In your review of this topic area, address the following:
Western democracies attempted to introduce the Rule of Law to Afghanistan as part of the programme of rebuilding the country. Has this been successful? Give reasons.
– Must be OSCOLA referenced
-Must contain bibliography and table of cases
Law on Trial
Case Study on the Rule of Law: Afghanistan
The aim of this lecture is to examine the recent attempts to introduce the doctrine of the Rule of Law in Afghanistan
Learning objectives:
1. To understand the Rule of Law
2. To examine its wider international perspective
3. To explore attempts to introduce the Rule of Law in Afghanistan
4. To evaluate how successful this has been
Readings
The Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason (particularly ‘The rule of law and the weight of politics: challenges and
trajectories’ W Malley, ch. 5)
‘Rule of Law’ M Krygier, ch.10 of The Oxford Handbook of Comparative Constitutional Law [2012] Edited by M Rosenfield & A Sajo
The Rule of Law [2010] T Bingham
‘Building a post-war justice system in Afghanistan’ A Wardak, Crime, Law and Social Change, 41
Introduction
The Rule of Law has already been examined, along with consideration of the extent to which the English legal system meets the requirements of this important concept. This worksheet seeks to adopt a wider, international context by examining attempts to introduce the Rule of Law in Afghanistan, a country whose turbulent history has meant that it has lacked a tradition of having a governmental structure that embraces the Rule of Law. In the last decade or so, however, the country has been occupied by armed forces from a number of countries, led by the USA, who originally entered Afghanistan to deal with a perceived international terrorism threat following the infamous 9/11 events on 11 September 2001. As part of an attempt to deal with this perceived terrorist threat, attempts have been made to establish a system of legitimate government within Afghanistan that has popular support:
“Since the attacks of September 11, 2001, NATO and allied countries, led by the US, have considered it strategically imperative to help create a government in Afghanistan that is supported by the population and committed to not allowing terrorists to use the country as a safe haven. The richest, most powerful countries in the world have duly sacrificed hundreds of their own people’s lives and spent billions of dollars to help secure Afghanistan and bring it a modicum of justice.” (The Rule of Law in Afghanistan: Missing in Action Edited by W Mason p.1)
Recapping on what is meant by the Rule of Law
TASK: You are required to review previous Law on Trial materials and set out below what you understand the Rule of Law to mean. In order to do this, you may wish to set out the views of writers such as Dicey, Bingham, Raz and Fuller (N.B. the views of Dicey and Raz are also set out on pp.62-3 of W Malley, ch. 5 The Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason.)
Stability, Justice and the ‘Rule of Law’
It is important to appreciate how and why the Rule of Law is regarded as playing an important role in Afghanistan and in other countries, such as Libya and Somalia, which have been subject to substantial conflict and civil war in recent years.
TASK: Read the following extracts and set out below why the Rule of Law is seen as significant in providing stability and justice in post conflict countries.
“Rule of law is one of a number of overlapping ideas, including constitutionalism, due process, legality, justice and sovereignty, that make claims for the proper character and role of law in well-ordered states and societies. It is lauded by international agencies, pressed upon conflictual, post-conflict and ‘transitional societies’, and of course talked up by politicians and lawyers, particularly judges, throughout the world.” (‘Rule of Law’ M Krygier, ch.10 of The Oxford Handbook of Comparative Constitutional Law [2012] Edited by M Rosenfield & A Sajo p.233)
“[I]t is important not to lose sight of the crucial significance of the rule of law as a constraint on the abuse of power. As a political principle, the rule of law goes beyond affirmation of the desirability of an orderly society, and beyond the desirability of a minimally functioning judiciary. It is concerned with how those concerned with giving effect to law comport [i.e. behave or conduct] themselves, and how this contributes to the character of the polity [i.e system of government] more generally.” (‘The rule of law and the weight of politics: challenges and trajectories’ W Malley, ch. 5 of The Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason, p.61)
“The hallmarks of a regime that flouts the rule of law are, alas, all too familiar: the midnight knock on the door, the sudden disappearance, the show trial, the subjection of prisoners to genetic experiment, the confession extracted by torture, the gulag and the concentration camp, the gas chamber, the practice of genocide or ethnic cleansing, the waging of aggressive war. The list is endless.” (The Rule of Law [2010] T Bingham p.9)
There is another, additional benefit that is sometimes forwarded in respect of the Rule of Law, namely that it provides the framework within which an economy can flourish. Thus the following quote states:
“The defence of the rule of law need not rest simply on its capacity to apply a brake to autocrats. There is equally a line of argument that defends it on consequentialist grounds…arguing that a society in which the rule of law is honoured will display other desirable attributes as a result. One area where this is particularly notable is that of economic development…This approach links economic dynamism to the capitalist system of exchangeable property rights and to markets as devices for the processing and the allocation of resources.” (Malley op.cit pp.64-5)
Quite simply, a society which operates under the rule of law means that business can flourish, based on the confidence that property and contractual rights will be recognised and that, if disputes do arise, they will be settled in a fair and consistent manner.
