La Palabra de Dios nos da el Espíritu Santo La Palabra de Dios concede el Espíritu a quienes se su-

It has been noted that although state codified law has existed since it was first introduced in the late 19th century it has not always been applied in the state criminal courts. Legal practitioners have often resorted instead to Islamic and customary approaches to justice. Moreover, the application of state justice mechanisms has historically been confined mainly to urban areas. The majority of the population, largely illiterate and living in rural and provincial areas, have preferred to rely on customary approaches to justice and

Shari’a.

The aversion of large sections of the Afghan population to state criminal justice mechanisms is to some extent the result of general antipathy towards central administrations and distrust of centralisation efforts, often regarded as alien and the product of foreign intrusion. In contrast to other countries in the region such as India, Iran and China, Afghanistan has rarely enjoyed a strong central state exerting directive control over the totality of its population. Rather, the Afghanistan state has a history of being ‘soft centred’, with the writ of the central state struggling to extend beyond urban centres and its fragile existence dependent upon tribal and ethnic support. Tribal and ethnic affiliations are considered to be more relevant and permanent to the largely rural population than allegiances the state, whose directives and influences can seem comparatively unrelated to the hardships of daily existence.257

The geographical makeup of the country is a contributing factor to the peripheral influence that the state enjoys over the population. Its high mountainous areas, difficult terrain and consequent insubstantial transport system means that many rural areas have little interaction with urban centres and centrally directed policies. Instead, many communities have had to be self-sufficient, relying on regional as opposed to national market economies and managing their own administrative affairs and criminal justice disputes with reference to Shari’a and customary law rather than state mechanisms.258 Such factors

257

Roy, O. Islam and Resistance in Afghanistan, Cambridge University Press, Cambridge (1986), p.30

258

105 have made for introspective, conservative communities not easily accepting of the state’s various attempts at social, economic and political integration or indeed its attempts at imposing criminal justice mechanisms.

It is noteworthy also that historical analysis of attempts to promote rule of law in Afghanistan demonstrate that when the state has attempted to impose a justice system on the population that challenges the authority of Islamic law and the interpretative power of the ulama it has struggled for legitimacy and has occasionally met with strong resistance. Barfield noted in 2001 that ‘for the past 150 years, there’s been a major struggle between urban elites in the capital attempting to push the rule of law onto the countryside, and the countryside looking at it less as the rule of law and more as the imposition of state central authority, which they reject.’259 _{Ammanullah’s 1923 Constitution, introduced under a}

modernising agenda, incited rebellion leading to his dethronement because it challenged the authority of tribal leaders and the ulama and sought to reduce reliance on informal justice mechanisms which had so much relevance to existence in rural areas.260 Ammanullah’s demise has served as a stark warning to subsequent leaders of the Afghan state of the problems they are likely to encounter in attempting to extend their rule and centralised justice mechanisms beyond urban areas. Lau warned in 2001 that ‘past experience would suggest that any attempt to implement and enforce secular statutory laws which depart from customary and/or particular interpretations of Islamic law is liable to be met with protests and perhaps even civil unrest.’261 _{Moreover, it is notable that when}

Afghan rulers have embarked on programmes of modernisation facilitated by legal reform to extend the power and reach of the central state, there is a propensity for it to be met with resistance from local power-holders, particularly tribal and religious leaders, when the laws are construed as intent on undermining or circumventing their authority. Such was the case with legal reforms instituted not only by Ammanullah but also later by Daoud. As Suhrke points out ‘all the modernising regimes [in Afghanistan] were defeated.’262

The reach of the central state and its ability to impose its criminal justice system on the rural population has also been undermined by a history of local reservations over its legitimacy brought about by persistent reliance by Afghan rulers on foreign assistance. 259 Barfield, note 196, p. 400 260 Suhrke, note 84, p. 216 261

ILF, note 10, para. 10

262

106 Rather than gaining authority based on support from within Afghanistan, those in control of the state – and state justice mechanisms – have long been dependent on financial assistance from external powers. Abdul Rahman Khan, under British sovereignty, relied on the British arms to strengthen his state system. Between 1955 and 1978 the Soviet Union provided US$2.52 billion and the US $533 million in aid to support state rulers263 and the

mujahedeen were later supported by the US and Saudi Arabia during Soviet occupation.

