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Building the Rule of Law in Practice

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Tuesday, November 23, 2010 at 12:01 AM

Kandahar City, Wednesday, November 17, 2010 — Counterinsurgency (COIN) theory—for that is what my last post describes—is only that: theory. The current reality in Afghanistan is that the rule of law remains mostly just a worthy goal. To evaluate whether COIN operations here are, as Jack Goldsmith writes, a “weapon of war . . . that is in no way derogatory towards the rule of law,” one should review with a cold eye what is being done and how things are going.

To be sure, much has been accomplished over the past year towards the goal of fielding Afghan forces that can provide the basic physical security essential for law to take hold. The structure, training, and curriculum of these army and police forces are now more closely aligned than ever with the requirements of COIN in a nation of 29 million people. The Taliban, the Haqqani Network, Hez bi Islami, and other armed groups are increasingly pressured by both conventional and counterterror operations, though they remain capable of inflicting horrific attacks, particularly against civilians. With President Karzai calling for transfer of security responsibility to Afghanistan by 2014, there is time to further develop the capabilities of Afghan forces while also partnering with them to keep unrelenting pressure on insurgent leaders and networks for another 36 to 48 months. Even after that, the prospect of a long-term strategic partnership with the United States means that psychologically, time is now on the side of Afghans who desire peace.

Time is now also on the side of Pakistanis who desire peace, as our assistance to the east encourages increasing the pressure against insurgents on both sides of the Durand line. The remote and economically underdeveloped mountainous region on either side of that century-old and artificial border between Afghanistan and Pakistan remains an epicenter of terrorism, however. Continued engagement with both nations remains necessary to eliminate sanctuaries that, if left alone, have proven capable of hatching global threats.

Yet while there now appear to be time and forces enough to increase Afghans’ sense of security in the months ahead, the conditions to create lasting security through the rule of law are fleeting.  According to a survey by the Asia Foundation, the largest percentage of Afghans than at any other time in recent years now believe their country is moving in the right direction (47 percent of respondents, up from 42 percent in 2009, and 38 percent in 2008). The main reason for the increased optimism is the perception of improved security. Still, the survey reflects Afghan impatience in the striking statistic that about half of respondents across Afghanistan say they have some level of sympathy with armed opposition groups. In particular, more than 50 percent of respondents in the Pashtun belt record sympathy. Suggesting reasons for the sympathetic responses, a full 76 percent say corruption in the incumbent government is a major problem, with around half of respondents saying they personally have encountered some level of corruption while in contact with basic public services such as accessing healthcare, applying for jobs, receiving official documents, and dealing with the police or the courts.

In the provinces and districts where law and dispute resolution are being effectively delivered, the Asia Foundation Survey reports the good news that Afghans give the government high marks. But in some provinces, such as critically important Kandahar in the south (from where I’m blogging now), courts can only operate in the provincial capital, and community-based dispute resolution through local elders and authority figures either lacks the linkage to the formal justice system that Afghans actually like to see or fails to function effectively at all.

Large swaths of Kandahar province that long served as insurgent safe havens are now being physically cleared of Taliban for the first time by Afghan security forces partnered with four additional U.S. brigades, consisting of roughly 15,500 of the 30,000-troop uplift ordered by the President last November. These clearing operations are an indispensable part—but only one part—of a comprehensive COIN effort known as Hamkari Baraye Kandahar (“Cooperation for Kandahar”), by which the provincial and district governors, the line ministries of the Afghan central government in Kabul, the regional Afghan security force commanders of the army and police, the International Security Assistance Force (ISAF) and International Joint Command (IJC), and the commander of IJC’s Regional Command-South all intend to deliver greater security, increased development, and better governance to Kandahar City and the surrounding areas.

Recent efforts to deliver better governance in and around the Chel Zeena (“Forty Steps”) neighborhood of western Kandahar City illustrate how, through Hamkari, an Afghan and civilian-led rule of law campaign is being carried out.  That campaign is focused upon holding what has been cleared and then building the institutions necessary for security that will last after soldiers are no longer present (the clear-hold-build methodology is described in the COIN manual I drew from in my post of yesterday).  The large Sarapoza detention facility and prison in the Chel Zeena area, run by Afghanistan’s Ministry of Justice, has in recent years been chronically vulnerable and a symbol of the government’s ineffectiveness. In 2008, some 400 Taliban prisoners escaped in a daring daylight attack. Meanwhile, legally sustainable and long-term detentions at Sarapoza of captured insurgents have been difficult to achieve, as security forces lack the capacity to convincingly establish an evidentiary basis to detain and convict under Afghan law. Assassinations of investigators, bribery of prosecutors, intimidation of judges, and attacks upon witnesses further corrupt the system and obscure both evidence and law.