Brief History of Afghanistan
The following extensive quote is taken from the BBC’s Country Profiles. It provides some brief historical context as well as indicating why armed forces from a range of countries, led by the USA, are currently occupying Afghanistan:
“Landlocked and mountainous, Afghanistan has suffered from such chronic instability and conflict during its modern history that its economy and infrastructure are in ruins, and many of its people are refugees. Since the fall of the Taliban administration in 2001, adherents of the hard-line Islamic movement have re-grouped. It is now a resurgent force, particularly in the south and east, and the Afghan government has struggled to extend its authority beyond the capital and to forge national unity. Its strategic position sandwiched between the Middle East, Central Asia and the Indian subcontinent along the ancient ‘Silk Route’ means that Afghanistan has long been fought over – despite its rugged and forbidding terrain.
Great Game
It was at the centre of the so-called “Great Game” in the 19th century when Imperial Russia and the British Empire in India vied for influence. And it became a key Cold War battleground after thousands of Soviet troops intervened in 1979 to prop up a pro-communist regime, leading to a major confrontation that drew in the US and Afghanistan’s neighbours. But the outside world eventually lost interest after the withdrawal of Soviet forces, while the country’s protracted civil war dragged on.
The emergence of the Taliban – originally a group of Islamic scholars – brought at least a measure of stability after nearly two decades of conflict. But their extreme version of Islam attracted widespread criticism. The Taliban – drawn from the largest ethnic group, the Pashtuns – were opposed by an alliance of factions drawn mainly from Afghanistan’s other communities and based in the north. In control of about 90% of Afghanistan until late 2001, the Taliban were recognised as the legitimate government by only three countries. They were at loggerheads with the international community over the presence on their soil of Osama Bin Laden, accused by the US of masterminding the bombing of their embassies in Africa in 1998 and the attacks on the US on 11 September 2001. After the Taliban’s refusal to hand over Bin Laden, the US initiated aerial attacks in October 2001, paving the way for opposition groups to drive them from power and heralding a long-term, Nato-led military presence. Predictions of the Taliban’s demise after the adoption of a new constitution in 2004 proved to be premature – the extremist group came back with a vengeance and violence increased.
Military withdrawal
Amid a rising death toll and the increasing unpopularity of the conflict among Western publics, pressures grew for a withdrawal strategy for foreign military forces.
In 2012, the 11th year of the conflict, Nato backed plans to hand over combat duties to Afghan forces by mid-2013. Some 130,000 Nato-led combat troops will leave Afghanistan by December 2014. The alliance says it is committed to a long-term strategic relationship with Afghanistan beyond that date. Foreign military trainers will stay on. Meanwhile, tentative steps towards a negotiated peace agreement were made in 2012, when the Taliban announced they had agreed to open an office in Dubai for talks with US officials.
