June 7, 2011

The enormous task of helping to stabilize Afghanistan depends on much more than Afghan and international forces making military gains against the Taliban and other extremists; it depends as well on encouraging durable political and legal advances in a country that has suffered from a lack of democracy, basic rights and real recourse to the tools of justice.

To that end, efforts to help Afghans establish the rule of law have been drawing on the expertise of specialists from the United States Institute of Peace (USIP) for years. Much of USIP’s rule-of-law work has been funded by the State Department’s Bureau of International Narcotics and Law Enforcement Affairs, and the U.S. Agency for International Development (USAID) has supported USIP’s broader conflict resolution and peacebuilding training and education there.

USIP has been working at the complicated intersections of law, politics, culture, crime and civil disputes to help Afghans move toward a society in which the rule of law becomes a norm upon which they can depend. The work is prompted by the recognition that a country that routinely denies access to justice is likely to spawn instability, terrorism and other violence. That dynamic, left unchecked, retards efforts to defeat the appeal and reach of insurgents, whose own sense of justice features meting out brutal punishments on those who run afoul of their militant demands.

As Scott Worden, the USIP senior program officer who heads its Afghan rule-of-law team, explains, “Small disputes go unresolved. They escalate into larger feuds, and they become fuel for the insurgency. There are much larger implications here.” Adds Worden: “Rule of law is one of the thickest pillars supporting the foundation of a stable Afghanistan….Unsecured or lawless areas provide fertile ground for the Taliban.”

Shahmahmood Miakhel, USIP’s country director based in Afghanistan, puts it directly: “We need to help build a stable environment so international military forces do not have to come back.”

USIP was among the first organizations to focus on law and justice issues in Afghanistan after the September 11 attacks and the U.S.-led campaign against the Taliban and al-Qaida in 2001. USIP officers participated in a systematic effort to collect and digitize previous Afghan laws that had been scrapped or ignored under Taliban rule, drawing on the resources of the Afghan diaspora and the U.S. Library of Congress. A USIP-convened international conference brought together Afghan and international experts to share ideas on strengthening the rule of law in post-Taliban Afghanistan. Additionally,based on its research and increasing work with Afghans, USIP published large portions of two volumes titled “Model Codes for Post-Conflict Criminal Justice” and translated the entire handbook on “Combating Serious Crimes” into Dari. These publications provided a starting point to identify international legal standards that might be applied in the Afghan context. “In the early days, we tried to supply tools to them,” said Colette Rausch, who directs the Institute’s Rule of Law Innovation Center.

In more recent years, USIP’s work has spread into many of the most sensitive issues emerging from a newly democratic Afghan government’s struggles to extend the rule of law where lawlessness once reigned. Said Veeraya K. Somvongsiri, USAID’s rule of law team leader in Afghanistan, “USIP occupies a unique position straddling policy and practitioner communities. USIP has provided intellectual leadership on key rule-of-law issues.” There is an additional, practical dimension as well, Somvongsiri noted: “USIP has convening power and access to or relations with a wide range of actors in civil society and government.”

Key USIP initiatives include:

Linking formal and informal justice systems. While formal structures of jurisprudence dominate in the West, most criminal and civil justice procedures in Afghanistan take place through informal channels—often community councils known as shuras and jirgas, or mullahs as well. That tradition may not comport well with orthodox Western advice on bringing justice systems to a place like Afghanistan. But USIP specialists concluded that within an overwhelmingly rural population composed of diverse tribal and ethnic groups, informal justice methods are often broadly known—and they should be considered as a short-term bridge to the goal of competent state police, prosecutors and courts. “You can’t ignore reality,” said Rausch.

USIP helped spearhead the pragmatic shift on these issues, drawing the participation of other U.S. and foreign aid agencies. “They look to USIP as a leading edge in approaches to improving rule of law activities in Afghanistan,” said Christina Bennett, a development expert who has studied the effectiveness of USIP’s Afghanistan programs. “USIP has a lot to offer the international community and Afghanistan in terms of rule of law. The level of expertise is higher than many other organizations working there.”

