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Afghanistan: Judicial Reform and Transitional Justice
Afghanistan: Judicial Reform and Transitional Justice
Table of Contents
  1. Executive Summary
There’s No Shortcut to Peace in Afghanistan
There’s No Shortcut to Peace in Afghanistan
Report 45 / Asia

Afghanistan: Judicial Reform and Transitional Justice

Afghanistan’s legal system has collapsed. Never strong to begin with, it has been nearly destroyed by 23 years of conflict and misrule.

Executive Summary

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

Op-Ed / Asia

There’s No Shortcut to Peace in Afghanistan

Originally published in Foreign Policy

Washington’s latest idea of a transitional government would be worse than the dysfunctional status quo.

If there is one thing the United States should have learned after two decades in Afghanistan, it’s that there are no quick fixes. That has proved true for the war, and it’s true for any possibility of a negotiated peace. But faced with the decision whether to comply with a May 1 deadline for pulling out all troops under a deal the U.S. government signed with the Taliban in February 2020, Washington is now searching for a shortcut to an Afghan political settlement. There isn’t one.

U.S. envoy Zalmay Khalilzad has delivered to the Afghan government and Taliban a draft Afghanistan Peace Agreement—the central idea of which is replacing the elected Afghan government with a so-called transitional one that would include the Taliban and then negotiate among its members the future permanent system of government. Crucial blank spaces in the draft include the exact share of power for each of the warring sides and which side would control security institutions.

At the same time, U.S. Secretary of State Antony Blinken wrote to Afghan President Ashraf Ghani, in a letter that soon leaked, saying it was “urgent” to “accelerate peace talks” and move “quickly toward a settlement.” The letter states that the United States has asked Turkey to host a high-level meeting between the Afghan sides “in the coming weeks to finalize a peace agreement.” The letter also references a U.S.-proposed 90-day reduction in violence (a concept short of a cease-fire) while diplomacy continues—which suggests that Washington knows an agreement within weeks is unlikely.

Chances that Taliban leaders or Ghani would agree to anything like the U.S. draft peace agreement are vanishingly small. But if they do, the result will be worse than this gambit failing.

Chances that Taliban leaders or Ghani would agree to anything like the U.S. draft peace agreement are vanishingly small. But if they do, the result will be worse than this gambit failing.

For the Taliban, the draft has too many hallmarks of the existing government setup: It includes a commitment to holding elections and keeping in place the constitution devised under U.S. auspices in 2004 until a new one is written. The available evidence of Taliban thinking points to their rejecting any arrangement that would make them appear co-opted into a system they have long opposed in exchange for a partial share of power.

For Ghani, the proposal is premised on him relinquishing power. That brutal fact, plus the rough-edged tone of Blinken’s letter, has whipped up a political tempest in Kabul. Afghan Vice President Amrullah Saleh reacted most bluntly, saying Afghanistan would “never accept a bossy and imposed peace.” Ghani knows that the main Afghan enthusiasts of the transitional government idea are his political opposition and the country’s former mujahideen, who sense opportunity to gain power as it is parceled out.

In the unlikely event the new U.S. peace plan materializes, the power-sharing arrangement it envisions would be prone to collapse. A body comprising multiple factions plus the Taliban—at a stage of the peace process before they’ve even begun to hash out core issues that divide them—would be less functional and less stable than the fragile government in place now. The hard work of negotiating the structure of a future Afghan state will not be eased by prematurely erasing the current one. And if a fractious transitional government fails, the cease-fire the U.S. plan promises would evaporate with it.

The U.S. proposal reflects a boiling over of Washington’s frustrations with Ghani. The Afghan leader’s critics have accused him of obstructing a peace process that has sapped his government of its already tenuous authority. The past several Afghan elections have been bitterly contested, the country’s politics are deeply corrupt, and service provision is increasingly limited to population centers, with the Taliban insurgency operating freely throughout much of the countryside.

The U.S. proposal reflects a boiling over of Washington’s frustrations with Ghani.

But however much Ghani has contributed to slowing the process, dismantling the elected government is unlikely to hasten peace. The Taliban have not moved any faster. It took over a year of bilateral negotiations and numerous U.S. concessions for the Taliban to sign a four-page agreement spelling out a tight timeline for U.S. and NATO withdrawal and more ambiguous Taliban promises to prevent Afghanistan being used as a launching pad for terrorists. And the Taliban remain coy about details of the political vision they seek to realize. Official Taliban statements that their movement will accept some degree of power sharing are contradicted by internal messaging emphasizing victory and ascendance.

After delays for which the United States was as much to blame as any other party, Afghan talks finally commenced last September in Doha, Qatar. They’ve progressed haltingly, at least in part because the parties are waiting for a new U.S. government to signal whether it will stay committed to a process the previous one catalyzed.

The slow pace now clashes with the deadline for withdrawing foreign troops. That’s a problem the U.S.-Taliban deal caused by decoupling the withdrawal timetable from any requirement of progress in negotiations. But it’s also a problem that can’t be solved by demands to speed up the hard slog of reaching a political settlement.

It will be difficult to get the peace process in Doha to produce results, but it’s too soon to jettison a process that has taken years to set up and has only just begun. Instead of promoting a new plan that has almost no chance of being accepted and that would further weaken the Afghan state, Washington should put its energy into testing whether the Doha process can be made to work.

It will be difficult to get the peace process in Doha to produce results, but it’s too soon to jettison a process that has taken years to set up and has only just begun.

This should include rallying the regional powers, especially Pakistan, Iran, China, Russia, and India—who all have links to actors in the Afghan conflict—around generating momentum for the existing process. A high-level meeting of this group, which Washington has asked the United Nations to convene, is a good idea, but these stakeholders need a better peace plan to coalesce around than the new U.S. proposal.

If the United States wants to give the talks a real chance, then it will need to keep troops in Afghanistan beyond May 1 to maintain leverage for forging a settlement and to forestall a downward security spiral that would spike the process.

Ongoing talks would provide the best argument Washington could make to regional powers, especially Pakistan, for why they should help pressure the Taliban to let the deadline slip.

But if talks break down—as they probably will, given how divided the parties are and how rarely peace processes succeed—then it will be better to have even a dysfunctional Afghan government still standing than to have replaced it with a stopgap transitional one whose existence would not survive the end of negotiations. And if the Biden administration plans to pull out U.S. forces soon, then it’s better not to risk leaving such wreckage behind.

Contributors

Program Director, Asia
LaurelMillerICG
Senior Analyst, Afghanistan
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