THE Peshawar school attack has shown that concerns that TTP factions would surpass the Islamic State in brutality are now a reality. Mullah Fazlullah’s group, which targeted Malala Yousafzai, claimed responsibility. The TTP spokesman Muhammad Khorasani stated that the operation conducted was an act of reprisal for the ongoing Zarb-i-Azb operation in North Waziristan and was carried out to avenge the killings of family members of the TTP cadre. He stressed that the objective was to inflict pain by specifically targeting the school.

Unquestionably, the TTP has committed war crimes. International Humanitarian Law (IHL) mandates that all actors — state and non-state alike — are bound to obey this body of law. Further, transgressions are not affected by reciprocity. War crimes, whether committed in retaliation or otherwise, are equally violative of international criminal law and subject to the same punishments, which can be awarded by either international or national criminal tribunals — arguably even military tribunals — constituted under Common Article 3 of the Geneva Conventions. This is without prejudice to the fact that non-state actors including terrorists can also be tried under the domestic criminal justice system.

Under Article 51 of the Additional Protocol I to the Geneva Conventions, now a part of customary international law, civilian populations and individual civilians cannot be made the objects of attack, and attacks against such person(s) by way of reprisal are prohibited. Under Article 3 common to all Geneva Conventions persons taking no active part in hostilities cannot be targeted; murder and the taking of hostages are strictly prohibited.

Public pressure will push the state to switch to a war footing.

Children as a sub-category of civilians, in fact, enjoy the greatest amount of protection during conflict. International law often requires proactive measures for guaranteeing their safety and well-being. These forms of protections are explicitly mentioned through numerous provisions of the fourth Geneva Convention, Article 77 of the First Additional protocol to the Geneva Conventions, Article 38 of the Convention on the Rights of the Child, and the Optional Protocol on the Involvement of Children in Armed Conflict. Further it is a contravention of the Islamic law of nations to target non-combatants including children, women and old men.

Hence, it is beyond contestation that the cold-blooded murder of children and school staff members is a grave war crime punishable under a variety of adjudicative forums.

With regard to the child, the TTP is guilty of another war crime: conscripting, enlisting or using children under 15 to participate actively in hostilities.

Additionally, if it is confirmed that the attack was carried out by TTP members wearing military uniforms while using lethal force, and if the uniforms worn establish that these terrorists were feigning as members of the Pakistan armed forces, then the group is also guilty of the war crime of perfidy — killing or wounding treacherously individuals belonging to a hostile nation or army. Treachery in war is also prohibited under Islamic law.

Condemnations of the attacks from world leaders are pouring in. The UN secretary general has termed the attack as ‘blood-curdling’, and Leila Zerrougui, the special representative of the secretary general for children and armed conflict, has issued a statement calling the targeting “ a heinous crime … senseless and intolerable”.

This incident, while devastating, was not completely unexpected. The nation has witnessed a spate of gruesome attacks by the militants against ethnic and religious minorities. The latest attack is serving as a catalyst for the nation to introspect. Many are now openly questioning Pakistan’s foreign policy and national security imperatives. The prime minister has lifted the moratorium on the capital punishment of convicted terrorists. Public pressure will surely push the state to switch to a war footing. The revamping of the security apparatus to more effectively tackle the menace of terrorism and the Taliban seems imminent.

The key, however, is to make any structural changes after careful deliberations. The criminal justice system is already under enormous stress. Further draconian adjustments in the criminal law on the premise of national security will undermine the fragile constitutional framework of human rights in Pakistan. While criminal law as a general body of law is not best suited for dealing with the fallout of Zarb-i-Azb, the specialised body of IHL is. IHL provides a transparent, accountable, yet effective mechanism for fighting and bringing to justice the militants and insurgents involved in large-scale terrorism.

It is, therefore, imperative that the state more effectively employs international humanitarian law to fight this war. Such an approach will allow the armed forces the space to act without stressing the constitutional protections and safeguards that prevail in times of peace and in normal criminal settings.

The writer is a former legal advisor to the Ministry of Foreign Affairs.

Published in Dawn, December 25th, 2014