Since 2002, USIP has been studying traditional dispute resolution in the country — with an intensifying focus on how to mesh the informal with the formal so that legal disputes can be resolved more reliably and effectively. The informal procedures have the advantages of retaining considerable public trust and drawing on voluntary participation. But the country’s social upheavals, insurgent violence and new mobility all have made enforcement more difficult, and the outcomes of disputes can sometimes be tilted to reflect the clout of a locality’s influential tribes or clans.

With USIP advice, the U.S. military and Embassy in Kabul have tailored their rule-of-law aid programs to support the ability of local shuras and jirgas to consider disputes, depriving the Taliban of political kindling while at the same time developing ways to monitor practices that deprive women and other disadvantaged groups of their legal rights. The value of USIP’s field work in helping to secure military gains over the longer run was cited in a 2009 letter by the top U.S. commander in Afghanistan, General David Petraeus. “In Afghanistan, USIP’s work on the informal justice system has been invaluable as we work toward improving the rule of law at the provincial level,” Petraeus wrote.

The security rationale for the USIP initiative is direct: “If both the formal and informal systems aren’t able to solve a dispute, the people involved seek Taliban help,” Miakhel. USIP program officers, in fact, have been training U.S. officials in how the Taliban exploit gaps in Afghan justice. In the past few months, the Institute has expanded the number of pilot projects to build or strengthen links between informal and formal justice from eight to 13 districts, and for the first time it has begun operating in some recently heavy-conflict areas in the provinces of Nimroz, Helmand and Uruzgan.

USIP has also been providing advice to the Afghan central government on proposed legal reforms related to criminal justice and due process. “The Institute has been ahead of the curve,” said Rausch.

Implementing the Constitution. A new Constitution establishing a democratic framework was ratified in 2004. Yet significant and politically touchy issues remain about the roles of two separate entities in interpreting the Constitution, which is ambiguous on several key points such as who can remove cabinet members from office or when election results are final. USIP has been researching those “gaps” and is consulting with the newly formed Afghan Independent Commission for the Supervision of the Implementation of the Constitution, as well as with Afghanistan’s Supreme Court itself. The aim is to encourage resolving the differences through dialogue and averting a dangerous constitutional crisis. The Institute is also assisting Kabul University in the creation of a Center for Constitutional Studies, a future venue for discussion and debate of constitutional questions.

Transitional justice. USIP is helping strengthen Afghan nongovernmental organizations to take on the human rights abuses of the past. Even a decade after the Taliban was toppled, many Afghans want to see the truth about misdeeds exposed and accountability assigned. Despite some political reservations in Kabul, said Worden, “There’s still a huge pent-up demand for addressing past crimes.” USIP has helped to create a network of human rights and other nongovernmental groups that are documenting past crimes—a network known as the Transitional Justice Coordinating Group. At the same time, Institute convened a conference and commissioned further research to energize thinking in Afghanistan and among Islamic scholars on how Islamic thought can play a role in popular demands for post-conflict justice—an effort that could strengthen support for holding human rights abusers accountable for their crimes. USIP has also provided technical advice to the Afghan government commission charged with weeding out candidates in the 2009 elections who had links to illegal armed groups.

Support for civil society. The Institute has been encouraging ordinary Afghans to get involved in issues of justice and conflict resolution. USIP grantee Equal Access International produced a radio series on government transparency, security and the demand for justice that reached between 900,000 and one million people. Forty five public forums were held involving more than 900 Afghan citizens; they discussed how the topics covered on the radio broadcasts can be applied on the ground. Overall, USIP has partnered with 15 organizations to improve the capacity of the country’s civil society to conduct open dialogue on conflict resolution, good governance and transitional justice.

A rule-of-law network. The Institute continues to expand an online discussion community for practitioners called the International Network to Promote the Rule of Law (INPROL). Through detailed, practical commentaries, professional law experts offer advice, recount relevant experience and provide contacts for those in Afghanistan who are trying to advance the rule of law. INPROL, though global, is being tapped widely in Afghanistan. One-third of members who have joined over the past six months are in Afghanistan. They include a number of U.S. officials at work in the country.