Issue 02/10 AFGHANISTAN Developments in Justice & Reconciliation - February 2010 Ann-Kristin Otto Justice & Reconciliation KM (ann-kristin.otto@cimicweb.

.org) (www.cimicweb.org)

01 March 2010

This document is intended to provide an overview of relevant Justice and Reconciliation developments in Afghanistan from 01 - 28 February 2010. More comprehensive information is available on the Civil-Military Overview (CMO) at www.cimicweb.org.1 Hyperlinks to original source material are highlighted in blue and underlined in the embedded text.

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AMNESTY LAW Hamid Karzai Activates National Reconciliation, General Amnesty and National Stability Law (Amnesty Law). The Afghan government quietly passed an amnesty law in the weeks leading up to the 28 January London Conference, granting amnesty to insurgents willing to lay down their arms, the Guardian reports. The law also guarantees immunity from prosecution for crimes allegedly committed by warlords during the civil war era. According to the British daily, the law was passed by the Afghan National Assembly and approved by the President in 2007, but was not put into effect due to its controversial content. In Afghanistan, laws generally do not enter into force before they are published in the official gazette and publicised through the ministries websites or through other means of communication. The account that the law had not been put into effect was confirmed by the Afghan governments report to the UN Human Rights Council in 2009, which relayed that President Karzai had never signed the law and it therefore had never entered into force. The Guardian writes that it was still not clear when exactly the law was published but that an electronic copy was discovered in late 2009. The timing suggests that the president decided to enact the law to pave the way for the reconciliation and reintegration initiatives of the Afghan parliament introduced to the international community during the London gathering. Without limiting the amnesty to specific crimes, the law gives wide-ranging amnesty to all political factions

and hostile parties who were involved in one way or another in hostilities before establishing of the Interim Administration,2 which includes warlords who have committed war crimes in the past. Amnesty is also granted to those who are still in opposition to the Islamic Republic of Afghanistan and cease enmity after the enforcement [of the law].3 Local Noor TV reports that presidential spokesman Wahid Omar spoke at a press

conference confirming that those willing to join the reconciliation process would be guaranteed immunity, but he did not offer further details on the law. Domestic and international human rights groups have criticised the move and called on the Afghan government to suspend the controversial legislation. Sari Kouvo of the Afghanistan Analysts Network (AAN) examines the legislation criticising it for providing blanket amnesty, which turns a political strategy of de facto amnesty for war criminals and the promotion of peace before justice into law, which will not help strengthen national unity or build trust among all groups of Afghan society. Kouvo points out that the amnesty law is contradictory to the goals set out by the Afghan Action Plan
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A CMO user account is required to access some of the links in this document.

See Art.3 (1) of the Amnesty Law. See Art.3 (2).

for Peace, Justice and Reconciliation passed in 2005 which states that there can be no amnesty for war crimes.4 The analyst concludes that the legality of the law could be challenged with Afghanistans commitments under international law treaties and customary international law, which generally prohibits amnesties for most serious international crimes, such as crimes against humanity and serious human rights violations. JUSTICE SECTOR REFORM Achievements and Setbacks in Reforming the Afghan Justice System. Justice sector reform has been an essential component of Afghan and international efforts to stabilise the country towards reaching sustainable peace as formalised under Pillar 2 of the Afghan National Development Strategy (ANDS).5 In the course of ISAFs new strategy in Afghanistan, an article published by CBS News expresses the concern that reforming the countrys judicial system might fall behind in priorities as reconciliation initiatives have dominated the agenda over the past months. An opinion poll conducted by The Asia Foundation in 2009 conveys that the scope of the challenge is large in a country where the formal justice system has little influence outside urban areas and is seen as inefficient and corrupt by many Afghans who still rely on informal tribal or traditional systems of justice for dispute resolution. Only 50% of those surveyed felt that the Afghan courts are fair or can be trusted and only 49% believe the courts to be effective. More than 50% believe courts to be corrupt or somewhat corrupt and only 40% think that courts resolve cases timely and promptly, with 55% disagreeing and 23% strongly disagreeing with the statement that courts act promptly. 6 Respondents showed considerably higher trust in local shura or jirga mechanisms with regards to their effectiveness and ability to deliver justice, compared to the numbers for the formal justice sector. 7 Two members of the US Department of State Public-Private Partnership for Justice Reform in Afghanistan published an article on CBS News warning that justice system reform should not fall behind in priorities while the new strategy for Afghanistan is being implemented. The authors stress that a functioning justice system will be essential to success when dealing with overcoming the insurgency, fighting narcotics trade and combating corruption. According to the piece, further training for the countrys Afghan National Police (ANP), prosecutors and judges is required. A Washington Post article describes the lack of reliable justice in Afghanistan as one of the major reasons for popular disillusionment and examines training programmes for prosecutors and police officers, claiming that the initiatives have shown some success on the ground, such as teaching basic guidelines on legal rights of detainees and the prohibition of torture. The basic training courses are often the first time Afghan police officers and prosecutors train together, the report says. Trainees are being instructed on rudimentary investigation techniques including how to cordon off a crime scene and how to search and collect fingerprints. In addition, copies of the Afghan Constitution and penal code are being distributed. Nevertheless, the measures and programmes in place seem to have difficulties matching the scope of the challenge. In Afghanistan, challenges can be observed at every level of the justice system, from police to courts to prisons, according to the Washington Post. The article describes the basic lack of office material in courts such as photocopiers, telephone lines, computers, etc. as being a major hindrance to daily
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Public Discontent with Formal Justice Structures