The current regime, under President Karzai, has received unprecedented levels of foreign financial assistance. It is estimated that 90-95% of all state development costs and 69% of all government expenditure is financed by external aid, more than any other previous regime.264 The dependence by a succession of state rulers on foreign financial assistance to maintain power and control has resulted in a series of rentier states, particularly since 1978, propped up by external aid rather than by an internal base of support. This dependence increases doubt over whether measures introduced by the Afghan state are for the best interests of the Afghan people or the result of manipulation by its foreign sponsors. There is considerable mistrust over the intentions of the foreign backers of the state. The collective experience of Soviet invasion, the US abandonment of the country following Soviet withdrawal, the support by neighbouring countries provided to factions involved in the civil war and the current intervention by international forces, which provides strategic access in the region, has created a deep suspicion that foreign powers support the Afghan state only to serve their own interests.265

These suspicions increase antipathy towards the state regime and its justice system, and reduce their legitimacy and reach, which continue to remain largely confined to urban areas. The formal system of justice is relevant for only 10% of the population.266 It is, as the EU has acknowledged, ‘far removed from ordinary people’s everyday life’.267 The legitimacy of the state justice system, limited by a devastated infrastructure, the corrupt practices of some of its officials whose capacity is questionable and fluctuating regime change has contrasted unfavourably to the permanency and relevance of Shari’a and customary practices whose authority derives from the more meaningful sources of religion

263

Rubin, note 24, p.20

264

Suhrke, A. The Case for a Light Footprint: The International Project in Afghanistan 2010, Anthony Hyman Memorial Lecture, SOAS, 17.03.2010; available at

http://www.soas.ac.uk/cccac/events/anthonyhyman/file58420.pdf

265

Thier, note 126, p.5

266

European Commission, EU Commitment to the Governance and Rule of Law in Afghanistan (July 2007), held on file, p.11

267

107 and the collective requirements of the local community. The Afghan state, Misdaq reminds us, has always been ‘in the shadow of the tribe.’268 _{And so, state law has always lived in}

the shadow of Shari’a and customary law. Tribal, ethnic and religious affiliations and consequent customary and Islamic practices have more resonance and greater appeal to the majority of the local population. As a result the norms and rituals provided for in any state law in Afghanistan, are traditionally rarely ‘widely shared’ by the local population.

These issues are likely to impact on the potential reception of state laws such as the ICPC and the CNL which have been developed by way of legal transplantation. If state laws have traditionally had less appeal to Afghans, new transplanted state laws are less likely to be considered meaningful and appropriate to them with the result that the laws are consequently less likely to be accepted and to achieve their objectives.

Moreover, local resistance to foreign conquest and intrusion and to foreign promoted attempts at state modernisation might imply a cultural resistance in Afghanistan to any new transplanted law such as the ICPC and the CNL, dependent on foreign sources, which would impact on their application and acceptance. Cultural resistance to a transplant may adversely affect its potential reception.269 What, however, is meant by ‘culture’ and indeed ‘Afghan culture’ by which it is possible to determine if there might be any cultural resistance to these transplanted laws? The concept of ‘culture’ is complex and difficult to define. According to Williams it is ‘one of the two or three most complicated words in the English Language.’270 _{A traditional ‘natural history’ anthropological approach to defining}

culture implies that it is handed down, preserved, fixed and perhaps an obstacle to change.271 This perspective might suggest that any legal transplant that fails to be attuned to the culture of its host country is likely to meet resistance. It is an outlook, however, that has recently been challenged. Current anthropological approaches towards culture tend to regard it not as an essential, inherited fixed tradition, but rather as something that is flexible and capable of change. Tapper’s 2008 review of Afghan culture supports this stance.272 While Tapper maintains that it is not possible to say with any authority what culture or indeed Afghan culture actually is, it is nevertheless more likely to be ‘a dynamic,

268

Misdaq, note 117, p.4

269

Marafioti, note 12, chapter 2, p.91

270

Williams, R. Keywords: A Vocabulary of Culture and Society, Oxford University Press (1983), p.76

271

Dupree, N. (2005) in Security with a Human Face; Challenges and Responsibilities. Afghanistan National

Human Development Report 2004, UNDP 2005, p.233

272

Tapper, R. What is Afghan culture? An anthropologist reflects, Anthony Hyman Memorial Lecture, SOAS, (13.03.2008), notes on file

108 changing, flexible collection of values and practices.’273 _{In contrast to the natural history}

perspective, Tapper’s view of Afghan culture would auger well for the potential receptivity of legal transplants such as the ICPC and the CNL that are intent on bringing about change. Rather than being fixed and inflexible Afghan culture may be capable of negotiation and alteration and therefore of absorbing new, transplanted legal concepts and procedures.