Drugs trade
Afghanistan’s economy depends heavily on the drugs trade. The country supplies over 90% of the world’s opium, the raw ingredient of heroin. International bodies and governments say the drugs trade is helping to fuel the Taliban insurgency, which is estimated to receive up to US$100m a year from the trade. The UN Office on Drugs and Crime has called on Afghanistan to target the major traffickers and corrupt government officials, who it says operate with impunity.” (Afghanistan Country: Profile BBC News South Asia http://www.bbc.co.uk/news/world-south-asia-12011352)
‘BUILDING THE RULE OF LAW IN AFGHANISTAN’: A CASESTUDY
The previous extensive quote highlights the current situation within Afghanistan. As part of the ‘exit strategy’ of the occupying international forces, attempts are being made to establish a strong central state structure. A key element of this is to embed the principle of the Rule of Law within the country, thereby providing both legitimacy to the Government of President Karsai and also a framework whereby its role can be scrutinised and subject to challenge and, as a consequence, any potential abuse of power by that Government can be inhibited. The rest of this worksheet focuses on examining how successful this strategy has been and will specifically rely on the views of William Malley, of the Australian National University, as set out in ‘The rule of law and the weight of politics: challenges and trajectories’ W Malley, ch. 5 The Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason. Malley concludes that the attempt to ‘build the Rule of Law’ in Afghanistan has failed and he identifies two main reasons for this. The first is that the history and tradition of Afghanistan has, inter alia, lead to a very complex set of overlapping and conflicting bodies of law and associated legal institutions. This has made it very difficult to impose a system based on the Rule of Law. The second reason is the ‘bungling’ or incompetent nature of the ways used to seek to build the Rule of Law as a central feature of Afghan society. These two reasons are examined below
1) LAW IN AFGHANISTAN
In most countries, it is generally a quite straightforward exercise to determine what the law is e.g. in England & Wales, laws are created by Parliament (i.e statute) and the higher courts (case law/common law) although, in respect of Wales at least, this has been supplemented, in recent years, by the Welsh Assembly having powers to make law. In Afghanistan, however, identifying what the law is can be much more difficult:
“When we come to Afghanistan…we confront a decidedly confused situation…in which arguably there is a long-standing tension, reflecting a multiplicity of deep conventions between different kinds of [legal] rules that have carried weight in Afghan society…Historically, law has had a range of different sources in Afghanistan, and the more recent experience of state failure and foreign intervention has only complicated the situation.” (Malley, ibid. pp.66-7)
Malley, in fact, identifies four main sources of law:
1. Islamic, or Shari’a, law
2. Law created by the state
3. Customary law – with different groups have different codes of customary law
4. Legal obligations arising out of international law e.g. treaties and human rights documents
TASK: Read pp.66, 67, 68 and the first paragraph of p.69 of Malley and provide an account of the features of each of these four sources of Afghan law:
1. Shari ‘a law (p.67)
2. Law created by the state (pp.67/8)
3. Customary law (p.68)
4. Legal obligations arising out of international law (p.69)
A major consequence of having different sources/systems of law competing within Afghan society is that this provides a degree of choice of which system to use if a dispute arises or a criminal act is deemed to have taken place. For many Afghans, the choice in question may not, in practice, be based on free will e.g. the power of local ‘war lords’, the limited authority of the Government in many parts of Afghanistan, particularly rural areas, the ability to ‘buy’ court decisions and the (closely associated) issue of the extensive corruption within the legal system often mean that individuals, in practice, are forced to use a particular legal institution. Nevertheless, the existence of these competing legal arrangements:
“…points to one of the most troubling difficulties in seeking to establish the rule of law in Afghanistan, namely the existence of competing models of legitimacy. A major challenge of the post-2001 era has been to find ways of re-establishing the position of state-based legal rules in the face of bodies of law with greater religious or traditional resonance.” (Malley, ibid. pp.69)
Malley, however, goes on to point out that the state-based system has not been particular successful, with clear evidence of continuing widespread support for alternatives.
TASK: Read the last 2 lines of p.69 and the whole of p.70 (except the last 2 lines) and set out below the main points that are made.
2) WEAKNESSES IN THE STRATEGY TO BUILD THE RULE OF LAW AS PART OF AFGHAN SOCIETY
It should now be clear that seeking to introduce the principle of the Rule of Law in Afghanistan, as part of a general strategy of extending the authority of the Government headed by President Karsai, has been, and continues to be, very challenging. However, Malley points to major weaknesses in the way that the Karsai regime and its international supporters have attempted to do this. Quite simply, some of the activities both within the state system, headed by the Karsai government, and by international actors operating in Afghanistan have substantially undermined this strategy.
ACTIONS OF THE AFGHAN GOVERNMENT AND STATE INSTITUTIONS
In respect of the Afghan Government and its associated institutions, there have been a number of activities that illustrate a disregard for the notion of the Rule of Law. There are three obvious elements of this:
Corruption – “[There is] abundant anecdotal evidence of perceived corruption in the state-based system, with attendant frustration on the part of litigants who feel that money can buy positive outcomes, irrespective of the merits of a legal case.” (Malley, ibid. pp.70)
Corruption also takes place in other parts of the state and its institutions and its corrosive impact is set out by Malley on p.74.
TASK: Read the paragraph on p.74 of Malley that starts with ‘The problem is compounded by the problem of financial corruption…’ and set below the main points raised.
