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Securing the Bridge from the Other End: Tactical Rule of Law in Non-Western Countries
Armies have always seen bridges as key pieces of terrain, tactically and sometimes even strategically critical. Bridges allow attacking and retreating armies to cross rivers in the same direction. The retreating army wants to keep the bridge intact in order to use it at a later date to conduct a counter-attack. But, if the retreating army is in danger of destruction, the bridge must also be destroyed in order to gain valuable time and space away from the attacking army. To that end, the retreating army will secure one end of the bridge and then wait for the attacking army to approach the other side. The challenge for the attacking army is to secure the bridge so quickly that the enemy does not have the opportunity to prepare the bridge for destruction and entrench on one the other end.[i] This simple game of time and space presents an excellent metaphor for the challenges of transitional justice in counterinsurgencies like the one in Afghanistan.
The rule of law effort Afghanistan since 2001 is the equivalent to the securing of only one side of the transitional justice bridge: the high side. National laws like the Afghan Criminal Procedure Code have been drafted, infrastructure like courthouses and police stations have been built by American taxpayer dollars, and police, prosecutors, and judges have been paid. Although these developments are very positive and provides the structural foundation to allow Afghanistan to enter the modern era, the cost was very high, and has not produced the rule of law as quickly and in the form that western brokers would have liked because there was little to no input and buy-in from the people, representing the low side.
Top-down approaches in rural tribal societies often may not reflect what local leaders understand and may take too long to impact villages that are far removed from central authorities. This represents a stability gap because insurgencies are born and supported at the village level.[ii] The village itself is often in the best position to evolve its own justice system until the centralized government hundreds of miles away can achieve legitimacy and the confidence of the people. The converse is that, in conflict zones, the locality’s preexisting system may have produced or exacerbated the conditions that caused the insurgency. Governments must not assume that villages will simply fall into line with new authorities, new agencies, and new laws. Just as a bridge must be secured from both sides simultaneously in order to prevent its destruction, so too must justice transition from both the highest and lowest levels of government simultaneously.[iii]
This paper discusses the importance, and the danger of neglecting the transitional justice effort at the lowest levels and provides necessary information for tactical legal advisors in order to enable them to fully engage with their own rule of law programs that complement the national program. Tactical units and their legal advisors, those entities that have the most contact, and sometimes the only contact, with villages and villagers in rural areas, have largely been left out of the transitional justice process to the detriment of the rule of law program. While operational level - and even strategic level - rule of law efforts are ongoing, brigade combat teams and smaller tactical elements that are responsible for local security, must resource and facilitate transitional justice from the bottom-up.[iv] Fledgling federal and provincial justice systems, developed by western brokers, implemented by operational-level entities and party elites in cities, and based off of international standards of human rights, should be developed simultaneously with local justice systems that are facilitated by tactical entities and based off of tribal and religious legal concepts.
Rule of law programs have used many tools to build useable justice systems including construction of courthouses, training of law enforcement, filtering judicial candidates, and training programs.[v] But the village has its own tools that are not reflected in national laws. Since the units of brigade combat teams are often the only coalition and inter-governmental entities to reach villages on a regular basis, the brigade operational law team is in a unique position to conduct individual comparative studies of law and custom. However, rule of law is ironically, although a core competency of the Judge Advocate General’s Corps, not typically a duty associated with tactical level judge advocates, and they are usually required to coordinate with higher headquarters for assistance.[vi] This leaves the brigade’s legal team in either the precarious position of attempting to build the plane while in flight, or to revert back to the national rule of law program.
Organization of the Argument
This paper will begin by discussing key terms and concepts paying particular attention to the nature of insurgencies and why villages in rural areas are critical to stability. Second, I will describe the human rights characteristics of the national rule of law program, or the top. Third, for the benefit of tactical legal advisors I will conduct a comparison of international human rights principles with human rights norms arising out of local influences using elements of Sharia and Pashtunwali. Finally, I will conclude with recommendations on the resourcing of the brigade operational law team, and recommended training. Transitional justice, regardless of the location of the conflict, must approach a culturally unique rule of law program from both ends.
Key Terms and Concepts
Three Levels of Warfare
It is important to understand the three levels of warfare in the U.S. military bureaucracy. Strategy is the highest level and consists of the development of national – or multinational – objectives and the proper application of instruments of national power. This level of war is conducted at the national level. The operational level links the strategy with the lower level units that will actually be conducting the war fighting and security. The operational effort is usually seen at the division, corps, joint task force or even higher levels and will often be limited to a specific theater of operations such as Iraq or Afghanistan.[vii]
The Tactical Level
The tactical level is the lowest level or warfighting and consists of company, battalion, and brigade sized organizations. These elements actually conduct the battles, engagements, and other activities on the ground, and in the streets and villages, that will achieve the objectives. They are also typically the only forces that have any contact with village-level leaders. [viii] For purposes of this paper, the “tactical level” will refer broadly to not only the military forces that have frequent contact with local leadership, but also non-governmental organizations, and interagency partners, so long as these other organizations have enough of a persistent presence, knowledge of the indigenous people at the lowest levels, and have enough contact with the local level to provide advice and mentorship.[ix]
An insurgency exists when an organized group or movement uses subversion and violence to force political change to the lawful government where the group operates.[x] Insurgencies are sparked by some level of dissatisfaction with the constituted government. If the underlying disease of the crisis is political, then the violence is the symptom of dissatisfaction.
This means that to counter the insurgency, forces must fight the enemy while simultaneously facilitating stability in order to eliminate support to the insurgents. [xi] Fair and legitimate systems of justice are a critical factor in effecting an inclusive government thereby offering no market for the insurgent’s brand of reform.
Countering the Insurgency
Why is the Rule of Law so important in counterinsurgencies? Why attempt to build a legal infrastructure in Afghanistan at all as opposed to simply targeting members of al-Qaeda and the Taliban? The answer is surprisingly simple. To counter an insurgency, forces must know where the insurgents are. In order to discover this, forces need the support of the people. But, the people will not help government forces if they cannot be protected from the insurgents. The people must have a justice system in which they can be confident. A system that will be effective in resolving disputes without resorting to shadow justice systems like that of the Taliban.
