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Interpreting the U.S. Talks with the Taliban
Interpreting the U.S. Talks with the Taliban
Report 195 / Asia

Reforming Afghanistan’s Broken Judiciary

The Afghan government and the international community must prioritise the rule of law, which should be the primary pillar of a successful counter-insurgency strategy.

Executive Summary

Afghanistan’s justice system is in a catastrophic state of disrepair. Despite repeated pledges over the last nine years, the majority of Afghans still have little or no access to judicial institutions. Lack of justice has destabilised the country and judicial institutions have withered to near non-existence. Many courts are inoperable and those that do function are understaffed. Insecurity, lack of proper training and low salaries have driven many judges and prosecutors from their jobs. Those who remain are highly susceptible to corruption. Indeed, there is very little that is systematic about the legal system, and there is little evidence that the Afghan government has the resources or political will to tackle the challenge. The public, consequently, has no confidence in the formal justice sector amid an atmosphere of impunity. A growing majority of Afghans have been forced to accept the rough justice of Taliban and criminal powerbrokers in areas of the country that lie beyond government control.

To reverse these trends, the Afghan government and international community must prioritise the rule of law as the primary pillar of a vigorous counter-insurgency strategy that privileges the protection of rights equally alongside the protection of life. Restoration of judicial institutions must be at the front and centre of the strategy aimed at stabilising the country. The Afghan government must do more to ensure that judges, prosecutors and defence attorneys understand enough about the law to ensure its fair application. Reinvigoration of the legal review process and the adoption of a more dynamic, coordinated approach to justice sector reform are critical to changing the system. Justice is at the core of peace in Afghanistan and international engagement must hew to the fundamental goal of restoring the balance of powers in government and confronting governmental abuses, past and present. Urgent action is also needed to realign international assistance to strengthen support for legal education, case management, data collection and legal aid.

Legal institutions and legal elites have been deeply affected by the political paroxysms of more than three decades of conflict. The judiciary has been scarred by a legacy of political interference by both Afghan powerbrokers and external actors. Judicial independence has, as a result, been one of the main casualties of Afghanistan’s protracted war. The courts, for years, have suffered manipulation from an executive branch that has abused the law to fortify its position in the ongoing tussles between the secular and religious, the centre and periphery, the rich and poor. The Afghan government’s historic inability and persistent unwillingness to resolve conflicts between state codes, Islamic law and customary justice embedded in the legal culture have further destabilised the country. The critical leverage provided to fundamentalists in the constitution has concurrently had a deep impact on the evolution of legal institutions.

The strong presidential system adopted under the 2004 constitution has only exacerbated the weakness of judicial institutions. The lack of a clearly defined arbiter of the constitution has undercut the authority of the Supreme Court and transformed the court into a puppet of President Hamid Karzai. Given the wide range of powers granted the president and lack of checks and balances in the system, it is unrealistic to expect change will come from his quarter. The international community, meanwhile, has done little to create incentives for political restraint and accountability within the executive. The National Assembly must, therefore, consider its options for triggering constitutional review either through convening a constitutional Loya Jirga, or grand assembly, or through the adoption of a constitutional amendment requiring the initiation of a full-scale review of the founding document by 2014.

Friction between various stakeholders over the priority and content of rule of law reforms is blocking progress. There is a strong need to improve the legal review process by building capacity at the ministry of justice, with combined input from Afghan officials and expert international advisers. At the local level, the government and international community must deliver on the promise made at the 2007 rule of law conference in Rome to support better coordination between primary courts in the provinces and districts and high courts in Kabul.

Dysfunction at the provincial level has long been a hallmark of a system unable to resolve tensions between its highly centralised organisation and the diffusion of the population across difficult and often inaccessible terrain. Over the years, the Afghan government and the international community have endeavoured to resolve this problem, most notably through the introduction of regional trainings for Afghan judges and prosecutors. This is not enough. After nearly a decade of financial pledges and promises, neither the government nor the international community have a full picture of the demand for legal services at the provincial and district level. Province-by-province assessments of the courts, attorney general’s office and ministry of justice, including a focused look at caseloads, settlement and conviction rates, shortages in personnel, materiel and infrastructure should be regularly conducted and made available to the public. Developing a concrete, dynamic understanding of deficits in the system is the first step toward crafting an effective strategy for reform.

In its desperation to find quick fix solutions, the international community, and the U.S. in particular, has begun to look to the informal justice sector as a means to an undefined end. This is problematic for a number of reasons. While it is true that the use of traditional Afghan jirgas and shuras to resolve disputes, particularly in rural areas, is so widespread that it cannot be ignored, the current government is a long way from having the capacity to integrate the decisions of such councils into the formal system. Their multiplicity, the plurality of customs and the erosion of the social order during years of violent conflict have degraded the positive influence and real authority of such jirgas. Moreover, the exclusion of women from these informal judicial councils poses serious problems for the state’s constitutional obligation to defend the principle of equality under the law.

