Seeking the Rule of Law in Afghanistan

Updated below

U.S. efforts to promote the rule of law in Afghanistan are expanding and accelerating.  Nearly a billion dollars has been spent in the past decade to strengthen Afghanistan’s legal infrastructure, rising from $7 million in FY2002 to an estimated $411 million in FY2010.  In July 2010, a new Ambassador-rank position was created to focus on justice-related issues in the country.  Yet the effectiveness and even the feasibility of these efforts to establish the rule of law are in doubt.

A new report (pdf) from the Congressional Research Service provides a detailed overview of the U.S. approach to rule of law (ROL) issues in Afghanistan.  It describes the numerous and diverse initiatives that have been undertaken, the political, cultural and institutional obstacles that confront them, and their uncertain results.

The rule of law in this context simply means the stable, predictable, and fair application of public legal standards.  It is considered essential to the establishment of a legitimate and effective government.  “Without ROL the country cannot progress no matter what contributions are made by outsiders,” according to a 2008 State Department Inspector General report.

But progress towards a state of rule of law in Afghanistan is stymied both by the general instability in the country and by the pervasive corruption that prevails.  “As many as one out of every two Afghans experienced bribery in the past year,” the CRS noted, based on UN data, “resulting in an estimated $2.5 billion in bribe payments in 2009 alone.”  The average bribe was said to be around $160, and those who paid bribes did so three to five times per year.

The U.S. has a “Strategy for Rule of Law in Afghanistan” but it is “not available publicly,” the CRS said.  A summary of its contents was provided in the CRS report, based on State Department information.  For the first time this year, rule of law issues in Afghanistan constitute a separate portfolio under the new position of the Coordinating Director of ROL and Law Enforcement, held by Ambassador Hans Klemm.

“Although significant progress in establishing ROL in Afghanistan has been achieved, there appear to be several fundamental limitations on the ability of the U.S. government and other donors to strengthen the Afghan justice sector in the short term,” the CRS report concluded.  Besides the instability of war and widespread corruption, other obstacles include illiteracy and the lack of qualified personnel to serve in law enforcement and the judiciary;  local reliance on traditional councils that do not always practice a consistent or egalitarian form of law;  and “existing perceptions among many Afghans that high-level corrupt officials are exempt from the full force of Afghan law.”

Afghan officials themselves have observed that “despite increasing resources devoted to justice sector support, efforts have not yet translated into a functional formal justice system in Afghanistan.”

“The 112th Congress may choose to address these long term issues in the context of the Obama Administration’s review of U.S. strategy in Afghanistan,” the CRS suggested.

A copy of the new CRS report was obtained by Secrecy News.  See “Afghanistan: U.S. Rule of Law and Justice Sector Assistance,” November 9, 2010.

Update: “Despite some efforts by the Government of Afghanistan to eliminate corruption and improve rule of law, overwhelming reports of corruption continue,” a new report to Congress (pdf) from the Department of Defense said.

“The latest survey of Afghan perceptions of the Afghan Government’s rule of law capacity shows an almost 7 percent decline in Afghans’ confidence in their government’s ability to deliver reliable formal justice. This is likely due to continued corruption and to the slow progress in hiring and placing justice professionals at the provincial level. Additional polling shows that fewer than half of Afghans polled trust the Afghan Government to settle a legal dispute,” the November 2010 DoD report to Congress said.

No Responses to “Seeking the Rule of Law in Afghanistan”

  1. Carlton Lufteufel November 30, 2010 at 2:58 PM #

    The US promoting the rule of law in Afghanistan? The US doesn’t seem to have any idea what the rule of law is, what can it teach anyone else? The US moves in the world as if its actions are the rule of law, and what it says goes. Face it, this is not a nation interested in the rule of law.

    If the US was really interested in the rule of law then it would never have invaded Iraq, wouldn’t have tortured prisoners of war, wouldn’t pretend that torture is some big unknown that isn’t clearly defined, wouldn’t have illegally spied on its own citizens, would have prosecuted anyone guilty of ordering torture and other war crimes, etc.

    No, the United States talking about the rule of law is completely uninteresting. It fact it would even be very humorous if the truth of the situation wasn’t so painful for so many people around the globe.

  2. Roger Merritt December 1, 2010 at 8:19 AM #

    I agree with the previous poster. The World Justice Project’s survey, released in October, found that the U.S. ranks 20th out of 35 countries for access to the justice system. The fact that not one official from the George W. Bush administration will even be investigated for violations, despite plausible evidence including the gleeful words of the former President and Vice-President, indicates that neither the President nor the Attorney General feel any need to obey the law. The fact that not one former executive of Lehman Brothers is under indictment despite the discovery of massive accounting fraud during the bankruptcy process accentuates the fact that if you are rich, you need not fear or obey the law. The fact that we have three million citizens in prison accentuates the fact that if you are not rich, you face the most rigorous and harshest justice system in the world.

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  1. Lawfare › New CRS Report on U.S. Rule of Law Efforts in Afghanistan - November 22, 2010

    [...] via the excellent Secrecy News, and just in time for General Martins’ posts on the subject, is a new CRS Report entitled: [...]