Counterinsurgency offers particular challenges to operational law practitioners because if the application of force is mismanaged, even if it is lawful, fuel could be added to the insurgency by increasing civilian dissatisfaction at the local level.[xii] Political dissatisfaction with the lawful host nation government sometimes originates from past government sanctioned violence, arbitrary restrictions on liberty, and systemic violations of human rights creating a market for a shadow government. These means that even lawful killings and arrests could actually decrease security and governmental legitimacy simultaneously thereby degrading the very conditions which security forces are deployed to improve.
Operational Level (National Level) Rule of Law Programs
Key Components of a Rule of Law Program
What is the “Rule of Law.” One common definition is from U.S. Army practice which states that rule of law is “a principle of governance in which all persons, institutions and entities, public and private, including the state itself, are accountable to laws that are publicly promulgated, equally enforced, and independently adjudicated, and which are consistent with international human rights principles.” The principle elements of this definition are accountability; publicly promulgated laws; equal enforcement; independent adjudication; and principles of human rights.
The objective of all parties is to stop the armed conflict under terms favorable to one side or the other. The insurgent wants to affect change. The coalition and host nation wants to eliminate the threats to the recognized government and create stability. Most importantly, the people want to be safe and live their lives with some level of non-violent normality. According to western policy-makers and commentators this normality means accountability, publicly promulgated laws, equal enforcement, independent adjudication, and a basis in human rights, a different legal regime than the law of armed conflict although both are rooted in the same traditions.
There is no single definition, but among commentators, there are common themes.[xiii] First, the rule of law framework exists at the national level. Second, the system is fair and impartial. Third, the law applies to everyone, even to the government. Fourth, citizens understand what the law is. Fifth, citizens have access to the justice system. Finally, substantively, the law protects human rights.
Domestic Procedural Law and International Human Rights
A national justice system rooted in principles of international standards of human rights is necessary, not only to improve the quality of life of citizens, but also to usher a transitional government into a modern era of stability. The methods and recommendations that I propose in this paper should not be interpreted to call for a relaxing of human rights norms. It merely calls on readers to recognize the factual condition that human rights norms as the west understands them may be nonexistent, or in a different form, in rural areas of conflict zones. Despite this recognition and the criticisms of national rule of law programs, a modern framework that will be respected among nations must not be abandoned in favor of local development; they must both be developed together.
It should be noted that a lack of human rights, and government corruption and abuses may have been the cause of the insurgency in the first place. This is why a publicly promulgated human rights framework is but one pillar in the foundation of a rule of program (the other pillar being the rights, duties, and influences that are recognized at the lowest levels). One scholar points out that most human rights abuses in Muslim countries occur as a result of the abuse of executive power (national level), or by religious fundamentalists (the preexisting terrorist enterprise).[xiv] This view is consistent with the brand of policing that was implemented by the Taliban regime.
The Afghan Criminal Procedure Code, which is the implementation of that national human rights framework, is exceedingly modern and addresses virtually every area of concern that could arise under international human rights norms.[xv] This is not surprising since it was drafted by an Italian team, and a large chunk of funding for Afghan legal reform was contingent on a western-style system of justice.[xvi] The code contains over ninety articles of procedural rules including the presumption of innocence (the first article which addresses the rights of the individual), duration of arrest, exclusionary rules, disqualifications of judges, procedures on investigations, jurisdiction, interrogation procedures, the collection of evidence, and the presence of defense counsel at all stages of proceedings. It is a model of domestic implementation of the body of international agreements on human rights, and western lawyers would have no problem understanding the concepts and standards expressed in the document.
The Procedural Law and the Courts
The rule of law system aspires to ensure that individuals rely on the existence of justice institutions in the context of their daily lives.[xvii] A fair system of justice that touches every citizen represents an inspiring goal for people who have never experienced justice. The Afghan Criminal Procedure Code delivers this as well in establishing different court systems and creating rules for conflicts of jurisdiction.[xviii] There is even an appeals process which allows the accused to challenge the verdict of the primary court.[xix] In a final nod to western systems of justice, there is a Supreme Court which has the jurisdiction to hear appeals regarding legal errors, and primary court decisions that are based on unlawful evidence collection under Article 7.[xx]
Both the procedural law and the court system offer an amazingly fair, impartial, and modern legal system from which many Muslim countries could learn much. There is only one problem with this system: it was midwifed by western governments, and is administer in Kabul.
The Other End of a Really Long Bridge: Tactical Rule of Law
“Everything important in Afghanistan happens in the village, not in Kabul.”[xxi]
Why the National Rule of Law System is not Working in Afghanistan
What is the effect of a publicly promulgated system of laws to people who cannot read, and who may take their guidance from a mullah who has had only a brief education at a madrassa, or from a tribal leader whose leadership is borne from money, violence, or intimidation? What about equal treatment under the law to tribes that have been feuding for generations, or to people who believe in a gender unequal interpretation of Islam? What about independent adjudications that may take a long time and even then, result in the accused being released? What about the notion of justice where guilty people could go free if the prescribed rules of evidence are not followed by police? These questions rest at the heart of the challenges of implementing the rule of law program with populations that are outside the influence of the official justice system.
Publicly promulgated laws may be a foreign concept to villagers, as will equal enforcement and independent adjudication. Although a transitional government may recognize international standards of human rights, tribal structures may not right away if ever.[xxii] For example, it is one thing for the International Covenant on Civil and Political Rights to have entered into force for Afghanistan; it is quite another to convince feuding villagers that they are bound by the same provisions, or that there is something to be gained by using a system that is slow and perceived as corrupt.[xxiii]
Contrast Kandahar City, a large urban area with Panjwa’i or Maiwand, both rural areas. Kandahar City has a mature judicial infrastructure, has judicial personnel who are available, better trained law enforcement personnel, and may be able to recognize a threat earlier in a threat cycle and target the individual with a law enforcement response that is not dissimilar to systems in Europe. More importantly, a law enforcement response in Kandahar City is entirely feasible. Absent the occasional car bomb or murder by insurgents, law enforcement enjoys a high degree of freedom of movement in Kandahar City.[xxiv]
In Panjwa'i or Maiwand, there is little governmental presence and a much higher level of influence from informal sources. In those cases, the rural area’s idea of justice will be different. Convincing a village to arrest an insurgent, when it does not have an investigatory capability, would create a conceptual barrier. Further, telling the village to simply let the official police handle the matter would also be unacceptable – by the time security forces were able to plan a deliberate operation to dangerous areas, it would be too late. Police simply may not have the capability to operate in the area, may not be trusted, and may not have a significant amount of contact with the area to be a realistic option. Unless the informal influences are developed and exploited, there will only be one other group that does have that capability: the Taliban.