International involvement in this sphere will do little to enhance rule of law in the near term and it may, indeed, sow more confusion over the state’s legal authority and the real objectives of coalition partners. The task of monitoring and evaluating such councils has meanwhile fallen to a private U.S. contractor with an uneven track record in implementing rule of law programs in this and other countries. Outsourcing a task as delicate as monitoring the complex politics of tribal justice to a contractor with limited knowledge of the region is to nobody’s benefit.

The U.S. and its NATO allies must also acknowledge that stabilisation will depend as much on the legitimacy of state authority and re-establishment of the rule of law as it will on rebuilding Afghanistan’s police and military. To restore its legitimacy, the Afghan government will have to work much harder to eliminate corruption, ensure fair trial standards and curtail arbitrary detentions. Extrajudicial actions by the U.S. and its coalition partners against Afghan citizens have also distorted the justice system and are fuelling the insurgency. U.S. and NATO actions must conform to national and international laws, including an end to arbitrary detentions. There should be no expectation that Afghan officials and institutions will realign the justice system to conform to international norms until U.S. and NATO allies adjust their own policies and practices.

Kabul/Brussels, 17 November 2010

Afghan president Ashraf Ghani (C) talks with US special representative for Afghan Peace and reconciliation Zalmay Khalilzad (top L) during a cabinet meeting at the presidential palace in Kabul. Handout / Afghan Presidential Palace / AFP
Q&A / Asia

Interpreting the U.S. Talks with the Taliban

Talks with the Taliban in the Qatari capital Doha have raised hopes that the U.S. could end its involvement in Afghanistan’s war. Our Asia Program Director Laurel Miller and Afghanistan analysts Borhan Osman and Graeme Smith break down what was achieved and what remains unresolved.

How significant were the U.S.-Taliban talks?

Last week’s six-day talks between the U.S. and Taliban were the clearest sign yet that the U.S. is intent on withdrawing its forces from Afghanistan, and that the Taliban and its regional allies perceive that intent as an opportunity. It is early to draw conclusions but the signals from Doha inspire optimism about ending America’s longest war. A U.S. and NATO troop withdrawal has long been the Taliban’s top demand and the driving rationale for the insurgency. The Doha talks also were the first time that the U.S. has publicly acceded to the Taliban’s insistence that bilateral negotiations on terms for a troop withdrawal precede any peace negotiations involving other Afghans. The Taliban have made no evident concessions, but hints are emerging of some consensus on key issues. Ultimately, the significance of the talks depends on what happens next: if the framework of a deal reportedly sketched out in Doha leads to substantive negotiations among a wider array of stakeholders on future political and security arrangements, then these talks will have produced an important breakthrough.

What has been agreed upon?

U.S. envoy Zalmay Khalilzad told The New York Times that the U.S. and Taliban have agreed in principle on a framework for a deal under which the Taliban would prevent Afghanistan from becoming a “platform for international terrorist groups or individuals” and that the U.S. would pull out troops. Khalilzad also said that, as the framework is further fleshed out, Taliban concessions will need to include a ceasefire and agreement to talk directly with the Afghan government. The Taliban appears now to be considering whether it is prepared to make such concessions.

How do you get all sides sitting around a table, after decades of war?

An exchange of commitments between the Taliban and U.S. on counter-terrorism and troop withdrawal may be enough to end American military involvement in Afghanistan, but without a more complete peace deal it will not end what is now the deadliest conflict in the world. At the moment, the U.S. reportedly is taking the position that a troop withdrawal would only be part of a bigger package including settlement of political and security issues among Afghans. Whether the U.S. sticks with that position will be important to watch.

What are the unresolved issues?

A major unanswered question is how to structure an intra-Afghan dialogue. How do you get all sides sitting around a table, after decades of war? Also unclear is what the Taliban is willing to accept on timing and sequencing of such dialogue – that is, do they see dialogue launching before a foreign troop withdrawal commences, or only later, after a troop withdrawal that diminishes Afghan government and U.S. leverage is underway? The Taliban have long been willing to negotiate openly with the U.S., as has now happened, and they have more vaguely indicated willingness to talk subsequently with other Afghans, but the specifics of an intra-Afghan negotiation format that can attract the support of all sides remains uncertain.

Details have not yet emerged regarding the counter-terrorism assurances the Taliban offered in Doha and how definitively acceptable they are to Washington. The U.S. may be looking for the Taliban to say something that goes beyond what they have declared in the past. Since at least 2010, the Taliban have promised that they will not let Afghanistan be used to threaten other countries, in a veiled reference to preventing transnational jihadist groups from sheltering in their territory. That kind of oblique language may or may not be sufficient in a peace agreement; its acceptability will depend in part on how anxious the U.S. is to exit Afghanistan. One question is whether the Taliban might be willing to go further now, committing for the first time to actively counter jihadist groups. From the Taliban perspective, they need to see a firm U.S. commitment on complete troop withdrawal with no ambiguity in the wording.

Taliban officials say the aim of the previous ceasefire was to show the world that if they want to stop fighting, they can.

Would the Taliban agree to a ceasefire?