More Training Programmes for Judicial Personnel and Resources Needed

See Key Action Point 4: Promotion of Reconciliation and National Unity, pg 12.

For background information on the Afghan Justice System and its structure, please see CFCs Afghanistans Legal System and Structure paper. 6 See pg. 85f. of the linked opinion poll, The Asia Foundation 2009. 7 See pg. 90 of the linked opinion poll, The Asia Foundation 2009.

operations and orderly court conduct. An analysis by a Rule of Law advisor to the International Joint Command (IJC) Stability Operations stresses the lack of research tools such as libraries or other means of access to legal information typically available to judges. The analyst writes that judicial practice manuals and legal texts for research are virtually unheard of in Afghanistan. The CBS News piece claims that the physical infrastructure of justice, especially when it comes to the prison system, needs to be rebuilt and strengthened. The number of prisons does not match the growing number of prisoners in Afghanistan. Recent jail breaks have demonstrated a lack of security in prisons, the authors write. Due to a shortage of lawyers, suspects are often sent to prison without seeing a defence attorney, which they are constitutionally entitled to. Security for judges and lawyers is another challenge facing Afghans who are working for an improved justice system in their country, according to the Washington Post. The report points out that several judges have been kidnapped and killed and one judge was quoted saying that he had to relocate his family to a safe place during a sensitive trial for six months. A chronic lack of staff and resources together with low salaries make the institutions vulnerable to corruption. According to IJC analysis, traditionally, Afghanistan has worked with a judicial system that combines religious and secular law and has allowed both formal judges and religious leaders to interpret and apply these laws. The system also leaves room for an informal justice system through village shuras and other traditional structures, which helps satisfy local needs while at the same time filling a vacuum caused by the weak formal justice sector often unable to extend its reach to all parts of the country. The IJC analysis warns that allowing informal justice structures to take a prominent role in the legal system of the country pushes the formal courts into being a poor alternative. A paper entitled Leveraging Indigenous Cultures and Social Structures on improving the Rule of Law (RoL) in Afghanistan produced by the US Armys Decision Support Red Team concludes that the over-arching problem with RoL efforts in Afghanistan is that they do not sufficiently take into consideration the unique Afghan environment and traditions. The analysis suggests better leveraging the existing informal judicial system to strengthen the formal justice system, prioritizing judicial reforms to best meet the needs of Afghans and strengthening horizontal cooperation between tribes and villages, clans and provinces in order to potentially expand indigenous best practices .8 Similar recommendations can be found in the policy note A Holistic Justice System for Afghanistan released by the Afghanistan Research and Evaluation Unit (AREU) focusing on so-called community-based dispute resolution mechanisms. The paper recommends the development of programmes and policies that recognise the different justice systems that Afghans access and encourages reform efforts to recognise and enhance the links between the two systems. If you would like to contribute to the discussion about the Amnesty Law and other Justice& Reconciliation topics, please visit our CFC Discussion Board. The Civil Military Fusion Centre (CFC) is an Information and Knowledge Management organisation focused on improving civil-military interaction, facilitating information sharing and enhancing situational awareness through the web portal, the Civil-Military Overview. CFC products are produced from fused information from governmental organisations, non-governmental organisations, international organisations, academic institutions, media sources and military organisations. By design, CFC products or links to open sourced and independently produced articles do not necessarily represent the opinions, views or official positions of any other organisation.
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Reform Needs in the Prison System and Lack of Security for Judges

Incorporating Informal Justice Structures

See the linked paper Leveraging Indigenous Cultures and Social Structures, pg. 2