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Afghanistan's Injustice System
Afghanistan's Injustice System
Afghanistan's Peace Process Will Be Long, Incremental and in Need of a Mediator
Afghanistan's Peace Process Will Be Long, Incremental and in Need of a Mediator
Op-Ed / Asia

Afghanistan's Injustice System

Originally published in Foreign Policy

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.

Speech / Asia

Afghanistan's Peace Process Will Be Long, Incremental and in Need of a Mediator

Speech by Laurel Miller, Program Director for Asia, at the United Nations Security Council Arria Formula Meeting on the Peace Process in Afghanistan.

Distinguished speakers and participants, thank you for the opportunity to join you for this discussion today. 

As all the preceding speakers have emphasised, a negotiated settlement to the conflict in Afghanistan would be the best way to advance peace and prosperity in that country and contribute to security beyond its borders. But it goes without explaining that peacemaking is hard, and more often than not it fails. As an independent observer, I can perhaps best contribute to this discussion by highlighting a few key risks and realities that are important for those supporting an Afghan peace process to reflect in their policies and diplomacy, if the process is to have the greatest possible chance of success.

First, if the peace process succeeds – in other words, in the most optimistic scenario – the process will result in a government of which the Taliban are a substantial part, and which is structurally different than what we see today. What exactly the Taliban share and the structural changes will be can only be determined through negotiations, but trade-offs have to be expected. To anticipate otherwise would be to hope for Taliban surrender and there is no sign of that.

If and when the Afghan parties begin substantive negotiations, their starting positions are likely to be very far apart on the most fundamental questions of the political system and what kinds of democratic features it will and won’t have as compared to the existing system. Either there will be compromises on these questions or there will not be a negotiated settlement – in which case, the bloodshed will continue, with or without a foreign troop presence, and Afghanistan’s economic prospects will remain stunted.

One policy implication of this reality is that it is more important to focus support on the peace process than on specific outcomes. This isn’t to suggest that supporting countries abandon their own values. But it is to say that without placing an end to the bloodshed, to the human toll, at the apex of desired outcomes in the nearer term, other desired outcomes – rights, justice for victims, democratic features – are unlikely to be realised over the longer term. If the mantra “Afghan-owned and Afghan-led” means anything, it should mean that members of the international community will support the outcomes of Afghan peace negotiations without imposing their own redlines.

Another policy implication is that, if a negotiated settlement materialises, promoting its implementation will require providing financial support to a government that includes the Taliban. This is a reality that may be difficult to absorb for some parliaments and publics of countries that have been at war with the Taliban for two decades.

A second reality I’ll highlight concerns timing constraints on the peace process. As I’m sure is well-known to this group, peace processes generally are lengthy, often years-long affairs. In Afghanistan’s case, the relatively straightforward U.S.-Taliban agreement signed in February took nearly a year and a half to negotiate, after years of quiet preparatory steps. The more complex topics to be negotiated among Afghans will not easily be amenable to quick resolution. An incremental approach to negotiations, in which compromises are gradually accumulated, building toward the most difficult issues would offer the best chance for the parties to evolve their positions and acclimate their constituencies to compromises. This kind of approach takes time.

The U.S.-Taliban agreement, however, has shortened the time horizon for talks. It’s not hard to imagine some flexibility on the agreement’s May 2021 deadline for a full withdrawal of all foreign forces and other non-diplomatic personnel, particularly considering that none of the other deadlines in the text have held so far. And, it is theoretically possible that the Biden administration will revisit elements of the deal or interpret some of its requirements more stringently; such modifications could extend the withdrawal timeline. Regardless of any Taliban flexibility or stiffened American conditionality – or even U.S. abandonment of the deal, though I don’t expect that – the withdrawal provisions have undoubtedly shaped Taliban expectations. The withdrawal timeline was a big win for them, and they had insisted on that win up front, before commencing talks with other Afghans. It is unlikely Afghan talks can be sustained if that win is not sustained. And, unfortunately, it is also unlikely that talks would continue after a full withdrawal. The timeline may be somewhat elastic, but probably can’t be stretched very far.

I mention the timing issue in part because some have been understandably frustrated with the dramatic urgency of U.S. diplomacy over the last couple of years and may be hoping for that to change. I cannot predict what the Biden administration’s approach will be. But I can say that objective analysis of the options available will have to treat the U.S.-Taliban agreement as a ‘fact on the ground,’ and will have to resolve the tension between the timing expectations that it created and the benefits of an incremental process. 

Finally, I’ll conclude with a practical suggestion for Security Council members’ consideration. A missing feature in the peace process so far is an empowered, impartial mediator. It is difficult to see how the parties will be able to bridge the substantial distance between their starting positions without such help. Several governments have informally played a mediation role in the process so far, but this ad hoc approach is less likely to be effective as the talks get more difficult.

A Security Council imprimatur for a mediator would be helpful. Such an imprimatur would reflect the common interests of council members in a stable Afghanistan that contributes to regional stability and provides no safe harbour for transnational terrorists. It would also signal the clear backing of key countries for the peace process – countries whose support will be needed not only to keep the process on track but also to create conditions for effective implementation of any results.

Over the next two months, while the future direction of U.S. policy cannot be certain, the crucial task will be to keep the Afghan talks, currently stalled, on life support. After that point, a push to put in place a mediator could help re-energise the process.

Thank you.