Afghanistan's legal system has collapsed. Never strong to begin with, it has been nearly destroyed by 23 years of conflict and misrule. There are few trained lawyers, little physical infrastructure and no complete record of the country's laws. Under successive regimes, laws have been administered for mostly political ends with few protections of the rights of individuals to a fair trial. Although the country has signed up to most international agreements on human rights, abuses have been widespread, and military commanders have enjoyed impunity.
The challenges in remedying the situation are enormous. No justice system can thrive in a state of insecurity and corruption since judges and prosecutors will be intimidated or bribed. There are deep divisions between those who favour a very conservative interpretation of Islamic law and those who want to revive the more progressive ideas in the 1964 Constitution. The loss of trained staff has been such that it will take a generation at least to rebuild a system that even before the conflict only really functioned in the main cities and towns.
Nevertheless, moving towards the rule of law is a vital part of peace building in Afghanistan. Abuses of ethnic and religious groups and the treatment of women suggest that no group can feel secure unless protected by a body of law and a functioning judicial system. The economy will be more likely to grow if property is protected; a fair system to adjudicate the many property disputes that have stemmed from war will be vital if this is not to become a new source of grievance and conflict. A functioning judicial system will also be essential for dealing with drug production. The country will likewise have to find a way of addressing past human rights abuses if it is to gain a durable peace.
The Bonn Agreement signed in December 2001 re-established the 1964 Constitution as Afghanistan's key legal document and laid out a plan to rebuild the system. That plan called for the establishment of independent commissions to oversee the rebuilding of the judiciary, monitoring of human rights, drafting of the constitution and selection of civil servants. These bodies were to provide both expertise and some measure of oversight to a government in which executive and legislative powers are concentrated in the hands of the president and his cabinet.
So far the commissions have achieved little. Most of those named to the first Judicial Commission were linked either to ministries or the Supreme Court. That commission bogged down in bureaucratic and political rivalries and was disbanded after three months. A new commission, appointed in November 2002, appears more independent but begins with an ill-defined mandate and is handicapped by the fact that several critical laws were drafted or adopted in the intervening months. The Human Rights Commission has been more successful but faces formidable security concerns, which the Transitional Administration and the international community have not adequately addressed, and has been delayed in establishing a nation-wide presence. The Civil Service Commission is not yet functioning.
The commissions were an obvious channel for international technical and financial assistance, and the delay in establishing them has meant many lost opportunities. Their performance to date does not bode well for the future since they will have to tackle even more thorny issues such as disarming military forces, writing a new constitution and managing elections due in 2004.
While the international community has dithered on judicial development, the factions within the Transitional Administration that control the judiciary have moved swiftly to promote their interests. The Supreme Court is controlled by Fazl Hadi Shinwari, an ally of the Saudi-backed fundamentalist leader Abd al-Rabb al-Rasul Sayyaf. Shinwari was appointed in December 2001 by former president Burhanuddin Rabbani. President Hamid Karzai re-appointed him in June 2002, much to the surprise of many as the constitution requires that a Chief Justice be under 60, while another provision has been interpreted as requiring that the Chief Justice be educated in all sources of Afghan law, religious and secular. Shinwari is believed to be in his 80s and does not have formal training in secular sources of law.
Shinwari has rapidly placed political allies in key positions, even expanding the number of Supreme Court judges from nine to 137. Of the 36 Supreme Court judges whose educational qualifications are known, not one has a degree in secular law. Shinwari's actions, together with the re-emergence of a ministry to promote Islamic virtue, have added to fears that the judicial system has been taken over by hard-liners before the Afghan people have had a chance to express their will in a democratic process. The Supreme Court has also established new National Security Courts that will try terrorist and other cases although it is unclear whether it had the right to create courts that are not mandated in law.
Tensions have emerged between the Supreme Court Chief Justice and the Minister of Justice, whose ministry drafts laws and who under the Law of Saranwal (Attorney General or Public Prosecutor), is the country's chief prosecutor. Although the Attorney General was established as a separate office in the 1980s, the Minister of Justice disputes the constitutionality of this move.
The United Nations has done little to press accountability for past human rights abuses as senior figures believe it is more important to consolidate the peace process. Donors have been slow to embrace the issue - at the Tokyo conference there were no specific commitments. President Karzai has dismissed transitional justice as a "luxury" the country cannot afford until it is more settled. But taking justice for past crimes off the agenda has almost certainly contributed to a sense among commanders that they can act as they wish with no risk of punishment. Human rights abuses by commanders, many officially part of the government, continue across the country.
