Rule of Law in Iraq & Afghanistan

[JMA]

BG Martins' comments take us up to this week in Operational Law.

Regards

Mike

BG Martins is quoted as stating:

Third observation — in all of the examples, we had lawyers deployed with us who could help.

I ask in all sincerity if this is perhaps not the problem?

[LawVol]

The Article here illustrates a problem for our Rule of Law effort. Although Afghanistan does have a history of formal justice, many parts of the country have relied on an informal system consisting of tribal jirgas or shuras.

The formal system is seen as corrupt and impartial. There is some truth to this, but the issue with the informal system is that it often transgresses the Afghan Constitution and Afghanistan's commitments under international law. Just yesterday, I spoke with the Head of the Huquq in one of the provinces (the Huquq is sort of a clearinghouse for handling cases that can either mediate, assign to the jirga, or assign to the court). I asked him to explain how they ensure jirga decisions comply with Constitutional and international law. He ultimately conceded that such complaince took a back seat to public order. The ultimate goal of the jirga is harmony within or among villages. This cuts against traditional western notions of justice, but works for Afghans. The question becomes how much compliance do we require? Can we get by with less than complete compliance or must we sacrifice a functioning, but imperfect, justice system on the alter of idealism?

Our own system of justice has been 236 years in the making (more if you count our English common law origins). Can we really expect perfection in the Afghan system in a mere 7 years (as measured from the 2004 Afghan Constitution)?

[jcustis]

Can we really expect perfection in the Afghan system in a mere 7 years (as measured from the 2004 Afghan Constitution)?

Good points. And remember gang, perfection is relative.

Justice for crimes purported to be committed by Afghans against Afghans are also a wholly different matter than the rule of law and rules of evidence for crimes committed against GIRoA in the coalition sense.

LawVol, are you observing that the drug courts are more effective than the courts responsible for handling terror crimes?

[LawVol]

LawVol, are you observing that the drug courts are more effective than the courts responsible for handling terror crimes?

Unfortunately, I haven't had the opportunity to observe the drug courts yet. However, I did observe a few trials at the JCIP (Justice Center in Parwan) where the terrorism cases are tried. I was told by folks more experienced than I, that the JCIP court would be among the best I would see given that JAGs are embedded with the court. I saw an inability of attorneys to deal with basic forensic evidence. In one particular case, the question involved fingerprints. There is a lack of understanding as to how fingerprints work and how the evidence can be used. It's fixable with some training of judges and lawyers and restructuring evidence classes in law schools, but its does need to be done.

Another issue is that law schools typically do not teach critical thinking. Law is learned through memorization, akin to learning the Quran in madrassas. In fact, a good many lawyers and judges have no formal legal training, but instead are educated in Sharia through madrassas. Some knowledge of Sharia is important since it is incorporated into the Constitution, but the absence of any formal legal training is a problem.

Afghan lawyers will tell you that their Constitution requires the application of Sharia law when the Constitution or statutes have no answer. However, that assertion fails to comply with actual practice or the specific wording in the Constitution. I have no issue with applying Sharia law here (after all it is their country), but practice and written law should match. Unless this happens, there will always be accusations of impropriety, a death-knell for system legitimacy.

[jmm99]

SJAs are not the problem.

-------------------------
LawVol - Good to see you back posting.

As I've thought about this more and more over the years (40+ as a lawyer), I think we have the real "legal process" a$$ backwards.

Our formal construct for what rules a "decision-maker" looks like this - in presumed order of impact on the decision (using Quotes to set off the points):

1. Doctrinal Law (usually written) as read and interpreted by the decision-maker.

2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

3. Social Norms (usually near and local) accepted by the decison-maker.

Items 2 & 3 tend to be ignored by legal formalists.

I'd suggest that the real "legal process" is like so - same elements reversed:

1. Social Norms (usually near and local) accepted by the decison-maker.

2. Living Law (the "law" as it exists in the decision-maker's noggin without deeply pouring into the written law)

3. Doctrinal Law (usually written) as read and interpreted by the decision-maker. If this does not follow the accepted social norms, the decision-maker will interpret the Doctrinal Law to accord with Social Norms and Living Law.

I have used this "strategy" for decades - obviously not as blatantly as I present it here - and it has worked well at both the trial and appellate levels.

In the case of a Astan village decision-maker, national Constitutional law and international law are so far removed from his Social Norms and Living Law that one should not expect him to pay much attention to them at all.

