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As New U.S. Envoy Appointed, Turbulent Afghanistan’s Hopes of Peace Persist
As New U.S. Envoy Appointed, Turbulent Afghanistan’s Hopes of Peace Persist
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 residents walk near destroyed houses after a Taliban attack in Ghazni on 16 August 2018. AFP/Zakeria Hashimi
Commentary / Asia

As New U.S. Envoy Appointed, Turbulent Afghanistan’s Hopes of Peace Persist

The new U.S. adviser on Afghanistan, Zalmay Khalilzad, has a tough assignment: fostering peace between the Afghan government and the Taliban. Crisis Group’s Borhan Osman says that recent violence has soured the public mood, but that leaders on all sides still appear committed – at least rhetorically – to peace talks.

On 4 September 2018, Secretary of State Mike Pompeo announced that former U.S. ambassador to Afghanistan Zalmay Khalilzad would join the State Department as an adviser on Afghanistan. Khalilzad will, in the Secretary of State’s words, “assist in the reconciliation effort”; his appointment is a welcome signal of Washington’s renewed intent to find a negotiated settlement to the war pitting the Afghan government and its international allies against the Taliban insurgency. For now, a formal peace process still seems some way off. Indeed, Khalilzad’s appointment comes as optimism that swept the country during an unexpected ceasefire in early June has withered, as levels of bloodshed again soar. But confidence-building steps between the parties that reduce the war’s horrific civilian toll, could be within reach and are worth Ambassador Khalilzad pursuing with insurgent leaders.

I saw the shift in mood first hand during two trips to Ghazni, a city 140km southwest of the capital Kabul. Visiting on 21 August, at the beginning of the religious holiday, Eid al-Adha, I witnessed turbaned men weeping with grief after prayers in the busiest mosque in the city. The men hugged each other, sobbing as they exchanged greetings. The religious holiday is usually a time of celebration, but the mood in Ghazni was sombre. The men finished their prayers and walked home past bullet-riddled walls and burned buildings. They saw none of the usual Eid festivities: no hollering youths, no children wearing new clothes, no folk dances to the sound of drums. Hundreds of bodies had been recovered from the streets only a week earlier, after one of the largest Taliban offensives in recent years saw insurgents occupy much of the city and engage in fierce street battles with Afghan security forces. Ghazni mourned.

The Taliban mounted the attack on 10 August, taking most of the city. Fighting engulfed all neighbourhoods, as the insurgents also had dismantled the government’s remaining presence in nearby towns, allowing them to surround the city and enter from four directions at once. The Taliban’s operations also involved a five-day siege of the city, cutting off the city’s electricity and telecommunications. Most civilians were trapped amid shortages of clean water and food. Taliban fighters used homes and markets as fighting positions, presumably leading to many civilian deaths. For their part, government forces were accused by residents of indiscriminate shelling. Airstrikes by U.S. and Afghan warplanes forced the insurgents to retreat, but further contributed to the destruction of the city and loss of life. “Everybody stuck in the city during the fight experienced a death”, said one resident, recalling how his neighbour’s three children were killed in an airstrike. “They were the darkest days of my life”, said another resident. “It was like a doomsday”. A former teacher who had fought the Soviets in Ghazni in the 1980s told me that the latest fighting was more intense than the battles of any previous war.

The change of public mood over a period of two months indicates how quickly hope can thrive, then fade away.

The sadness that marked Ghazni at the start of Eid al-Adha stood in sharp contrast to the scenes I had witnessed in the city only two months earlier, when worshippers had shed tears of joy following an historic ceasefire. The previous Eid holiday – Eid al-Fitr in June – had been a moment of wild celebration. In Ghazni, as across much of the country, Taliban and Afghan government forces had laughed and joked together, performing traditional dances to the beat of patriotic songs. Afghan special forces had posed for selfies with Taliban fighters. Many believed then that peace was imminent.

These days, Afghans wonder in despair if the war will ever end. The change of public mood over a period of two months indicates how quickly hope can thrive, then fade away. A majority of people do not remember peace and easily lose sight of prospects for ending the seventeen-year war between the Afghan government and international forces, on one hand, and the Taliban insurgency, on the other.

The disappointment sharpened when the government failed to start another truce at the end of August. Building on the June ceasefire and subsequent Taliban-U.S. talks, President Ashraf Ghani sought a three-month halt to fighting that would have started on 21 August. His government reached out to the Taliban in hopes of reaching a bilateral cessation of hostilities, but the insurgent movement ramped up its attacks instead, with Crisis Group estimating (based on a tally from officials and journalists in major hotspots) the dead on all sides at more than 1,000 combatants and civilians in the second week of August.

