Identificación de Oportunidades

Through the course of its nation-building efforts, the international community has advocated a strong central government in Afghanistan that earns legitimacy by

129 United States Special Operations Command Directorate for Intelligence, “Village Stability Operations 101: Understanding USSOCOM’s Role in VSO and ALP in Afghanistan and Beyond,” The Donovan Review, 2^nd Edition (January 2012), 10.

130 USSOCOM Directorate of Intelligence, “Village Stability Operations 101,” 13.

131 Thomas Barfield and Neamatollah Nojumi, “Bringing More Effective Governance to Afghanistan:

10 Pathways to Stability,” Middle East Policy 17, no. 4 (2010): 40–52.

distributing development projects and building strong elements of an Afghan National Security Force (ANSF). However, there is significant evidence to suggest that, in addition to possessing a reliable safe haven outside of Afghanistan, the Taliban benefits from its ability to more effectively provide a system of justice and enforce an acceptable rule of law than the central government and its appointed leaders at the province and district levels are capable of providing. Due to the international community’s obligation to support, for better or for worse, the system of governance it endorsed under the Bonn Accords and subsequent 2004 constitution, the “legitimacy of the American [and international community’s] presence has become tied to the legitimacy of the Karzai government or, at the very least, of the centralized Pashtun-led conception of such a government.”¹³² This poses a significant challenge for the international community because the historic reality is that “justice has a particular link to legitimacy in Afghanistan” and “the state has been minimalist, in terms of what Afghans expected of it.”¹³³

Meanwhile, the state has not acquitted itself well when it comes to justice.

According to the First Justice Advisor to the United Kingdom Provincial Reconstruction Team (PRT), “Although there is a state system of justice in operation in all provinces, the reality is that this is, at best, ramshackle and inefficient, at worst criminally corrupt on a huge scale.”¹³⁴ The International Crisis Group likewise laments, “Afghanistan’s legal system is broken… courts are either non-existent or are in disrepair. The majority of Afghans view justice institutions as the most corrupt in the country.”¹³⁵ In other words, here, too, in terms of achieving social fit, the creation of a strong central state is contrary

132 Robert Reilly, “Shaping Strategic Communication,” in Afghan Endgames, eds. Hy Rothstein and John Arquilla (Washington, DC: Georgetown University Press, 2012), 176.

133 Stephen Carter and Kate Clark, No Shortcut to Stability: Justice, Politics, and Insurgency in Afghanistan (London, UK: Chatham House, 2010), 20.

134 Frank Ledwidge, “Justice and Counter-insurgency in Afghanistan: A Missing Link,” The RUSI Journal 154, no. 1 (February 2009): 8.

135 International Crisis Group. “Reforming Afghanistan’s Broken Judiciary.” November 17, 2010.

Accessed October 31, 2012. http://www.crisisgroup.org/~/media/Files/asia/south-asia/afghanistan/195%20Reforming%20Afghanistans%20Broken%20Judiciary.ashx.

to the long-held traditions of the Afghan people, and the state’s top-down governance has failed to deliver the minimal expectation they have regarding a system of justice defined by Islam.

Although the 2001 Bonn Accords simply affirmed that the Constitution will

“embody the basic principles of Islam,”¹³⁶ there appears to have been either a failure to acknowledge or codify several distinct traditions pertaining to the rule of law. At the time Afghanistan’s new constitution was framed, customary law included Pashtunwali (law among the Pashtun population), as well as its counterparts in other tribal configurations and ethnic groups (e.g. Tajik, Uzbek, and Hazara), while above customary law was

“Islamic law and two of its schools of jurisprudence (Hanafi and Jafari, associated with the majority Sunni and the minority Shi’ite populations, respectively).”¹³⁷ Although the various ethnic and religious groups have all invoked sharia law as a legitimizing principle, one distinguishing feature over the course of Afghan history has been the role of the “ruler’s law” (enforced by the amir in Kabul) and local interpretations of that law as pronounced by the ulama and tribal elders outside of the central justice system.¹³⁸ Tellingly, while the 1964 constitution is generally considered liberal and the model for the present constitution, matters of law remain a conservative preserve. In addition to affirming the subsidiary principle (namely, that courts would apply sharia in the absence of statutory law), the Constitution also included the repugnancy principle (“no law must be repugnant to the principles of the sacred religion of Islam”).¹³⁹ Most importantly, the repugnancy principle “established Islam as the foundational law and positioned the ulama as the ultimate authority on the constitutionality of a given code,”¹⁴⁰ meaning “the

136 Khaled M. Abou El Fadl, et al., Democracy and Islam in the New Constitution of Afghanistan, (Santa Monica, CA: RAND Corporation, 2003), 2.

137 Astri Suhrke and Kaja Borchgrevink, “Afghanistan: Justice Sector Reform,” in New Perspectives on Liberal Peacebuilding, eds. Edward Newman, Roland Paris, and Oliver P. Richmond (New York, NY:

United Nations University Press, 2009), 181.

138 Bruce Etling, Legal Authorities in the Afghan Legal System (1964–1979), accessed October 31, 2012, http://www.law.harvard.edu/programs/ilsp/research/etling.pdf.

139 Muhammed Hashim Kamali, Law in Afghanistan: A Study of the Constitution, Matrimonial Law and the Judiciary (Leiden: E. J. Brill, 1985).

140 Suhrke and Borchgrevink, “Afghanistan: Justice Sector Reform,” 183.

government defines qanun [statutes]” but the local religious authorities “interpret and control fiqh [jurisprudence].”¹⁴¹

Although subsequent modernizers modified the Afghanistan Constitution in 1977, 1980, 1987, and 1990 to incorporate stronger statutory law and respect for other values associated with human rights, the Taliban reversed this perceived secularization of the law by de-privatizing religion such that “how and where people worshipped was now a matter of public law and state enforcement.”¹⁴² While it is clear that the understanding of civil versus religious law was more acceptable across Afghanistan’s various ethnicities and tribes prior to the Taliban, the consistency with which the Taliban enforced the rule of law appears to be preferable to seemingly corrupt, arbitrary, and dysfunctional practices today. Indeed, overall, the greatest stability seems to have been achieved during periods when local religious authorities were empowered to interpret and control jurisprudence.