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In Pakistan’s Tribal Areas, Collective Punishment Is the Law of the Land

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A sign indicating distances in Miran Shah, on the road leading to Afghanistan. Image by Umar Farooq. Pakistan, 2017. 

A sign indicating distances in Miran Shah, on the road leading to Afghanistan. Image by Umar Farooq. Pakistan, 2017. 

Miram Shah, North Waziristan—On a sweltering August afternoon in the Pakistani city of Bannu, Malik Ghulam takes a phone call from a relative in Afghanistan. Ghulam is one of the younger elders of the Madakhel, a clan of the Wazir tribe whose members have property on both sides of the Durand Line, the de facto Afghanistan-Pakistan border. The phone call leaves him worried: Someone is crossing the border from Afghanistan onto his tribal land and harvesting pine nuts, one of the few sources of income he has.

Ghulam’s home, along with the tract of pine trees, is on the Pakistani side of the border, in North Waziristan Agency, part of the semi-autonomous Federally Administered Tribal Areas (FATA). Thickly forested and mountainous, his district of Datta Khel is bisected by the Tochi River, along which runs a main road from the city of Miram Shah to a border checkpoint with Afghanistan’s Paktika Province in the west.

He has not seen the pine forest since 2014, when the Pakistani army launched a counterinsurgency operation in North Waziristan and ordered more than a million locals to leave. Pakistan says more than 500 soldiers and 3,500 Taliban and Al Qaeda militants have been killed in North Waziristan in the operation, and that the entire area has been cleared, yet Ghulam and the other Madakhel tribesmen are among more than 13,400 displaced families who are still waiting for permission to return to their homes. From the little information sympathetic army officers give him, Ghulam has learned that his home, like thousands of others in North Waziristan, has been leveled.

Bannu, the gateway into North Waziristan, is now the closest he can get to home: Thousands of troops man checkpoints between Bannu and Datta Khel, and only those belonging to tribes allowed to return home are waved through. Tribesmen with money or better-off relatives live in homes as far away as Peshawar, Islamabad, and Karachi, waiting for the phone call from elders like Ghulam that will bring the news that they can return. Ghulam spends his days making the rounds to check in on the poorest of his tribesmen, around 4,000 families that have been living in tents in the open just outside Bannu for more than three years.

Every few weeks, the elders get phone calls inviting them to Bannu for traditional meetings, or jirgas, to discuss the operation with military officers, but many have stopped coming. “I have absolutely no heart in it anymore,” says Malik Said Rahman, who fled before the military operation. Taliban militants, Rahman says, had forced him to rent out a room to them in a home he owned. When he went to local authorities to complain, he was told there was no way to force the tenants out, so he left North Waziristan altogether, fearing he might be targeted in a drone strike or be arrested by the military and accused of helping the Taliban.

American drones have struck Pakistan more than 400 times since 2004, and more than 300 of those strikes have been in North Waziristan, killing anywhere from 424 to 969 civilians.

Like many in the tribal areas, Rahman would like the autonomy granted to the tribesmen to be replaced with the same laws as in the rest of Pakistan. “That old system, the idea of the tribes being able to defend themselves and having this great relationship with Pakistan…it was worthless.”

“We have been paying Pakistan billions and billions of dollars at the same time they are housing the very terrorists that we are fighting,” President Trump said this past August in a speech explaining his strategy for winning the war in Afghanistan. “It is time for Pakistan to demonstrate its commitment to civilization, order, and to peace.”

In the days after Trump’s speech, thousands of indignant Pakistanis marched through the streets of Peshawar, Islamabad, and Karachi, burning American flags and effigies of Trump. “Your War, Your Headache,” said a banner strung across from the US consulate in Peshawar by a local business association.

For those living in the tribal areas, it’s a matter of life and death.

American drones have struck Pakistan more than 400 times since 2004, and more than 300 of those strikes have been in North Waziristan, killing up to 4,000 people, among them militants from Al Qaeda, the Islamic Movement of Uzbekistan, and the Taliban. The Bureau of Investigative Journalism, one of a handful of groups monitoring the drone strikes, estimates that that anywhere from 424 to 969 civilians have been killed.