A comprehensive ceasefire is, unfortunately, more unlikely than not at this early stage of negotiations. The Taliban worry about losing their battlefield momentum if they agree to a ceasefire, and their battlefield momentum has won them considerable leverage. A first, brief ceasefire in June 2018 was unusually successful, revealing a groundswell of popular support for an end to the conflict. The scenes of Taliban fighters celebrating in the streets with their opponents caught the insurgent leadership by surprise. Taliban officials say the aim of the previous ceasefire was to show the world that if they want to stop fighting, they can. Until now, however, a long-term ceasefire has been conceivable to the Taliban only in the context of an imminent transition to a negotiated peace involving other Afghan parties. The Taliban are undoubtedly aware that a ceasefire would be a significant political win for the government in Kabul and morale booster for government forces, and thus undoubtedly are disinclined to enable those gains.

In the meantime, the Taliban seem poised to continue fighting. The group is configured to draw strength from its performance on the battlefield, not from politics. As a Taliban fighter told Crisis Group recently: “The reason everyone is talking about us is our military power and fighting ability; otherwise, nobody would have been talking about peace and reconciliation.” In some respects, the prospect of a peace agreement threatens the Taliban’s existence in its current form. They do not seem likely to give up the fight prematurely.

What is the U.S. doing differently in these talks?

Previous rounds of U.S. talks with the Taliban raised the prospect of negotiating a troop withdrawal but did not address that issue head on. This time the Americans seem to have acceded to Taliban insistence on front-loading discussions on a U.S. troop withdrawal, before details are established on intra-Afghan political dialogue. This step reflects U.S. interest in winding down its military involvement in Afghanistan that has been building for years but has spiked sharply in the second year of the Trump administration.

The fact that the U.S. has openly been negotiating bilaterally on substantive issues with the Taliban is another change from past discussions. There have been intermittent U.S.-Taliban contacts since 2011, but never with as much publicity and as many expressions of urgency. How deeply the latest talks have delved into the core substantive issues will only be apparent once more details emerge.

Is the Kabul government on board with the U.S. approach?

U.S. envoy Khalilzad travelled to Kabul for a meeting with President Ashraf Ghani after the talks in Doha. Subsequently, on 28 January, Ghani made a formal address on state television about a future Afghanistan without international troops – something his administration has resisted envisioning for years. He mentioned recent air strikes that reportedly killed civilians and expressed his hopes that Afghan security forces would have a different role after a peace agreement. Still, the president was cautious in his comments on the talks. Ghani reminded his audience of the fate of his predecessor Mohammad Najibullah, who survived the withdrawal of Soviet forces only to be killed by the Taliban during the chaos that ensued.

The Taliban announced that their co-founder Abdul Ghani Baradar would [...] become responsible for the Taliban “political commission” based in Doha, making him their chief negotiator.

Whereas Ghani may view a deal with the Taliban as a threat to his position, some of his political opponents among the Afghan elite seem more positive toward the developments in Doha, perhaps hoping for roles in an interim administration that might be installed as part of a peace agreement. Still, the entrenched view among anti-Taliban political factions is that major compromises with their opponents – such as an entirely new constitution – are unacceptable. They also are concerned that the U.S. risks making a “separate peace” and leaving them behind. The U.S. will likely need to use its considerable leverage with these Afghan political factions to bring them to the table and encourage a deal with the Taliban.

What is the significance of the new appointment to the Taliban negotiating team?

As talks progressed last week, the Taliban announced that their co-founder Abdul Ghani Baradar would assume the title of deputy leader and become responsible for the Taliban “political commission” based in Doha, making him their chief negotiator. This development suggests the Taliban are serious about negotiations and may reflect a constructive role by Pakistan – which had imprisoned Baradar in 2010, releasing him only last October as U.S. negotiating efforts began to gain traction. The appointment also cemented the role of Qatar as the main venue for negotiations, despite efforts by other regional countries to serve as facilitators. The Taliban had been waiting for the right moment to make this announcement, once they believed that peace efforts had moved to a sufficiently advanced stage. Baradar is a senior and widely respected member of the movement who is probably empowered to test whether the group can achieve its goals through politics rather than fighting.

What would a settlement look like?

Details do not appear to have been hammered out yet, and, until results are shown in writing, it is also possible that U.S. and Taliban negotiators have somewhat different understandings about what has been agreed to so far. As details emerge from the talks, Crisis Group will be watching for answers to these and other questions: to what degree are the elements of the framework understanding part of a package deal that includes a ceasefire and intra-Afghan dialogue? How will implementation of a troop withdrawal be tied to these issues? Would the understandings so far – especially on troop withdrawal – be implemented regardless of how much progress is achieved in the subsequent stages of the process? To the extent that the Taliban agree to negotiate with their Afghan opponents, would they talk to the government or only to some yet-to-be-formed broader collection of Afghan power holders? What will be the agenda of intra-Afghan talks, and, specifically, will the current constitutional system be the starting point for hashing out future political arrangements, or will everything be up for grabs?

Contributors

Program Director, Asia
LaurelMillerICG
Senior Analyst, Afghanistan
Consultant, Afghanistan