Rule of Law and the Justice System in Afghanistan
Rule of Law and the Justice System in Afghanistan
The U.S. and the Taliban after the Killing of al-Qaeda Leader Ayman al-Zawahiri
The U.S. and the Taliban after the Killing of al-Qaeda Leader Ayman al-Zawahiri
Speech / Asia

Rule of Law and the Justice System in Afghanistan

Presentation by Nick Grono, Deputy President of the International Crisis Group, at the Foreign and Commonwealth Office, London Tuesday 26 April 2011.

Afghanistan’s justice system is in a catastrophic state of disrepair. The majority of Afghans still have little or no access to judicial institutions. Judicial institutions have withered to near non-existence and the lack of justice has destabilised the country. Many courts are inoperable and those that do function are understaffed.

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.

While there is now a clear understanding by Afghanistan’s international partners of the need to rebuild the justice sector and a willingness to commit significant resources to that end, many daunting challenges remain.

Given the time constraints I will focus my comments on three of the many challenges facing the system.

1. The first challenge is the political one.

Building the rule of law in Afghanistan involves challenging vested interests at the highest levels of the Afghan government. It is as much a political exercise as 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. So implementing proper rule of law reforms, including the establishment of an effective justice sector,  is an existential threat to these interests.

Those reforms that support the existing power structures – such as building a national police force – will be enthusiastically supported. Those that will constrain the freedom of power-holders to dispense patronage will be strongly resisted, as we have seen with some of the high-level anti-corruption efforts. Reforms that challenge the centre – such as a more independent Supreme Court, reform of the Ministry of Interior, and anti-corruption efforts - will be fiercly opposed, though often obliquely rather than directly.

2. The second, closely related, challenge is that of accountability.

The objective of any rule of law effort must be equal treatment of all before the law. And while this is aspirational in Afghanistan, as in many other places, that’s no reason not to make a start on challenging the culture of high-level impunity in Afghanistan, as failure to do so will undermine all other rule of law efforts.  International intervention encouraged and promoted that impunity by empowering formerly disempowered warlords and commanders. Afghans see that today’s reality is not much different from that of the last 30 years - that it’s still largely about powerful men with guns.

This reality 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 warning to those in authority and those seeking to do deals with the government who believe they can continue to act 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 regime has consistently opted for expediency over principle when it comes to accountability, most notably with the 2010 amnesty law. Most international actors have been largely silent on this law. In fact, it appears that a desire for a quick exit by NATO 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 genuinely pursue issues of accountability will lead to more instability not less.

3. The third challenge is the constitutional one.

The strong presidential system adopted under the 2004 constitution has 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 Karzai. He has adeptly exploited the Court’s relative weakness to blunt challenges from rivals and circumscribe the powers of other branches of government. The president has often turned to the court to settle political disputes, substantially weakening perceptions of its independence. For instance, he successfully used the Supreme Court to block parliament’s efforts to override presidential vetoes and assert its powers.

Encouraging the Supreme Court to publish and translate its decisions would be a start to building more transparency and accountability.

More substantive reform would require constitutional reform, as it’s unrealistic to expect the President to promote reform that would significantly constrain his powers. The National Assembly would be the institution best placed to push for such reform, but the President has successfully hobbled that following last year’s parliamentary elections, leaving little confidence that the parliament will push for substantive reform. And the international community for far too long has ignored the Assembly, contributing to its dysfunction.

There are many other challenges. I’ve just sought to highlight three of particular concern. And addressing them is daunting task. But if our objective is genuinely to help build the rule of law in Afghanistan, and not just to facilitate our rapid exit, then we already understand that our commitment  will require many, many years of engagement beyond 2015.

Podcast / Asia

The U.S. and the Taliban after the Killing of al-Qaeda Leader Ayman al-Zawahiri

This week on Hold Your Fire! Richard Atwood speaks with Crisis Group’s Asia Director Laurel Miller about U.S. policy in Afghanistan, the Taliban’s foreign relations and what the killing of al-Qaeda leader Ayman al-Zawahiri in the Afghan capital Kabul says about the threat from transnational militants in Afghanistan a year into Taliban rule.

On 31 July, a U.S. drone strike killed al-Qaeda leader Ayman al-Zawahiri in the Afghan capital Kabul. Zawahiri appears to have been living in a house maintained by the family of powerful Taliban Interior Minister Sirajuddin Haqqani. His death came almost a year after U.S. troops pulled out of Afghanistan and the Taliban routed the former Afghan security forces and seized power. The Taliban’s uncompromising rule over the past year has seen girls denied their right to education, many other rights and freedoms curtailed and power tightly guarded within the Taliban movement. The Afghan economy has collapsed, owing in large part to the U.S. and other countries’ freezing Afghan Central Bank assets, keeping sanctions against the Taliban in place and denying the country non-humanitarian aid. Levels of violence across the country are mostly down, but Afghans’ plight is desperate, with a grave humanitarian crisis set to worsen over the winter. The Taliban’s apparent harbouring of Zawahiri seems unlikely to smooth relations between the new authorities in Kabul and the outside world. 

This week on Hold your Fire! Richard Atwood speaks with Crisis Group’s Asia Program Director Laurel Miller about U.S. policy in Afghanistan and the Taliban’s broader foreign relations after Zawahiri’s killing. They discuss what his presence and death in Kabul mean for U.S. policy and what they say about the threat posed by transnational militants sheltering in Afghanistan. They look into how countries in the region are seeking to protect their interests in Afghanistan, including by engaging with the de facto Taliban authorities, and how those countries – particularly Pakistan, which has faced an uptick of violence in the past year – view the danger from foreign militants in Afghanistan. They also look in depth at Washington’s goals in Afghanistan a year after the withdrawal and what balance it should strike between engaging the Taliban or seeking to isolate them. Just over a year after the U.S. withdrawal and Taliban takeover, they reflect back on Washington’s decision to pull out troops. 

Click here to listen on Apple Podcasts or Spotify.

For more on the situation in Afghanistan, check out Crisis Group’s recent report Afghanistan’s Security Challenges under the Taliban.

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