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Law on Trial
Case Study on the Rule of Law: Afghanistan
The aim of this lecture is to examine the recent attempts to introduce the doctrine of
the Rule of Law in Afghanistan

Learning objectives:
1. To understand the Rule of Law
2. To examine its wider international perspective
3. To explore attempts to introduce the Rule of Law in Afghanistan
4. To evaluate how successful this has been
Readings
The Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason
(particularly The rule of law and the weight of politics: challenges and
trajectories W Malley, ch. 5)
Rule of Law M Krygier, ch.10 of The Oxford Handbook of Comparative
Constitutional Law [2012] Edited by M Rosenfield & A Sajo
The Rule of Law [2010] T Bingham
Building a post-war justice system in Afghanistan A Wardak, Crime, Law and Social
Change, 41
Introduction
The Rule of Law has already been examined, along with consideration of the extent
to which the English legal system meets the requirements of this important concept.
This worksheet seeks to adopt a wider, international context by examining attempts
to introduce the Rule of Law in Afghanistan, a country whose turbulent history has
meant that it has lacked a tradition of having a governmental structure that embraces
the Rule of Law. In the last decade or so, however, the country has been occupied
by armed forces from a number of countries, led by the USA, who originally entered
Afghanistan to deal with a perceived international terrorism threat following the
infamous 9/11 events on 11 September 2001. As part of an attempt to deal with this
perceived terrorist threat, attempts have been made to establish a system of
legitimate government within Afghanistan that has popular support:
Since the attacks of September 11, 2001, NATO and allied countries, led by the US,
have considered it strategically imperative to help create a government in
Afghanistan that is supported by the population and committed to not allowing
terrorists to use the country as a safe haven. The richest, most powerful countries in
the world have duly sacrificed hundreds of their own peoples lives and spent billions
of dollars to help secure Afghanistan and bring it a modicum of justice. (The Rule of
Law in Afghanistan: Missing in Action Edited by W Mason p.1)
Recapping on what is meant by the Rule of Law
TASK: You are required to review previous Law on Trial materials and set out below
what you understand the Rule of Law to mean. In order to do this, you may wish to
set out the views of writers such as Dicey, Bingham, Raz and Fuller (N.B. the views

of Dicey and Raz are also set out on pp.62-3 of W Malley, ch. 5 The Rule of Law in
Afghanistan: Missing in Action [2011] Edited by W Mason.)
Stability, Justice and the Rule of Law
It is important to appreciate how and why the Rule of Law is regarded as playing an
important role in Afghanistan and in other countries, such as Libya and Somalia,
which have been subject to substantial conflict and civil war in recent years.
TASK: Read the following extracts and set out below why the Rule of Law is seen as
significant in providing stability and justice in post conflict countries.
Rule of law is one of a number of overlapping ideas, including constitutionalism, due
process, legality, justice and sovereignty, that make claims for the proper character
and role of law in well-ordered states and societies. It is lauded by international
agencies, pressed upon conflictual, post-conflict and transitional societies, and of
course talked up by politicians and lawyers, particularly judges, throughout the
world. (Rule of Law M Krygier, ch.10 of The Oxford Handbook of Comparative
Constitutional Law [2012] Edited by M Rosenfield & A Sajo p.233)
[I]t is important not to lose sight of the crucial significance of the rule of law as a
constraint on the abuse of power. As a political principle, the rule of law goes beyond
affirmation of the desirability of an orderly society, and beyond the desirability of a
minimally functioning judiciary. It is concerned with how those concerned with giving
effect to law comport [i.e. behave or conduct] themselves, and how this contributes
to the character of the polity [i.e system of government] more generally. (The rule of
law and the weight of politics: challenges and trajectories W Malley, ch. 5 of The
Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason, p.61)
The hallmarks of a regime that flouts the rule of law are, alas, all too familiar: the
midnight knock on the door, the sudden disappearance, the show trial, the subjection
of prisoners to genetic experiment, the confession extracted by torture, the gulag and
the concentration camp, the gas chamber, the practice of genocide or ethnic
cleansing, the waging of aggressive war. The list is endless. (The Rule of Law
[2010] T Bingham p.9)
There is another, additional benefit that is sometimes forwarded in respect of the
Rule of Law, namely that it provides the framework within which an economy can
flourish. Thus the following quote states:
The defence of the rule of law need not rest simply on its capacity to apply a brake
to autocrats. There is equally a line of argument that defends it on consequentialist
grounds...arguing that a society in which the rule of law is honoured will display other
desirable attributes as a result. One area where this is particularly notable is that of
economic development...This approach links economic dynamism to the capitalist
system of exchangeable property rights and to markets as devices for the processing
and the allocation of resources. (Malley op.cit pp.64-5)
Quite simply, a society which operates under the rule of law means that business
can flourish, based on the confidence that property and contractual rights will be

