Afghanistan's Reconstruction,

FIVE Years Later: Narratives of Progress, Marginalized Realities, and the Politics of Law in a Transitional Islamic Republic

Faiz Ahmed*

Cite as: Faiz Ahmed, Afghanistan's Reconstruction, Five Years Later: Narratives of Progress, Marginalized Realities, and the Politics of Law in a Transitional Islamic Republic, 10 Gonz. J. Int'l L. 269 (2007), available at http://www.gonzagajil.org.

I.        Introduction...................................................................... 269

II.       Liberation for Whom?: The Prevalence of Suspected War Criminals in the Transitional Afghan Government........................................................................ 273

III.     Hidden Costs of Reconstruction: Acknowledging the Human Toll of the Ongoing War in Afghanistan............................................................................................ 278

IV.      Legal Reform in Afghanistan: Towards a Rule of Law, or Imposition of Law? 284

V.       Beyond Civilizing Missions and Illusory Narratives of Progress: Regarding Accountability in Afghanistan through Indigenous Means.................................................. 292

A. An Encouraging Start: The Afghanistan Independent Human Rights Commission Report      292

B. The Role of Islamic Legal Scholars...................................... 295

C. Recommendations.............................................................. 304

VI.      Conclusion.......................................................................... 309

I. Introduction

Autumn 2006 marked the fifth anniversary of a series of notable events in Afghanistan's recent history: the launch of a U.S.-led invasion of the country, the fall of the Taliban regime, and the subsequent establishment of the Islamic Republic of Afghanistan-a government now staunchly allied with the United States and hailed by several international legal and political observers for initiating pro-democracy reforms.[1]  While the deepening debacle in Iraq has assumed center-stage of American foreign policy spotlight in recent years-having increasingly overshadowed events in Afghanistan since the U.S. decision to invade Iraq in March 2003-the five-year benchmark in Afghanistan invites sincere reflection on the specific forms of progress achieved during an era of reconstruction that followed the ousting of the Taliban and formation of a new Afghan government.  Several milestones come to mind.  As the most recent example, on September 18, 2005, Afghanistan held its first parliamentary elections in over thirty years.  Images of cheering Afghan men and women displaying ink-stained thumbs, or those still in line still anxious to cast their votes are the latest in a series of accolades the present U.S. administration has used to frame its post-September 11 intervention in Afghanistan as a campaign of liberation.  Such views are evident in the names of official U.S. government projects in Afghanistan, from the military drive to oust the Taliban "Operation Enduring Freedom," to two recent USAID policy reports on reconstruction entitled "Freedom Arrives" and "Afghanistan Reborn."[2]  In short, the ongoing narrative of liberation as generally presented in U.S. media seems to read as follows: before the American intervention, Afghanistan lay enveloped in medieval barbarism and the darkest of tyrannies.  The moment of contact with Western civilization-initiated by the U.S. and British bombing campaign that began on October 7, 2001-was the enlivening moment that served as the necessary catalyst for progressive change.  What follows is a story of upward bound, unfailing progress-beginning with the formation of a transitional government at Bonn in December of 2001, to the ratification of a new constitution and presidential elections in 2004, and most recently, country-wide parliamentary elections in September 2005.  Freedom, human rights, and the rule of law, so the story goes on, are inevitable products of these auspicious political developments.

This article seeks to evaluate this master narrative as it is often promoted in official speeches of both the U.S. and Afghan governments, by contextualizing claims of liberation in light of the colossal legal, political, and humanitarian conflicts that survived-and were born after-the overthrow of the Taliban in winter of 2001.  I raise the following questions concerning accountability for ongoing human rights violations in particular: How has the reconstruction of Afghanistan fared in terms of establishing accountability for past war criminals and other human rights abusers?  Has sufficient attention been accorded to transitional justice in reconstruction processes, or is accountability being treated as a sacrifice that the Afghan people must make for their country's stability?  Finally, what can be done to improve the reconstruction of Afghanistan from humanitarian and transitional justice perspectives, including a more civilian-centered approach?

When considering the disturbing trends of incorporating suspected war criminals into the government, the human toll of the ongoing U.S. War on Terror in Afghanistan, and less tangibly, the imposition of law at the core of legal and judicial reform activism in Afghanistan, the prevalent narrative described above is an erroneous assessment of the harsh realities that exist on the ground in Afghanistan today.  Furthermore, gross simplifications that focus on spectacular acts such as formal elections or new constitutions (the sixth in the country's history) actually impede efforts to build accountability for past and ongoing human rights violations in Afghanistan by painting a deceptively rosy picture for political purposes, covering up continuing abuses in the process.  For example, while present U.S. administration officials persist in extolling the country as liberated, post-Taliban reconstruction in Afghanistan has experienced the handover of power to repressive feudal lords in the provinces and widely-suspected war criminals in the Kabul-based government, all virtually immune from prosecution, with many of the latter appointed to key posts in President Karzai's cabinet or even running as full-fledged candidates in the recent parliamentary elections.[3]  This is in addition to the over 1400% surge in opium production since the overthrow of the Taliban-Afghanistan now provides 90% of the world's opium and in 2006 the country's opium harvest reached the highest levels ever recorded.[4]  These facts have led numerous analysts to conclude  high levels of collusion exist between local traffickers, provincial officers,  and central government administrators active in the lucrative trade, which the Taliban effectively banned in spring 2001.[5]  Perhaps most difficult to stomach of all, however, is the plague of violence targeting international aid workers and Afghan civilians cooperating with coalition forces for the new government.[6]  To the surprise of military analysts, the rate of attacks claimed by Taliban insurgents and sympathizers has not abated, and in 2006 it actually increased - last year bloodshed in Afghanistan returned to levels not seen since the fall of the Taliban in 2001 - thus calling into question the accuracy of terms like "post-Taliban" in the first place.[7]

With these background facts in mind, this paper argues that since late 2001, the present U.S. Administration's triumphalist claims of liberating the Afghan people, establishing human rights, and promoting democracy for the first time in the country's history are gross exaggerations that cloak ominous trends of impunity in the country, concealing grave crises in Afghanistan's transition such as the short-shifting of accountability for past war crimes and ongoing government abuses in the name of political stability.  Therefore, the master narrative of linear progress presented by U.S. spokespersons and in popular media coverage must be critically engaged and reassessed in order to more accurately reflect contemporary realities on the ground in Afghanistan and as the first step towards building accountability for on-going violence in the country.  From this sociolegal perspective, some of the most pressing yet overlooked problems that warrant immediate attention by Afghan officials and international law and development advisors in Afghanistan are (1) the support of suspected war criminals in the current government, (2) human rights violations in the U.S.-led War on Terror, and less visibly, (3) the continued marginalization of indigenous law through transplantation of Western civil and criminal codes, the latter devices constituting the driving force behind recent legal reforms in Afghanistan since the overthrow of the Taliban.[8]  By ignoring these unpleasant aspects of intervention, U.S. officials have framed a narrative substantially different than what common people are experiencing on the ground in Afghanistan.  This disparity of stories leads to continuing support for errant policies on the part of the Afghan government and international aid agencies, and increased alienation amongst ordinary Afghans, who at the end of each day are not reaping the benefits of auspicious promises made by so many countries in 2001.

The goal of this paper, however, is not to limit analysis to critiquing present law and development programs in Afghanistan.  Therefore, the last section of this paper will evaluate potential routes to improve flawed reconstruction processes in Afghanistan, by bringing attention to marginalized social and cultural aspects of Afghan society that are relevant to analyzing legal reform in the current state.  Two relevant points on the sociocultural history and contemporary milieu of Afghan society in particular are discussed.  First, I argue that the Afghan government and international development agencies must take a closer look at what ordinary Afghan civilians on the ground actually desire in their daily lives, and in what priority they rank their various needs.  If the Afghan government and development agencies continue to operate based on their own parochial notions of what is important for the reconstruction of Afghanistan, rebuilding the war-torn country will continue to be an unreachable project, hampered and distorted by an imaginary notion of linear progress, out of touch with actual needs and desires of people on the ground, and constantly battling a stubborn insurgency that continues to grow in force, confidence, and popular support with every misstep the dominant reconstruction actors take.

Secondly, the Afghan government and reconstruction agencies must reassess their tendency to marginalize local religious and tribal leaders in their various development programs.  In particular, I argue that Islamic legal scholars in Afghanistan-i.e., the Afghan ‘ulama-are indispensable to legal and social development programs in post-Taliban Afghanistan.  Due to the profound influence ‘ulama carry on the ground in Afghan society, and the potentially unifying factor Islam can play in the severely ethnically-divided polity of Afghanistan, a realistic implementation of accountability projects requires the incorporation of this influential group to a far greater degree than has been done thus far.  As a crucial component to any effort to rebuild civil society in Afghanistan, the country's ‘ulama could represent not only an independent check on government excesses, they may well serve as vital interethnic liaisons, conciliators, and dynamic facilitators of communication between an otherwise insular international development community and an increasingly alienated and frustrated Afghan public.