Regards

Mike

[LawVol]

Mike, you are quite right. We Americans, particularly lawyers I think, become jaded toward other forms of law, especially civil law as opposed to common. However, our main ethnocentrism revolves around social or cultural adaptions of law. We seem to think that if its works for us, it'll work for others forgetting that folks have been doing this for thousands of years.

While I do believe their are certain fundamental rights that exist irrespective of culture, i.e. natural rights (existential rights?) that exist just from the fact that we exist (still working through my thought process on this one), the fact is that most law will turn on societal norms and cultural influence. In trying to enforce our own ideals of justice, we ignore this aspect of legal system creation and hamper our efforts to create a working system. I think we should focus on the big picture and worry about some of this stuff later.

Another aspect of the formal legal system lost on some in relation to rural folks, is the historical trend of desiring limited government. These folks want government to leave them alone. Security is all they really desire from the government and governmental imposition of a "foreign" legal system in lieu of their traditional methods is viewed as undesirable. We have to integrate the traditional system into the formal system and use it as a basis for "selling" the formal system to the locals. This is a generational effort though and American impatience isn't helping.

[jmm99]

What you say, fits with what Jon said here, viewed from a slightly different angle.

This is, I suppose, the tasked mission:

from LawVol
We have to integrate the traditional system into the formal system and use it as a basis for "selling" the formal system to the locals. This is a generational effort though and American impatience isn't helping.

and I couldn't agree more about the time frame (indeed, generational). I toss out what follows for thought. Unfortunately, it's not based on in-country experience. However, it does go beyond staying in a Holiday Inn Express last nite (my wife kicked me out; I stopped beating her ).

What I think is based on what I've read (as one example, Justice Sector Support Program stuff - whose links I had here, The dumb lawyer again, and here, A little part of the picture, have gone South). Freely correct any errors I made.

If I am to be consistent with my methodology (as to steps 1, 2 & 3 used by the decision-maker), those steps would also apply to the decision-makers in Kabul. Their social norms seem to be more "Western" (even "USAian" in many cases) and I suspect the "tailored suit" makes many of us (USAians) more comfortable than we are with the villager who sits there picking his feet while we talk (via one or more interpreters).

Those Kabulians have therefore taken up, into their system of social norms, part of the "Western" formal systems of international and national laws and part of the Sharia formal systems of national and local laws. The result is that their formal system of laws is within the framework of their social norms.

The issue you raise is what gets incorporated at the local level. I'd posit that the formal system (Doctrinal Law) has to be incorporated into the traditional system (Village Social Norms) - and that won't happen unless the formal system squares pretty much across the board with the traditional system.

To me - as a "Western" lawyer, the Taliban (pre-9/11) looked a rather "lawless" bunch; but looking back, I suspect they simply did not want to take on the longterm and thankless task of implementing a national sytem of laws. So, they have the Sharia as their law; but the Sharia that is applied (at least in the countries where Marc-André Lagrange has worked; see this thread, Mullah Omar: Taliban Rules and Regulations) is a "Living Law" (not exactly as written, but in the noggin of the decision-maker).

We might say that a generalized Doctrinal Law system is capable of supporting a range of Social Norms - the decision-maker can "interpret" it to do so. However, the Social Norms of a particular group are usually not sufficiently flexible to support a wide range of Doctrinal Law systems. Thus, a Doctrinal Law system (if it has any real meaning to a population group) has to accord with the Social Norms of that group - either by being expressly drafted, or by "interpretation", to meet those norms.

Do the Kabulians and the Villagers have contradictions in Social Norms ?

Regards

Mike

[Bob's World]

"Rule of Law" is a pet peeve for me as COIN theory goes.

Saddam certainly had rule of law, and it was a major reason contributing to our decision to invade as he enforced that law to ensure that no Shiite or Kurdish insurgency emerged.

The Taliban similarly had rule of law in Afghanistan. Sharia is a very effective COIN rule of law approach when one defines defeat of those who dare to complain about governance as effective COIN. Same is true for many countries on the Arabian Peninsula that are on the edge of full rebellion.

No, "Justice" is the goal, not rule of law. In England when there was a growing perception that there was little "justice" under the law they created the Courts of Equity to address this concern. Good COIN, that. Ultimately the two court systems fused into a more just legal system provided the basis for law and justice as we know it in America today. From everything I hear and read about the US Corrections system it raises a very high alert as to a fading perception of justice among critical populaces from which insurgency could emerge. We have rule of law though.

I wish the State department would change their "rule of law" division to a "justice" division; their "democracy" division to a "self-determination" division; and their "counter-terrorism" division to a "non-state actor" division. They would be more effective for it.

The rule of law is as apt to create insurgency as cure it; but justice is always a step in the right direction.