Many expect drones to be Trump’s first tool in any stepped-up campaign against militants in Pakistan. This October, four strikes over 48 hours killed up to 37 along the Afghanistan-Pakistan border, days after Pakistani forces rescued an American, Caitlan Coleman, along with her husband and two children, who had been held captive by the Taliban for five years in the tribal areas. Coleman, like several other Western hostages held by the Taliban, was kept for years in North Waziristan.

Washington’s legal rationale for the drone campaign has been couched in the idea that FATA is a relatively lawless region. In his first public admission of the US drone program, in 2012, President Barack Obama was quick to point out that “a lot of these strikes have been in the FATA,” and in a speech detailing the policy behind the use of lethal force in 2013, he said Al Qaeda and other terrorists took “refuge in remote tribal regions” where the state “lacks the capacity or will to take action.”

The strikes have drawn sharp rebukes from Pakistani military and civilian leaders over the years, but in the tribal areas Pakistan’s powerful Inter-Services Intelligence agency (ISI) has facilitated the program, clearing the airspace for US drones and providing the information needed to find and eliminate targets.

In the Pakistani military’s headquarters in Miram Shah, the guest book at the Tochi Scouts Mess—housing for a paramilitary unit established in British colonial times that once hosted T.E. Lawrence—still includes messages left by US intelligence personnel. “With the greatest respect and admiration of the famous, hard fighting Tochi Scouts—our friends on this latest frontier,” reads an entry by a US Army colonel from 2006, part of a delegation of US intelligence officers who visited the area before the drone strikes became a source of public outrage in Pakistan.

“Many of our children still cannot sleep if they hear a machine that sounds like the buzzing of those drones.” —Malik Ghulam, tribal elder

Those living in FATA are almost certain the dreaded buzzing sound will return to their lands. “Back then, we couldn’t even ask about who was being killed,” says Ghulam, whose home district of Datta Khel was a frequent target. “Of course, the drones killed some foreigners, but it had an impact on us as well. Many of our children still cannot sleep if they hear a machine that sounds like the buzzing of those drones.”

The Pakistani military says it is finally doing what the United States asked it to do for more than a decade: clearing FATA of all kinds of militants—from Al Qaeda–affiliated Arabs and Central Asians to Tehreek-e-Taliban Pakistan (TTP) fighters waging a war against Islamabad. Officials even claim they are now fighting the Haqqani network, a loosely organized group of commanders who are crucial for the Taliban insurgency in Afghanistan—and one that Washington claims is supported by Pakistani military intelligence.

“I don’t know about any Taliban, but I know we all got out of there,” Ghulam says with a frown. “What else can we do to show we are not terrorists, that we are not against Pakistan? We left our homes, we turned in all our weapons, and the army said it would clear the area. It would be their responsibility. They said we could go back in two months. Now it’s been three years.”

A few miles west of Bannu, on the road to Miram Shah, traffic piles up at what one could mistake for an international border crossing.

A tribesman driving a white minivan pleads with a soldier to let him revise the number of passengers he claimed were with him. “You put down four men and three women,” the soldier tells the driver. “Now you are telling me there are seven men and three women. Forget it, go back,” the soldier says, pointing several hundred feet up the road, where a string of pickup trucks, cars, and minivans is waiting. Pickup trucks carry bags of concrete mix, and families step out of packed minivans, all hoping to get to their destination before the checkpoint closes for the day. More than 20,000 people are screened each day at the Saadgi checkpoint, as they move into and out of North Waziristan. They are made to dismount and walk to a screening area, where men and women are patted down before presenting ID cards to a soldier who scans a database to see if the image and information that appears onscreen matches the person before them.

Checkpoints like this one are found at crossings between North Waziristan and the “settled” areas of Pakistan, outside of FATA. On the other side of the tribal areas, along the border with Afghanistan, the Pakistani military says it has put up hundreds of miles of fencing and trenches, as well as 1,000 border watch posts. Inside North Waziristan, nearly every hill along the main roads is topped by a new military fort, and sophisticated ground and air radar systems have been deployed, which the military says can detect individuals moving in the terrain. If Pakistan’s claims are accurate, it would make North Waziristan, long identified by Washington as a safe haven for militant groups, one of the most thoroughly surveilled parts of Pakistan.