II. Liberation for Whom?: The Prevalence of Suspected War Criminals in the Transitional Afghan Government

A cursory glance of American media coverage of the post-September 11 U.S. war against the Taliban reveals a pervasive motif of liberating the Afghan masses.[9]  But who, in fact, have been the greatest beneficiaries of externally-driven regime change in Afghanistan?  This question has become an increasingly poignant one, considering that independent human rights monitoring groups have severely criticized the Afghan government for not doing enough to vet suspected war criminals from public office and even allowing many to run in the recent parliamentary elections.[10]  These factors have led many Afghans to conclude, not unreasonably, that the U.S.-led overthrow of the Taliban has only resulted in the replacement of one group of oppressors for another.[11]  Human Rights Watch (HRW) in particular has issued several reports documenting how numerous high-level officials and advisors in Afghanistan's current government are implicated in major war crimes and human rights abuses that took place in the brutal civil war of the early 1990s.[12]  In its recent report, Blood-Stained Hands: Past Atrocities in Kabul and Afghanistan's Legacy of Impunity, which includes more than 150 interviews with witnesses, survivors, government officials, and combatants, HRW documents war crimes and human rights abuses during Afghanistan's civil war, from April 1992 to March 1993, a particularly unstable period following the collapse of the Soviet-backed Najibullah government in Kabul?[13]  While some perpetrators have been killed or are in hiding, many leaders suspected of abuses are now officials in Afghanistan's defense or interior ministries, or are even public advisors to President Hamid Karzai.[14]  Upping the ante, several even competed for office in parliamentary and local elections in September 2005.[15]  Beyond those individuals in the public eye, other known perpetrators currently operate as provincial drug lords or regional strongmen in Kabul, directing proxies in official positions such as the Ministry of Defense, national security, and even judicial organs of government.[16]

HRW's report implicates numerous factional leaders and commanders by name for their eminent roles in the abuses, including: (1) Abdul Rabb al-Rasul Sayyaf, a radical Islamist commander and leader of the Ittihad-e Islami faction, who now advises President Karzai and exercises major political power over the Afghan judiciary and has numerous proxies within the Afghan government; (2) Abdul Rashid Dostum, the leader of the Junbish-e Milli faction who now holds a senior post in the ministry of defense and exercises political control of several provinces in the north of Afghanistan; (3) Mohammad Qasim Fahim, Afghanistan's defense minister from 2001 to 2004 and a commander in the Jamiat-e Islami/Shura-e Nazar faction of the Northern Alliance; and (4) Karim Khalili, a commander in the Hezb-e Wahdat faction and now one of President Karzai's two vice-presidents.[17]  This is only a partial list; however, of the most notorious leaders suspected to have perpetrated countless acts of violence and war crimes during the civil war era that now hold public office.  Not included above are other well-known suspects such as Gulbuddin Hekmatyar, leader of the Afghan Hezb-e Islami faction (which perpetrated some of the worst abuses during the civil war period), who is presently in hiding and believed to be coordinating insurgent attacks on the new government and U.S. military forces, though many also suspect him of controlling the present Hezb-e Islami party that has 34 members in the lower house of the Afghan parliament.[18]  Needless to say, accountability goals have not been well served by the mysteriously successful escape of nearly all the top brass of the Taliban and al Qaeda leadership, who continue to release statements to the Afghan and Pakistani public from time to time with relative confidence and ease, leading many analysts to conclude high-level deals were struck somewhere along the line for their safety.[19]

Adding to the politically complex but overall consistent theme of warlord impunity in Afghanistan, a number of commanders from the Saudi-backed Sayyaf's Ittihad faction are also serving in important security and judicial posts.[20]  By and large, however, the predominant beneficiaries of the U.S.-led overthrow of the Taliban were their most avid political and economic adversaries-the Afghan Northern Alliance, a loose coalition of sectarian political parties united only in their opposition to the Taliban and intervention by neighboring Pakistan.  Principally backed by Iran, Russia, and India, this group has not taken power without a significant share of public controversy (albeit largely suppressed) stemming from the group's role in atrocities against Kabul residents-in particular mass rapings, looting and deaths of tens of thousands from indiscriminate shelling of whole neighborhoods-during the civil war that followed Soviet withdrawal in the early 1990s.[21]  In addition to the more well-known war crime suspects described above, several other commanders from the Jamiat-e Islami and Shura-e Nazar factions of the anti-Taliban Northern Alliance militias are implicated in war crimes during the civil war period, yet are now candidates for parliament or are serving in the police and military forces.[22]  Moreover, the recently passed parliamentary bill offering general amnesty from prosecution to militia leaders, combatants, and factional organizations accused of war crimes against Afghan civilians during the 1992-1996 civil war has been widely criticized as protecting notorious abusers and sacrificing victims' rights under exceedingly suspicious (and self-serving) banners of national reconciliation.[23]

Public attitudes of ordinary Afghans towards these warlords (many of whom held prominent posts in the Anti-Taliban Northern Alliance and thus have been allied to U.S. military forces since the Fall 2001 invasion) are not difficult to discern.  After the fall of the Taliban, while Northern Alliance leaders were being legitimized by the U.S. and E.U. before the world at Bonn in December 2001, the Revolutionary Afghan Women's Association (RAWA), by no means admirers of the Taliban, released the following statement: "The people of the world need to know that in terms of widespread raping of girls and women from seven to 70, the track record of the Taliban can no way stand up against that of these very same Northern Alliance associates."[24]  Perhaps no other quote better reveals the pitfalls of applying pre-fixed, mostly-western notions of feminist liberation in a complex, multi-layered country like Afghanistan where, tragically, they have been appropriated by foreign powers to justify military intervention in the country.

As the Argentine international human rights scholar and U.N. Special Adviser Juan Méndez argued in his instructive article Accountability for Past Abuses, "a lasting peace [following civil war] is only possible if the process by which it is attained carefully and honestly addresses human rights and laws of war violations by all sides."[25]  Such an evenhanded perspective has long been in demand in Afghanistan, where the prevalence of suspected war criminals in the current Afghan government and political order-mostly beneficiaries of the U.S.-led overthrow of the Taliban-does not give rise to the liberating vision as presented in the self-congratulating speeches of the present U.S. administration.  Rather, far from calling for celebration, the process of favoring one faction over another has laid seeds for further internal conflict in a society already severely fragmented by the turmoil of recent civil war.[26]

III. Hidden Costs of Reconstruction: Acknowledging the Human Toll of the Ongoing War in Afghanistan

While the undeniable atrocities of the Taliban regime against the Afghan people were thoroughly displayed and propagated in Western popular media and literature in the run-up to the fall 2001 U.S. and U.K.-led invasion of Afghanistan (and less so before September 11), statistics on civilian casualties resulting from "Operation Enduring Freedom" have been less forthcoming in the American press.[27]  Consequently, reports on this incredibly important but largely ignored humanitarian component of the war have been principally investigated by alternative media outlets and the isolated studies of individual researchers.  Dr. Marc Herold, Professor of Economic Development at the University of New Hampshire, provides a case in point.  His Dossier on Civilian Victims of United States' Aerial Bombing of Afghanistan, released in December 2001, concluded that as a conservative estimate, aerial bombardment killed over 3,700 Afghan civilians in only the first eight and half weeks alone.[28]  It is important to note here that aerial bombing by coalition forces in Afghanistan has continued into 2006, yet no major study has been conducted following up on Professor Herold's earlier report.  In another independent inquiry, University of British Columbia professor Derek Gregory in his 2004 book The Colonial Present confirms the Herold report, adding the following estimations:

The high-level war from the air also took a heavy toll of the [Afghan] population.  By May 2002 it was estimated that 1,300-3,500 civilians had died and 4,000-6,500 civilians had been injured, many of them seriously, as a direct result of American bombs and missiles.  Probably another 20,000 civilians lost their lives as an indirect consequence of the American-led intervention; this includes thousands who died when relief columns from international aid agencies were halted or delayed, and others died through the secondary effects of targeting civilian infrastructure (especially electrical power facilities vital for hospitals and water-supply systems).[29]

