Afghanistan's Injustice System

Afghanistan is ruled not by law, but by power and patronage. The absence of the rule of law fuels the country's savage insurgency. When citizens can't rely on the state to protect them against systemic abuses, then rebellion becomes a far more attractive option. Tragically, in Afghanistan the abusers, more often than not, are from the government itself - including ministers, governors, police chiefs and militia leaders.

It needn't be this way. If there is one policy reform that all the main actors in Afghanistan purport to agree on, it's the critical importance of building the rule of law. President's Karzai's speeches are liberally salted with promises to reform the legal system and tackle corruption. The Taliban understands that a key way to win Afghans' hearts and minds is to provide them with the justice they so desperately desire. It does so by setting up mobile courts, delivering a very rough and ready justice, but one that is often preferred to the arbitrary rule of local commanders. And Western governments have spent billions on rule of law reforms, with little tangible impact.

So with this apparent unanimity on the need for the rule of law, why in Afghanistan do the powerful continue to abuse the weak with near total impunity?

The answer is that the purported commitment is largely in name only. True rule of law requires laws that are public, clear, and apply equally to everyone. It needs government officials who accept that they are subject to the law. It requires reasonably fair, competent, and efficient courts, prosecutors and police who respect the presumption of innocence and due process. It needs judges who are reasonably independent and impartial, and have the confidence in their safety to properly perform their jobs.

But the reforms necessary to achieve all this present an existential threat to the power of the ruling elite in Afghanistan. Building the rule of law involves challenging vested interests at the highest levels of the government. It is far more a political exercise than a technical one. Many Afghan power holders -- from President Karzai downwards -- benefit from a patronage based system. It enables them to buy and maintain loyalty. Corruption is an integral part of such a system.

It's not just corruption that thrives in such an environment.  Equal treatment by the law requires that those who have committed atrocities against their people be held accountable for these crimes. Failure to do so promotes a climate in which the powerful continue to commit abuses with impunity. But in Afghanistan those responsible for grave human rights abuses continue to occupy positions of power. These include officials like Vice Presidents Mohammad Fahim and Karim Khalili, who face credible accusations of war crimes or crimes against humanity during the brutal civil war. They also include a generation of post-Taliban leaders -- such as the Minister of Tribal and Border Affairs, Asadullah Khaled, as well as powerful provincial governors allied to Western forces -- accused of serious human rights violations since 2001. A report soon to be released by the Afghan human rights commission -- if not blocked by the government -- will document many of the past crimes.

International intervention encouraged and promoted this impunity by returning to power warlords and commanders. Influential international actors continue to rely on alliances of convenience with these abusive power holders to promote perceived stabilization goals.

Meanwhile the Taliban also preys on the local population, and subjects those it is purporting to liberate from foreign occupation to horrendous abuses, including suicide bombings, assassinations and the use of civilians as human shields.

For Afghans, the tragic result is that today's reality is not much different from that of the last thirty years, and their lives are still dominated by powerful men with guns.

Achieving accountability is not a question of naïve aspiration: the culture of high-level impunity must be challenged, as failure to do so will undermine all other rule of law efforts and perpetuate an environment in which conflict will flourish.

The culture will not change until some of those responsible for the worst abuses against the Afghan people are prosecuted. The best option would be for the government itself to pursue some of these abusers. This would increase its legitimacy in the eyes its people and would send a clear warning to those in authority and to those seeking to do deals with the government who believe they can continue to kill with impunity. It would also undermine one of the claimed attractions of the Taliban -- that it provides harsh, but fair, justice where none otherwise exists.

Unfortunately, there is no prospect of the government providing high-level justice. The Karzai administration has consistently opted for expediency over principle when it comes to accountability, most notably in enacting a law giving amnesty to former warlords. Most international actors have been largely silent on this law. In fact, it appears that a desire for a quick exit by NATO countries may have stifled all discussion of the critical need to link reconciliation with accountability and to tackle Afghanistan's longstanding culture of impunity.

But expediency will not promote stability, and a failure to build the rule of law will lead to more instability, not less. It will also ensure that Afghan power holders - government and Taliban alike - continue to commit abuses that shock the conscience of the international community and fuel the very instability that led, a decade ago, to such a costly international  intervention.