icon caret Arrow Down Arrow Left Arrow Right Arrow Up Line Camera icon set icon set Ellipsis icon set Facebook Favorite Globe Hamburger List Mail Map Marker Map Microphone Minus PDF Play Print RSS Search Share Trash Crisiswatch Alerts and Trends Box - 1080/761 Copy Twitter Video Camera  copyview Whatsapp Youtube
Afghanistan: Judicial Reform and Transitional Justice
Afghanistan: Judicial Reform and Transitional Justice
Table of Contents
  1. Executive Summary
Keeping Intra-Afghan Talks on Track
Keeping Intra-Afghan Talks on Track
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

During a rare ceasefire in 2018 in Andar, young Afghan men and boys fly both the flags of Afghanistan and of the Taliban. CRISISGROUP/Fazal Muzhary
Commentary / Asia

Keeping Intra-Afghan Talks on Track

The peace talks between the Afghan government and Taliban offer a genuine opportunity for peace although obstacles abound. In this excerpt from our Watch List 2020 – Autumn Update, Crisis Group urges the EU and its member states to continue pushing for a more inclusive peace process, specifically in terms of women’s representation in the negotiations, avoid singling out the Taliban as responsible for obstacles for peace, and reassure the Afghan government by continuing aid into the future.

This commentary is part of our Watch List 2020 - Autumn Update.

September saw the start – at long last – of peace talks between the Afghan government and Taliban. The U.S. had been trying to kick off such negotiations for most of 2020, since signing its own agreement with the Taliban on 29 February. Yet the onset of talks stalled for months; the Afghan government resisted the release of Taliban detainees to which the U.S. had committed, while the insurgents continued to carry out acts of violence, defying President Ashraf Ghani’s long-sought request for a ceasefire before commencing peace talks. The intra-Afghan talks offer a genuine opportunity for peace although obstacles and risks abound. The continued violence first and foremost: although the Taliban scaled back attempts to seize territory and monitors reported fewer combat deaths than in previous years, targeted killings rose, and the civilian casualty toll remained among the world’s highest. On the government side, Afghan leaders have spent the year deadlocked over political appointments, rendering governance increasingly dysfunctional. As for the U.S., its approach seems guided by the desire to disengage its troops as soon as possible. Many Afghans and international observers are concerned that a hasty settlement could result in degradation of civil liberties and human rights, especially women’s rights, as well as regression into state fracture and full-fledged civil war. 

To help avoid those outcomes, the European Union and its member states should: 

  • Continue pressing for a more inclusive peace process, particularly in terms of women’s representation in the Afghan government’s negotiating team and affiliated bodies. Europeans should also provide support to civil society initiatives that complement the formal negotiation process and promote peace at grassroots level.
     
  • Call upon all Afghan political figures to uphold the May agreement between President Ghani and Abdullah Abdullah, and encourage Ghani to respect provisions specifying Abdullah’s authority.
     
  • Ensure unified messaging among member states so as to best use Europe’s principal sources of leverage – financial assistance and economic engagement with a future government – to nudge negotiations forward.
     
  • Avoid singling out the Taliban as responsible for threats or obstacles to peace; instead, make clear that any action destabilising the peace process, including by the government, deserves condemnation. Brussels should balance its support for the Afghan government with acknowledgment that the Taliban will be a major political force in any post-peace Afghan order.
     
  • Reassure the Afghan government by committing to continue aid into the future. European leaders could qualify such reassurances and align them with EU principles by allowing for re-evaluation in the event of changes to the government in a peace settlement, as the EU did in its May Council conclusions.

The Hard Road to Talks

An atmosphere of nervous anticipation prevailed in Afghanistan when the U.S. and Taliban signed an agreement in Qatar’s capital Doha on 29 February, laying out a timetable for the withdrawal of foreign troops in exchange for anti-terrorism guarantees and a promise to commence intra-Afghan negotiations. A historic week of reduced violence across the country preceded the accord. Though not technically a ceasefire, this period saw a significant drop in fighting between Taliban and Afghan security forces. It was the insurgent movement’s first major gesture of good-will toward Kabul since its ceasefire declaration during Eid al-Fitr in 2018. 

Any positive feeling quickly dissipated, however, as the Afghan government publicly rejected the terms of the prisoner exchange to which the U.S. had committed in Doha and the Taliban responded by announcing a resumption of hostilities. Fighting picked up across the country, albeit at a lowered intensity that seemed tied to the Doha agreement (although it was not spelled out in the public text). The Taliban carried out fewer high-profile attacks in cities than in previous years and limited their large-scale assaults on government forces. The insurgent group made none of its traditional annual attempts to overrun provincial capitals and did not announce its usual spring offensive. Afghan security forces maintained a largely defensive posture, which officials claimed was a demonstration of the government’s commitment to peace, but almost certainly also owed to the near cessation of U.S. airstrikes after 29 February. Those strikes contributed to record levels of civilian casualties in 2019, and observers hoped that casualty figures would plummet in 2020. The war continued to take a high toll, however, as the rates of targeted killings and small bombings climbed in many parts of the country. These included two attacks on prominent women’s rights activists in Kabul.

The U.S. waded into Kabul politics when contestation of the 2019 presidential election results escalated into full-scale dysfunction.

Meanwhile, the U.S. applied pressure on both sides, dragging the prisoner exchange forward, as the government and Taliban let prisoners go in small batches. The releases stretched into September before reaching the 29 February agreement’s promised totals. The U.S. also waded into Kabul politics when contestation of the 2019 presidential election results escalated into full-scale dysfunction. Just days before 29 February, President Ghani was declared winner by the narrowest of margins, without official clarity on multiple vote recounts and audits. His chief challenger, Abdullah Abdullah, and allied politicians threatened to not only protest the results but also establish a “parallel government”. Abdullah’s staff refused to vacate Presidential Palace grounds (where they had been working as part of a power-sharing deal struck between Abdullah and Ghani after the previous election in 2014). The standoff prevented politicians from agreeing on the composition of a negotiating team to represent the government in intra-Afghan talks – which donors, including the EU and member states, had repeatedly urged Ghani to do – until late March. Perhaps in part due to acrimony over appointing the negotiators and powerbrokers’ jockeying to place loyal representatives on the team, only four women ultimately were included in a team of 21. Abdullah and Ghani did not reach a governing compromise until late May. Since then, the two leaders and their allies have repeatedly disagreed on appointments of officials and delineation of authority, reminding Afghans of the disputes that plagued the power-sharing government of 2014-2019. 

This deadlock coincided with the spread of COVID-19 across Afghanistan. The virus appears initially to have been transmitted primarily by migrant workers returning from the global hot-spot of Iran. The Afghan government struggled to check what became an unfettered spread. In August, health officials announced that random sampling – actual testing was minimal – suggested that the virus had infected more than 50 per cent of Kabul residents and over 30 per cent of the national population. Lack of reporting made it impossible to measure the death toll with any accuracy. The severe economic impact of lockdowns, however, was evident within weeks, leading many Afghans – including many officials – to ignore restrictions in most of the country outside Kabul. The Taliban publicised a number of COVID-19 initiatives in areas under their control, but many of these reportedly lacked enforcement or follow-up. The group continued to reject international calls for a ceasefire, even in the name of a “humanitarian pause” to enhance the public health response.

By the start of intra-Afghan talks in September, high-level sources told Crisis Group that the Afghan government was considering arming and funding new networks of militias across the country, outside the security forces’ hierarchy and only loosely controlled by the Afghan intelligence agency. Such reports, which have circulated widely among Afghans, amplify fears many already have about the potential impact of peace talks on human rights: not only could talks herald a return to political power of the Taliban, whose abuses many Afghans recall all too well, but they might also lead to the proliferation of government-affiliated militias, who have their own terrible track record. Fears of predation by armed groups of all stripes are hardly new – the EU Council addressed them in its May conclusions. But they have grown amid increasing unclaimed attacks on activists, the U.S.’s announcement of further troop drawdowns and political infighting in Kabul that some worry could create space for extrajudicial action by the security forces. 