The day the Taliban government in Kabul fell to US-led coalition forces in the fall of 2001, Maulvi Akbar (he asked that his real name not be used) was standing in front of what had been the US embassy. The radio in his hand crackled into life and the voice of the head of the Islamic Emirate of Afghanistan, Mullah Omar, came on, commanding his followers to leave the city. “I remember the state bank, there were stacks and stacks of dollars, euros, pounds, even gold, but I just went home,” said Akbar. He had served as a senior bureaucrat in several Taliban-government ministries and the commander of brigades in Kandahar and Kabul, but on November 14, 2001, Akbar climbed into his pickup truck and left the country he had adopted a decade earlier with no money in his pockets.

After the arrival of Soviet troops in Afghanistan in 1979, Akbar, like hundreds of other young students at seminaries in northwestern Pakistan, joined the mujahedeen insurgency against the Communist government in Kabul. As millions of Afghans fled the war into Pakistan, Arab nations, the United States, and Pakistan pumped hundreds of millions of dollars and tons of weapons into the war effort. Out of reach of most foreign media and civilian authorities in Islamabad, the tribal areas became the staging ground for tens of thousands of mujahedeen, who came from across the Muslim world to join the fight against the Soviets.

The Pakistani Constitution considers FATA a part of the country, of course, but explicitly bars the nation’s courts and Parliament from exercising jurisdiction there. The law here dates back to 1901, when British colonial forces introduced the Frontier Crimes Regulations (FCR), a kind of truce with local tribesmen. In each district, or agency, the federal government would appoint a representative, called a political agent, whose jurisdiction was limited to crimes committed against Her Majesty’s officers, or near government roads and military installations. If the political agent thought locals were involved in anti-state activities, he was allowed, under the FCR, to use a range of pressure tactics, including collective punishment against entire tribes for the behavior of one or several members: Tribes could be exiled, their homes and businesses razed, and members arrested en masse until the government’s writ was restored in a particular area. Other than that, the tribesmen were free to govern themselves. The inherent flaws in the system were laid bare decades ago, during the war against the Soviet forces in Afghanistan.

“Back when they wanted to fight the USSR, the US and Pakistan brought all kinds of weapons here, from AK-47s to Stinger missiles.… Those weapons and that mindset gave rise to the problem we have now.” —Malik Habibullah, tribal elder

“We became an international market for weapons and fighters,” said Malik Habibullah, a tribal elder from Dande Darpa Khel village in North Waziristan, about 10 miles from the Afghanistan border. “Back when they wanted to fight the USSR, the US and Pakistan brought all kinds of weapons here, from AK-47s to Stinger missiles. The mujahedeen commander would keep maybe 90 percent of them for himself, and send the rest to the front lines in Afghanistan. That’s where all this really began. Those weapons and that mindset gave rise to the problem we have now.”

After the Soviet withdrawal in 1989, Afghanistan fell into a vicious civil war. Competing factions led by veterans of the mujahedeen insurgency turned their guns on each other, with little regard for the civilians in the way. Cities like Kabul became a frequent target of rockets and shelling, which killed tens of thousands of civilians.

It was the Taliban, a movement of seminary students like Akbar—taliban means “students” in Pashto—from both sides of the Durand Line, who emerged largely victorious in 1996, bringing a kind of stability to areas once ruled by corrupt warlords. They succeeded in large part because of aid from the Pakistani government, which hoped a hard-line Islamist government in Kabul would be a bulwark against the influence of regional rival India. Akbar, an Utmanzai Wazir from the Shawal valley in North Waziristan, spoke the same language as the leaders of the Taliban, and he had studied with the same teachers as Mullah Omar. He quickly rose through the movement’s ranks, becoming commander of an elite brigade tasked with securing Kabul during the 2001 US invasion of Afghanistan, and he spent a month guarding Osama bin Laden.

