Afghanistan's Reconstruction, Five Years Later: Narratives of Progress, Marginalized Realities

• Citation: Vol. 10 No. 3
• Publication year: 2007

Gonzaga Journal of International Law Volume 10 - Issue 3 (2006-2007) 10 Gonz. J. Int'l L. 269 (2007)

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...