|
June 2002
Vol. VIII, No.4
Prospects for Justice in Afghanistan
 Neil Kritz |
Since the Afghanistan war began last fall, the U.S. Institute of Peace has tried to apply the lessons of its rule-of-law work to the challenge of building a viable justice system in post-war Afghanistan. By mid-November, at the urging of the U.S. State Department, the Institute's Rule of Law Program assembled a group of experts to start developing contingency proposals for the administration of such a justice system. The group included former senior Afghan legal officials, experts on Afghanistan, experts on Islamic law (Sharia), Bush administration officials, UN representatives, and veterans of other peacekeeping missions who have experience in post-conflict legal rebuilding.
At the request of members of the UN negotiating team, the Institute produced a report, with recommendations, for use at the December 2001 Bonn negotiations between Afghanistan's warring factions. These negotiations resulted in the "Bonn Agreement" that established the country's interim government. The provision that established a framework by which to reorganize Afghanistan's legal system through a Judicial Affairs Commission was based directly on the Institute's recommendations.
In recent months, the Institute has continued to contribute to efforts to rebuild Afghanistan's legal system. At the Institute on May 7, a panel addressed the topic "Afghanistan: Prospects for Justice." Moderated by Neil Kritz, director of the Institute's Rule of Law Program, the panel included George Washington University professor Qadir Amiryar; Jamal Benomar, a senior adviser at the UN Development Program; Lisa Dickieson, director of the American Bar Association's Asia Law Initiative; and Paul Seils, senior associate of the International Center for Transitional Justice. Although optimistic about Afghanistan's prospects for justice, panelists discussed a number of serious obstacles.
Benomar cited the absence of a clear strategy for reforming the justice sector. He also noted that Afghanistan's current judicial system is fragmented, with conflicts between such core institutions as the Ministry of Justice, Supreme Court, and attorney general's office. In addition, the judicial system's infrastructure has been destroyed; the absence of adequate court or ministry facilities, basic office furniture, and minimal supplies makes substantive progress difficult. Benomar also pointed to tensions between religious and secular legal training with regard to appointments of new judicial personnel.
In keeping with the "light international footprint" advocated by the UN mission in Afghanistan, the panelists believe that Afghans themselves should decide on and implement reforms. At the same time, Dickieson commented that Afghans are willing to work with the international community, which she believes should do more to facilitate judicial rebuilding.
Seils stated that past abuses also should be addressed, and he weighed the role a truth commission might play in Afghanistan.
 Left to right: Lisa Dickieson, Paul Seils, and Qadir Amiryar. |
Amiryar pointed out that Afghans need security in order to adequately address questions of justice. For one thing, assuring a minimum level of human rights and the rule of law throughout Afghanistan will require that security be extended beyond Kabul.
Until Afghanistan's new constitution is adopted, the Bonn Agreement states, the country's basic legal framework will consist of its 1964 constitution and existing laws and regulations to the extent that they accord with the Bonn Agreement and with international treat-ies to which Afghanistan is a party. The Ministry of Justice is charged with compiling current Afghan laws and assessing their compatibility with international standards.
However, texts of Afghan laws are largely unavailable, even among attorneys, judges, law faculty, and government agencies such as the Ministry of Justice. While in power, the Taliban burned law books. "There is today no decent law library in the country," Benomar said. In Dickieson's words, local police stations have "no sense of what the law is." The Institute has taken steps to help correct this situation. During a trip to Afghanistan in May, Rule of Law program officer Colette Rausch, together with colleagues from the American Bar Association and International Resources Group, delivered a compilation of major Afghan laws and worked with Afghan justice officials and the international peacekeeping force to arrange for its distribution nationwide. She also consulted a number of Afghan and international officials about projects through which the Institute will further assist Afghans to rebuild their justice system.
Other Institute Resources:
