Peace Watch

Rebuilding the Justice System in Afghanistan

February 2002

he U.S. Institute of Peace's Rule of Law Program has been working on administration-of-justice issues in post-war Afghanistan since last November. Activities have included convening a meeting of experts on Afghanistan and on administration-of-justice issues and providing a report of the meeting, including policy recommendations, to the United Nations negotiating team at the peace talks in Bonn in December 2001. Following the report's recommendations, parties to the peace talks agreed that the interim administration in Afghanistan will establish, with the help of the United Nations, a Judicial Affairs Commission to rebuild the country's domestic justice system. This measure was incorporated into the meeting's final peace agreement.

"The Institute of Peace recognizes that administration-of-justice issues will be key to the success of the transitional government in Afghanistan," says Neil J. Kritz, director of the Institute's Rule of Law Program. Kritz also is working with UN and State Department officials and NGOs on developing options to deal with the legacy of past human rights abuses in Afghanistan. "The question of accountability or amnesty was debated within the context of the Bonn negotiations and it remains a challenge and potential source of tension," Kritz notes.

Background

At the urging of the State Department's Policy Planning staff, Kritz convened the day-long meeting of Afghan experts on November 19, 2001, to begin to develop contingency plans for the administration of justice in post-war Afghanistan. The meeting included experts on Afghanistan and on Islamic law; former senior Afghan legal officials; experts who have dealt with administration-of-justice issues in other post-war operations in the Balkans, East Timor, and elsewhere; Bush administration officials; and UN representatives. Members of the UN negotiating team in Bonn requested a report listing the meeting's recommendations, prominent among which was the establishment of a Judicial Affairs Commission. The full report is available on the Institute's website.

"The commission will be an apolitical body that, for example, will clarify the codes and laws to be applied in Afghanistan under the new administration," explains Kritz. This will involve assessing the laws and codes that were in place prior to the outbreak of civil war and Taliban rule to determine whether revisions are needed to meet international law obligations.

The commission also will determine the numbers and qualifications of personnel needed to accomplish various judicial tasks and identify people in Afghanistan or in the diaspora with the proper credentials whom the transitional administration might appoint.

The work on Afghanistan grows out of the Institute's Project on Peacekeeping and the Administration of Justice, launched last summer. The project looks at the challenge of administering local systems of justice in the context of post-conflict peacekeeping and peacebuilding. The project was inspired in part by the UN's "Brahimi Report"—officially entitled Comprehensive Review of the Whole Question of Peacekeeping Operations in All Their Aspects—which noted that the United Nations has become increasingly involved in complex peacekeeping operations requiring missions that incorporate a wide range of civilian expertise needed to consolidate the peace. In that report, Lakhdar Brahimi, now the UN chief envoy for Afghanistan, noted the crucial role of the administration of justice for establishing post-war peace and stability.

"This is key to the goal of establishing security," says Kritz. "Without the construction of a democratic system of justice and an adequate capacity for law enforcement—which will take time—Afghanistan could again provide fertile ground for the growth of new terrorist activity, and the success of the war in Afghanistan could then prove to be short-lived. We will continue our efforts to assist the process of building Afghanistan's justice system." Kritz and Colette Rausch, program officer in the Institute's Rule of Law Program, plan to travel to Afghanistan in March for further consultations.

In recent months the Institute also has held four Current Issues Briefings on Afghanistan addressing events as they have unfolded there. A summary of the proceedings of "Afghanistan: Prospects for Peace and Reconstruction" featuring James Dobbins, U.S. special envoy for Afghanistan, and Barnett Rubin, Afghanistan expert and director of studies at the Center for International Cooperation at New York University, can be found on the Institute's website.