EXECUTIVE SUMMARY AND RECOMMENDATIONS
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.
RECOMMENDATIONS
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