Rebuilding Afghanistan: A Framework for Establishing Security and the Rule of Law
Questions for Discussion
January 2002
A variety of questions have been raised ranging from broad legal and policy issues to technical matters of logistics and personnel. Your input and information would be welcomed. Many of the questions, particularly those concerning past practice and technical capacity, require different responses with respect to different time periods and regimes (e.g., pre-1973, 1973-78, 1978-89, 1989-96, and 1996-present) and different regions. In addition, we would be pleased to learn if you, your organization or a group you are aware of is working on any of these issues. Information supplied will in turn be provided to all participants in this network on rebuilding the justice system in Afghanistan.
Applicable Law
- The Bonn Agreement of 5 December states that the legal framework until adoption of a new constitution shall be:
"(1) the constitution of 1964, (a) to the extent that its provisions are not inconsistent with those contained in this agreement… ; and (ii) existing laws and regulations, to the extent that they are not inconsistent with this agreement or with international legal obligations to which Afghanistan is a party …"
What are the "existing laws and regulations" and where are they available?
- Do/should these laws and regulations vary region to region? Have
there been regional or tribal variations in the application and interpretation
of the law in the past (both codified law and uncodified Islamic law)?
If so, what are the implications for transitional phase and beyond?
- Is the applicable law consistent with international human rights
standards? (The Bonn agreement … If not, what process should
be undertaken to establish such consistency?
- Do these laws have legitimacy in the eyes of the public?
- Is there a broad-based understanding of the law? If not, what steps
should be undertaken to promote such awareness?
- Will it be necessary to take formal steps in derogation of international
human rights norms during this period? If so, what is the mechanism
and authority to do so?
Judicial Functions
Technical Information Assessment
- During the various time periods noted above, what was the structure of the judicial system, including numbers (judges, prosecutors, defense attorneys, court clerks/assistants)? What is the current structure of the court system(s) in various areas?
- Has the court system(s) been unified? Has it been village-based or otherwise organized?
- To what extent has the court system(s) been independent of local/tribal warlords?
- Who determined the salaries of the members of the judiciary? What was their budget?
- What was the selection criteria for judges and prosecutors? Were legal admission tests administered? For how long were they appointed?
- How many court officers were there? Judges? Prosecutors?
- What was their logistical support?
- What was their training level? Experience level (average years of service)?
- What has been the state and size of the law school and the faculty of Islamic law?
Policy Questions
- How should the technical questions above regarding judicial administration be handled under the Interim Administration?
- The Bonn agreement states that the Interim Administration "shall establish, with the assistance of the United Nations, a Judicial Commission to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions." What should be the tasks, authority and composition of the Judicial Commission? (Please note that the present report includes some proposals in this regard.)
- The Bonn agreement provides for a Supreme Court, "and such other courts as may be established." What other courts should be established?
- What is the benefit -- and what are the limitations --of the traditional systems of justice in various parts of the country? Are they widely accepted? Should they be relied upon/strengthened?
- Is there currently a cadre of qualified Afghan professionals to operate the judicial system (judges, prosecutors, defense attorneys, court clerks)? How should they be located, vetted and selected?
- Should certain actors be prohibited from participating in the judicial system based upon their implication in past abuses? Who should decide? Under what standards and level of due process?
- Should international actors handle any judicial functions?
- What resources, human and otherwise, would be required to operate the system?
- The Bonn agreement states that the members of the Interim Administration "shall abide by a Code of Conduct elaborated in accordance with international standards." How does this relate to the members of the judicial system?
Law Enforcement Functions
Technical Information Assessment
- During the time periods noted above, what was the structure of the police service(s) in various parts of the country? Was it unified? Was it village-based or otherwise organized?
- Was the police service(s) controlled by various local/tribal leaders? What were the police service(s) command and control lines of authority?
- What were the departments and units within the service(s) (e.g., uniform, traffic, criminal, internal affairs, intelligence)? Has there been a border police? Customs service? Court police? Financial police? Any other law enforcement services authorized to detain individuals?
- Were the police militarized? Were police officers susceptible to military call-up?
- How many police officers have there been, and at which ranks?
- What has been their logistical support? What has been their training level and experience level (average years of service)? Who trained them? In what methods? What was the nature of the police academy?
- What criminal statistics and records have been kept? How?
- How were the police services funded?
- What has been the public perception of the police?
- What has been the ethnic/tribal breakdown of the police service(s)? Of the command staff?
Policy Questions
- How should the technical questions above regarding law enforcement be handled under the Interim Administration?
- Who should be responsible for the law enforcement functions during the period of the Interim Administration?
- If members of the UN mandated force are assigned law enforcement functions, what law should they apply?
- How and when should those conducting the law enforcement functions be trained on the applicable law they would be enforcing? Who should train them?
- How will Afghan police be recruited, vetted, selected and trained? How should those accused of committing past abuses be handled in the process?
- What would be the ethnic make-up of a local force?
- How should the international military or police forces deal with evidence of cases that may be turned over to civilian authorities for prosecution?
- How should human rights monitoring of police be conducted?
Corrections
Technical Information Assessment
- Where are the prisons? How many are there? What is their physical condition? What is their population? Age and gender breakdown of the population? Are minors housed with adults? The breakdown by crime? Are the prisons differentiated by security level --minimum, medium, maximum security? How many guards are needed per prison?
- During the times periods noted above, how may prison personnel (guards, wardens, headquarters staff) have there been? How were they selected?
- Under what Ministry was the corrections system?
- Has there been an option of parole and/or probation? What other forms of sanctions have been employed that do not involve incarceration?
- Have prisoners worked and were they paid?
- What have been their visitation rights?
- What kind of training has been provided to prison guards?
Institution Building
Policy Questions
- What additional structures and institutions of the criminal justice
system need to be established or strengthened by the Interim Administration?
- What are the infrastructure and resource needs for each component
of the criminal justice system?
- How should the issue of accountability for abuses perpetrated prior
to the transition be addressed? How does this relate to the provisions
in the Bonn agreement for the investigation of human rights abuses
by UN and local authorities, and to the task of the Civil Service
Commission designated to provide lists of candidates for various government
positions?
- How should the independent Human Rights Commission, mandated by
the Bonn Agreement, monitor the various components of the criminal
justice system? How does this relate to the task assigned to the UN
in the agreement to investigate human rights violations and recommend
corrective action?
- What is the size of any Afghan lawyers associations, and where are
they located?
- What Afghan NGOs, in Afghanistan or in the diaspora, are involved
in rule of law matters?
- What role could/should international actors play in institution
building functions?
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