The top-down approach does not work in Afghanistan because justice systems with which rural populations are familiar in Afghanistan exist at the village levels. If the official system cannot reach that far, then something else has to replace it. This is often the insurgency.[xxv]
The wrong thing to do if the official system cannot reach the rural areas is nothing. Counterinsurgency is largely a political struggle that has a security element, not an armed crisis with political element.[xxvi] Much like an untreated wound, localized grievances if ignored have the habit of not remaining local for very long, because shadow spheres of influence will quickly replace official authorities.[xxvii] These wounds and grievances must be treated in some manner so that the people do not go to the insurgency for assistance.
The objective in rural areas is to convince the population that it is wrong – either because it is against the law, or contrary to some other moral or ethical sanction – to support the insurgency. If the official legal system cannot influence the village level, then tactical legal advisors must be aware of – and well-versed in – the informal legal influence that exists at the village level: religious law and social codes.
Legal Influences at the Tactical Level: Religious Law and Tribal Codes for the Tactical Practitioner
At first blush to tactical legal practitioners, a village’s understanding of Sharia may appear to create an impediment to the implementation of the rule of law. Resist the urge to characterize this system as backwards, and do not shy away from this legal system and its informal dispute resolution mechanisms. They offer alternatives to the more extreme methods of the Taliban insurgency. Practitioners should seek to understand it, exploit the inherent flexibilities in it, and facilitate the common factors with international human rights. It is necessary to learn the source of these flexibilities so that practitioners can operate within them.
In the Afghan village, there is no difference between religion and law. The most glaring example of the poor understanding of the expectation that the Afghan criminal code will influence behavior in rural Afghanistan.[xxviii] The criminal code was “transplanted” into the Afghan legislative system.[xxix] Unfortunately, there were already preexisting legal influences in Afghanistan, some which were even older than Islam itself.[xxx] The ICPC was passed largely due to the influences of western donors who required compliance with international standards of human rights as a condition to monetary contribution.[xxxi]
Was the lack of cultural input into the ICPC borne from a western suspicion of Sharia? Was it from a basic lack of understanding of Muslim culture, or more specifically the application of Sharia? The general justice norms of both east and west can be surprisingly similar with the right interpretation, and a possible step toward bridging the gap between disaffected rural Afghanistan and the centralized federal system of the Government of the Islamic Republic of Afghanistan is to find the common ground between an acceptable interpretation of Sharia at the local level consistent with the national justice system.
The Well-Trodden Path is Actually Quite Wide: The Flexibility of Islam
If the Brigade Judge Advocate – the tactical legal advisor – could simply open the Book and read the law in order to understand Sharia, then the comparative legal study between international human rights and Sharia human rights would be easy. Unfortunately, Sharia is not a system of positive law and practitioners must be aware that when conducting a comparison, the traditional method of lining up similar provisions of civil code will not work. Literally, it means “a well-trodden path to water, the source of all life, representing the Path to Allah, as given by Allah, the Originator of all life.”[xxxii] It has also been described as God’s will for humanity generally.[xxxiii]
Islam lacks a centralized interpretive authority. This results in many interpretations of Sharia often including localized applications especially in the rural areas where forces may be operating.[xxxiv] This is not necessarily a bad thing; lack of interpretive authority means a degree of flexibility to create consistency between a village’s understanding of Sharia and the central government’s legal system. This means that if a village is using Sharia as a reason to commit human rights abuses, then it can also use Sharia to eliminate them.
The concept of justice in Sharia means “giving everyone his or her entitlement,” and is not a rigid system. The Qur’an is full of themes that can help legal advisors understand and discuss Islamic justice including ma’ruf (fairness) and ihsan (equity). Justice is also sometimes expressed in terms of the balance achieved in maintaining the law-abiding community (ummah).[xxxv] These are the general concepts of Islamic justice common to all Muslims.
The Flexibility of the Afghan Islamic Tradition
In addition to the inherent flexibilities of Islam generally, practitioners must also be aware that Afghanistan’s own Islamic traditions add another source of flexibility. Of the five schools of Sunni Islamic jurisprudence, Hanafi is the predominant legal theory among religious leaders in Afghanistan, and the only Islamic legal theory that is sanctioned by the government.[xxxvi] The Hanafi Madhhab features an order of authoritative precedence which includes in descending order the Qur’an, the Hadith (authentic narrations of the Prophet Mohammed), ijma (consensus of the Muslim community), istihsan (discretion), and local custom.[xxxvii] The last two are of particular importance to rural areas and offer the tactical legal advisor much room to engage with local leaders.
Once commentator has characterized the national applications of Sharia into three categories of legal systems in Muslim countries: Classical Systems which represent the very small minority of Muslim countries, Secular Systems which also represent a minority, and Mixed Systems which represent the majority of Muslim nations. Professor Otto claims that Afghanistan is a mixed system because it has a generally secular constitution and its policies are influenced by Islamic law.[xxxviii] Again, however, this cannot necessarily serve as a predictor of the behavior of all Afghans in a given situation, but rather as a public statement of the recognized government’s position on the rule of law. The ability of the constitutional half of a mixed system to influence the local level, especially in rural areas is dependent on many factors.[xxxix] Afghanistan, at the village level, will more closely resemble a classical system of Islam, so practitioners must take great care to be critical in their preparation and training, especially when considering high level research from individuals who lack experience at the lower levels. Afghanistan is a mixed system of the Hanafi Madhhab at the national level with classical system features at the village level.
The Taliban, on the other hand, brought to Afghanistan a foreign interpretation of Islam to which Afghans were not accustomed. Its temporary success was due to the weariness of Afghans with ten years of war between the mujahidin and the Soviets, and the chaos which ensued during the civil war after the withdrawal of Soviet forces. In short, some Afghans sold their spiritual beliefs for stability; some had it taken from them at gunpoint. The Taliban’s strict interpretation of Islam resulted in extrajudicial killings for violations of Sharia, public amputations, prohibitions on female employment and education, forced attendance at mosque, the burqua requirement, and the banning of music and television.[xl] Viewed in an historical context, this extreme interpretation of Islam should not be taken to be the widespread beliefs of all Afghans, and forces should be very cautious to make any generalizations because the Taliban way does not necessarily represent the beliefs of all rural Afghans.
Despite the tribal heterogeneity of Afghanistan, Hanafi Sunni Islam has been its primary unifying factor, and can be once again with the engagement of villages.[xli] In the realm of human rights, however, Hanafi Islam has great potential because of its flexibility. Afghan villagers will often not think of their behavior in terms of rights, but rather the interaction of one another within the community. According to one scholar, this is manifested in “love, compassion, self-preservation and self-sacrifice in pursuit of happiness and peace for themselves” and their families.[xlii]
Within this community framework, however, exists rights which may or may not be recognized by village elders and tribal tribunals, not because of the rigidity of Islam, but because of the poor education and literacy rates in rural Afghanistan. The Koranic Arabic word for “right” is Haqq.[xliii] It can have many amorphous meanings including “justice, right as opposed to falsehood, a legal claim, an obligation, something that is proven and an assigned portion,” so it must be used in the correct context and the correct nuance.[xliv]
Within the concept of Haqq, the Qur’an clearly supports the existence of rights which are like international standards of human rights. These include freedom of religion,[xlv] the freedom to speak out,[xlvi] and freedom of speech.[xlvii] The rights of women, admittedly, are not as present in the Qur’an, but then again, neither are they present in the Holy Bible of the western tradition. Under Islamic tradition, women have suffered, but this is not necessarily due to strict mandates of Sharia law, but rather a result of male-dominated society whose origin predates the Islamic era.[xlviii] The general Koranic concept of human dignity, however, supports equality, and local interpretations of Sharia should not stand in the way of progress even at the local level. From 2012 to 2013, the United States Agency for International Development conducted a great deal of research on the general legal knowledge of village elders in rural Afghanistan. Their research discovered that 72% of rural Afghan elders believed that women and men were equal under the law.[xlix] Despite this, the Afghan practice of forced marriage, often child marriages where a female daughter is offered to another family in order to satisfy debts, often occurs despite being illegal under the Afghan Criminal Code. The tribal structure has a flexible mechanism to address issues like these although it often takes courageous advocates to conduct the education.[l]
Tactical forces must first gain a visualization of what a particular village’s brand of Hanafi law looks like, and then be able to assess the extent to which Sharia governs the daily lives of villager and gauge whether there is room to introduce human rights principles.[li] By studying the local system, tactical personnel can achieve a high level of understanding of the motivating factors of the village and determine in what manner to introduce human rights principles into these factors.
The Tribal Code and its Relationship to Sharia
Practitioners must also assess the extent of the influence of Pashtunwali in the villages of their battle space. The constitutional aspiration of the central government in Kabul combined with the Islamic legal foundation in southern Afghanistan still cannot provide a predictable behavior of the people of southern Afghanistan. The Pashtun people live under a social code which, although not necessarily operating as an official legal system, still directs the tribal and individual behaviors and is often confused as law by village elders and even huqquqs.[lii] Like Sharia, the Code has no central authority, which means there is the potential for much flexibility in interpretation.[liii] Characteristics of the Pashtunwali social code consist of badal (revenge killings), melmastia (hospitality), and nanawatai (sanctuary). [liv] Offenses against the honor of the tribe and disputes generally can spark feuds that can last for years and can be highly destabilizing.[lv]
Forces should look for any history of badal in their areas and seek to informally facilitate their resolution. If a resolution under Sharia exists, then that should be pursued as the more supreme authority. Under the Hanafi Madhhab, a local custom including Pashtunwali, that violates the Hadith would have to subordinate itself accordingly if there is an alternative under Sharia. The challenge would obviously be that this subordination is dependent on local knowledge of the Hadith and its appropriate application. Tactical personnel are well-advised to not only become familiar with the order of legal influences in their areas, but also to be able to discuss it competently after gaining trust and credibility.[lvi] Tactical personnel must discover to what degree Pashtunwali is practiced in a particular village, discover whether there is room to introduce an alternative method of dispute resolution, other than revenge, and discuss the matter with leaders.
Find the Shuras and Attend Every One
The shura is a local council of leaders and are convened on an ad hoc basis.[lvii] Like beer festivals in Germany, there have been shuras for every conceivable subject from real estate disputes to rule of law strategies. These can be informal gatherings with tribal elders and other attendees and are usually Afghan driven, or they can be elaborate conferences that resemble a western convention. Plan to attend almost every one of these events because important people in tribal hierarchies will be there, and relationships can be built. A good feel for the reasonableness and flexibility of beliefs can be assessed simply by observing the conduct at these meetings. The extent to which outsiders participate can vary, but chances are greater if there is a preexisting relationship, and if funding for the event can be secured.
One does not simply waltz into a village and announce, “I am here to educate you on Sharia law!” Such a practice in the best-case scenario will eliminate that individual’s credibility, and in the worst case, may result in that individual’s head being forcefully removed from his body. However, it is possible to build trust and relationships with Afghans in several ways.[lviii]
Tactical legal practitioners already have their own quasi-community outreach program because they will often serve as Foreign Claims Commissions to compensate local nationals for damage done by coalition forces.[lix] Second, Judge advocates should be attending every shura, and attending every key leader engagement. Third, they should be travelling with the commander every time a ground mission takes puts him in contact with villagers. This will often take many attorneys out of their comfort zone and is probably not the type of practice foreseen by most while in law school. Regardless, relationships in Afghanistan take time, and that time would be well-invested.[lx] Afghanistan is a fascinating and ancient place, and a newly arrived Judge Advocate cannot fix it quickly. But, he or she may be able to move the ball forward one yard at a time.
Resource the Units and Organizations that Have the Most Contact with Villages
The expensive and high-level rule of law programs have resulted in very little success in Afghanistan. There is no one size fits all solution to village level justice. Sharia and Pashtunwali are not followed consistently, and this requires a great deal of local knowledge.[lxi] It also takes time and human resources that brigades, as the largest tactical formation in the U.S. military structure, do not have.[lxii] Brigades must be resourced with an attorney whose duties must include not only the transitional justice within the national programs, but also the conducting of key leader engagements and village outreach in order to assess the legal knowledge of local leaders and then offer education. This duty should also include a knowledge of how disputes are resolved at the local levels.
The United States, in its current drawdown, is focusing on regional alignment. It is foreseeable that each brigade could be partnered with a particular engagement region. The staff rule of law attorney should conduct extensive formalized training, at civilian institutions if necessary, in the culture and practices of that particular region. If operating in a Muslim country, he or she should already have extensive knowledge of Sharia and any other tribal code that is applicable. Finally, the rule of law attorney should also have competent language skills.
Some critics may say that this would require the armed forces to recruit many more attorneys. This is not necessarily the case. Attorneys from the Army and the Marine Corps are currently shouldering almost all of the tactical legal load of American contingency operations. The U.S. military should consider taking personnel from ineffective and expensive higher level programs and placing them in favor of more effective lower level programs. This may alleviate the need to recruit more officers. Tactical rule of law attorneys can also be recruited from all the services, not just from the Army and Marine Corps.
Another criticism is that the language and additional legal training may take attorneys out of the field for too long. This is a valid criticism, but one that is also subject to the appropriate amount of prioritization. Stability operations are the only phase of a conflict that can ensure that armed conflict never takes place again in a particular country.
Resource Rule of Law Assistance Programs Long Term
In Kandahar Province up until the beginning of 2014, USAID operated several rule of law assistance programs that either directly or indirectly advised local and provincial judicial structures like the huqquq. Major General Robert Abrams, the commander of Regional Command South – the coalition command responsible for Kandahar Province – from 2012 until 201, quietly declared a rule of law victory in the summer of 2013 which effected the withdrawal of most of those programs. This was a mistake, and the 3d Infantry Division left behind a backlog of cases due to the inability of Afghan law enforcement to prepare cases for trial. When the 3d Infantry Division was replaced by the 4th Infantry Division as the Regional Command, the new forces quickly discovered that the rule of law in rural Afghanistan was anything but victorious, and quickly attempted to cobble together a rule of law task force at the brigade level with a single attorney and a single law enforcement professional to replace an entire field force. District level – the Afghan equivalent of the county – programs focused on human rights education of district leaders, but that program was eliminated as well. Rule of law assistance programs are critically important and must be persistent and well-funded. [lxiii]
Cross the Bridge
Eventually, the more exposure that key indigenous leaders, shuras, and huqquqs have to reasonable interpretations of Sharia and federal codes, the more they will be able to evolve into the modern realm of international human rights norms. In addition to the direct approach of tactical legal assets that are a permanent part of brigades, Security Force Advise and Assist Teams that can continue to mentor fledgling police departments must also become standard fair for conventional forces.[lxiv] Second, rule of law efforts at the brigade level should be nested with USAID assistance programs in order to give USAID the access and security it needs. The two should not simply be aware of each other, but part of the same tactical-level interagency team that conducts joint planning and joint operations. Third, U.S. government organizations that operate at the village level should be aware of non-governmental organizations and individual heroes like Kimberly Motley who are affecting change at the lowest levels and facilitate their work to the maximum extent possible without sacrificing the independence and neutrality of those organizations.
Conclusion: The Execution of Hamed the Moor
When attorneys were law students, most probably thought they would one day have offices, wear business suits, and meet with clients in nice clean facilities in New York, or Washington, D.C. or some other civilized and sophisticated place. Few probably saw themselves going to places that were dirty and dangerous. But, that is exactly what village level transitional justice is all about. It is dirty, it is often not pretty, and sometimes it is dangerous.
At the same time, it is a wonderful study of local customs and cultures and presents a unique opportunity to conduct a different type of comparative law if it is resourced properly. These comparisons sometimes reveal systems and norms that do not resemble western notions of justice or even international norms of human rights, but slow, deliberate and respectful efforts can sometimes create progress inch by inch. The practitioner who scoffs at the backwardness or displays arrogance towards the perceived inhumane is in danger of missing the larger picture of the opportunity for flexibility and reform in the absence of an effective official system.
Among the rocks of Wadi Kitan during World War I, T.E. Lawrence wrote of a poignant example of the necessity of administering the tribal code, and its tactical implications prior to the Akaba campaign.[lxv] Lawrence’s small force of combined Arabs contained, among others, the Ageyl and the Moors, two different tribes. In one unfortunate incident, Hamed the Moor murdered an Ageyl, and freely confessed to the crime while in the field. Lawrence’s fear rested in the likely feud that would follow the incident.
Allowing the crime to go unpunished would have threatened the cohesion of the force. “There were other Moroccans in our army; and to let the Ageyl kill one in feud meant reprisals by which our unity would have been endangered.”[lxvi] Additionally, “[t]he Ageyl, as relatives of the dead man, demanded blood for blood.”[lxvii] However, Lawrence was constrained neither by modern civilized concepts of justice, nor by western prudishness. He was well aware of the informal justice system and its ability to present a solution that would maintain stability.
“It must be a formal execution, and at last, desperately, I told Hamed that he must die for punishment, and laid the burden of his killing on myself. Perhaps they would count me not qualified for feud. At least no revenge could lie against my followers; for I was a stranger and kinless.”[lxviii]
Lawrence needed three pistol shots to kill Hamed the Moor. Although the incident would have gotten Lawrence prosecuted today, it held together the combined Arab force and prevented a feud. More importantly, although the conclusion to Salem’s death did not rise to the level of modern international standards of human rights, all parties were nonetheless satisfied.
This famous vignette may seem out of place in a paper about the rule of law, and advocacy for extrajudicial killing may appear to be a move further away from the rule of law. Far from it: like rural Afghanistan, in Lawrence’s case, there was no official legal influence, but he was well-versed in the informal legal system which presented a solution, and in doing so, he gained credibility, and was an early influencer of the modern Middle East, a region that, although imperfect, has made human rights progress since the early 1900s.
