribes pay for autonomy because effective individual punishment would require the full-time presence of state police and judges.
Then there's the belief that violence is a language that Pashtuns understand.
"Once somebody asked the famous Afghan ruler, Amir Abdur Rehman, why people called him Iron King. He replied, 'Because Iron King has to deal with iron people,' " says Mr. Gandapur.
Handling warrior tribes with iron fists has certainly been the history. But educated tribesmen and analysts argue that such methods are no longer effective, pointing to recent events as evidence.
"Many local tribesmen who thought they were innocent did not extend support to the authorities after becoming victims to the laws like collective punishment," says Sailab Mehsud, expert on South Waziristan.
Educated tribesmen say the influence of the maliks has decreased, and the jirgas have lost their ability to honestly confront the most sensitive issues, such as the foreign militants.
"The young generation of tribesmen is trying to get an education, [trying to] have access to ... computers," says Mr. Mehsud. "They want to get rid of these black laws and corrupt maliks and bureaucrats which have become hurdles to their development."
Islamabad is beginning to introduce local government by setting up tribal councils. The councilors will be nominated by the political authorities and through jirgas. Some tribesmen say holding elections for the councilors would have been a more democratic approach.
Meanwhile, there's new hope for the release of Zarmineh. The governor of the Northwest Frontier Province announced over the weekend that children in the tribal areas will be governed by the provincial juvenile justice system, not the Frontier Crimes Regulation.