The Tehreek-e-Taliban (TTP) has inflicted terrible violence on Pakistan for 20 years. According to media reports, Pakistan has suffered financial losses of around USD150-170 billion due to terrorism. Moreover, about 70,000-150,000 lives have also been lost due to terrorism and these numbers are likely just the tip of the iceberg.
After years of trial and error with counterinsurgency and counterterrorism strategies, now Pakistan’s security elite is negotiating a political settlement with the TTP for lasting peace. Last month, we witnessed a breakthrough with facilitated negotiations in Afghanistan. Both parties adhered to a cessation of hostilities, and an opportunity to pursue a negotiated settlement and genuine peace opened. It is time for Pakistan’s political elite to act strategically, and present a unanimous peace strategy.
While discussing peace, both, the TTP and the Pakistani government need to decide how to deal with their violent past. This is an essential question because how governments address past abuses and heinous crimes affects the present and future relationship between perpetrators and victims. It also determines the success of the transition to peace.
For Pakistan to move forward, it needs to create a legitimate process to let victims of the conflict tell their stories in their own words. Amid discussions about amnesty and rehabilitation of terrorists, victims’ rights must not be ignored. A perpetrator-centric peace and reconciliation process (such as the ‘forget and forgive’ approach) would fail to transform distraught relationships.
The concept of transitional justice has been operationalised for a political transition in contexts such as Tunisia and South Africa, and post-conflict transitions such as Nepal, Timor Leste, Mindanao- Philippines, and Columbia, among others. This might provide inspiration to discover a formula suitable to Pakistan’s context.
The most common transitional justice framework of addressing a violent past are based on four pillars: accountability for serious crimes, establishing truth about heinous crimes, reparation to the victims, and guarantee of non-recurrence. It is acceptable that the transitional justice package’s configuration is based on local context. Since 1945, transitional justice models moved from Nuremberg and Tokyo trials to nation-building in the post-cold war phase through ‘the rule of law’.
This is followed by the current stage where universal jurisdiction of International Humanitarian Law and International Human Rights Law is always considered a constant presence as a new normal. According to the UN Secretary-General in his report, The Rule of Law and Transitional Justice in Conflict and Post Conflict Societies (2004), the concept of “transitional justice refers to a range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large scale past abuses to ensure accountability serve justice and achieve reconciliation.” Thus, indicating that the political community seeks to repair damages done by the past practices. Often transitional justice processes are timed with the state or sub-state restructuring process to mark a new era.
Experience from many countries noted that an overly legalistic approach, such as a focus on trials or amnesties, shifted the focus to experts, lawyers, donors, and even international NGOs, instead of victims or the society emerging from a violent past. These findings are observed in Northern Ireland, Nepal, Sierra Leone, Rwanda, and Timor Leste studies. The top-down rule of law and human rights approach with state and institutions in the centee acting as guarantor and enforcer concurrently does not address the complex, messy and extremely local problems of a conflict-ridden context.
While transitional justice mechanisms provide a variety of modalities such as truth and reconciliation commissions in Timor Leste, Mindanao and Nepal and special jurisdictions such as Bangladesh, Cambodia and Timor Leste, reparations to victims such as in case of Nepal, Thailand, Philippines and political processes redefining power in a state structure such as Mindanao – Philippines and Nepal, the objective of such effort remains that after violence a society makes efforts to achieve justice, sustainable peace, and prosperity.
Given the public debate following the news of the cessation of hostilities and prospects of facilitated negotiations between the government and the TTP, the dilemma between peace and justice seems relevant. The ‘justice vs peace’ dilemma is not a debate between retributive justice and cynical realists who pursue forgive and forget to move ahead. These are two moral convictions: to establish a functioning society, one must offer justice for the crimes committed during the conflict. However, to secure a legitimate and functioning governance, leaving the past behind and past criminals alone is sometimes necessary. This dilemma gets projected during and after negotiations as political tensions are high during the transition phase.
Inspiration can be realised through examples as to what other contexts have utilised as befitting approaches. Nepal suffered from 10 year-long internal conflict, with over 13,000 lives lost and a minimum 1,300 missing.
In the case of Nepal in 2015, Nepal’s Supreme Court struck down the amnesty provision in the Truth and Reconciliation Commission (TRC) Act. The amnesty provision granted the TRC and the Commission on Enforced Disappearances the discretionary power to recommend amnesties for those responsible for grave violations or abuses of human rights. Victims’ groups have condemned the legal framework as “forced reconciliation.”
In a petition to the Supreme Court on proposed mediation, victim groups argued that this policy also failed to consider the inequalities between vulnerable and marginalised victim communities and the perpetrators, who have the backing of powerful institutions and leaders. Victim families said that the authorities tried to use “reconciliation” to subvert justice by granting amnesties and effective impunity for gross human rights violations, amounting to grave crimes under international law.
In the case of Columbia, where a 55-year-old conflict between the state and FARC resulted in the loss of 262,000 lives, and more than 80,000 disappeared, the Constitutional Court, in its two rulings (2013 and 2014), determined that the state duty to guarantee human rights and to enforce criminal laws against human rights violations had the structure of a legal principle. In doing so, the Court employed a distinction between rules and principles. It said that rules stipulate a particular outcome whenever they apply; principles were optimisation requirements. Principles were norms that did not establish exactly what ought to be done but required “that something is realised to the greatest extent possible, given the legal and factual possibilities”. The Court balanced this essential element of national and international obligations against an opposing principle, namely, the goal of “achieving a stable and lasting peace”.
The Court considered the large body of international legal principles concerning transitional justice as a valid legal framework for reviewing the constitutionality of legislation governing the transitional justice framework. The Columbian framework not only referred to achieving a stable and lasting peace but also spelt out a set of rules and principles related to the reparation of victims, restoration of public trust in state institutions, reconciliation, strengthening of democracy and the rule of law, acknowledging truth, and land restitution.
In a functioning state like Pakistan, the peace vs justice dilemma should only be resolved based on political negotiation through arguments concerning interpretation of the legal framework (i.e., perhaps a flexible interpretation of the rule of law) and by setting the boundaries through defined values of political negotiations. Pakistan’s national peace and reconciliation strategy and local political factors would determine the satisfaction of victims and the community-at-large in TTP-conflict-affected communities. While doing so, the political elite should be aware that the degree of legitimacy of national transitional justice responses and initiatives have very little to do with international influences.
Therefore, parties on the negotiation table and Pakistan’s political leadership should consider a holistic victim-centric strategic approach based on a flexible legal framework. This should be developed through a legitimate process for the Pakistan-TTP peace process.
The strategic framework should cover components of all four pillars of accountability, truth-seeking, reparations and guarantee of non-recurrence to pass the local and global legitimacy test. In addition, a victim-centric holistic framework has the potential to provide space for healthy communication where competing rights claims and narratives can coexist. In this space, the state becomes one of the actors within the community and individuals, and does not undermine the needs of victims, their families and conflict-affected communities.