The challenge going forward will be the willingness to put on the breaks of western notions of justice in favor of temporary local justice that can evolve at a later date. On one end of the spectrum of transitional justice, forces conducting stability operations can allow the locals to employ tribal justice indefinitely. This may not be feasible due to the requirements of domestic legislation, the wishes of foreign donors, the moral implications of turning a blind eye to low human rights standards, or most likely, a distrust or lack of understanding of informal legal influences. On the other end of the transitional spectrum, western governments enter a conflict zone and quickly impose a western style of criminal justice that may be foreign to the people, or worse, ignorant of their own beliefs and customs. This paper has argued that both sides of the transitional justice bridge must be secured simultaneously.
The enigmatic T.E. Lawrence is often cited as revolutionizing warfare when he lived and fought with rebel Arabs in the Middle Eastern theater of operations during World War I. His work which occurred almost one hundred years ago is still studied by military officers because they still contain valuable lessons. But, Lawrence was a man apart; his only limitation was his own imagination. The tactical leaders of today must also be allowed to imagine, visualize, and facilitate the evolutionary process of transitional justice which often is not pretty, and may even be offensive to policy makers and agencies providing oversight to these efforts. Judge advocates must get off the forward operating base, meet local Afghans, respect the culture, and get out of the comfort zone. Developing local justice systems in this manner – systems that to the uninitiated seem backward or brutal – at the same time as the national justice system may seem crazy, but in the end, the best way to secure a bridge is both ends at once.[lxix]
The views expressed in this article are exclusively the author’s and do not represent the official position of the United States or any governmental agency or military organization.
[ii] U.S. Dep’t of Army, Field Manual 3-07, Stability Operations, at 1-9 (Oct. 2008) [hereinafter FM 3-07].
[iii] For further study on the dangers of the top-down approach, see generally Seth G. Jones, In the Graveyard of Empires: America's War in Afghanistan (W. W. Norton & 2010).
[iv] The military has its own language, so great care must be taken to periodically pause in order to explain specialized terms. The tactical level is the lowest level of warfare. This refers to company, battalion, and brigade sized elements. These are the units that conduct the fighting during conflict stages, and they are the units that continue to facilitate security during stability stages. Most importantly, they are comprised of the only personnel in conflict zones that have regular contact with village leaders. Contrast this with the operational levels, referring to the division and corps-sized entities, which are where most of the rule of law efforts rest in a particular theater of operations. Conversely, personnel at the operational level and higher have virtually no contact with local and village leadership.
[v] The Ctr. for Law & Military Operations, Rule of Law Handbook: A Practitioner’s Guide for Judge Advocates 11, 21 (Lt Col Mike Cole ed., United States Army 2011) [hereinafter Rule of Law Handbook]. Even so, even the Center for Law and Military Operations admits that official court activity remains an urban activity, and even then, the system is plagued by problems ranging anywhere from corruption to the lack of texts for the judges.
[vi] U.S. Dep’t of Army, Field Manual 1-04, Legal Support to the Operational Army 4-1, 5-5 (Mar. 2013) [hereinafter FM 1-04].
[vii] In U.S military doctrine, joint simply means that the force has members coming from multiple armed services.
[viii] Joint Chiefs of Staff, Joint Pub. 3-0, Joint Operations (11 Aug. 2013) [hereinafter JP 3-0] at xi. There is no clear dividing line among the three levels. They exist only to present a “logical arrangement of operations, allocate resources, and assign tasks to the appropriate command.”
[ix] Many agencies, non-governmental organizations, and inter-governmental organizations have rule of law roles in practice or in aspiration. Whether these organizations have personnel on the ground sufficiently long enough to build relationships with indigenous personnel varies. Over a nine month period in Kandahar Province, this author saw no other agencies, other than the Department of Defense, anywhere outside of Kandahar City and the military base at Kandahar Airfield.
[x] Joint Chiefs of Staff, Joint Pub. 1-02, Department of Defense Dictionary of Military and Associated Terms (12 April 2010) [hereinafter Joint Publication 1-02] at 130.
[xi] Roger Trinquier , A French View of Counterinsurgency (Praeger Security International 2006) at 5. Trinquier, the French military officer who spent his entire career fighting colonial wars, described insurgencies as modern war. In traditional wars, armies are beaten on the field of battle, and the subsequent surrendering of the unsuccessful belligerent spelt the end of the conflict, and the beginning of a period of occupation. Insurgencies do not experience the same dividing line, but rather a continued “interlocking system of actions – political, economic, psychological, military – that aims at the overthrow of the established authority in a country and its replacement by another regimen.” The rule of law is a critical part of the political wing of that system of interlocking actions.
[xii] See David Kilcullen, The Accidental Guerrilla: Fighting Small Wars in the Midst of a Big One (Oxford Univ. Press 2009) at xiv.
[xiii] FM 3-07, supra note 3, at 1-9. There have been numerous attempts to describe what rule of law means. Professor Richard Fallon’s Five Elements description is largely academic and in a nutshell can be summed up as understanding, efficacy, legal stability, legal supremacy, and instruments of impartial justices. Richard Fallon, The Rule of Law as a Concept in International Discourse, 97 Colum. L. Rev. 1, 7-8 (1997). Compare to the more realistic definition of Rachel Kleinfeld which expresses Five Goals: the state abides by the law, equality, the state supplies law and order, the justice system is efficient and impartial, and human rights are upheld. Kleinfeld’s is more practical which is not surprising considering she has vastly more experience on the ground in developing countries than Professor Fallon. The United States Government expresses rule of law in terms of the seven effects: 1. The state monopolizes the use of force in dispute resolution; 2. Individuals are secure in their persons and property; 3. The state is itself bound by law and does not act arbitrarily; 4. The law can be readily determined and is stable enough to allow individuals to plan their affairs; 5. Individuals have meaningful access to an effective and impartial legal system; 6. The state protects basic human rights and fundamental freedoms; 7. Individuals rely on the existence of justice institutions and the content of law in the conduct of their daily lives. Rule of Law Handbook at 2 (citing Rachel Kleinfeld, Competing Definitions in the Rule of Law, in Promoting the Rule of Law Abroad: In Search of Knowledge 31, 35 (Thomas Corothers ed., 2006).