Most advocates for a process of transitional justice recognise the difficulties but believe that training and resources need to flow into the country now so that Afghans can eventually make informed decisions about which mechanisms might best address past abuses and help end the cycle of impunity. Training lawyers and investigators, protecting evidence and establishing archives are all essential if Afghans are to choose in the future from an array of possibilities that includes trials of abusers and a truth and reconciliation commission. Many difficult decisions about what to include and where to draw geographical or temporal boundaries can be put off until peace is more established but unless the international community builds a capacity among Afghans to deal with the issue themselves, all choices could be lost for good.
Rebuilding the justice system needs to move higher up the political agenda. The process requires conspicuous support from the United Nations and full implementation of the Bonn Agreement, which offers a mechanism to build a new justice system. Donors need to provide technical and financial support in a timely manner to ensure that Afghanistan develops a legal system that serves and protects all its people and reduces the risks of a return to conflict.
To President Hamid Karzai and the Afghan Transitional Administration:
1. Request the retirement of Fazl Hadi Shinwari as Chief Justice and appoint a successor who meets the constitutional requirements on age and education.
2. Issue a decree affirming the independence of the new Judicial Commission, giving it the authority to issue binding recommendations, and establishing a formal process whereby the Commission will report on its work to the President.
3. Protect members of the Human Rights and Judicial Commissions, when requested, to ensure they are not intimidated.
4. Issue a decree clarifying the constitutional status of the Attorney General's office, on the basis of the Judicial Commission's recommendation.
5. Disband the National Security Courts and halt establishment of any new courts or justice related bodies until these can be reviewed by the Judicial Commission.
6. Establish the membership of the Civil Service Commission, as mandated by the Bonn Agreement, ensure that it has a secretariat staffed by independent experts to set appointment standards, and encourage it to review all appointments made since the signature of the Bonn Agreement.
7. Suspend use of the death penalty at least until defendants are guaranteed due process.
To the Afghan Human Rights Commission:
8. Give serious consideration to and indicate whether the Commission supports the establishment of a UN-mandated International Commission of Inquiry to document crimes against humanity committed during the past 24 years, as proposed by the UN Special Rapporteur on Extra-judicial, Summary or Arbitrary Executions.
To the International Community, in particular Donors and the United Nations:
9. The Italian government should ensure that funds pledged during the 19-20 December 2002 Conference of Rome on Justice in Afghanistan are expeditiously channelled.
10. Raise the public profile of efforts to promote the rule of law and human rights by offering to expand technical and financial support to all the commissions provided for in the Bonn Agreement.
11. Ensure that technical and financial assistance is provided to all sectors of the government and civil society involved in the administration of justice and law enforcement, and coordinate such assistance so as to ensure the parallel development of each sector, including:
(a) courts, the public prosecutors and judges;
(b) local traditional institutions for resolving disputes;
(c) the police; jails and other detention and correction facilities;
(d) the institutions drafting new laws, procedures and codes;
(e) law faculties, libraries and other facilities for legal education; and
(f) the Afghan Human Rights Commission and any regional branches that it may establish; and human rights and legal aid NGOs, bar associations and other elements of civil society.
12. Support the consultative process on transitional justice to be undertaken by the Human Rights Commission by:
(a) helping Afghanistan benefit from the similar experiences of other countries;
(b) providing expert and technical help to enable Afghans to organise consultations and design a way to account for past crimes that fits the situation in the country;
(c) providing assistance for the collection and preservation of evidence of human rights abuses by the United Nations and other groups; and
(d) providing sufficient funding for a widespread public information campaign on the consultation process to ensure that expectations are reasonable.
13. Express readiness to support establishment of a UN-mandated International Commission of Inquiry to document those war crimes and other violations of international humanitarian law, since April 1978, that are serious enough to warrant consideration as crimes against humanity and thereby assist the Human Rights Commission's consultative process on transitional justice.
14. Provide, where deficiencies are identified in the existing record, such an International Commission of Inquiry with financial support, channelled through a trust fund, to carry out investigations as thoroughly as possible in view of the passage of time, to include, as necessary, support for the provision of:
(a) forensic specialists and other technical assistance;
(b) security for sites believed to contain graves and other material evidence; and
(c) security for witnesses and their families believed to be at acute risk of retaliation.
15. Condemn forcefully ongoing human rights violations, press for accountability and publicly name commanders who are persistent abusers of human rights.
16. Support the rebuilding of law libraries and translation of foreign law texts, and make available foreign faculty to teach courses on international human rights law.
17. Work urgently with the Transitional Administration in connection with security sector reform to develop human rights guidelines on the selection of officers and new codes of conduct for the military and police.
Kabul/Brussels, 28 January 2003
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