Government Policy that undermines the Rule of Law
“[A]buse of power has become a serious source of angst for ordinary citizens, who find themselves relatively powerless. It is arguably this area of failure in the rebuilding of the rule of law that has done the most to compromise the legitimacy of the transition process…One specific difficulty is that the central thrust of Afghanistan’s constitutional and political development has been towards the consolidation of power and away from the establishment of checks and balances. Central to this has been a presidential politics of personalised networking rather than institution building…[with President] Karzai offering [local power holders] positions within the state. The last thing that they brought with them was any interest in respecting the rule of law or being constrained by it.” (Malley, ibid. pp.73)
The 2009 Afghan Election
This election has acted as a major episode that highlighted the disregard for the Rule of Law by the Karzai Government and, therefore, contributed substantially to the failure of the principle becoming embedded in Afghan society. Malley describes it as “…one of the most spectacular exercises of electoral fraud in modern electoral history.” (Malley, ibid. pp.74)
TASK: Read the section headed The 2009 Afghan election: some implications for the rule of law on pp.75-8 of Malley and explain below what the features of this general election were that lead to Malley making the above comment.
THE ROLE OF THE ‘INTERNATIONAL ACTORS’
A number of activities by the international actors within Afghanistan have also contributed, according to Malley, to the failure to embed the principle of the Rule of Law within its systems of constitutional and governmental authority. The first of these relates to misunderstanding the scope of what is required.
Failure to address the complexity of the process
Malley makes it clear that introducing the Rule of Law is a complex undertaking and implementation failed to address key elements of the process:
“[I]t is important to recognise the complexity involved in attempting to restore a justice system. It is far from sufficient to focus simply on the building of a judiciary. Effective judiciaries are nested in more complex institutional environments, in which it is necessary to bring some degree of coordination to policing, witness protection, adjudication, enforcement of judgments, and penal and corrections policy. Weakness in any of the spheres is likely to compromise progress in the others. In post-2001 Afghanistan, this coordination was complicated still further by the adoption of a ‘lead nation’ model of support for reconstruction, in which Italy was given responsibility for judicial system reform while Germany took responsibility for the reform of policing. After years of effort, there was little to show in either sphere, with policing little better than a disaster area.” (Malley, ibid. pp.71)
Misuse of the 2004 Constitution
An early attempt to provide a basis for the construction of a new structure of government, incorporating the Rule of Law was the “…adoption of the 2004 constitution embodying international human rights standards…” (Malley, ibid. pp.69). The 2004 general election soon followed, largely reflecting this, but the 2009 general election took place in clear breach of this new constitution:
“…article 61 [of the constitution] made it absolutely clear that President Karzai’s term of office expired on 22 May 2009. This had in fact been clear since his election in 2004. However, the wider world had not geared up to provide electoral assistance that matched this constitutional timetable, and international actors thus endorsed the postponement of elections until 20 August 2009. This blasé approach to explicit constitutional requirements sent a very poor message to Afghan observers, namely that even the most fundamental law was able to be twisted. This in turn reinforced their sense of how the world was destined to work, based on at least thirty years of conflict: that might trumps right.” (Malley, ibid. pp.71-2)
International actors acting with impunity
The armed forces and other representatives of the ‘international community’ within Afghanistan were rightly seen as operating, and continue to do so, outside Afghan and international law:
“[I]nternational actors sent out dangerous signals…on the issue of impunity. In the absence of a status of forces agreement, international forces in Afghanistan effectively functioned beyond the reach of Afghan law, putting at risk the liberty of Afghans…[Yet it is important to appreciate that w]hen foreign militaries are a significant presence in a society, they will be observed by locals seeking to gain a sense of what it is that the wider world values. It is therefore important that, by word and deed, they signal a commitment to the rule of law…This problem was magnified by the abusive behaviour of various private security companies, which reinforced the impression that those who were well-connected were above the law.” (Malley, ibid. pp.72)
TASK: Set out below & overleaf, in you own words, the various ways that the activities of ‘international actors’ in Afghanistan undermined attempts to build the Rule of Law in that country.
CONCLUSION
This worksheet provides an examination of the attempt by a group of Western countries to introduce the Rule of Law in Afghanistan, a country engaged in serious internal military conflict, as part of a strategy to end the conflict and create an orderly society sympathetic to the views and interests of those other countries, most notably by not acting as a base for international terrorism. The main theme of the worksheet is that this has not, at least to date, been a success and the failure to embed the Rule of Law in Afghan society is based on a lack of appreciation of the full scope of such a project supplemented by a recognition that many actions of both the Afghan state and the international actors with the country actively undermined such a policy. As such the following statement seems particularly appropriate:
“Rule of law promoters in transitional and post-conflict societies…too often talk as though establishing the rule of law where it has not existed or is being shot to pieces, at times quite literally, is in principle the same sort of legalistic job requiring the same legal tools, if harder and more dangerous, as cultivating it where it has long grown and has deep roots, and where its presence is an often unreflected-upon ingredient of everyday life. A moment’s comparative reflection on the extra-legal contexts of such ambitions make it hard to see why anyone would think that.” (M Krygier op.cit. p.248)
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