While causing the deaths of thousands of Afghan civilians-and refusing to pay compensation-seem sufficient violations to challenge the liberationist narrative surrounding U.S. military action in Afghanistan, human rights groups operating in the country continue to report that U.S. forces operating against Taliban and Al Qaeda insurgents are liable for a range of other human rights abuses against the Afghan civilian population, including arbitrary arrests, employing excessive force, and mistreating detainees, many of whom are held outside the protection of the Geneva Conventions.[30]  In addition, human rights monitoring agencies have documented Afghan soldiers deployed alongside U.S. forces beating Afghan civilians suspected of Taliban sympathies, looting homes, and even seizing lands of the detained.[31]  Human Rights Watch reports that civilians caught up in military operations and arrested are unable to challenge the legality of their detention or obtain hearings before a judicial body.[32]  There is no access to legal counsel when detained, and release is wholly dependent on decisions of the U.S. military command, "with little apparent regard for the requirements of international law-whether the treatment of civilians under international humanitarian law or the due process requirements of human rights law."[33]  In the same exclusive study on Afghanistan in 2005, HRW declared that "generally, the United States does not comply with legal standards applicable to their operations in Afghanistan, including the Geneva Conventions and other applicable standards of international human rights law."[34]  An investigative report by independent journalist Emily Bazelon in 2005 documents incidents of torture of Afghans by U.S. military forces at clandestine prisons at the Bagram air base, reminding us that "before Abu Ghraib, there was Afghanistan."[35]  Another major source of condemnation by human rights critics is that in pursuing its mission of hunting down all Taliban and Al Qaeda renegades, coalition forces have resorted to supporting regional warlords, including members of the former anti-Taliban force known as the Northern Alliance, many of whose members are suspected of egregious war crimes against Afghan civilians during the civil war years.[36]

In short, the U.S. war in Afghanistan has not led to an increase in stability and peace in the country.  There are abundant indications that the exact opposite has occurred.[37]  For example, the U.S. bombing that began in October 2001 has led to thousands of civilian deaths, and a manifold increase in opium production after the Taliban virtually eradicated the crop in early 2001.[38]  The return of an opium-based economy in Afghanistan is relevant not only because of increasing rates of heroin addiction and related deaths in Afghanistan and Pakistan, but also the ramifications for Afghanistan's stability because opium is now funding an increasingly vigorous insurgency and re-emerging warlords.  Afghanistan scholar and New York University political scientist Barnett Rubin explains,

Afghanistan cannot build a constitutional order on a criminalized base.  The IMF says at least 40% of the economy is illicit: the drug trade, trafficking in emeralds and timber, smuggling of artifacts, land grabs by warlords, and trafficking of women.  Income from illicit exports finances most of the imports and provides much of the demand for the remaining parts of the economy-trade and construction. This illicit economy is the tax base for insecurity. Those who profit from it command resources to resist the rule of law. And they're not alone: 25 years of war have ravaged the agriculture and herding from which Afghans formerly made a hard but self-sufficient life. Opium cultivation, or employment in opium harvesting or trafficking provide indispensable income.[39]

Amply demonstrating the connection between opium trade and insecurity, "post-conflict" Afghanistan has witnessed a scourge of violence against international aid workers and government employees.[40]  The latter has prompted the withdrawal of leading humanitarian and non-governmental organizations, including Medicines Sans Frontières (Doctors Without Borders)-the world-renowned relief agency that operated in Afghanistan throughout the Soviet occupation, civil war, and Taliban rule.[41]  To the surprise of many military analysts, the frequency of attacks claimed by Taliban members or sympathizers has not only failed to decline, but has actually increased.[42]  Moreover, it has become increasingly clear that Taliban and Al Qaeda renegades are not the only forces behind widespread violence; insurgency analysts are now paying more attention to the role of heavily armed, narco-funded autonomous warlords in the provinces that are often the most wary of a central government or even foreign troops encroaching on their turf.[43]

In light of the above setbacks, the preeminent body for enforcing international law in the world, the U.N. Security Council, has responded by reiterating a popular mantra amongst law and development agencies in the present era, declaring that "re-establishment of the rule of law in Afghanistan is essential to the peace process."[44]  Such remarks should come as no surprise, and indeed are fairly obvious platitudes that even Taliban leaders would be likely to agree with at face value-after all, there is no single authoritative definition of a "rule of law" in practice, and the term often raises more epistemological and practical questions than it does answer.[45]  For example, from where are the sources of law to be derived?  Is Islamic law to be the preeminent source of law in society, local customary/tribal law, or imported Western legal codes?  Who has ultimate authority of legislation and interpreting the law? Beyond the celebratory rhetoric, there has been little critical evaluation of present legal reform projects in the context of Afghanistan's complex political, ethnic, and sociocultural norms, or in light of Afghanistan's extremely turbulent history with foreign intervention.  Our next section grapples with these topics of discussion.

IV. Legal Reform in Afghanistan: Towards a Rule of Law, or Imposition of Law?

A fundamental controversy surrounding legal and judicial reforms in post-Taliban Afghanistan-considered to be of the foremost goals of reconstruction-involves the imposition of law.  At a time when the transplantation of laws from Western countries (what some comparative lawyers describe as contexts of legal "production") constitute the hallmarks of legal reform projects in Afghanistan (a context of "reception"), critics allege nothing less than neocolonial dynamics are in place.[46]  Owing to the present Afghan government's extreme reliance on the international donor community for the necessary economic and military support in post-conflict[47] Afghanistan, pressure from European and American donors has resulted in largely top-down legal reforms with little or no participation from local Afghans on the ground.  For example, in a previous article the present author examined one of the Italian government's foremost contributions to Afghanistan's judicial reform-a hastily-drafted criminal procedure code it presented to the transitional Afghan government in February 2004.[48]  At a subsequent donor conference in Qatar, Italian officials praised the code as "a simplified text designed to make the work of the criminal police and judges easier and compliant with international human rights," and added that "the Code has been adopted by the Afghan Government."[49]  The Italian officials failed to mention, however, that no Afghan or even Islamic jurists were consulted in the code's drafting process, nor was Afghan customary law or Islamic law a fundamental source for this significant legal document.  Even the United States Institute of Peace, a U.S-funded research center founded to promote global democratization and the rule of law (and heavily invested in Afghanistan's reconstruction), invoked dissatisfaction with the new code in its introductory report Establishing the Rule of Law in Afghanistan.[50]  The fact that foreign jurists drafted the document, with little to no Afghan involvement, has mired the reception of this attempted legal transplant.  With similar lessons being drawn from other international development experiences, it is revealing to note that such dilemmas of transitional justice/post-conflict imposition of law are not unique to present-day Afghanistan.  For example, there are some parallels here to the problematic interaction between the United Nations Transitional Administration in East Timor (UNTAET) and local judicial personnel in East Timor.  In her article Cambodia, East Timor and Sierra Leone: Experiments in International Justice, international human rights scholar Suzannah Linton writes,

The persistent failure to provide adequate support to the court, prosecution and defence, coupled with resentment of alleged interference in professional independence, led to difficult relations between UNTAET's Ministry of Justice and East Timorese judicial personnel.  To cap it all, the adoption of the Serious Crimes project was viewed with much anger by the East Timorese jurists, who felt that they had been excluded from the process and that the atrocity cases, which they had previously been dealing with, were being taken away from them by the international community.[51]

Needless to say there are abundant differences between the political and sociocultural contexts of Afghanistan and East Timor. Yet the point of the analogy is not to compare their national histories, but to highlight how local jurists' resentment (and eventual resistance) to international development organizations is not an uncommon phenomenon, nor one that is unique to Afghanistan, no matter how worthy the agency's assistance may be.  To return to our core discussion here, I will argue that such top-down, foreign-driven judicial reform projects are reigniting the center-vs.-provinces conflict that has plagued Afghanistan's history throughout the twentieth century.

Let us begin by examining the broader historical context of political centralization and legal reform in Afghanistan.  Ever since the Afghan state's founding in 1747, one of the leading indicators of the central government's weakness in the country has been the prevalence of competing legal systems, particularly in the outlaying provinces.[52]  On numerous occasions in Afghanistan's history, central governments based from Kandahar and Kabul attempted to impose a unified legal system on the vast, mountainous provinces, but were unable to displace local tribal mechanisms of adjudication and political control.  The failure of the former Afghan King Amanullah's Nizamnama reforms in the 1920s and the rejection of communist agrarian programs in the 1980s are illustrative cases in point.[53]  This is, of course, in addition to Afghans' renowned tradition of independence and fierce resistance to foreign invasions by colonial powers, especially Britain and Russia.[54]  J. Alexander Thier, a frequent commentator on Afghan legal development, aptly summarizes:

The historical reality is that power in Afghanistan has almost always operated through a negotiation between the central authority and local power-holders - and tensions between these two levels have existed for as long as there has been a state. Even the Taliban, which exerted a greater measure of central control than its immediate predecessors, was forced to negotiate with local elites and accept a degree of local autonomy. Most of Afghanistan has always been remote from the center, and the infrastructure is insufficient to impose high levels of central control. Moreover, centralization has never been popular. This is due in part to strong local social organization and a tradition of independence, which means that decisions imposed from outside are usually resented locally. Distrust of central government is also based on the experience of authoritarianism and brutality.[55]