[xiv] Mohammad Hashim Kamali, Shari'ah Law: An Introduction 201 (1st ed. Oneworld Publications 2008).
[xv] Criminal Procedure Code, 2-4, (2004) (Afg.).
[xvi] John Jupp, Legal Transplants As Solutions for Post-Intervention Criminal Law Reform: Afghanistan's Interim Criminal Procedure Code 2004 , 61 Am. J. Comp. L. 51, 75 (2013).
[xvii] FM 3-07, supra note 3, at 1-9.
[xviii] Criminal Procedure Code, art. 28 (2004) (Afg.).
[xix] Criminal Procedure Code, arts. 63-70 (2004) (Afg.).
[xx] Criminal Procedure Code, art. 71 (2004) (Afg.).
[xxi] Don Rector, Afghan Local Police: An Afghan Solution to an Afghan Problem, 2012 Small Wars J., Jan. 10, 2012 at 1 (2012), http://smallwarsjournal.com/author/donald-rector (last visited Dec. 17, 2014). Mr. Rector was a U.S. Department of Defense human terrain analyst in Afghanistan and a security manager for USAID programs. He lived with local police for over five years.
[xxii] Martin Ewans, Afghanistan: A Short History of Its People and Politics 7 (1st ed. Harper Perennial 2002). Federal laws compete with tribal codes that have lasted hundreds and sometimes thousands of years.
[xxiii] International Covenant on Civil and Political Rights, Dec. 16, 1966, S. EXEC. DOC. E, 95-2, 999 U.N.T.S. 171 [hereinafter ICCPR].
[xxiv] Peter, Tom. Once the Conflict’s Center, Kandahar City Calms. The Christian Science Monitor. July 9, 2012. Accessed December 18, 2014. http://www.csmonitor.com/World/Asia-South-Central/2012/0709/Once-the-conflict-s-center-Kandahar-City-calms.
[xxv] On December 10, 2014, I conducted an interview with Major Justin Gorkowski, United States Army. Major Gorkowski was the Regimental S-7 (Information Officer) of the U.S. 2d Cavalry Regiment. This regiment was the tactical battle space owner of all of Kandahar Province from the summer of 2013 until the spring of 2014. As such, its personnel were often the only western personnel to have regular contact with villages in the rural areas of Kandahar Province. His duties included influence activities, psychological operations, civil affairs, governance development, and what is often referred to as “white intelligence,” those types of information that can become known through informal gatherings and relationships. Gorkowski, as a principle staff officer of the commander in governance matters, is in one of the best positions of any U.S. or coalition individual, to understand the rural and tribal environment in Kandahar Province. Gorkowski says that “justice systems at the local level are adjudicated through informal power structures more than any other mechanism. This very concept is how the Taliban gained prominence in Zharey District, Kandahar (Province), Afghanistan when they hung a rapist and murderer from the barrel of a tank as a sign that such lawless activity would no longer be accepted. The population was so brutalized at this point, any semblance of justice was better than nothing.” The views expressed in Major Gorkowski’s interview are his alone and do not express the position of the U.S. government, the coalition, or any U.S. government agency or military organization. An executive summary of his interview is on file with the author.
[xxvi] U.S. Dep’t of Army, Field Manual 3-24.2, Counterinsurgency 1-1 (Apr. 2009) [hereinafter FM 3-24.2].
[xxvii] Roger Trinquier , A French View of Counterinsurgency (Praeger Security International 2006) at 5. Local indigenous people may be sympathetic to insurgents for a variety of reasons, one of which may be a minor grievance with officials of the officially recognized government. This grievance, if there is no legitimately established, or efficient and fair, forum in which to resolve it, can serve as the impetus for localized recruitment.
[xxviii] See Gorkowski, supra note 25. Gorkowski believes that an official or formal rule of system that can assert effective influence over rural parts of Afghanistan is a “bridge too far.” “There will never be a formal rule of law system that has any authority over any rural area of Afghanistan.” This is why nation-builders cannot neglect the informal systems and influences.
[xxix] See Jupp, supra note 16, 57.
[xxx] Ali, Yasmeen. Understanding Pashtunwali. The Nation. April 6, 2013. Accessed December 18, 2014. http://www.nation.com.pk/pakistan-news-newspaper-daily-english-online/columns/06-Aug-2013/understanding-pashtunwali.
[xxxi] See Jupp, supra note 16, 57.
[xxxii] Kubani, Muhammad, Understanding Islamic Law. Islamic Supreme Council of America. Accessed December 18, 2014. http://www.islamicsupremecouncil.org/understanding-islam/legal-rulings/52-understanding-islamic-law.html. Sharia is synonymous with Islamic law and applies to all Muslims. For Muslims, Sharia has canonical application as religious law, and comes from several sources including the Qur’an and the Sunna.
[xxxiii] Jan Otto, Sharia and National Law in Muslim Countries: Tensions and Opportunities for Dutch and EU Foreign Policy 7 (1st ed. Leiden Univ. Press 2008).
[xxxiv] Id. at 11.
[xxxv] See Kamali, supra note 14, 200.
[xxxvi] Constitution of the Islamic Republic of Afghanistan 2004, art. 130. “[t]he courts shall apply provisions of this Constitution as well as other laws. If there is no provision in the Constitution or other laws about a case, the courts shall, in pursuance of Hanafi jurisprudence, and, within the limits set by this Constitution, rule in a way that attains justice in the best manner.”
[xxxvii] Irshad Abdal-Haqq, Islamic Law: An Overview of Its Origins and Elements, in Understanding Islamic Law: From Classical to Contemporary 1, 16-19 (Hisham Ramadan ed., 1st ed. Rowman & Littlefield Publishers, Inc. 2006).
[xxxviii] See Otto, supra note 33, 8. This categorization is an important example of how high level political leaders and researchers may see Afghanistan’s legal system. At lower village levels, however, practitioners should be prepared for environments that resemble more classical systems.
[xxxix] See generally Rule of Law Stabilization Program - Informal Component, Baseline Evaluation Report August 2013 (United States Agency for Int'l Dev. 2013) [hereinafter USAID Report].
