The Climate of Impunity in Afghanistan: Lack of Meaningful Checks and Balances
Welcome back to the final blog post of the Rule of Law in Afghanistan series! In the last two blog posts, we outlined the first objective of rule of law and concluded how rule of law is increasingly seen as a key component for rebuilding a post-conflict society. It is also increasingly linked with a written constitution that provides the blueprint for post-conflict governance. In Afghanistan, economic, human rights and global security rationales combined for perhaps the strongest imperative for rule of law reform to date. Therefore, in this blog post, we will discuss the second and third rule of law objectives in the context of Afghanistan.
Second Rule of Law Objective: Judicial Reform and Open, Clear, Stable Rules
Efforts to build rule of law in Afghanistan have influenced legal reform through the revision of legal codes and training of legal officials. Through USAID, America has contributed to justice sector reform in Kabul. USAID’s key projects included reforming the Ministry of Interior and implementing the Disarmament, Demobilization, and Reintegration (DDR) program. DDR aimed to disarm and demobilize former combatants and reintegrate them back into society in a more productive way.
To help Afghanistan’s counternarcotic and counterterrorism work, the United States Department of Justice (DOJ) sent attorneys from the Drug Enforcement Administration and the U.S. Marshals Service to serve as trainers/mentors to Afghan investigators, prosecutors and judges. DOJ attorneys advised Afghans on how to draft a comprehensive counternarcotic law that created the Central Narcotics Tribunal (CNT). Under the U.S. Army’s counterinsurgency doctrine, military officers and Judge Advocates recognize establishing rule of law as an important component of building and strengthening democratic governments. The U.S. Department of Defense also supported rule of law operations as key to the department’s offensive and defensive operations, as well as its engagement of stability operations.
In July 2011, 39 nations of NATO and NATO’s International Security Assistance Force (ISAF) agreed to establish a parallel mission for rule of law support called the NATO Rule of Law Field Force (ROLFF). The mission ambitiously took on several legal reforms at the community level and built and staffed prosecutors’ offices and courts. It trained Afghans to gather forensic evidence, conducting more than 166 trials that relied upon explosive residue testing, fingerprint examination, or other forensic analysis in their judgments. ROLFF also recorded and registered resolutions to land disputes.
The United States Institute of Peace (USIP), a nonpartisan and national institute, has also undertaken significant rule of law activities in Afghanistan since 2002. It has explored ways to better link the formal and informal justice sectors, promoting accountability and good governance by implementing a national action plan on peace, justice and reconciliation. USIP has also provided comparative research on constitutional interpretation and established an International Network to Promote the Rule of Law.
Despite a decade of effort and the expenditure of over $350 million, the State and Defense Department Inspectors General and the Special Inspector General for Afghanistan determined that while U.S. assistance achieved tactical gains and built some judicial infrastructure it had failed to meaningfully advance the rule of law in Afghanistan. This was attributed to the Afghan government’s disinterest in establishing the rule of law and its willingness to thwart U.S. programs.
Despite the evident lack of progress over time, U.S. officials continued to implement programs already identified as ineffective. They also failed to confront the massive corruption in the Afghan government and the patronage networks it relied upon for support. U.S. programs emphasized the importance of the informal justice sector, but they did not seriously attempt to engage with the key elements of traditional Afghan judicial legitimacy: cultural affinity, Islam, and creating accessible forums for equitable dispute resolution. Policymakers can benefit from being better able to conceptualize and respond to the challenges posed by judicial state-building in a legally pluralist society, such as Afghanistan.
Third Rule of Law Objective: Ratifying International Treaties and Establishing the International Human Rights Principles
The preamble of the 2004 Constitution of Afghanistan promises to “[observe] the United Nations Charter and to [respect] the Universal Declaration of Human Rights.” In addition, Article Seven specifically states that “the state shall abide by the UN Charter, international treaties and international conventions that Afghanistan has ratified and the Universal Declaration of Human Rights.”