In this way, Afghanistan's long history of decentralized governance, combined with the exceedingly factionalized politics and discontinuity of Kabul's political regimes over the last thirty years, has produced a recipe for extreme legal pluralism today.  American legal analysts who recently visited the country described the contemporary scenario as "a patchwork of differing and overlapping laws, elements of different types of  legal systems, and an overall incoherent collection of law enforcement and military structures,"[56] adding that such diversity and internal dissonance surfaces even within individual branches and ministries of the Afghan state.[57]  While a majority of state institutions reside in Kabul and a handful in other large cities, in most of the country regional power brokers exercise de facto political and administrative control through their own militias.[58]  Such warlords operate relatively free from any state supervision, enjoying sizable profits from the illegal but bustling opium trade or simply taxing all who pass under their dominion.[59]  Some have even assumed prominent state positions after the takeover of power by leading Northern Alliance officials following the fall of the Taliban.[60]  Apart from these autonomous warlords (and the official provincial governors who hold power de jure), in rural areas traditional Afghan tribal councils made up of elderly notables in each village resolve day-to-day disputes.[61]  Known as shuras or jirgas, each of these councils apply their own sophisticated and historically evolved canons of law, often combining aspects of Islamic Shar'ia with local customary law (‘adaat) in resolving community problems.[62]  In this manner, non-codified customary law governs the vast majority of the population especially outside of Kabul and other urban areas.[63]

In this highly decentralized sociolegal environment, clashes with the presently state-centric, Kabul-based modes of legal development are bound to surface.  Part of this lies in the fact that with such highly evolved, local justice systems firmly in place, it is unlikely tribal councils will voluntarily relinquish their roles as respected adjudicators in order to be replaced by state-employed judges citing an Italian-designed criminal procedure code.[64]  The history of the Afghan provinces is replete with local resistance to Kabul's laws, let alone that of foreign powers or judicial reform commissions.[65]  Like Amanullah's social and educational reforms in the early twentieth century, and similarly with Afghan Communist party policies in 1970s-80s, the present attempts to impose centralization on local adjudicatory actors in the provinces are likely to crumble.  While the congenial welcome of humanitarian aid projects in the form of building vital infrastructures such as clean water wells, sanitation, and sturdy winter shelters for common Afghans-who were and continue to be deprived of such basic necessities through years of war and abandonment by the international community-may indicate a healthy relationship between external and local actors in Afghanistan today, such collaboration is not likely when the dynamics are translated as foreign interference into Afghan culture and social life.  After all, imposing a foreign criminal code in Afghanistan is not simply a matter of technical administrative procedures or "legal engineering."  Rather, it is an intensely political act, and one that can trigger larger forces of anti-government instability to accumulate over time, a process that has already begun.

At this critical juncture in Afghanistan's history, it is also important to place post-Taliban reconstruction within the broader context of a global resurgence of law and development activity in the past fifteen years; specifically since the fall of the Berlin wall and end of the U.S.-Soviet Cold War.  Prior to this recent reemergence, the failure of the American Law and Development movement of 1960s was a topic of great curiosity, consternation, and disappointment amongst international development lawyers as well as comparative legal scholars.[66]  James Gardner, for example, in his study of American development lawyers working in Latin American countries in the 1960s and 70s, presented a bold criticism of American development lawyers, describing the latter group by the term "legal missionaries."[67]  Gardner argued that American-trained lawyers' parochial definitions of law in non-U.S. jurisdictions, lack of consultation with local actors, and inexperience in interacting with the multiplicity of legal actors and layers of law in post-and neo-colonial settings was the writing on the wall for the American law and development movement.[68]  Numerous other commentators have discussed the "naïve view that by simply channeling some resources to poor countries, development would follow",[69] overlooking social and cultural complexities and political dynamics that could stymie reform efforts.[70]  One can trace the forbearers of this mid-twentieth century movement to nineteenth century European orientalists who, in studying colonial lands of Africa, Asia, and Latin America, implicitly compared the law of their own societies with what they constructed to be monolithic, inherently flawed, and overall lacking "non-Western" legal systems.  On this topic, Professor Laura Nader notes the parallels between past and present eras of law and development:

A Euro-American configuration of institutions and belief systems has normalized and powered a Euro-American use of "rule of law" and lack, an ideology key to the colonial and imperial project whether it was being exercised by the British, French, American, Belgian, Dutch, Portuguese, German, or Italian colonial interest in pursuit of their enrichment. In the contemporary period, the appropriation of resources and ideas belonging to other peoples are sometimes justified by notions of civilization, development, modernization, or alternative dispute resolution. Lack has been used to highlight positional superiority, an important mechanism for constructing and legitimizing conditions for plunder...Thus, the European roots of the colonial project were tied to a theory of lack - a theory that justified taking property from those deemed lacking the ability to exploit resources around them. Other peoples lacked law - a provider of order, beneficial to the public good. Steeped in 19th century unilineal evolution - whereby human society progressed from savagery, to barbarism, to civilization as exemplified by Europe - Western countries identified themselves as being civilized because they were governed by the rule of law, no matter what the actual history of a present situation might be. Such identity was acquired by knowledge of and false comparison with other peoples, those who were said to lack the rule of law, such as indigenous people, or in reference to China, Japan, India or the Islamic world more generally. In addition, today the Third World developing countries lack further, the minimal institutional system necessary for the unfolding of an efficient market, one that serves, today as in the past, to further the construction of Western superiority. Of course, the Other is often aware that "lack" is about the building of a universal rule of law that, while ethnocentric, is capable of facilitating efficient transfers of property rights from whoever values them less to whoever values them more, such that global rule makers claim sovereignty over local politics.[71]

Far from being a distant era of the past, it appears we are witnessing a return of the law and development movement in Afghanistan, albeit with considerable refinements and differences.[72]  Some of the unique aspects of the latest revival of law and development appears to be a profuse Western confidence in free-market economic structures following the collapse of the Soviet Union, the forceful backing of foreign-imposed judicial reform by Western governments and multinational firms seeking new markets and untapped natural resources, all fortified with the domestic political support of an open-ended, fear-driven "war on terrorism."[73]  On a less cynical note, another difference is an emerging body of international law compiled through decades of statutory and case law evolution.  Nevertheless, major questions remain as to how to implement statutory rights or formal international case law in non-centralized-state contexts like Afghanistan, considering the significant administrative and sociocultural complexities of even implementing the respective nation-state's law.  Indeed this paper argues not so much that human rights law is flawed or a dead-end run, but rather more research is needed to contextualize how human rights struggles can be owned and implemented by indigenous communities themselves without sacrificing their traditional means of dispute resolution and legal process.  Agency and sovereignty, after all, have proven to be the absolutely crucial values to indigenous groups throughout the world.[74]

Without such sociocultural contextualization, we face the constant danger of imposing Euro-American sociolegal norms in "receiving" societies where they will not resonate and may even be interpreted as the Trojan horses of neocolonial projects, meanwhile hoisted with self-congratulating attitudes in the Western countries portraying their actions as brave new forces promoting liberating, civilizing processes in the darker corners of the world.  Such attitudes are summed up best in the State Department's description of Afghanistan's reconstruction, where it boldly states on its webpage, "Today, the U.S. is assisting the Afghan people as they rebuild their country and establish a representative government that contributes to regional stability, is market friendly, and respects human rights."[75]  If this paper has achieved anything thus far, I hope it is to complicate and problematize simplistic portrayals of Afghanistan's extraordinarily complex reconstruction-a reconstruction that is laden with covered-up failures and exaggerated praise of isolated success stories, and has resulted in little progress on the ground when it comes to improving ordinary Afghans' lives, furthering Afghanistan's self-sufficiency, or promoting accountability through local vehicles of law.

V. Beyond Civilizing Missions and Illusory Narratives of Progress: Regarding Accountability in Afghanistan through Indigenous Means

A. An Encouraging Start: The Afghanistan Independent Human Rights Commission Report

In January 2005, the Afghanistan Independent Human Rights Commission (AIHRC) published a report analyzing common Afghan civilians' perspectives of the reconstruction process.[76]  This one of a kind study interviewed 4,151 Afghans, from the urban milieu of Kabul to Afghan villages across the rural and mountainous provinces, to even refugee camps in neighboring Pakistan and Iran.[77]  The report makes powerful points and recommendations, especially considering the fact they are based on the views of Afghans on the ground themselves.  It appears to be the first time a major agency involved in the reconstruction process spent a substantial amount of time and energy solely to ask what Afghans on the ground think, feel, and experience in daily life.  It also seems to be the first time a major agency genuinely sought to hear what Afghan civilians have to say about reconstruction processes, including its announced goals versus practical shortcomings, and incorporate their voices into policy circles in the Afghan government and NGO community.  Moreover, this survey provides personal stories and a more textured glimpse into the human tragedies of an on-going quarter-century war in Afghanistan.  Relevant to this paper, the report made the following conclusions:

Security has consistently been ranked as by far the number one concern of Afghan civilians in Afghanistan, followed by lack of electricity as a distant second, and disappearances of loved ones as third.[78]

Accountability for past human rights violations, at the very least vetting offenders from public office, is very important to common Afghans, and should not be cheaply sold in the name of reconciliation.[79]

Transitional justice policy must be respectful of pre-existing legal cultures, including the vital role Islamic law plays in the lives of common Afghans, who generally envision a prominent role for Islam in reconstruction.  Religious leaders can thus play a crucial role in encouraging and facilitating reconciliation and unity on the local level.[80]

These findings are extremely important because they shed light on what common Afghans hold to be important and what speaks to their actual needs, as opposed to those imagined by central government and international actors detached from life on the ground.  While prominent Afghan and U.S. officials frame liberation as the overthrow of the Taliban and their draconian social policies, these reports shed light on the less glamorous, but just as crucial socioeconomic issues that are not being addressed with sufficient attention and resources: public safety, adequate winter shelter, heating, clean water, and protection of indigenous law and culture.

