A Patchwork Strategy of Consensus: Establishing Rule of Law in Afghanistan
Hagerott, Mark R., Umberg, Thomas J., Jackson, Joseph A., Joint Force Quarterly
The gavel strike of justice in Kabul does not echo far in the Hindu Kush mountains. The need for rule of law and legal reform in Afghanistan could not be more urgent given the recent successful offensives in the southern provinces. Despite 9 years of efforts by a number of organizations and governments, however, the equitable dispensation of justice in the South and throughout Afghanistan remains an unattained aspiration. Not surprisingly, many Afghans believe that because of corruption, the national government is incapable of resolving disputes arising from the population. Most alarming is that while 67 percent of Kandaharians--a crucial population as capacity develops--believe that the government cannot provide justice because of corruption, 53 percent believe that the Taliban are incorruptible. (1)
Combined forces have successfully staged military operations but have not made much progress in establishing the rule of law because unifying leadership and comprehensive rule of law strategic plans are lacking. As a result, the rule of law remains elusive. Moreover, time is running short to effectively establish the principal elements of a system of justice--in particular, a criminal justice system with an integrated network of police, courts, and correctional institutions connected to traditional forms of justice. Without focused leadership and an overall strategic plan, sustained with increased numbers of advisors, the extension and credibility of a functional justice system both in and beyond Kabul will remain ephemeral. As a consequence, the Afghan people will continue to look elsewhere to obtain justice--even the ruthless but efficient justice administered by the Taliban.
Raising the Bar
On the surface, the history of Afghanistan is a narrative of invasion and internal strife among kings and warlords. The list of would-be rulers both internal and external is well known. Yet one aspect often overlooked--in the past as now--is that regardless of the application of arms, ruling Afghanistan and its mosaic of ethnicities hidden within a rugged landscape requires a firm establishment of the rule of law--that is, access to a dispute resolution process and a system of criminal justice that impartially determines guilt and imposes sentences. Without the establishment of the rule of law, force of arms can provide only temporary stability and the illusion of governmental legitimacy.
Despite the noticeable lack of leadership and a strategic plan in the larger sphere of legal reform, not all legal efforts are falling short in Afghanistan. Courts at various levels do function, if imperfectly, and a measure of formal justice is accessible to some of the population. One of the more promising areas of legal reform resides within the Afghan National Army (ANA). The military judicial system includes functioning courts, judges, prosecutors, defense counsel, and appellate review. Furthermore, there exists the capacity for pretrial detention and long-term post-trial confinement. As a measure of the maturing military justice system, in the last 3 years, the ANA has adjudicated approximately 400 cases per year. (2)
The ANA military justice system has many of the advantages that the civilian justice system lacks--chiefly, the leadership and strategic planning support provided by the Combined Security Transition Command-Afghanistan (CSTC-A). In addition to the ANA prosecutors, defense attorneys, and judges who exist in every ANA corps headquarters compound, courthouses built on secure ANA installations provide justice officials with a level of protection from attack that is lacking in most civilian courts. This security allows prosecutors and military judges to function with less concern for acts of retribution. Most important, the military legal system benefits from focused, well-resourced international advisors under an organized and unified command and control scheme. …