Amid these many concerns, the first days of talks between the Taliban and the government-appointed negotiating team already give a taste of the hurdles that lie ahead. While negotiating the rules and procedures to govern the talks, the two sides tangled over what Islamic legal interpretation should be used to mediate future dis­agreements (the government team insisted on acknowledging Shia Islam and non-Muslim minorities’ existence in the framework of the talks, which the Taliban have rejected). The Taliban have yet to fully articulate what they believe a future Afghan state should look like, as Crisis Group has noted. It is far from clear that the Taliban’s vision will be acceptable to other parties and the many Afghans who fear the Taliban may wish to curtail rights and freedoms. What the insurgents have made clear is their stance on a ceasefire. They reject any discussion of a lasting and comprehensive one until, as their spokesperson said, “the root causes of the war” – ambiguous language that could mean anything from the West’s influence, to the exclusion of parts of population from power, to the abuses of government-allied strongmen – are addressed. With current levels of violence having climbed throughout 2020, this may be the most immediate potentially destabilising factor as talks progress.

A Role for the EU and Its Member States

As the intra-Afghan talks proceed, the EU can exert a positive influence. First, it should expand its support for civil society. Given Afghanistan’s contentious politics and its weak formal institutions, civil society's participation in the peace process will be vital to ensure the representation of popular interests and preferences. The EU has already affirmed its commitment to the protection of human and women’s rights and encouraged strong representation of women in intra-Afghan talks, but it should promote efforts that go beyond the structure of formal negotiations to lay grassroots groundwork for lasting peace. Afghanistan’s National Action Plan for implementing UN Security Council Resolution 1325 on Women, Peace and Security is regarded by experts as a “top-down” approach, which should be balanced by EU support to local initiatives such as local councils that advocate for peace. This approach could involve greater cooperation with the UN mission in Afghanistan, with its infrastructure and networks of field offices capable of extending peacebuilding’s reach. The EU should review and report on earlier civil society and development efforts in Afghanistan to support peacebuilding, some of them initiated more than a decade ago, to identify effective initiatives.

Secondly, the EU can help steady the Afghan government’s negotiation approach by offering its good offices to ensure a smoother, more streamlined dialogue to implement the political compromise between President Ghani and Abdullah. Disputes between Ghani and opposition leaders have already hampered governance and they will almost certainly bleed over into the negotiating team’s internal deliberations during talks. The peace process cannot succeed without genuine inclusion of a broad range of political elites in both the talks and the tasks of governance while negotiations are ongoing. Moreover, the political wrangling among elites has reportedly hamstrung civil society efforts to engage with the peace talks: different political factions are now competing for authority over every aspect of the process, which could have the effect of impeding civil society participation. By ensuring that Ghani and Abdullah continue to communicate on and implement their power-sharing commitments, the EU can help mend relations that in turn will improve the negotiators’ effectiveness.

The EU should seek to ensure that member states deliver a unified message.

The EU should seek to ensure that member states deliver a unified message. As the EU stated in its May conclusions, it can use the prospect of financial assistance to and economic engagement with a future government to nudge negotiations forward. But that leverage is only as strong as member states’ unity. Since issuing those May conclusions, European governments have diverged in their reactions to prisoner exchanges, and uncertainty lingers about their views on a major planned donor conference in Geneva. Several European diplomats told Crisis Group that although public unity on Afghanistan policy has been maintained, member states’ own diplomatic engagements have softened or strayed from the common line.

The EU’s influence over the Afghan peace process, and any outcome that may result, depends in large part on whether Afghan parties – including the Taliban – perceive it as a fair interlocutor. Almost any successful settlement will include the Taliban’s re-entry into Afghanistan’s political system. The EU’s current conditions, in particular its explicit rejection of the Taliban’s concept of an Islamic Emirate and its several public disapprovals of Taliban actions, without similar recognition of the Afghan government’s stalling ahead of talks, have been characterised by the Taliban as interference in Afghanistan’s sovereignty. As talks proceed, the EU and European leaders should make extra effort to appear to be more open to a greater Taliban role.

Most importantly, the EU and member states should commit to continue aid and development support to the Afghan government. They should do so before the end of 2020, in spite of the uncertainties surrounding the peace process and U.S. Afghanistan policy. They could qualify such reassurances and align them with EU principles by making clear that aid would be subject to re-evaluation in the event of changes to the government as part of a settlement, as the EU did in its May Council conclusions. This pledge would be the greatest possible show of support for the Afghan government as it negotiates an end to the war, and it would demonstrate to the Taliban that Afghanistan’s international partners remain invested in the post-2004 constitutional order and the gains it has won. It would be another incentive for both sides to reach an agreement.