While clearly not every single relevant issue was covered in the AIHRC questionnaires, nor was an exhaustive survey conducted of the entire Afghan population, this report is an inspiring move in that direction.  Because many of the problems discussed in sections II-IV of this paper deal with the failure to incorporate indigenous Afghan perspectives, voices, and actors in the internationally-led reconstruction process, the AIHRC report is profoundly important because it tackles the flawed approach of most international and Afghan government agencies by listening first, rather than jumping into prompt but unguided action.  At the very least, these types of engagements with ordinary Afghans open lines of communication that are crucial to the future of reconstruction processes actually improving the lives of Afghanistan's people. Hence, this paper urges that more surveys and consultations of indigenous actors, particularly Afghan civilians on the ground, be incorporated into reconstruction goals and processes.  Accessing these pools of information needs to be the starting point-and an evaluative gauge throughout-of reconstruction projects regardless of the field.  Interviews and consultation councils with civilians at large should not be dismissed based on the highly technical nature of any given project.  Indeed, the receiving end of the successes, and failures, of reconstruction projects are the Afghan people themselves, and so they should be invested with more decision-making power with the directions of investments that will inevitably impact their daily lives, for the better or for the worse.  This can be achieved by not merely reports and surveys that are based on extensive interviews of Afghan individuals, but also by organizing a combination of public consultation gatherings and smaller, private sessions in local districts where Afghan voices are heard, on the provincial and national levels.  Needless to say this is a complex undertaking that requires advanced planning, continuous refining, and of course, constant input from the Afghan public at large.  While it is beyond the scope of this paper to blueprint such a scheme, the goal of this section nevertheless is to cite a practical example in the AIHRC survey, as well as underscore the importance of increasing the NGO community's understanding of rural Afghanistan's indigenous cultures and legal systems, which would shed light on how locally established tribal and village councils could contribute to the processes of national reconciliation and building accountability rather than being viewed as backwards "obstacles."  A practical example of the latter is the customary law reports produced by such organizations as the International Legal Foundation; a rudimentary study of customary law in Afghanistan's diverse provinces.[81]  If dominant reconstruction actors fail to entrust indigenous actors with more agency in the process, and continue to alienate Afghans with parochial visions and plans of reform, Afghanistan will face a vicious cycle of violence fed by the struggles between foreign intervention and indigenous resistance, resulting in exponentially increasing costs and lost opportunities for all.

B. The Role of Islamic Legal Scholars

While proponents of democratization have conventionally viewed secular elites to be the natural pioneers of reform in Muslim countries-and religious leaders as backwards, regressive opponents-emerging studies in comparative law and anthropology suggest such views stem from Western jurisprudential paradigms that overlook the dynamic roles of Islamic legal scholars ("‘ulama"), in societies where formal divisions between law, religion and politics are often suspect.[82]  This paper has discussed how tribal elements and rural warlords traditionally competed with the central government for political control of the provinces.  Yet there is another group of influential sociopolitical actors in Afghanistan: the urban ‘ulama, or Islamic religious scholars.[83]  As the custodians of Afghanistan's religious institutions, the Afghan ‘ulama have historically shared a complex relationship with the Afghan state, but generally did not oppose the government, with the notable exceptions of the protests against Amanullah's liberalizing Nizamnama reforms, and widespread resistance to the Afghan communist parties and subsequent Soviet invasion of the 1970s-80s.[84]  Dr. Mohammad Hashim Kamali, an Afghan legal scholar and former professor of Islamic jurisprudence at McGill University explains in his pioneering study Law in Afghanistan: A Study of the Constitutions, Matrimonial Law and the Judiciary,

The religious leaders [in Afghanistan have historically been] recipients of government grants and subsidies.... The qadis [judges], muftis [jurists], and muhtasibs (religious superintendents) were keen enforcers of Shari'a [Islamic law] which was the authoritative law of the land.  The rulers proclaimed themselves to be patrons of the faith to whom allegiance was declared as a religious duty by the congregation leaders in their Friday sermon of khutba.  In sum, so long as the government avoided radical measures against the religious leaders and did not attempt a direct clash with the principles of Islam, the religious leaders were, unlike the tribal chiefs, in potential alliance with the political authority.[85]

Despite strong historical alliances, as a class Afghan ‘ulama now stand at a crossroads moment in their relationship with the central government, primarily due to a growing threat to their traditionally-held legal authority arising from the contemporary judicial reform and legal codification movement.[86]  With regard to present efforts to establish a unitary legal system in Afghanistan, it is important to keep in mind that ‘ulama have often opposed attempts to codify and homogenize Shari'a, for both theoretical and pragmatic reasons.  From the perspective of many ‘ulama, codifying Shari'a amounts to imposing human limits on law of the Divine.[87]  Wael Hallaq, Professor of Islamic law at McGill University, elaborates on the contentious relationship between modern codification movements and Islamic jurists, noting that:

Codification is not an inherently neutral form of law-making, nor is it an innocent tool of legal practice, devoid of political or other goals. It is in fact a deliberate choice in the exercise of political and legal power, a means by which a conscious restriction is placed upon the interpretive freedom of jurists, judges and lawyers. In the Islamic context, the adoption of codification had a particular significance since it represented a highly efficacious modus operandi through which the law was refashioned and altered in fundamental ways. No longer could the traditional jurists rely on their hermeneutical methods to determine what the law was; the new order had severed the organic link between the divine texts and the positive legal stipulations deriving therefrom.[88]

For these very reasons it is not surprising that ‘ulama in countries like Afghanistan have grown increasingly suspicious of codification measures, considering them to be the latest attempts of foreign powers to subjugate Islamic law and religious actors to secular authorities.[89]  Because of the inherent threat legal codes pose to ‘ulama's authority to interpret the law, the chances that Afghan ‘ulama will accept codification movements quietly are extremely slim.[90]  Indeed, mounting resistance of Afghan ‘ulama to recent adoptions of foreign legal codes,[91] and the Afghan public's wide scale uproar over what many see as inexcusable foreign intervention in Afghanistan's judicial system[92], have shaken the very foundation of reconstruction efforts in the legal arena.  In light of the profound influence of ‘ulama in social and cultural life in Afghanistan, as well as the fierce traditions of independence and historical resentment of foreign intervention in domestic affairs, present designs to build a rule of law in Afghanistan on the basis of legal transplants are prone to failure.[93]

It is also vital to remember here that it in present-day Afghanistan, particularly the rural provinces where the majority of Afghans live, local justice mechanisms have evolved through a centuries-long process of synthesizing Islamic and pre-Islamic Afghan customary law.  As demonstrated in the International Legal Foundation's study of customary law in several Afghan provinces, it is also quite remarkable that these bodies of local law have survived, responded to, and reflect decades of foreign invasion, occupation, and civil war in the modern era.[94] It is this resilience of locally shaped law that led law professor Mark Drumbl to conclude in his recent study on judicial reform in Afghanistan that only "when international legal intercessions resonate with lives lived locally that their potential to actualize social change is maximized."[95]

While this article is certainly not suggesting that the contributions of international human rights activists are futile endeavors in Afghanistan, it does underscore the need for development lawyers to be far more self-critical, and to rethink their ethnocentric approaches to the "reform" of legal institutions in society different from their own.  Comparative law and anthropological studies have revealed more than enough blunders in law and development encounters to warrant a far greater degree of humbleness in the most development lawyer's goals-particularly in how such projects tend open a greater host of problems than they actually solve.  In a previous paper I presented a few reflections as to the sources of such failures:

International intervention in the law of another society, particularly when it relates to social and cultural norms, tends to only exacerbate internal conflicts by politicizing and distorting the original issues.  The latter can often have the effect of transforming local disagreements into full-blown wars whereby parties can lodge their conservative arguments in a call for defending the homeland against foreign imperialist motives, thereby stymieing indigenously-supported legal growth and a more organic development of the local legal system.  This is precisely the predicament of Afghanistan, where it is not uncommon for Afghans to construe the widespread international attention to the conditions of Afghan women as another missionary war on Islam, an attempt to demonize Afghan men, and a precursor to outright colonization of the country itself.[96]

