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Thursday March 28, 2024

The war paradigm

By our correspondents
November 28, 2015
Legal eye
The writer is a lawyer based
in Islamabad.
Patriotism is supposed to be a constructive identity meant to make citizens more grounded, and cultivate in them a sense of affinity and empathy for fellow citizens. But the heady cocktail of patriotism, mixed with religion, that we have been brewing to feed our socio-cultural ethos and our national security doctrines is giving us a violent high devoid of reason and accountability. Why are we allowing an identity that was meant to be cohesive to instead make us bitter, divided and bigoted? Should love for one’s country wane one’s humanism?
Last week our Foreign Office “noted with deep concern and anguish the unfortunate executions of the Bangladesh Nationalist Party Leader, Mr Salahuddin Quader Chowdhary and Mr Ali Ahsan Mujahid” (the Bangladesh Jamaat-e-Islami secretary general). Both these Bangladeshi political leaders, who had remained in parliament and the cabinet in Bangladesh and were now in opposition, were tried before a Bangladeshi tribunal and found guilty of crimes such as torture, genocide, rape and abduction etc, during the 1971 war against Bangladeshis.
These trials and convictions might be politically motivated, and international human rights organisations have rightly questioned the safety and integrity of the Bangladeshi criminal justice system rolling out these death penalties. But what legal or moral authority does Pakistan have to lecture Bangladesh on how to deal with its ghosts of 1971? Are we saying that there was no torture or rape in Bangladesh in the period leading to the 1971 war or are we saying that we know for sure that Chowdhary and Mujahid weren’t involved in war crimes?
The memories from 1971 are painful. Pakistan got divided into half. But we seem to have learnt no lessons. Thirty-four years later we still don’t realise that it was the Pakistani state and its policies that lost us 56 percent of our population and our eastern wing. Pakistan and its ruling elite conceived and delivered Bangladesh. India only midwifed it. And terrible atrocities were committed in Bangladesh during the reign of violence that preceded its creation; acts so vile and beneath the human dignity to be shown to the enemy even during war that they qualify as war crimes.
Notwithstanding the release of the Hamoodur Rehman Commission Report and the apology tendered by General Musharraf on behalf of Pakistan, our collective approach to the war crimes of 1971 has been one of denial. Our state narrative has been sharpened since and we believe that the state can impose a ‘war’ on its own citizens if they pick up arms against the state. And that the act of declaring war on the state automatically transforms a citizen into an enemy alien bereft of human rights and protections of due process and rule of law.
With the introduction of amendments in the Anti-Terror Act, the Army Act and promulgation of Protection of Pakistan Act and the 21st Amendment, Pakistan has replaced within its legal architecture the criminal justice paradigm of prosecuting citizens involved in crimes with the war paradigm. Sponsored by the military, the dominant state narrative is that if we worry about procedural protections and rights of terror suspects, terror will win and the state and its citizens will lose.
We have been told that there is a conflict between the state’s duty to protect citizens from terror and the state’s obligation to provide a safe and fair system of justice that deems suspects innocent until proven guilty, and that the latter duty can only be upheld at the expense of the former. We have been told that probing the means or tactics being employed by those fighting terror is a disservice to the soldiers sacrificing their lives for the safety of ours. We have been told that preserving civil liberties while fighting terror is neither possible nor desirable.
And we have bought into this no-holds-barred narrative. If the savage TTP sever heads to spread fear it is okay for the state to throw its captured fighters out of flying helicopters to reassure local populations that savagery against the state won’t go unpunished. That it is okay for the state to adopt a kill-and-dump policy if needed in the interest of retribution and deterrence. And that patriotism demands that those crying hoarse over ‘terrorists’ gone ‘missing’ should instead empathise with the families of the soldiers and citizens they attack.
The history of the state’s monopoly over violence is a tragic one of excesses and abuses. During times of conflict, when scrutiny of the state’s use of violence is most required, the space to do so shrinks even further. Given the predominance of the military in the polity there has never been much space to hold the military to account. But within our now entrenched war paradigm those questioning the means being employed to realise the desirable end of extinguishing terror are by definition either apologists of terror or traitors to the state and its martyrs.
A strong military is a national asset. In our troubled neighbourhood, our military is the prime source of our physical security and stability. But as a historical matter, our military has also been the prime cause of our political instability. Thus with the expansion of the military’s influence amidst the fight against terror, wartime-like immunity against accountability and adoption of laws that vest in it overbroad powers with no oversight, the apprehension is that once the threat of terror recedes the anti-terror powers might become susceptible to abuse.
Maulvi Abdul Aziz and Dr Asim Hussain’s cases present a worrying contrast. Maulvi Aziz led the Lal Masjid brigade that openly fought the state in 2007 and a full-fledged military operation had to be carried out to neutralise the threat it posed, which claimed the lives of several soldiers including the colonel who led the operation. But the state reconstructed the mosque and Maulvi Aziz is back leading prayers, justifying the TTP, celebrating Isis and threatening to overthrow our current system of governance through an Islamic revolution.
Dr Hussain is, however, under arrest. The Rangers initially took him into custody in exercise of their extensive preventive detention powers under the amended Anti-Terror Act. We were told he is mixed up with the dirty business of terror financing. But after 90 days of interrogation the charge of terror seems based on the premise that he owns a hospital that treated terror suspects. Was there a special ward he ran with the intent of abetting terrorists? Are we now trying doctors for treating patients who later turn out to be terror suspects?
Or is this a case of the Rangers’ saviour instinct kicking in? While they are cleansing Karachi of terror, why not also wipe it clean of graft that they come across. After all taking to task crooked politicos who have been robbing our beloved country and its people of their wealth is a sacred duty of all patriotic institutions and people. Why all this fuss about whether the real charges are those of corruption or terror? Shouldn’t both these evils be fought? So long as the ‘do-good’ object motivates the Rangers’ conduct, why fuss over petty jurisdictional concerns?
The question isn’t whether the fight against terror is our existential fight, but rather how it is to be fought. Those who fight wars do so to serve their country. Soldiers (and their families) make tremendous personal sacrifices due to the nature of the job – which must be recognised and honoured. But in the heat of war, terrible crimes are also committed. Humanity and codes of humanitarian war require that such excesses be condemned and not justified. The problem with the war paradigm is that it creates impunity, and shuts out probing questions and corrective influences.
Patriotism must not be a choice in favour of a state’s no-holds-barred use of force at the expense of humanism and rule of law. Samuel Johnson was probably denouncing ugly jingoism when he quipped that, “patriotism is the last refuge of the scoundrel”.
Email: sattar@post.harvard.edu