Rule of Law in Iraq & Afghanistan

[jmm99]

I'm waiting for the 2010 “The Law of Armed Conflict" to get well below $50 used (presently about $65 w/ shipping). My reason is that so many changes have been occuring since 2008, both in US and Int. Law, that I'd hestitate to believe a 2010 book, without checking original sources since then. Since what I post usually are or are referenced to original sources, I didn't see where spending ~$100 (list price) was worth it.

As to the S&R Guide, I had the same basic problem as you did. That is, as evidenced by many (but not all) sections - "Western" or "international" rules are "superior"; and should be the standards against which legal assessments and "reforms" are measured.

Here, on the other hand, are several more sections which are more positive and "local" in focus:

7.5.7 Approach: Short-Term Law Reform

Consider whether short-term law reform is necessary. Short-term measures may be necessary to address deficiencies in the law that will impact stability and to address laws that are inconsistent with human rights conventions and standards. While criminal justice laws usually receive the most attention, the majority of disputes and procedural issues that arise - and directly affect the population - initially involve nonviolent offenses that may escalate into violence if victims have no legal recourse. Short-term reform should also address gaps in civil and commercial code and procedure. In this context, short term refers to the first two years after the cessation of hostilities. See Gap/Challenge: Section 7.11.4, Non-criminal justice assistance.

Yes; although to be realistic, one could substitute up to 10 years for "short term law reform"; and 10-30 years for "long term law reform". Even under optimal conditions, a lot of "working out the kinks" is needed.

A smart country lawyer (not me - wasn't one then) commented that the (now defunct) Justice of the Peace system (minor criminal cases and small claims civil cases) was the most important part of the judicial system, because that was where most people contacted the judicial system.

7.11.4 Prioritization of noncriminal justice assistance.

Criminal justice is often prioritized as the primary focus for rule of law assistance. Other important areas of potential assistance, such as property rights or public administration reform, have not been addressed.
Property issues and displacement can affect a large percentage of the population. More people may deal with the state’s public administration than with the criminal justice system on matters such as civil registration and health services. Research and the development of best practices in these fields needs to be developed.

7.11.5 Engagement with non-state or religious justice systems.

While it is agreed that there needs to be engagement with the non-state justice system to promote the rule of law, the international community does not fully understand these systems, how they operate, what to do with regard to human rights issues, and even less so, what assistance measures promote the rule of law. Empirical, comparative research is needed. In addition, research is needed to look at how to deal with non-state, religious systems of justice and how to integrate religious considerations into rule of law assistance overall.

Yes. The term "law", if one looks at it more broadly and with respect to convincing the decision-maker, includes not only written law but also a package: "law" in the heads of the decision-maker and community; expectations of "legal" outcomes; societal norms, values and needs; and a lot more.

7.5.9 Undertake discreet legal reform in the short-term if necessary.

Whether law reform should be conducted in the short term will depend on the context. Reforms may be deferred because changes to the law may make little difference. New laws that have been drafted in haste may not have been researched sufficiently, or political will for reform may be lacking. In either case, work with what is there and find creative legal solutions to filling gaps in the law or addressing deficient provisions of law (e.g., where there is no criminal offense for trafficking, use tax evasion provisions). Short-term reforms should involve discreet changes to existing laws rather than a long-term overhaul. Address urgent problems such as laws that grossly undermine human rights or inadequate laws for pretrial detention. In the economic arena, providing for predictable contract enforcement, including oral and informal contracts, is critical. Dealing with real and personal property claims, developing mechanisms to resolve property (especially land, livestock, and commercial) disputes, and determining inheritance rights will always be an urgent need. Be aware of the impact that new laws or legal provisions will have on other laws and justice institutions.

Generally, this is fine. You can see UNese at work in defining "urgent problems" as being human rights and pretrial detention. Local priorities may be quite different.

The bottom line is that Guiding Principles for Stabilization and Reconstruction is well worth reading - and a great amount of work went into it. But, it is an animal created by a committee; and like all manuals should not be accepted as "gospel". As the title suggests, it is for "guidance".

Regards

Mike

[jmm99]

I've been directed to “In the Shadow of Wounded Knee” by Roger Silvestro, more than once. OK: for under $5, I'll bite.

Wounded Knee gets more complex since words such as "massacre" and "atrocities" tend to abound. The two other killings focused on by him were non-military.

We have a better (and more recent) example, which did not involve massacres or atrocities by anyone. Besides, it's relatively "local" to me and we "local indigenes" shamelessly self-promote. Moreover, the key reading materials for the test are free.

I speak of Sugar Point, 5 Oct 1898 (post by me here, without discussion of RoL and LoW, but with added links). KIA: 1 officer and 5 troopers (3rd Inf. Regt.) + 1 Indian policeman (caught in crossfire). Indian combatant casualties - none. As they say: "Got some".

The references: The last Indian uprising in the United States; and The Battle of Sugar Point : a re-examination.