Stoking such "clash of civilizations" fears - trepidations that of course are not limited to Muslim societies[97] - could be avoided by first respecting the complexity and interdependency of local sociocultural norms in tightly-knit societies like those of rural Afghanistan, paying special attention to how such norms operate in practice, instead of how they are imagined and decontextualized by outside observers.  This symbiotic approach to development requires a much deeper understanding of Afghanistan's history (both pre-modern and contemporary), diversity of legal cultures, and customary judicial systems by foreign development agencies, as compared to the highly-skewed, politicized, and overly-simplistic depictions of the Taliban's "Islamic oppression" in Western media after September 11, 2001.  Needless to say, the constant repetition of categorical dichotomies, such as "us" and "them", "good" and "evil", "freedom" and "tyranny" (symbolizing an apocalyptic battle Western secular-liberal modernity on the one hand versus Islamic extremism on the other), exacerbates the polarization between international and local, destroying bridges of cross-cultural understanding that thrive on the sharing of world-views and goal of building a peaceful Afghanistan.[98]

One means of incorporating a more humble approach that is conducive to cross-cultural exchange in Afghanistan's transitional processes, is for development lawyers to increase their communication with indigenous ‘ulama in reconstruction processes, enhancing the role of the latter in the process, rather than limiting interaction to largely secular-liberal Afghan elites or powerful warlords linked to anti-Taliban factions only.  ‘Ulama, after all, are an independent class who draw their influence and authority from a knowledge of Islamic law, a source of legislation and public morals shared by all of Afghanistan's diverse ethnic groups.[99]  To illustrate, it is revealing to note the comments of prominent leaders across the political and ethnic spectrum re the central role of Islam in Afghanistan's future.  For example, as ballot-counting proceeded during Afghanistan's landmark parliamentary elections in September 2005, prominent Northern Alliance leader and power broker Younus Qanooni warned in politically-astute language that the country's future cannot be modeled on a Western liberal democracy. "Afghans will never agree on any secular or liberal system. Islam is the modern system and Afghanistan's future is tied with Islam," he said, in an exclusive news interview with Adnkronos International... Quanooni, who was a key figure in the Northern Alliance which helped the U.S. overthrow the Taliban in 2001, heads the 12-party National Understanding Front.[100] Whether he personally espouses these beliefs or not is less important than the audience he was addressing: an attentive Afghan public in the midst of elections.  In this way, the prominent role of ‘ulama in social life in Afghanistan becomes all the more clear when one considers they are the custodians of Islamic law in a country where Islam is integrally intertwined with Afghan identity and society.

With this background in mind, it is all the more interesting to consider here how the U.S. decision to go to war in response to the September 11 attacks-as opposed to seeking international cooperation in the prosecution for the criminal acts of a small, insular group of rogue radicals-is a practical illustration of long-term damage that is done when ‘ulama are marginalized in public policy in Muslim-majority states like Afghanistan.  Operation Enduring Freedom has had enduring consequences for Afghanistan indeed, creating daily instability, death  and violence from a burgeoning insurgency that has long survived the overthrow of the Taliban.  The decision to go to war has bred more war, intensified resistance, and attracted more militants to the country (south and east in particular), resulting in increased internal violence and fragmentation in Afghanistan, and Central and South Asia as a whole.[101]  In his study of Islamic legal scholars in South Asia and Afghanistan, Muhammad Qasim Zaman has explored the diverse body of ‘ulama in this region, and drawn relevant lessons for us in the post-September 11th attacks context.  Particular to the Taliban reign, Zaman writes that the picture is far more complex than what certain political forces promoting war in Afghanistan have made it out to be.  ‘Ulama in Pakistan, home to the Taliban's origins and greatest source of financial, political and moral support, were not so united on Taliban social policies as previously thought.  In fact, there were fissures and disagreements within the Islamic scholarly community, and even amongst the Deobandis (adherents of the school of law which the Taliban leaders were schooled in) over the Taliban's controversial closing of schools for girls, to cite a prominent example.  Zaman notes:

The Deobandi ‘ulama were never unanimously euphoric about the Taliban . . . .  In a letter to the leaders of the Taliban shortly after the latter's capture of Kabul, a number of leading Deobandi ‘ulama of Karachi had congratulated them on their victories but had also expressed the hope that the "Taliban would do everything possible to ensure that Afghanistan commences its journey on the path of culture and civilization and [thereby] establishes a luminous example for other countries." . . . [T]his letter also emphasized the expectation that everyone-man and woman-would receive ‘basic education' under the Taliban.  In June 1997, an editorial entitled ‘The Government of the Taliban: Better Expectations' in al-Balagh, the monthly journal of the Dar al-'Ulum of Karachi [one of Pakistan's preeminent madrasas], had again expressed hope not only that the Taliban would attend to the educational needs of the people but that "in addition to considering the requirements of Islam, the system of education would also take account of the needs of the time."  Couched in the language of advice and expectations, these mildly worded criticisms pointed to a certain discomfort among some of the ‘ulama regarding the policies of the Taliban.[102]

One can draw from the above that internally-inspired reform was possible in Afghanistan at the time, since prominent voices were confident enough to voice their concerns to the Taliban leadership directly, rather than through secret, conspiratorial channels.  The U.S. decision to go to war against the Taliban and thereby invade and occupy a Muslim land, of course, has overridden much of these concerns in the eyes of many local ulama.  Dr. Zaman notes,

After the United States gave an ultimatum to the Taliban to turn over Usama bin laden, thirty-three scholars of Karachi's Dar al-'Ulum-including Mawlana Rafi ‘Uthmani and Mawlana Taqi ‘Uthmani [two of the most prominent Islamic scholars in South Asia]-issued a written appeal to the Taliban to be mindful of the interests of Pakistan and Afghanistan in this crisis and try to resolve it with ‘an open mind.'  They recognized, the ‘‘ulama said, the difficult choices confronting the Pakistani government in this crisis, and they approved of its cooperation with others in combating terrorism.  At the same time, however, these ‘‘ulama had also criticized the American stance as ‘unjust' because, to them, Bin Laden's culpability for the terrorist attacks had yet to be established and to go to war without doing so meant ‘giving official sanction to terrorism with the backing of state power.'[103]

The U.S. decision to go to war precluded key opportunities for internal reform by drowning out voices of the most moderate ‘ulama in the fog of war, for now any militant could bolster the call to arms by the fact foreign armies were invading the neighboring Muslim country of Afghanistan.  This reminds us of the profound need to recognize and acknowledge internal discourses of reform, which are present even in as starkly controlled a society as Afghanistan under the Taliban.  But foreign military action stifled those voices.  The lasting lesson here seems to be that we must fully understand the internal dynamics of local societies before deciding they are ripe to be fixed by external action, in order to remedy what we see as human rights violations.  After all, failing to do so will not only fail to solve the problem, it incites greater resistance, and irreparably disrupts the internal struggles for accountability and a rule of law in the whirlwind of war.  As veteran Afghan affairs analyst Barnett Rubin remarked in a 2005 interview, "the fact that the country's Muslim clergy, which have a national network that can mobilize the populace in ways the central and local governments cannot, still have not reached a consensus on the legitimacy of the government constitutes another serious vulnerability to the U.S.-backed regime."[104]

A critical part of the effort to understanding internal dynamics of Muslim societies, then, is acknowledging the role of ‘ulama in Muslim-majority societies like Pakistan and Afghanistan.  As seen in the prominent sociolegal positions held by ‘ulama in Pakistan and Iraq[105], ‘ulama command the esteem of lay men and women in contexts where Islamic law, in a flexible meshing with local customary law, constitutes the overarching principles of what is normatively considered to be noble conduct.  As the headmasters and instructors in local religious seminaries, also known as madrasas, ‘ulama are often the only available educators in rural villages and poor urban neighborhoods.[106]  On a national level the most renowned ‘ulama are respected as knowledgeable and not suffering from the corruption that has plagued state actors in Afghanistan and Pakistan.  There is a long legacy behind this reverence.  Professor Hallaq provides some context as to the status of ‘ulama in the history of Muslim societies,

The authority of the [Islamic] jurists...must not be confused with any notions of worldly power, since they wielded none. Nor was their authority of the charismatic or even moral type, though these types of authority were not entirely precluded. Nor, yet, was their authority purely religious, for the Islamic scene witnessed a number of learned religious classes who, despite their impressive erudition and intellectual output, were entirely devoid of legal authority. The jurists' authority was predominantly, if not essentially, epistemic.  Their very learning and erudition bestowed on them the authority that they enjoyed, in the first place the authority to interpret the law, but also the authority to command what is morally good and forbid what is morally bad, to lead and administer society and its civic institutions, to collect taxes, to represent the orphans and the downtrodden, to run educational institutions and law schools, and to supervise charities and public works.[107]