The Government of Afghanistan has ratified several international human rights treaties. Treaties include the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention Against Torture; and the Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination Against Women.
However, these human rights provisions exist alongside the Constitution. Fourteen of the Constitution’s 162 articles reference Islam, with the first four articles establishing Islam as a fundamental political, legal and religious basis of the state. Article Three of the Constitution provides that no law can be contrary to Islamic beliefs and provisions. The Constitution provides no method of resolving conflicts between international human rights law and Islamic law, such as disparities between men and women under sharia with regard to marriage, divorce, inheritance rights and court testimony. In a culture of impunity, such as Afghanistan, human rights violations at the uppermost and the most visible, standard-setting level go unpunished, upsetting the third rule of law objective.
The rule of law is increasingly seen as a key component for rebuilding a post-conflict society. It is also increasingly linked with a written constitution that provides the “blueprint” for post-conflict governance. In Afghanistan, economic, human rights, and global security rationales combined for perhaps the strongest imperative for rule of law reform to date, and these reforms also take place under the framework of a written constitution.
A World Bank study on corruption once observed, “[t]he proper locus of morality is people, whereas corruption lies in systems. When an official steals money from a development budget, her motive may be to send her son to school. The important failure is not in her, but in the system that allows her to get away with stealing.” The Constitutional system in Afghanistan follows the logic of this observation: widespread corruption is a consequence of the governance framework as prescribed by the Constitution.
In 2001, the international community chose consciously and deliberately to support a highly centralized state. At the time of the 2004 Constitution’s drafting, they perceived that a decentralized framework of governance would be too difficult to coordinate and too diffuse to serve as a strategic partner. They also believed that decentralization would lead to local elite capture that could fragment the ethnically-diverse country. And they neglected considering that the most effective voice to check these officials may be that offered by a rural, illiterate Afghan vote, cursorily concluding that the electorate was not sufficiently educated to administer a decentralized budget and participate in decentralized elections. As a result, at the national level, the international community enabled a strongly centralized Constitution characterized by a weak Parliament and no independent judiciary a structure that could not and did not effectively hold the executive accountable.
The most damaging critique may be one that surfaced from polls of the Afghan people— the majority of Afghan people think that Afghanistan is going in the wrong direction, indicating corruption as the third highest reason.
In Afghanistan, the failure of accountability impedes the success of all other rule of law objectives. If power-holders can arbitrarily exert their will, people cannot predictably order their affairs. Human rights violations at the most visible levels go unpunished. In a culture of impunity, power-holders may be encouraged to continue aggressions, knowing they will not be made to answer for them. And, when there is no political will to enforce the law, it does not matter how well trained the judges are or how skillfully the laws are written.
In addition, the Afghan constitution also created a highly centralized state with little instruction on how and when political or administrative authority should be extended into the provinces. At the local level, the NSP has created an incentive structure that both ex-post penalizes misuse of power, but also ex-ante incentivizes accountability. This structure features a simple central disbursement system, local elections and local budget autonomy. These features allow for election procedures that are tailored to the literacy rate and security conditions of the locale, a flexibility that ensures more inclusive participation. In addition, these features ensure accountability through empowering ordinary citizens to choose and monitor their elected representatives.
Well-intentioned training of the police and judges, coupled with the provision of prisons or courthouses, cannot be effective if the executive is not incentivized and the community is not empowered to demand that these officials abide by what they learned. Instead, improvements in capacity may only give self-interested officials more institutional tools to advance their own agendas. This “climate of impunity,” where the law cannot bring politically connected officials to justice, has been unfortunately facilitated by the failures of Afghanistan’s Constitution to introduce meaningful checks and balances on executive power.
Taking democracy and legitimate governance seriously is a crucial first step. Policymakers and aid implementers need a realistic and compelling strategic vision rooted in a deep understanding of a country’s legal culture, politics, and history Realistic expectations are essential, as developing the rule of law is a long-term process so policymakers can benefit from being better able to conceptualize and respond to the challenges posed by judicial state-building in a legally pluralist society, such as Afghanistan.Top