When Akbar returned home to North Waziristan after the Taliban’s defeat, he headed for Miram Shah, the agency’s headquarters, where he was welcomed by Malik Nuruddin, an elder from his own Wazir tribe. Akbar planned to finish his studies at the seminary he had quit before the war. When he moved back home to the Shawal valley, the serene mountains and clean air he remembered no longer calmed him. Shawal, like the rest of Waziristan, was engulfed in war, one in which it was sometimes hard to identify who the sides were.

Under US pressure, the Pakistani president at the time, Gen. Pervez Musharraf, dispatched tens of thousands of troops to FATA in 2001—the first time they had been deployed in the tribal areas since 1947. They were ordered to seal the border and capture or kill any foreigners presumed to be Al Qaeda members.

Malik Ghulam recalls leading processions of Pakistani officers through the mountains of North Waziristan to show them where the boundary was. “I remember there was a major with a big mustache and a grin across his face…. We fed the troops, and we marched with them. We even had a few local drummers; it was kind of a festival,” Ghulam says.

That patriotism waned over the next few years, as militants from Al Qaeda, the Islamic Movement of Uzbekistan, and a host of Taliban splinter groups took root across FATA. “Because we lived under the FCR, there were no police here, there were no real state powers we could count on, and our borders were completely open,” says Ghulam.

“We concluded that the militants, at least in the beginning, were either with the Taliban supported by Pakistan, or with the military, because no one seemed to be trying to stop them.” —Malik Ghulam

Flush with cash, Arab and Central Asian fighters rented homes from locals, in many cases by force, and gave birth to a war economy that smuggled in Western appliances and household items to cater to their demands.

“They would get waved through most checkpoints, and at those where tribesmen were posted, they would just drive up, shoot the poor khasadar [policeman], and take over the spot themselves,” Ghulam says. “So we concluded that the militants, at least in the beginning, were either with the Taliban supported by Pakistan, or with the military, because no one seemed to be trying to stop them.”

The system of governance in FATA had long depended on the elders. Political agents gave out monthly stipends to elders to encourage their loyalty, and each tribe contributed personnel and weapons for the khasadar force, which stood in for what would have been police in the rest of Pakistan.

When confronted with its own insurgency in FATA—the jihadis of the TTP—the Pakistani military tried relying on the same kind of carrot-and-stick methods as the British more than a century ago, invoking the FCR to hold tribes collectively responsible for violence in their area, with tribal elders serving as the middlemen. For most of the past 15 years, Pakistan’s focus has not been on eliminating militants altogether but rather those who were considered most dangerous to the Pakistani state: Arabs working with Al Qaeda, Uzbeks, Tajiks, Chinese Uyghurs, and others working for allied militant groups.

Fighters following Jalaluddin Haqqani, a close friend of Akbar’s whose network of financing and fighters was crucial in keeping the Taliban alive as an insurgency in Afghanistan after victory by US-backed forces in 2001, were largely left untouched. “If you were stopped at a checkpoint by soldiers and you said you were Haqqani, there was no question, you were let through,” he said.

In April 2006, Musharraf called a jirga of tribal elders from across FATA to issue a warning. Pakistan, he told the elders, was “standing at a crossroads,” and the tribesmen had to “choose one way or the other.” If the tribesmen could expel what Musharraf called “foreign elements” and “terrorists,” Pakistan was prepared to invest in FATA, building factories, roads, dams, hospitals, and badly needed infrastructure. “You are a brave people and gallantry is your tradition.”

“I was incensed,” recalls Kabul Sher Afridi, an elder from Khyber Agency who was in attendance. “He was standing with his chest sticking out and that mustache of his, like he was some kind of a commando.”

“Just tell us what you expect us to do,” Afridi pleaded with Musharraf when he got a chance to speak afterward. “You are signing peace deals with these people and then we are paying for them when they are broken. On the government’s own roads, we see these Taliban being waved through the same checkpoints where we are always stopped. Just tell us, who is the enemy, so we can fight them.”