With this background in mind, independent ‘ulama can, as they have in the past, be a key source of civil-society promotion and curb against the presently increasing state power over the lives of common Afghans.[108]  As demonstrated in Zaman's pioneering study of ‘ulama in modern South Asia and Afghanistan, ‘ulama continue to be powerful voices of dissent and protectors of common people's rights against state intrusion and control.  Thus religious scholars represent a vital area for international development and reconstruction actors to more purposefully acknowledge and open lines of communication with, as part of an attempt to salvage a reconstruction process that has become increasingly tainted with neocolonial overtones.[109]

C. Recommendations

Current designs to institute uniform legal codes in Afghanistan suffer from a failure to contextualize the initiative with Afghanistan's history of turbulent center-vs.-provinces conflict, its extremely complex politics and ethnically diverse societies, and multiple adjudicatory mechanisms that govern, de facto, in rural areas.  The decision to implement highly-centralized state-based codes, however, reflects an even broader problem with judicial reform in Afghanistan: a tendency to impose Western legal models in the name of "development" or "legal reform", goals which are skewed from the start by the lack of sociocultural awareness of Afghanistan's legal history, principles of Islamic law, and Afghan customary law systems.[110]  In a country that has long resisted foreign intervention, authenticity of law and participatory involvement on the local level are all the more important.  If judicial reform initiatives are to take firm root in Afghanistan, they must spring from an authentic base of Afghan history and sociolegal cultures, of which both Afghan customary law and Islamic jurisprudence play integral roles.  Otherwise, judicial reform will follow the path of previous state-driven reforms in Afghanistan: at the local level they will be at best ignored, and most probably resented, poisoning an already bitter relationship between Kabul and the provinces.

In light of the above principles, this paper argues that in order to rebuild a stable legal order and rule of law in Afghanistan, of which accountability for past war crimes is a crucial component, legal development projects can no longer afford to marginalize the customary law structures that govern life de facto in Afghan provinces.  Reconstruction can no longer afford external advisors assuming that rural Afghan societies "lack" legal systems; to the contrary, provincial areas of Afghanistan have highly sophisticated, adaptable, even formal legal systems that outside observers may easily not understand or appreciate, and thereby dismiss as "informal" justice.[111]  Local and autonomous legal systems serve many advantages, including more prompt and effective justice processes than what otherwise slow, inefficient, and heavily red-taped state bureaucracies would struggle to provide.  Moreover, legal anthropologists have demonstrated time and again that local adjudicatory systems in contexts like rural Afghanistan carry more authority on the ground than state-made law.[112]

This does not compel the conclusion, however, that state ministries or international agencies chartered to promote international development, human rights, or legal reform of any sort-including organizations which commonly employ Afghan expatriates and refugees returning to assist in the rebuilding of their country-cannot shoulder a meaningful role in post-conflict Afghanistan.  Rather, such organizations can play a critical role in challenging the strangleholds of power and immunity widely enjoyed now by suspected war criminals.[113]  In the realm of accountability for war crimes, human rights agencies can play a critical role in depoliticizing the issue by paying equal attention to all perpetrators across the ethnic and political spectrum in Afghanistan-rather than focusing attention on the crimes of the Taliban alone, as did U.S. officials in the lead-up to the recent war.[114]  This is similar to the role Abel Madariaga's attorney, Alcira Ríos, played in humanizing the struggle to bring accountability for such past crimes as child theft in Chile under the brutal regime of Augusto Pinochet.

"The first task in these cases was to depoliticize them," Ríos stated.  "We kept emphasizing that these children were innocent victims and had the right to know their true identity.  We got to the point where no one would defend the practice of child-stealing.  When the amnesty laws were written, they specifically excluded these crimes because they were so politically and morally unjustifiable."[115]

In a similar vein, Afghan civil society must be allowed to grow to the point where no one, not even the most powerful and immune warlords, can openly defend past aggressions against innocent Afghan civilians.  This can only be done by applying political, economic, and media pressure on the most immune perpetrators across the political spectrum-which is something international human rights watch groups and analysts critical of reconstruction can do with greater ease and safety than common Afghans at this time.

In addition to the above, international aid and development agencies can play a fundamental role in not only providing the necessary capital for rebuilding vital civilian infrastructure and improvements in quality-of-life arenas such as public health, adequate housing and access to education, but they can also aid in civil society promotion, such as spreading knowledge of the technologies that can help build independent media services.  Most importantly, expatriate Afghans working for development agencies could potentially play a major role in promoting a more constructive dialogue between native Afghans who have remained in the country during the decades of war, and the present multitude of foreign legal advisors engaged in rebuilding the country.  In the area of rule of law promotion, for example, legal aid agencies can assist constructively in the training of personnel for the state apparatus, which has traditionally held a presence in the largest Afghan cities, such as Kabul, Kandahar, Jalalabad, Mazar-i-Sharif, Kunduz, and Herat.[116]  The new state-based, official law has a greater chance of taking root in these major municipal centers and is arguably less problematic of an imposition, because of the diversity of ethnic groups and legal traditions thriving in these cities (due to increasing urbanization and the influx of migrants from rural provinces to urban centers in search of economic opportunities and employment).[117]  In light of growing urbanization and rural flight to cities in the wake of greater economic and educational opportunities, the Afghan state's legal structures may be far more suitable for these urban municipal centers than the more homogenous rural provinces, where decision-making and mediation by non-state-sponsored shuras or jirgas are the norm.

When it comes to building a network of official courts limited to urban areas, the Afghan state should rework the formal legal codes with the genuine participation of a diverse council of Afghan ‘ulama and tribal leaders.  In pursuit of this goal, the judicial reform commission should recruit ‘ulama from all the various provinces, sponsor an inclusive assembly in Kabul or any other municipal center (similar to the Constitutional loya jirga process), which would provide administrative laws with far more local legitimacy than it currently holds.  Such a gathering could focus on incorporating the Islamic law expertise of ‘ulama in such exceedingly relevant areas as contracts, property, inheritance, and criminal procedure.  Contributions in the latter could include the stringent rules of evidence required for prosecutions, mitigating elements for those accused of theft in a state of hunger, and other potential annulments encouraged by Islamic legal precedents in cases of doubt, duress, or extreme poverty-contextual factors that are certain to arise and therefore must be taken into account in Afghanistan's courts.[118]  Furthermore, an Afghan legal code committee should go beyond incorporating minimum of defense protections for the accused, such as prohibitions on torture, arbitrary detention, and bribing of prosecutors; the even more significant contribution would be to do so by drawing from Afghan sources of law, such as defendant's rights in Islamic jurisprudence.[119]  Since one of the underlying objectives is to unify and standardize state law, judicial reformers should not be blind to the fact that Afghan lawyers continue to cite to Islamic law and Afghan customary law in courts regardless of what is written in the new codes, and moreover, Afghan judges are sympathetic to such efforts to incorporate Afghan indigenous legal cultures in reform process increasingly tainted by foreign influence.[120]  Rather than excluding or marginalizing Islamic law and Afghan customary laws, judicial reformers should endeavor to form a healthier, cross-fertilizing exchange between indigenous law practiced on the ground, and state law emanating from the courthouses of Kabul.

By encouraging the involvement of a diverse council of ‘ulama from the different provinces, there is potential for overcoming legitimacy problems, and there is some precedence here with the constitutional Loya Jirga process.  On a related note, while virtually all development agencies have stressed increasing spending on education, they should not shy from including traditional Islamic educational institutions that will promote a dynamic and nuanced study of Islamic law in the context of Afghanistan's grave humanitarian realities and needs of a modern state, rather than unilaterally branding Islamic schools with ludicrously broad strokes, such as "bastions of hate" or "Anti-American pedagogy."[121]  This will also alleviate fears and concerns on the part of Afghans and Muslims in the region that the international community is trying to do away with traditional Islamic seminaries (madrasas) and historically valued institutions of religious education in Muslim countries, to be replaced by Western-modeled secular schools.[122]

In light of the brutal history of foreign invasions, occupations, and attempts at imposing colonialism, it should be clear to all that an indigenously-supported rule of law in Afghanistan will not grow from the importing of legal texts and institutions.  Rather, reestablishing a true "rule of law" in Afghanistan is only likely to evolve from the presently-functioning systems of legal order that are active in the provinces, while limiting new state legal institutions to the major cities.  Supplanting traditional adjudicatory systems in provincial areas with foreign codes will only obstruct a natural development of legal reform, rendering judicial reform movements as futile and counterproductive.  State resources would be far more efficiently invested in combating rampant poverty, abysmal health care services or lack thereof, and gross economic inequalities in general.  The fledgling Afghan state's failure to respect local legal histories and customs, exacerbated by a reliance on highly-formalistic foreign-drafted codes, will actually promote trends of impunity and social disorder by displacing respected legal actors on the ground such as Islamic jurists or tribal leaders versed in Afghan customary law, who are precisely the people capable of settling disputes and resolving conflicts authoritatively in Afghanistan.  Furthermore, as Juan Méndez has argued, "true reconciliation cannot be imposed by decree; it has to be built in the hearts and minds of all members of society through a process that recognizes every human being's worth and dignity."[123]  This is a process that Afghan ‘ulama-as prominent educators, independent scholars, and influential members of civil society across the ethnic spectrum in Afghanistan-can play a pivotal role in building through the central role of the mosque and Islamic legal norms in Afghan communal life.[124]