The most brazen offensive was the Ghazni onslaught in mid-August, contributing to half of the deaths nationwide that week. For the Taliban, this escalation of violence seems to reflect the group’s intent to respond with military pressure of its own to counter the government and U.S. forces’ ramped-up military efforts. The Taliban appears bent on hitting the government hard and expanding the territory under its control, to show strength and demoralise its enemy. The insurgents are conducting a war of attrition, chipping away at government enclaves and inflicting unsustainable casualties among pro-government forces.

The escalation in violence has raised questions about whether the Taliban are genuinely interested in peace. An insurgent commander I met outside Ghazni, who led a company-size group during the attack on the city, felt differently. He framed the recent offensives as part of the Taliban’s effort to accelerate “the broader plan” for ending the war. His remarks in some ways mirrored those of the outgoing senior U.S. commander, General John Nicholson, who in his final statement to the media on 22 August said that U.S. military efforts have resulted in “progress” toward a political settlement. In other words, both sides of the war believe that pressure on the battlefield has helped make their opponents more willing to negotiate.

Yet this “fight and talk” strategy carries serious risks. The successful June ceasefire was seen by many as a potential game changer, paving the way for U.S. officials to sit down with Taliban representatives for two full days in late July. But a widening trust gap emerged in subsequent weeks, with missteps by all parties: the Taliban, the U.S. and the Afghan government. The Taliban, arguably first and foremost, spoiled the mood by escalating attacks at precisely the time when others were working toward a renewed ceasefire. This decision was the most significant contribution to the reversal of momentum toward a peace process. An increase in insurgent attacks lead to an uptick in civilian harm, particularly in densely populated urban areas. The movement’s major attacks against Afghan forces in the north, west and south of the country in August came only a month and half after it had scaled down its campaign following the June ceasefire. It would have been ideal to extend the détente into the summer fighting season to allow the diplomatic process to get started. 

The leaderships of all sides still appear committed to – or at least show rhetorical support for – peace talks

For its part, the U.S. continued its escalating campaign of airstrikes, which have more than doubled since last year. The growing air campaign contributed to a 52 per cent increase in civilian casualties from airstrikes this year, according to the UN, though the biggest cause of civilian harm remains insurgent attacks. The airstrikes could make it hard for the Taliban to justify peace talks with the U.S. when bombs are falling among its grassroots supporters. Furthermore, assertions by U.S. officials that military pressure on the Taliban made the insurgents more receptive to talks have added to the atmosphere of mistrust. Conversations I had in Ghazni and elsewhere suggested that Taliban military planners might have ordered the August offensive at least in part to push back against any impression that U.S. military action was forcing them into negotiations, and to demonstrate that they can outdo the Americans in exerting pressure on the battlefield.

There were missteps by the Afghan government, too. In early August, the Afghan intelligence service, the National Directorate of Security, rescued around 250 self-declared Islamic State fighters from imminent death or capture by the Taliban in the northern Jawzjan province. The Taliban’s elite forces were pushing to eliminate the small pocket of militants nominally fighting under the black flag of the so-called Islamic State Khorasan Province (IS-KP). Taliban leaders were angry and suspicious when the government thwarted their offensive, whisking away IS-KP cadres in helicopters and sheltering them in government guest houses. The Taliban saw this operation as evidence that the Afghan government, and by extension the U.S., were using the terrorist group to undermine the Taliban at any cost rather than making genuine peace. This misperception was strengthened by the U.S. bombing of Taliban fighters engaged in the subsequent offensives against IS-KP elsewhere in the country. In reality, the U.S. military and Afghan forces have engaged in determined efforts to decapitate IS-KP and reduce its strength. An airstrike against the IS-KP leadership on 25 August reportedly killed one of the group’s top commanders.

It now appears that the three-month ceasefire on which President Ghani was banking will not materialise. It will now be harder to hold the parliamentary elections scheduled for 20 October and – given that insecurity is often linked to disenfranchisement or fraud – raise the risk of a contested vote.

