Afghanistan’s legal system has collapsed. Never strong to begin with, it has been nearly destroyed by 23 years of conflict and misrule. There are few trained lawyers, little physical infrastructure and no complete record of the country’s laws. Under successive regimes, laws have been administered for mostly political ends with few protections of the rights of individuals to a fair trial. Although the country has signed up to most international agreements on human rights, abuses have been widespread, and military commanders have enjoyed impunity.

The challenges in remedying the situation are enormous. No justice system can thrive in a state of insecurity and corruption since judges and prosecutors will be intimidated or bribed. There are deep divisions between those who favour a very conservative interpretation of Islamic law and those who want to revive the more progressive ideas in the 1964 Constitution. The loss of trained staff has been such that it will take a generation at least to rebuild a system that even before the conflict only really functioned in the main cities and towns.

Nevertheless, moving towards the rule of law is a vital part of peace building in Afghanistan. Abuses of ethnic and religious groups and the treatment of women suggest that no group can feel secure unless protected by a body of law and a functioning judicial system. The economy will be more likely to grow if property is protected; a fair system to adjudicate the many property disputes that have stemmed from war will be vital if this is not to become a new source of grievance and conflict. A functioning judicial system will also be essential for dealing with drug production. The country will likewise have to find a way of addressing past human rights abuses if it is to gain a durable peace.

The Bonn Agreement signed in December 2001 re-established the 1964 Constitution as Afghanistan’s key legal document and laid out a plan to rebuild the system. That plan called for the establishment of independent commissions to oversee the rebuilding of the judiciary, monitoring of human rights, drafting of the constitution and selection of civil servants. These bodies were to provide both expertise and some measure of oversight to a government in which executive and legislative powers are concentrated in the hands of the president and his cabinet.

So far the commissions have achieved little. Most of those named to the first Judicial Commission were linked either to ministries or the Supreme Court. That commission bogged down in bureaucratic and political rivalries and was disbanded after three months. A new commission, appointed in November 2002, appears more independent but begins with an ill-defined mandate and is handicapped by the fact that several critical laws were drafted or adopted in the intervening months. The Human Rights Commission has been more successful but faces formidable security concerns, which the Transitional Administration and the international community have not adequately addressed, and has been delayed in establishing a nation-wide presence. The Civil Service Commission is not yet functioning.

The commissions were an obvious channel for international technical and financial assistance, and the delay in establishing them has meant many lost opportunities. Their performance to date does not bode well for the future since they will have to tackle even more thorny issues such as disarming military forces, writing a new constitution and managing elections due in 2004.

While the international community has dithered on judicial development, the factions within the Transitional Administration that control the judiciary have moved swiftly to promote their interests. The Supreme Court is controlled by Fazl Hadi Shinwari, an ally of the Saudi-backed fundamentalist leader Abd al-Rabb al-Rasul Sayyaf. Shinwari was appointed in December 2001 by former president Burhanuddin Rabbani. President Hamid Karzai re-appointed him in June 2002, much to the surprise of many as the constitution requires that a Chief Justice be under 60, while another provision has been interpreted as requiring that the Chief Justice be educated in all sources of Afghan law, religious and secular. Shinwari is believed to be in his 80s and does not have formal training in secular sources of law.

Shinwari has rapidly placed political allies in key positions, even expanding the number of Supreme Court judges from nine to 137. Of the 36 Supreme Court judges whose educational qualifications are known, not one has a degree in secular law. Shinwari’s actions, together with the re-emergence of a ministry to promote Islamic virtue, have added to fears that the judicial system has been taken over by hard-liners before the Afghan people have had a chance to express their will in a democratic process. The Supreme Court has also established new National Security Courts that will try terrorist and other cases although it is unclear whether it had the right to create courts that are not mandated in law.

Tensions have emerged between the Supreme Court Chief Justice and the Minister of Justice, whose ministry drafts laws and who under the Law of Saranwal (Attorney General or Public Prosecutor), is the country’s chief prosecutor. Although the Attorney General was established as a separate office in the 1980s, the Minister of Justice disputes the constitutionality of this move.

The United Nations has done little to press accountability for past human rights abuses as senior figures believe it is more important to consolidate the peace process. Donors have been slow to embrace the issue – at the Tokyo conference there were no specific commitments. President Karzai has dismissed transitional justice as a “luxury” the country cannot afford until it is more settled. But taking justice for past crimes off the agenda has almost certainly contributed to a sense among commanders that they can act as they wish with no risk of punishment. Human rights abuses by commanders, many officially part of the government, continue across the country.

Most advocates for a process of transitional justice recognise the difficulties but believe that training and resources need to flow into the country now so that Afghans can eventually make informed decisions about which mechanisms might best address past abuses and help end the cycle of impunity. Training lawyers and investigators, protecting evidence and establishing archives are all essential if Afghans are to choose in the future from an array of possibilities that includes trials of abusers and a truth and reconciliation commission. Many difficult decisions about what to include and where to draw geographical or temporal boundaries can be put off until peace is more established but unless the international community builds a capacity among Afghans to deal with the issue themselves, all choices could be lost for good.

Rebuilding the justice system needs to move higher up the political agenda. The process requires conspicuous support from the United Nations and full implementation of the Bonn Agreement, which offers a mechanism to build a new justice system. Donors need to provide technical and financial support in a timely manner to ensure that Afghanistan develops a legal system that serves and protects all its people and reduces the risks of a return to conflict.

Kabul/Brussels, 28 January 2003