VI. Conclusion

This article has argued that the master narrative of post-September 11 foreign intervention in Afghanistan, as presented in speeches of U.S., Afghan, and European government officials involved in the country's reconstruction process, gravely misrepresents local realities by marginalizing the massive human rights dilemmas and civil disorder that have survived the overthrow of the Taliban in late 2001.  When considering the ongoing trends of empowering suspected war criminals embedded in the Afghan government, the human toll of the U.S.-led War on Terror in Afghanistan, and the imposition of law at the core of legal and judicial reform activism in the country, the above narrative is an erroneous assessment of the harsh realities that exist on the ground in Afghanistan today.  Furthermore, gross simplifications that focus on spectacular acts such as formal elections or new constitutions actually impede efforts to build accountability for past and ongoing human rights violations in Afghanistan by framing a misleading portrait of linear progress based on a Westernizing, civilizing mission-all the while covering up the ongoing human rights abuses, the tragic consequences of more war on Afghan lives, and the failure to meaningfully incorporate indigenous actors in the reconstruction process.

The exaggerated claims of liberating the Afghan people and establishing human rights for the first time in Afghanistan's history are concealing trends of impunity in the country, by covering up grave problems inherent to post-Taliban transition in the name of political stability.  As an initial step towards genuine accountability, this paper sought to expose the master narrative of liberation framed by U.S. media coverage for what it is: a cloaking of the support of war criminals in the current government, human rights violations in the U.S. War on Terror in Afghanistan, and even less visible to the American public's eye, how the continued marginalization of indigenous law as legal transplants along Western lines constitute the driving force behind legal reform in Afghanistan.  By sidestepping these unpleasant realities of intervention, U.S. officials have framed a narrative substantially different than that of what common people are experiencing on the ground in Afghanistan.  This disparity of stories leads to continuing support for errant policies on the part of the Afghan government and international aid agencies, the all-too-familiar insistence by U.S. officials to "stay the course" in the War on Terror and uphold the status quo, all the while generating more alienation amongst ordinary Afghans as empty promises surface day by day.[125]

The second half of this paper evaluated potential routes to improve the distorted reconstruction process in Afghanistan, by focusing on two critical sociocultural aspects of Afghan society.  To start with, the Afghan government and international development agencies must conduct a closer study of what people on the ground actually desire and need, and in what priority they rank those needs.  If the Kabul-based government and myriad international aid agencies carry on with their own insular notions of what is important for Afghanistan's reconstruction without consulting its heterogeneous peoples, rebuilding the country will be an impossible project-hindered and distorted by  self-serving notions of  progress, out of touch with the practical needs and desires of people on the ground, and constantly battling a stubborn insurgency that is growing in boldness and strength with every wrong move the dominant reconstruction actors make.

As a corollary point, the Afghan government and reconstruction agencies must reassess their practice of marginalizing local religious and tribal leaders in development programs.  In particular, the role of Afghan Islamic legal scholars (the "‘ulama") is crucial to any sociolegal development programs in post-Taliban Afghanistan.  Due to the widespread influence ‘ulama carry on the ground in Afghan society, as well as the unifying role Islamic culture can play in the now severely fragmented society of Afghanistan, a sound implementation of accountability-related goals demands the incorporation of this influential group in the process to a far greater degree than has been done so far.  Not only can non-governmental ‘ulama serve as an independent constraint on government excesses, but they are indispensable liaisons, conciliators and, as Muhammad Qasim Zaman has eloquently argued, "custodians of change" at a time when there is so little communication between the rather insular international development community and an Afghan public that is growing increasingly frustrated, and for justifiable reasons.  Whether speaking of the Soviet-inspired communist parties of the late 1970s and 1980s, the Taliban in the 1990s, or now the internationally-supported transitional government, Afghans have been let down by the empty promises of centralizing governments and their parochial visions of progress for too long.

After the dreadful attacks of September 11, 2001, the United States in particular and international community at large recognized a horrendous blunder in abandoning Afghanistan after exploiting its courageous people to secure an extremely costly victory over the Soviet Union during the 1980s.[126]  Five years later, daunting lessons remain.  As we enter 2007 and mark the latest anniversary of a post-Taliban Islamic Republic in Afghanistan, bearing all the complexities and ambiguities such titles reflect, it has become increasingly obvious that international actors have far more to learn about law, politics and social organization in Afghan society than previously assumed.  While various foreign investors scramble to rebuild the country and face ambiguous progress at best, international observers are beginning to recognize that political accountability and a rule of law in Afghanistan do not automatically follow the spectacular, fleeting moments of constitutional ratifications and national elections.  Rather, for a sustainable peace to take root in Afghanistan again, reconstruction agencies must, as a start, substantially increase their knowledge and understanding of the diverse legal cultures and systems of law that operate, de facto, on the ground in Afghanistan.  Meanwhile there is an urgent need for outside forces to respect local law that resonates with the lives of its people, however unfamiliar to the foreign eye.  Beyond this, the same international forces now controlling reconstruction must relinquish notions of creating Afghanistan in a Western secular-liberal society's self-image.  A related prerequisite to the above is entrusting local sociolegal actors on the ground with the responsibility of building stable and self-supporting civil institutions on the foundation of their own unique local histories and modes of conflict resolution, a substantial portion of which is rooted in Islamic law.  Ultimately, the latter is a complex, heterogeneous and dynamic legal tradition-albeit widely stigmatized and misunderstood outside Muslim countries-that international actors are now only beginning to realize is far more sophisticated than ever imagined before the present era of reconstruction began.[127]  Afghanistan's history would teach us, however, that this is not the first time foreign powers underestimated the resilience of indigenous people in this war-torn country.  The question remains as to whether future U.S. administrations, global development agencies, and other international actors will heed such lessons in time to prevent a repeat of the past's catastrophic chain of events.

* Ph.D. student, University of California, Berkeley; J.D., University of California Hastings College of the Law.  I would like to thank Professors Naomi Roht-Arriaza, Keith Wingate, George Bisharat, Laura Nader, and Hatem Bazian for their classroom instruction and insightful discussions during my years as a law student.   It is through their critical and thought-provoking approaches to law, each in their own unique way, that I drew inspiration while formulating this article.  All deficiencies in the text are solely my own.

      [1].       Noah Feldman, A New Democracy, Enshrined in Faith, N.Y. Times, Nov. 13, 2003, at A31; Afghan Charter Wins World Praise, BBC News, Jan. 5, 2004, http://news.bbc.co.uk/1/hi/world/south_asia/3367847.stm; Bush praises Afghanistan Progress, BBC News,  Mar. 1, 2006,  http://news.bbc.co.uk/1/hi/world/south_asia/4761432.stm; Interview by Hanif Sherzad of Radio Afghanistan with United States of America Secretary of State Condoleezza Rice (Oct. 12, 2005), available at http://www.usembassy.org.uk/afghn151.html.

      [2].       See Infinite Justice, Out - Enduring Freedom, In,  BBC News, Sept. 25, 2001,  http://news.bbc.co.uk/1/hi/world/americas/1563722.stm; Freedom Arrives, United States Agency for International Development (USAID) Report, (Feb. 8, 2007) at http://www.usaid.gov/locations/asia_near_east/afghanisztan/AR_BuildingDemocracy.pdf; Building Democracy, Afghanistan Reborn, available at http://www.usaid.gov/locations/asia_near_east/afghanistan/AfghanistanReborn.pdf (last visited Feb. 8, 2007).

      [3].       Rama Mani, Ending Impunity and Building Justice in Afghanistan, Afghanistan Research and Evaluation Unit Issues Paper, (Dec. 2003), available at http://unpan1.un.org/intradoc/groups/public/documents/APCITY/UNPAN016655.pdf.

      [4].       Pam O'Toole, Afghanistan opium production leaps, BBC News, Oct. 25, 2002, http://news.bbc.co.uk/2/hi/south_asia/2361453.stm;  Pierre-Arnaud Chouvy, The Ironies of Afghan Opium Production, Asia Times (Sept. 17, 2003), at http://www.atimes.com/atimes/Central_Asia/EI17Ag01.html; Carlotta Gall, Opium Harvest at Record Level in Afghanistan, N.Y. Times (Sept. 3, 2006); Scott Baldauf & Faye Bowers, Afghanistan riddled with drug ties, Christian Science Monitor (May 13, 2005), available at http://www.csmonitor.com/2005/0513/p01s04-wosc.html?s=spworld.