Although U.S. forces in Afghanistan ultimately retain the option of detaining insurgents under Congress’s 2001 Authorization to Use Military Force—as informed by longstanding law of armed conflict principles and as acknowledged by the Afghan government in various bilateral diplomatic exchanges—it is desirable in COIN to transition from combat operations to law enforcement as soon as that becomes feasible. The cause of quelling an insurgency, which ultimately must be defeated on a political level, is eventually better served by a government enforcing a country’s own laws than through combat detentions by foreign forces.

The Afghan national government has been reinforcing local Afghan leaders’ Hamkari objective of establishing the rule of law at Chel Zeena and Sarapoza prison and then projecting criminal justice to outlying districts. Afghanistan’s Ministers of Justice and Interior on 27 September agreed to immediately build and man, with coalition nation financing and international advisory assistance, a secure rule of law center. The center, the first building of which is to be inhabited within weeks, will feature modest but efficient offices, round-the-clock lighting and utilities, administrative facilities, evidence and hearing rooms, as well as protective housing for investigators, prosecutors, guards, and clerical personnel. The immediate goal is to conduct professional, evidence-based investigations and independent, law-governed prosecutions of the individuals detained in the newly refurbished Sarapoza pretrial detention facility.  Corrections mentors, meanwhile, will work to bring the conditions of detention into compliance with Afghanistan’s 2005 Law on Prisons and Detention Centers while also reviving the vocational-technical and education block of the facility.

A characteristically superb U.S. unit, partnered with Afghan uniformed police, is based here in an adjacent compound, providing continuous on-site leadership and security. The entire Chel Zeena neighborhood, once terrified by the threat of external Taliban attack or internal prisoner disruption, is being transformed into a visible symbol of hard-won government authority under the law. Resolution, formal and informal, of disputes that could cause conflict is now possible, as residents increasingly trust the local and other authorities seen to have broken the Taliban’s grip. Meanwhile, prosecutors recently assigned by Afghanistan’s Attorney General to the outlying district of Arghandab—about a 25-minute drive from here over roads once infested with improvised explosive devices (IEDs)—are, with coalition security and advice, developing evidentiary case files for follow-up at Chel Zeena once the detainee has been transferred to Sarapoza. This begins to project law and governance to the important district and local levels.

By providing essential field capabilities—security, communications, transportation, procurement skills, engineering, and legal liaison, training, and advisory assistance—the Rule of Law Field Force (ROLFF) is helping Afghan officials establish the Chel Zeena rule of law center in Kandahar. It is also beginning similar rule of law “green zones” in other recently cleared areas in Afghanistan. Doing so requires close coordination with locally deployed military units and partnered Afghan forces, as well as with talented officials from the U.S. interagency, Canada, the United Kingdom, and other committed international donors. All ROLFF operations are undertaken with an Afghan lead and pursuant to policy guidance from Ambassadors Karl Eikenberry, the U.S. Chief of Diplomatic Mission, and Hans Klemm, the Coordinating Director for Rule of Law and Law Enforcement.

Part of a sweeping summertime reorganization of U.S. civil-military efforts in this area, the ROLFF was created on 3 September to implement strategically important rule of law initiatives in a variety of field tactical settings and to integrate diverse police, investigative, prosecutorial, judicial, and detention disciplines into a more effective whole. That reorganization was prompted by Eikenberry and by senior military commander General David Petraeus, who recognized the success over the previous year of Vice Admiral Robert Harward’s Joint Task Force 435 in building Afghanistan’s capacity for humane, effective, and legitimate detentions.

A newly expanded Combined Joint and Inter-Agency Task Force (CJIATF) 435, designated to be the higher headquarters of ROLFF, thus received from General Petraeus a broader mission that included partnering with Afghan, U.S. interagency, and international partners to build Afghan capacity across a range of functions supportive of the rule of law. Other U.S. reforms included establishment of a Deputies Committee, comprising senior officials from across the interagency to formulate policy and advise Klemm, as well as a fulltime Interagency Planning and Implementation Team.

In my next post, I will reflect on the term “lawfare” in light of both the theory and practice I have described.

Brigadier General Martins can be reached at [email protected]

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