Still, it is too early to write off the peace process. The leaderships of all sides still appear committed to – or at least show rhetorical support for – peace talks. President Ghani’s ceasefire offer despite the recent carnage showed political bravery; on 21 August, he reiterated his call for peace, his speech not faltering even as mortars started falling nearby, punctuating his words with explosions. From the U.S. side, Ambassador Khalilzad’s appointment signals the U.S.’s intent regarding peace talks. As for the Taliban, it issued a statement in the name of its leader just before Eid al-Adha committing themselves to “bringing peace and security”, insisting on the importance of direct talks with the U.S. and paying more attention to peace than any similar statements from the insurgent leadership in the past. Despite the Taliban’s escalation, the belief direct talks can deliver apparently remains high within different Taliban quarters. Formal peace negotiations remain a distant prospect, but leaders on all sides of the conflict have rarely devoted so much attention to peacemaking.

That the Taliban appears intent to continue fighting even while talking with the U.S. does not necessarily mean those talks are futile

What does not appear likely, however, is a major military de-escalation between the parties. The U.S. and Afghan governments are seeking respite from a barrage of Taliban attacks this year, but that aim may be too ambitious for now.

The Taliban commander I met outside Ghazni, who was well informed about the peace talks with the Americans, told me he saw nothing wrong with escalating attacks. I asked him if the Taliban should halt or reduce violence to signal good faith in negotiations.

“No”, he answered. “A ceasefire or stopping attacks on government centres [cities] would be premature before a peace deal”.

“But what happens to peace talks then?” I asked.

“Those in charge of talks [from the Taliban] will talk while we do the fighting. As the last ceasefire showed, when our leader instructs us to halt fighting, everybody will immediately obey. We will become brothers with the government soldiers”.

“Does that mean you seek military victory?”

“No. There has not been a political solution so far because our enemies wanted to eliminate us. They wanted a military solution. I am 100 per cent sure that when there are direct talks with the Americans, we would certainly reach a political solution if they are honest”.

This and other conversations I have had in recent months with Taliban interlocutors suggest that it will be hard to reach agreement on de-escalation between military forces in the short term. Warfare has long been the Taliban’s defining characteristic and the movement is unlikely to scale back operations until a political deal is reached. The Taliban are thus likely to confound U.S. and Afghan governments expectations that peace talks will come after incremental reductions in violence. The Taliban view such proposals with suspicion, saying their enemies are not interested ending the war but in “peeling off” elements of their movement to weaken them.

That the Taliban appears intent to continue fighting even while talking with the U.S. does not necessarily mean those talks are futile, but it undoubtedly complicates efforts for peace. Negotiations under current conditions will almost certainly involve setbacks of the kind witnessed in recent weeks. They will test the patience of the Afghan public, fuelling the scepticism of some members of the political opposition about a peace process. Small demonstrations have already occurred as young protesters demand an end to what they call the government’s “appeasement policy”.

But even if a de-escalation is not possible, shifts in tactics by both sides that reduce civilian casualties might be a realistic confidence-building measure.

But even if a de-escalation is not possible, shifts in tactics by both sides that reduce civilian casualties might be a realistic confidence-building measure. Crisis Group’s interlocutors among the Taliban claim that the insurgents have adopted more cautious rules of engagement since they detonated an ambulance packed with explosives on a busy street in Kabul in January. The attack, a clear violation of the laws of war, killed more than 100 people, provoked widespread outrage and brought condemnation from the UN and other quarters. In the following months the Taliban appear to have reduced suicide attacks within cities, particularly truck bombs, making IS-KP the largest contributor to civilian casualties in suicide and complex attacks thus far in 2018.

Still, there is far more the Taliban can and should do. They continue attempting to encroach on urban areas, where the risk of civilian casualties is often highest. In the early weeks of his diplomacy, Ambassador Khalilzad could seek confidence building steps involving the Taliban avoiding such attacks, in return for the U.S. tamping down airstrikes and the Afghan forces refraining from shelling villages. Measures along these lines could significantly reduce the scale of carnage, even if only among civilians. If those steps are not feasible, at a minimum the Taliban may be willing to engage in three-way discussions with the U.S. and Afghan governments about alternatives for mitigating civilian harm and about improving access for the delivery of basic services in areas contested or controlled by the insurgency. Even those steps could help create a better atmosphere for talks.

The Ghazni bloodshed will not be the final setback, the last horrific spate of violence that Afghanistan will suffer on its long road toward a negotiated end to the conflict. But all stakeholders in Afghanistan should try to keep faith that peace remains possible. That means continuing to talk even as fighting persists.

This text was corrected on 6 September 2018. An earlier version incorrectly stated that the Taliban issued a statement at the end of August, when in fact it was issued just before Eid al-Adha in mid-August.