01 June 2011
In January, I traveled to Afghanistan. It was my first visit since February of 2008. Importantly, there is good news from Kabul. Commerce is flourishing. Having lived along the crossroads of civilizations for thousands of years, Afghans are natural-born traders and shop keepers. Unlike the situation three years ago, the streets are clogged with traffic; the sidewalks are packed with vendors of all manner of goods; and, stores and restaurants line the streets. The Western-oriented hotels are able to host conferences and upscale wedding halls dot the city. Construction and rebuilding is evident throughout Kabul.
With the surge reaching critical mass, General David Petraeus and the ISAF forces are effectively implementing his COIN strategy designed to protect the population, to eliminate terrorist networks, to defeat the insurgents and to train competent, trustworthy and professional Afghan security forces. They are indeed driving the Taliban out of their strongholds and standing up the Afghan National Army. Counter terrorism missions, most notably, the recent operation that eliminated Osama bin Laden, are sapping the strength and diminishing the leadership capacity of Al Qaeda in the region.
American combat victories against the Taliban and Al Qaeda, however, will not alone be sufficient to secure a stable Afghanistan. General Petraeus has identified “ineffective governance” and the “unwillingness to pursue political inclusion” by the Afghan government, as “strategic risks” to ISAF’s ability to win the war. On this front, the news is not so good.
At every turn, ordinary Afghans complain about the rampant corruption in their land. American and allied diplomats confirm that the problems are systemic and go to the top. Afghan policemen arrest corrupt officials and narco-traffickers only to see them walk free when prosecutors, under pressure from senior officials, decline to pursue the cases. Afghan prosecutors are paid so little that they readily admit to taking bribes. Judges who take a hard line against corrupt officials have been driven from the bench by higher-ups, arrested or simply murdered. Even when the guilty are convicted, the well-connected are often pardoned. The effect of such corruption undermines the professional justice sector officials that we are spending hundreds of millions dollars to train and equip. It also means that it is almost impossible to roll out a rule of law-based society in the areas newly-liberated from the Taliban by Coalition forces.
As demonstrated by President Karzai’s refusal in January to seat the elected Parliament, which he supposedly felt was insufficiently Pashtun, ethnic and tribal divisions continue to rack Afghanistan. The fact that the Taliban draws its support primarily from the Pashtun belt that runs through Afghanistan and Pakistan, exacerbates the ethic differences in the country. The Taliban’s cross border tribal ties to Pakistan is one of the factors that allows for sanctuaries to exist for the insurgents, who can retreat beyond the reach of American forces.
Establishing a rule of law based on society in Afghanistan is difficult in large part because it has been denied to the people of Afghanistan for over forty years by what Winston Churchill called the two “gaunt marauders – war and tyranny.” In some academic or political circles, phrases such as the “rule of law” or “liberty” are sometimes labeled “Western constructs” that may not be suitable for the people of Afghanistan. Based on my experience, I strongly disagree.
In his July 17, 2003, address to a joint session of Congress, Prime Minister Tony Blair made an eloquent case for liberty and the rule law:
“There is a myth: That though we love freedom, others don't, that our attachment to freedom is a product of our culture, that freedom, democracy, human rights, the rule of law are American values or Western values, that Afghan women were content under the lash of the Taliban, that Saddam was beloved by his people, that Milosevic was Serbia's savior. Ours are not Western values. They are the universal values of the human spirit. And anywhere, anytime, ordinary people are given the chance to choose, the choice is the same: Freedom not tyranny, democracy not dictatorship; the rule of law not the rule of the secret police.”
As we engage in justice sector reform efforts based on the rule of law in Afghanistan (and other post-conflict states), it is critical that we do not accept the myth that what we are promoting amounts to some type of Western cultural imperialism. Unfortunately, it is possible for even dedicated lawyers to fall into that trap. Let me illustrate the point with some lessons I have learned in working with the Department of State, federal judiciary, academia and the private bar in a unique partnership that was developed to promote the rule of law in Afghanistan.
Secretary of State Condoleezza Rice launched Public-Private Partnership for Justice Reform in Afghanistan in December of 2007. Secretary Rice’s goal for the Partnership was to marshal the expertise of American lawyers, law school professors and judges to assist Afghan lawyers to “build and reform democratic and independent institutions in their country.” (Condoleezza Rice, Secretary, U.S. Department of State, Remarks on Public-Private partnership for Justice Reform in Afghanistan, December 13, 2007). We wanted a Partnership that would focus on low cost/high impact projects that would fill in gaps in U.S. rule of law aid to the country. To that end, among other initiatives, we have held several training sessions in the United States for Afghan prosecutors, women judges and defense lawyers.
During one of the training sessions for Afghan defense lawyers last year, the State Department hosted a roundtable event, so that the staff of the then-AfPak Envoy, the late-Ambassador Richard Holbrooke, could discuss rule of law issues with the visiting delegation. During the meeting, one of our Foreign Service Officers made a statement about how she felt it was important for America to respect Afghan culture and that the US should begin to channel rule of law funds to the informal justice sector, specifically to the shuras and jirgas or tribal councils. Several of the Afghan women lawyers were visibly upset and one spoke up. She explained in no uncertain terms that women are not allowed to participate in jirgas. They are not allowed to defend themselves. Women lawyers are not permitted to represent clients in the proceedings. Female witnesses are prohibited from testifying. At best, a woman facing a civil claim or criminal charge in a jirga, can have a male relative speak on her behalf while she waits outside. This Afghan lawyer made it clear that Afghan women and many Afghan men did not like the jirgas for the reason that women were denied their most basic rights under that system.
