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Prerequisites to Security in Afghanistan

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Prerequisites to Security in Afghanistan MARCH 2002 FILLING THE VACUUM: PREREQUISITES TO SECURITY IN AFGHANISTAN Report of the Consortium for Response to the Afghanistan Transition International Resources Group American Bar Association Asia Law Initiative International Foundation for Election Systems International Human Rights Law Group INTERNATIONAL HUMAN RIGHTS LAW GROUP www.hrlawgroup.org Belquis Ahmadi 1-202-822-4600 [email protected] AMERICAN BAR ASSOCIATION ASIA LAW INITIATIVE www.abanet.org Lisa Dickieson 1-202-662-8687 [email protected] INTERNATIONAL RESOURCES GROUP www.irgltd.com William Spence Spencer 1-202-289-0100 [email protected] INTERNATIONAL FOUNDATION FOR ELECTION SYSTEMS www.ifes.org Jeff Fischer 1-202-828-8507 [email protected] FOREWORD National Geographic Society, 2001 s a result of 23 years of war and civil conflict, and despite the recent removal of the Taliban and establish- Ament of an Interim Authority, Afghanistan remains a country in chaos. Unless and until Afghanistan is at least modestly stable and secure, it will continue to represent a risk to the region and the world. The global order is still grappling with the question of failed states, but one lesson is certain: when governments fail, war- lords, drug barons, or terrorists fill the vacuum. The only sure way to eliminate terrorism and extremism in Afghanistan is to support its leaders and people in their quest for internal stability and security, according to their own rich traditions and history. True, long-term security consists of more than law and and legal professionals from over 20 countries engaged order enforced at gunpoint. It is the sum total of a in advocacy, strategic human rights lawyering, and train- patchwork of disparate elements. Among other things, it ing around the world. IHRLG works toward the goal cannot be achieved without systems that guarantee jus- of empowering local advocates to expand the scope of tice, human rights, and good governance. The Consortium human rights protections and promote broad participa- for Response to the Afghanistan Transition (CRAFT) tion in building human rights procedures at national, was formed in an effort to respond to the situation in regional, and international levels. IHRLG was responsi- Afghanistan by: ble for human rights aspects of the assessment. • Providing a rapid assessment and analysis of the state in • The International Foundation for Election System Afghanistan of these three critical prerequisites to security. (IFES) provides professional advice and technical assis- tance in promoting democracy, and serves as an infor- • Giving voice to Afghan leaders and officials regarding mation clearinghouse on democratic development. their plans and aspirations in these areas. IFES concentrated on three areas of the post-conflict • Identifying ways for the donor community to help and process: governance, elections and political process, and support the Afghan transition. civil society issues as they relate to public processes. CRAFT hopes that, by gathering information and per- • International Resources Group (IRG) is an interna- spectives on these critical issues in one place, it can con- tional professional services firm with project experi- tribute to the ongoing debate in Afghanistan and within ence in more than 120 countries. IRG focuses on pro- the international community on how the Afghan people viding practical solutions to complex, mission-critical can achieve the real, lasting security that they seek, and problems for public and private sector clients world- allow Afghanistan to rejoin the family of nations. wide. IRG was responsible for the overall direction of the project and for all management and logistical issues. CRAFT is comprised of the following organizations: To develop this report, CRAFT representatives met with • The Asia Law Initiative of the American Bar officials in Washington, New York, London, and Association (ABA-Asia), a public service project that Brussels, and visited Kabul from February 16 to March advances the rule of law by supporting legal reforms 7, 2002. CRAFT wishes to thank the many contributors in countries in that region. With the assistance of to, and supporters of, this project, particularly the offi- lawyers, judges, and law professors, ABA-Asia helps cials of the Interim Administration and other experts build the legal infrastructure that is indispensable to and leaders in Afghanistan. CRAFT has endeavored to strong, self-supporting, democratic, free market sys- report the facts, views, and ideas of these interviewees; tems. ABA-Asia assessed the state of rule of law in any inaccuracies or incompleteness in this report are its Afghanistan. The views expressed herein have not been approved sole responsibility. by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be con- CRAFT also wishes to thank all the other individuals strued as representing the policy of the American Bar Association. who gave of their time, including representatives of the office of SRSG Lakhdar Brahimi and members of the • The International Human Rights Law Group United Nations family and the U.S. government. (IHRLG), a non-profit organization of human rights 1 CONTENTS I. EXECUTIVE SUMMARY 5 • The Emergency Loya Jirga..............................31 Role of the United Nations in the • Goals.....................................................................5 Emergency Loya Jirga..................................32 • Findings ................................................................5 Interim Administration and Rule of Law .....................................................5 the Loya Jirga Commission.........................32 Democracy and Governance ........................6 Concerns ........................................................33 Human Rights..................................................7 • Challenges in the Transition between IA and TA....................................................................33 • Methodology........................................................7 • The Authority of the II. THE CURRENT SETTING 9 Interim Administration ................................33 • Country Information and Historical • Potential for Local Governance .....................33 Background......................................................9 • Voter Registration and Census .......................34 • The Decade of Democracy ............................10 • Refugees and Displaced Persons....................34 • The Bonn Agreement ......................................10 • Political Parties ..................................................35 • The Interim Administration............................11 • People with Disabilities ..................................35 • Security ...............................................................11 • Children..............................................................35 • The United Nations..........................................12 • Media...................................................................35 • Other International Donor Activities............13 • Findings: Immediate Needs of the • The Afghan Assistance Coordination Democracy and Governance Sector..........36 Authority ........................................................15 V. PROTECTING HUMAN RIGHTS • The Diaspora .....................................................15 AND BUILDING CIVIL SOCIETY 37 • Challenges to Providing Rule of Law, • Introduction.......................................................37 Democracy, and Human Rights Assistance ..........................................16 • Interim Administration Actions .....................37 III. BUILDING THE RULE OF LAW 17 • Human Rights Framework..............................37 • Introduction.......................................................17 • Institutions .........................................................38 • The Bonn Agreement ......................................17 • Civil Society’s Capacity for Promotion and Protection of Human Rights ..............39 • Judicial Commission.........................................18 • Women’s Human Rights ..................................40 • Legislative Framework......................................18 • Transitional Justice............................................41 • Key Institutions.................................................19 Ministry of Justice........................................19 • Findings: Immediate Needs of the The Judiciary..................................................21 Human Rights Sector...................................41 The Public Prosecutor (“Saranwali”).........23 VI. APPENDICES 45 The Bar...........................................................25 Legal Education ............................................25 • The Bonn Agreement ......................................45 The Police ......................................................27 • United Nations Security Council Detentions......................................................28 Resolutions ...................................................49 • Findings: Immediate Needs in the • Afghan Legal Codes Collected Rule of Law Sector.......................................29 by CRAFT......................................................56 IV. BUILDING A DEMOCRATIC • Consultations.....................................................56 FRAMEWORK FOR PEACE AND STABILITY 31 • Selected Sources................................................58 • Introduction.......................................................31
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