[xl] See Ewans, supra note 22, 262. Sir Martin Ewans captures the Taliban spectacle in its fledgling stages describing public stonings of adulterers, the prohibition against widows from being employed, the closure of girls’ schools, the firing of clean shaven employees , beatings of women fro showing skin, the banning of white socks, and even the Afghan national pastime of kite flying.
[xli] Id. at 8.
[xlii] See Kamali, supra note 14, 201-202.
[xliii] Most rural Afghans cannot read their native language, let alone Koranic Arabic. This leads to interpretations which can be wildly diverse from village to village. Fortunately, westerners often and surprisingly will find rural Afghans highly receptive to discussions about religious law so long as the participants have a relationship.
[xliv] See Kamali, supra note 14, 201.
[xlv] The Holy Qur'an 106 (Abdullah Yusuf Ali trans., 11th ed. Amana Publications 2011) (2:256).
[xlvi] The Holy Qur'an 3:104.
[xlvii] The Holy Qur'an 9:91.
[xlviii] See Kamali, supra note 14, 273.
[xlix] See Kamali, supra note 14, 55.
[l] Kimberly Motley is an attorney from Wisconsin whose claim to fame is that she is the only westerner who has a law practice in Afghanistan. She reports that often in her practice, she attends shuras and represents clients before huqquqs and has experienced some successes in arguing sharia law. In one high profile case, she was able to invalidate the forced marriage of a six year old girl who was sold to another family to settle a debt. The girl was physically abused and forced into prostitution. Ms. Motley’s advocacy before the huqquq, and later before an appellate huqquq, secured the girl’s release and provided much clarification to the lower huqquq on sharia interpretation. It should be noted that Ms. Motley has no security, is not affiliated with the U.S. government, is not Muslim, does not wear a headscarf, and does not even speak the local language. The transcript of her extraordinary TED Talk can be found at: Motley, Kimberley. How I Defend the Rule of Law, October 1, 2014. Accessed December 17, 2014. https://www.ted.com/talks/kimberley_motley_how_i_defend_the_rule_of_law/transcript?language=en. Ms. Motley would be considered to be someone at the “tactical” level in the broader sense.
[li] See FM 3-07, supra note 3, 1-9 stating that one feature of the rule of law is daily reliance on the existence of justice institutions. But, what if villagers do not rely on justice institutions, and they rely on other factors, like Sharia and Pashtunwali?
[lii] Gorkowski. Note 25. The huqquq is an intermediate court that is rooted in 700 years of Afghan history, kind of like a tribal arbitration tribunal. It is, however, sanctioned and recognized by the government and by Afghan official courts. However, the huqquq is often subject to the tribal influences, and tribal elders, who are more senior to the huqquq judge will often exert more influence over a dispute.
[liii] See Ewans, supra note 22, 11. Historically, about 90% of Afghans live in rural areas although with growing stability in the cities, this has begun to decline. Afghan villages have ordinarily enjoyed a large degree of independence without a substantial degree of outside interference or governmental influence.
[liv] See Ewans supra note 22, 7.
[lv] Id. This is known as badal. In the absence of any enforceable governmental mechanism to resolve disputes, Pashtuns can often resort to what is comfortable for them culturally which is war and violence. A Pashtun proverb states that a Pashto is not happy unless he is at war.
[lvi] See USAID Report, supra note 40. USAID’s research reported that village elders often confused the Code with Sharia and vice versa.
[lvii] Stephanie Ahmad et al., Introduction to Afghan Law 3 (3d ed. Stanford Univ. 2012). Shura is an Arabic word which means consultation.
[lviii] See Gorkowski, supra note 25. Gorkowski notes that the Army and Marine Corps “have the unique ability to become partners with local leaders through relationships.” Additionally, “the Department of State struggles” due to a lack of access “and they simply do not have the resources to provide enduring capacity.”
[lix] Some units have conducted claims shuras.
[lx] There is a cultural phenomenon in the U.S. Army Judge Advocate General’s Corps that military attorneys are advisors only, and as such, should not be directly participating in missions and engagements such as these. This author even had one of his legal supervisors tell him to never leave the base. Such a culture needs to be shed so that Judge Advocates, who are uniquely situated to conduct comparative law at the tactical level, can take the lead on village rule of law. This is the difference between the perspective of the attorney who also wears a uniform, and the military officer who happens to be an attorney. The latter is prepared to get dirty and get off the base.
[lxi] See Gorkowski supra note 25.
[lxii] Brigades are only assigned one principle staff attorney and an operational law attorney. In informal practice, the latter’s duties are usually usurped by the higher headquarters in order to serve as a military prosecutor. This practice leaves very little time to actually do anything “operational” and relegates this highly valuable staff officer to matters of internal unit discipline.
[lxiii] See Gorkowski, supra note 25
[lxiv] Id. The training of indigenous security forces has traditionally been a U.S. Army Special Forces duty. I argue that this should also be the regular duty of conventional forces during stability operations from now on because conventional forces are much more numerous than special units.
[lxv] T. E. Lawrence, Seven Pillars of Wisdom: A Triumph 181 (1st ed. Doubleday, Doran & Company, Inc. 1935). “My followers had been quarrelling all day; and while I was lying near the rocks a shot was fired.” “The remaining Ageyl were running frantically about; and when I asked was it was Ali, their head man, said that Hamed the Moor had done the murder.”
[lxix] A Bridge Too Far. Dir. Richard Attenborough. United Artists 1977. “Quotes: A Bridge Too Far.” IMDb. Accessed December 17, 2014. http://www.imdb.com/title/tt0075784/quotes.
Brigadier General Gavin: What's the best way to take a bridge?
Maj. Julian Cook: Both ends at once.
Brigadier General Gavin: I'm sending two companies across the river by boat. I need a man with very special qualities to lead.
Maj. Julian Cook: Go on, sir.
Brigadier General Gavin: He's got to be tough enough to do it and he's got to be experienced enough to do it. Plus one more thing. He's got to be dumb enough to do it... Start getting ready.
U.S. captain: What was all that about, Major?
Maj. Julian Cook: Well someone's come up with a real nightmare. Real nightmare.