But Musharraf never entirely explained what the strategy was in FATA, not to the tribal elders and not to the Pakistani public. Over the next few years, Inter-Services Intelligence hired hundreds of locals in the tribal areas, including minors, to track not only the foreign terrorists Musharraf had talked about in 2006 but locals as well. When it came time for one of those targets to be eliminated, the ISI passed the information to the CIA, and a drone strike would kill another individual the Pakistani government no longer wanted around.

Attacks on Pakistani security forces, usually from the TTP, earned locals collective punishment. Tens of thousands of homes were demolished, entire tribes were blockaded or exiled for years, and political agents arrested thousands of tribesmen in an attempt to punish them. Tribal elders, who Pakistan claimed were responsible, found themselves caught between Taliban assassins and government officials. Suicide bombers struck jirgas, as did US drone strikes. In all, at least 1,100 tribal elders were killed in the war, while thousands of others have left the tribal areas out of fear.

Eight years after he was welcomed home by Malik Nuruddin, Akbar got a phone call from the frail Wazir leader. Baitullah Mehsud, then one of the leaders of the TTP, was out to kill him. “Nuruddin’s son, who worked in the political agent’s office, had visited an army camp,” Akbar said. “When he came back home, Baitullah’s men began announcing in Miram Shah they were going to kill Nuruddin for collaborating with the military.”

Akbar, whose past life with the Taliban earned him respect even among the new generation of Pakistani militants, was able to save Nuruddin’s life, bringing him to Peshawar. But three years later, thinking the Taliban had likely forgotten about him, Nuruddin paid a visit to Miram Shah and was gunned down.

Killings of elders like Nuruddin have made even those with ties to the Taliban question why the tribal areas are kept so separate from the rest of Pakistan.

“Every child in FATA knows why the drone strikes happen here,” said Akbar, whose Shawal valley was hit in dozens of strikes over the years. “Every child knows why camps for mujahedeen are in FATA, and not in Peshawar or Karachi or any other city. There is a government there, and these kinds of things cannot happen in the open, so they do it all in FATA.”

While the Trump administration’s renewed focus on Pakistan and its role in the Taliban insurgency in Afghanistan may be the most blunt from Washington so far, it is not new. President Bush’s 2003 National Strategy for Combatting Terrorism, the 2004 9/11 Commission Report, and a litany of Congressional, Defense Department, and intelligence assessments have called for a comprehensive US strategy to eliminate safe havens in FATA by asking Pakistan to bring the area under full constitutional control.

But Washington’s policy regarding FATA, and Pakistan in general, has focused far more on the country’s military. Cameron Munter was the US ambassador to Pakistan from 2010 to 2012. While Munter recalls mostly informal discussions with Pakistani officials on bringing FATA into the mainstream, he says that in the end “it was a matter for the Pakistani authorities and people to decide.”

“The Americans were not focused on reforming the FCR,” a Pakistani contractor who worked on US-funded aid programs for FATA told me. “They were interested in giving computers or equipment, or helping strengthen the existing system there.”

Of the $33 billion in aid Washington has given to Pakistan since 2002, the vast majority has been spent on the military, or bolstering the security apparatus in FATA, keeping alive a system of collective punishment that is neither welcomed by locals nor effective in keeping the Taliban and Al Qaeda at bay.

Ijaz Mohmand leans out the window of his fourth-floor office in Peshawar and recalls the time a pickup truck full of armed men below were threatening to kill him.

Mohmand, the head of the FATA Lawyer’s Forum, is one of the most prominent among a growing body of lawyers from the tribal areas who have been trying to push for Islamabad to revoke the FCR. After a protest against the FCR he led several years ago—he doesn’t remember the exact date because there have been so many—Mohmand returned to his office in Peshawar and got a phone call from a number he says was from an Afghanistan area code, a typical method used by Taliban militants in the area to avoid tracing. The man on the phone told him to look out the window.

On the street below was a Toyota Hilux, with four men in the bed holding AK-47s and staring back up at him. “Commander Hakimullah Mehsud,” the man on the phone said, referring to the head of the TTP at the time, “has given his order and we are ready to execute you. You need to quit this reform business. You are trying to bring a Western system here.”