Clearly, this brave woman, who had won the right to attend law school and practice her profession as the result of the Coalition liberating Afghanistan from the Taliban, was surprised that an American colleague would suggest that the jirga system was best for Afghans. I do not blame the Foreign Service Officer who made the comment. We are faced with difficult circumstances in Afghanistan and we need to speed the transition there. We are looking for ways to encourage greater responsibility and self-governance by the Afghans. However well-intentioned, we cannot buy into the myth described by Tony Blair that Afghans do not want the same basic human rights that we take for granted. To be sure, we must be sensitive to local cultures and traditions when working overseas, especially in post-conflict states where tensions can run high. Yet, such sensitivity or even humility should not lead us to abandon the core principles that underlie the rule of law and our duty as lawyers when assisting others to build institutions of justice.
In 2009, we hosted a group of Afghan women judges, prosecutors and defense lawyers for a training program in Southern California. To give the Afghans a break from their studies, we arranged for a Sunday outing to the Getty Museum and the Santa Monica Pier. We assumed that our guests would be pleased to receive a private tour of the famous Getty Villa and its world-class collection of Greek and Roman sculptures and art. We did not foresee how they might react when confronted with realistic portrayals of the ancients in all their glory. Our guests were polite but did avert their eyes from the sculptures.
There is perhaps no venue this side of the bar in Star Wars that is more interesting than the Santa Monica Pier. When we arrived, there was a Code Pink protest against the war in Afghanistan underway and scores of white crosses with the names of fallen soldiers and marines had been planted on the beach. On the other side of the Pier, beach volley ball games were in full swing. The demographically diverse crowd on the Pier was dressed for a hot day at the beach. Our Afghan colleagues pulled their scarves around their cheeks and tightened their shawls around their shoulders. They were anxious.
Fortunately, we passed a soft serve ice cream stand. The ladies had never tasted ice cream and eyed the line. A colleague of mine, U.S. District Judge Stephen Larson jumped into action and bought 20 chocolate dipped vanilla cones for our guests. They were thrilled and began to relax. Emboldened, several of the Afghan lawyers pointed to the Ferris wheel and other carnival rides and gave them a shot.
On the way home, these Afghan lawyers could not stop talking about the day. What amazed these women was that so many diverse people could mingle in a small public area - engage in protests, sports, shopping and recreation—and do so in a peaceful fashion. They commented on the fact that they did not see any police presence. Similarly, the fact that a collection of priceless art could be maintained at the Getty without tanks protecting it was an eye opener. Far from our creating a politically incorrect incident, the day had taught the Afghans, on a profound level, that the rule of law, when ingrained in a culture, is precious. They saw the blessings of liberty on that Sunday in Santa Monica in a way that we could not have conveyed in a class room.
These experiences and others like them have convinced me that rule of law and liberty are universal values—desired by Afghans or Iraqis or Syrians or others as much as we desire them in America, the UK or the West. We engage in justice sector reform efforts because it is the right thing to do but also because it is in our national interests. The spread of freedom and the rule of law are our best defense against tyranny and war.
Thomas Freidman makes the argument in The Lexus and the Olive Tree that no two countries with McDonald’s restaurants within their borders have ever been in a war since gaining a McDonald’s. Putting Russia’s invasion of Georgia aside, his premise that countries advanced enough to support McDonald’s restaurants have too much at stake economically to go to war, is really a statement about the rule of law. Having a McDonald’s restaurant means a nation’s legal framework should respect contracts, protect intellectual property and proscribe crime, so that businesses can operate. In other words, at least some modicum of the rule of law exists in the nations where McDonald’s operates. Such states are more likely to be stable and are less likely to engage in intentional acts of aggression.
It is, therefore, not surprising that General David Petraeus is a strong proponent of justice sector reform and rule of law programs in Afghanistan. General Petraeus understands that he needs to be able to “handoff” newly-liberated areas to an Afghan police force, Attorney General’s office, judiciary and defense bar, which are fair and can deal with crime, terrorism, family law and commercial disputes in a civil, not military, framework. If he is unable to do so, the success of the American surge could be in vain.
The path forward will not be easy for Afghanistan or the Coalition. In February, a suicide bomber walked into a supermarket in the upscale Wazir Akbar Khan district of Kabul and detonated his bomb next to a family of six. The entire family was wiped out. The father was prominent Afghan physician Masood Yama. The mother was Kabul University law professor and women’s rights activist Hameeda Barmaki. The four children were under 14 years old. While the family was not the specific target, civilized society was. This family could have easily made a comfortable living abroad. Dr. Yama and Professor Barmaki, however, choose to return to Kabul after their overseas studies to rebuild their country. They are just the type of people that Afghanistan cannot afford to lose. The Public-Private Partnership for Justice Reform in Afghanistan has a personal connection to the victims. Professor Barmaki’s brother is currently studying to receive his LLM degree at George Washington University with a scholarship from the Partnership. After learning of his sister’s death, he decided to continue his studies here and will return home to Afghanistan this summer. I applaud his courage and commitment to his country. Even in the face of such a terrible tragedy, there remains hope for a rule of law based society in Afghanistan.
Photo: The author, Robert C. O’Brien on the right with U.S. District Judge David O. Carter and Narcotics Tribunal Judges in Kabul, Afghanistan.
Robert C. O'Brien served as a United States Representative to the 60th Session of the UN General Assembly. He is the Managing Partner of the Los Angeles office of Arent Fox LLP. His commentaries are available at www.robertcobrien.com and he can be followed on Twitter @robertcobrien.