The questions:

1. Technically, what law or laws was or were formally applied from the gitgo up to and including Pres. McKinley ?

2. In reality, what law or laws was or were really (not formally) applied by Pres. McKinley to settle the matter ?

Regards

Mike

[jmm99]

And anyone else interested.

I do have a bias in favor of Ojibwe (surprise). Part of that is explained by a 1971 MI Supreme Court decision, now going on age 41, People v Jondreau, a test case brought on behalf of a lot of Ojibwe. It was a total win, which is nice to reflect on - when we were young, etc.

That case is sometimes cited today - e.g., Robert O. Porter, Tribal Disobedience (2005), p.12:

The first case in Michigan was brought in 1965, when William Jondreau, a member of L’Anse Chippewa band, argued that he was not subject to state laws by virtue of the Treaty of September 30, 1854. Jondreau won the case in the Michigan Supreme Court in April 1971 [JMM: 6 years later !], thus opening the door for other cases to follow. While not all of the cases brought were successful, eventually, the right of Indians to fish in waters outside of their territory was upheld by the state and federal courts.

An interesting draft paper.

People v Jondreau attached (12 pages, includes 2 pages by me explaining the strategy and tactics of the Supreme Court appeal)

Regards

Mike

BTW: for some reason, my connection to my ISP is OK, but my speed to download other webpages is less than 20% of normal. Solar flares or Anonymous ?

[jmm99]

I thought this article U.S. must aid Afghan judicial system (by DAPHNE EVIATAR, 13 Mar 2012), is worth looking at for its factual observations on the current state of that judicial system. Daphne Eviatar is the senior counsel in the Law and Security Program of Human Rights First. She says (emphasis added):

Kabul has a dismal record for providing either humane treatment or due process. The United States has no reason to believe it will change its practices now.

As recently as October, in fact, the United Nations reported that the Afghan intelligence service systematically tortures detainees, based on an investigation of 47 detention facilities in 22 provinces across the country.

Afghanistan’s justice system, meanwhile, is notoriously corrupt, failing to provide even the most basic elements of fair trials, including defense lawyers. When I was in Kabul last year, Afghan defense lawyers and human-rights activists told me that defense lawyers for the accused are still a rarity in much of the country. Even when a defense lawyer is assigned, that attorney often can’t meet with his client for many months, particularly in national security cases. In the meantime, the suspect may be tortured into confessing to a crime he didn’t commit.

Once the case gets to court, getting a judge to even listen to a defense lawyer’s objections or allow presentation of real evidence is challenging. Most Afghans I interviewed insist that evidence is irrelevant in any case. The popular sentiment is that with money, anyone can buy his way out of jail. Those without, guilty or innocent, will be left to rot in prison.
...
To the U.S. military’s credit, it’s been trying to improve Afghan trials in national security cases by providing mentoring and training for judges and prosecutors handling trials in a U.S.-built facility on the Bagram Air Base and ensuring the accused get a lawyer. But that’s made only small improvements so far, judging from the poor quality of the Afghan trial I observed at Bagram last year. ...

Ms Eviatar then goes on to argue her title's point - the U.S. must continue to aid Afghan judicial system.

Now, the Afghan judicial system is very low on my personal list of priorities. The system is FUBAR and what $s are handed to Karzai & Krooks are more likely to end up in Swiss bank accounts than in Ms Eviatar's good works:

This judicial system needs far more than a few mentors for judges and prosecutors. It needs investigators trained to produce reliable evidence, prosecutors who understand its value and defense lawyers trained to demand that evidence and challenge confessions resulting from torture. It also needs to be able to ensure the safe and humane treatment of detainees.

But, if a few billions in grants/bribes are needed so that the "kids" and "grandkids" come home quicker, I'll chip in. Perhaps, even better, the Aghanis will carry out their threat not to execute a Strategic Partnership Agreement and will request that we leave - YES !

However, like Christopher Bassford, I'm having a daydream:

The correct strategy begins with calling a referendum in Afghanistan asking the Afghan people (a useful but essentially nonsensical term) whether they want us to remain or go. Once the “Go!” vote is in, we will demonstrate our deep respect for the Afghan people and our affectingly genuine commitment to democratic processes by leaving - lock, stock, and barrels of money. And take any genuine Afghan allies home with us. Who can complain about that?

The only real danger to this approach is that Afghan leaders and voters might suddenly wake up and recognize that the gravy-train is actually serious about leaving the station. Therefore the question must be artfully posed in such a manner as to guarantee a resounding endorsement of American withdrawal. It’s easy to envision us muffing it through clumsy word-smithing and our usual counter-productive propaganda efforts. One must of course concede the possibility, however unlikely, that Afghan voters will instead beg us to stay. If you agree that we would have a moral obligation to do that, then surely you will agree we also have a moral obligation to ask their opinion on the matter.

Regards

Mike