“I told him to go read a book,” Mohmand recalls, who told the man “that the FCR was a British idea in the first place. Anyway, I have gotten many calls like that over the years. I guess a lot of people want to keep FATA like it is now.”

“I think there is probably no legal system that is so unjust anywhere in the world,” says Mohmand. “You can raze someone’s home even though they have no connection to a crime. You can hold an individual solely based on their being a member of a tribe—some of these tribes have hundreds of thousands of members.”

In 2010 the lawyers from the tribal areas started filing cases in the Peshawar High Court, asking judges to intervene in decisions handed down by political agents. Pakistan’s Constitution explicitly bars the country’s judiciary, as well as its Parliament, from any jurisdiction in FATA, but Mohmand found that in many cases—such as challenges to drone strikes or forced disappearances by Pakistani intelligence agencies—judges were willing to at least issue verdicts, even if they were never carried out.

The activists pushed to have bills passed in provincial assemblies calling for the extension of judicial authority to the tribal areas. They met with hundreds of MPs and organized conferences, where the heads of all of Pakistan’s major political parties endorsed lifting the FCR.

In 2011, Pakistan made the first significant amendments to the FCR in more than a century, which included—on paper, at least—some important changes in the way collective punishment could be meted out: Political agents could no longer detain women, children, or men above the age of 65 as part of any collective-responsibility case. The amendments also set up two courts of appeal: a one-judge court composed of the FATA commissioner, and a tribunal composed of three high-ranking civil servants.

In 2009–10, the US Agency for International Development (USAID) spent $45 million on computers and other IT equipment for FATA officials, and in 2015 alone it spent nearly $18 million on FATA institutional governance, which included helping the FATA tribunal set up an electronic case-monitoring system. But with no legal mechanism for monitoring corruption in the tribal areas, much of that funding was wasted. None of the civilian institutions the United States has backed in FATA have done what they were supposed to.

The FATA tribunal, which has heard appeals in more than 2,000 cases, has had little luck obtaining the cooperation of political agents. Tribunal officials are mandated to visit jails in FATA every six months, but often the political agents who run them are unwilling to cooperate. Officials still have no idea how many legal cases each agent has handled, or even how many prisoners are in the dozens of jails across FATA.

Take the case of Shakil Afridi, a medical worker who allegedly helped the CIA confirm the identity of Osama bin Laden. An incensed Islamabad decided to punish Afridi, but with little proof of espionage, Afridi was instead tried and sentenced under the FCR for supporting a Taliban-style militant group in FATA he had once been forced to pay a fine to. His appeal in the tribunal was delayed for three years because the relevant political agent refused to provide records of the original trial.

“Political agents still routinely arrest children, or men who are older than 65,” says Mohmand. “I work on cases every day where people have been sitting in a jail in FATA for months, years even, with no charge.”

This past March, a committee put together by former Prime Minister Nawaz Sharif presented a draft bill to mainstream the FATA, after spending months consulting with tribal elders, journalists, and civil-society leaders. But the day the bill was to be tabled in Parliament, in May, the government decided to postpone the reforms.

After more than a decade of watching US drones circle above them, and watching Taliban and Al Qaeda fighters walk unhindered through the streets of North Waziristan, many locals are wary of promises to extend the rule of law to the tribal areas.

“We don’t really know how many Talibs they killed, we haven’t seen any bodies or anything,” said Fayyaz, 23, a student from North Waziristan who worked with military intelligence to gather information about the kinds of weapons the militants had access to. In early 2014, just before that year’s operation was launched, Fayyaz escaped two assassination attempts by a local Taliban commander named Abdul Salaam; he’s spent the past three years in Bannu fearing for his life. “Three days ago I got a text message from the intelligence officer I used to work with,” Fayyaz said. “He said Abdul Salaam has surrendered; he was caught at a checkpoint.”

What happens now to Abdul Salaam, and the thousands of other former fighters the military says it has apprehended, is a mystery to Fayyaz. “What are they going to do with him? I don’t know, but I hope no one uses him again. I hope no one uses any of us again.”