recognised and that, if disputes do arise, they will be settled in a fair and consistent
manner.
Brief History of Afghanistan
The following extensive quote is taken from the BBCs Country Profiles. It provides
some brief historical context as well as indicating why armed forces from a range of
countries, led by the USA, are currently occupying Afghanistan:
Landlocked and mountainous, Afghanistan has suffered from such chronic instability
and conflict during its modern history that its economy and infrastructure are in ruins,
and many of its people are refugees. Since the fall of the Taliban administration in
2001, adherents of the hard-line Islamic movement have re-grouped. It is now a
resurgent force, particularly in the south and east, and the Afghan government has
struggled to extend its authority beyond the capital and to forge national unity. Its
strategic position sandwiched between the Middle East, Central Asia and the Indian
subcontinent along the ancient Silk Route means that Afghanistan has long been
fought over - despite its rugged and forbidding terrain.
Great Game
It was at the centre of the so-called "Great Game" in the 19th century when Imperial
Russia and the British Empire in India vied for influence. And it became a key Cold
War battleground after thousands of Soviet troops intervened in 1979 to prop up a
pro-communist regime, leading to a major confrontation that drew in the US and
Afghanistan's neighbours. But the outside world eventually lost interest after the
withdrawal of Soviet forces, while the country's protracted civil war dragged on.
The emergence of the Taliban - originally a group of Islamic scholars - brought at
least a measure of stability after nearly two decades of conflict. But their extreme
version of Islam attracted widespread criticism. The Taliban - drawn from the largest
ethnic group, the Pashtuns - were opposed by an alliance of factions drawn mainly
from Afghanistan's other communities and based in the north. In control of about
90% of Afghanistan until late 2001, the Taliban were recognised as the legitimate
government by only three countries. They were at loggerheads with the international
community over the presence on their soil of Osama Bin Laden, accused by the US
of masterminding the bombing of their embassies in Africa in 1998 and the attacks
on the US on 11 September 2001. After the Taliban's refusal to hand over Bin Laden,
the US initiated aerial attacks in October 2001, paving the way for opposition groups
to drive them from power and heralding a long-term, Nato-led military presence.
Predictions of the Taliban's demise after the adoption of a new constitution in 2004
proved to be premature - the extremist group came back with a vengeance and
violence increased.
Military withdrawal
Amid a rising death toll and the increasing unpopularity of the conflict among
Western publics, pressures grew for a withdrawal strategy for foreign military forces.
In 2012, the 11th year of the conflict, Nato backed plans to hand over combat duties
to Afghan forces by mid-2013. Some 130,000 Nato-led combat troops will leave
Afghanistan by December 2014. The alliance says it is committed to a long-term
strategic relationship with Afghanistan beyond that date. Foreign military trainers will
stay on. Meanwhile, tentative steps towards a negotiated peace agreement were

made in 2012, when the Taliban announced they had agreed to open an office in
Dubai for talks with US officials.
Drugs trade
Afghanistan's economy depends heavily on the drugs trade. The country supplies
over 90% of the world's opium, the raw ingredient of heroin. International bodies and
governments say the drugs trade is helping to fuel the Taliban insurgency, which is
estimated to receive up to US$100m a year from the trade. The UN Office on Drugs
and Crime has called on Afghanistan to target the major traffickers and corrupt
government officials, who it says operate with impunity. (Afghanistan Country:
Profile BBC News South Asia http://www.bbc.co.uk/news/world-south-asia12011352)
BUILDING THE RULE OF LAW IN AFGHANISTAN: A CASESTUDY
The previous extensive quote highlights the current situation within Afghanistan. As
part of the exit strategy of the occupying international forces, attempts are being
made to establish a strong central state structure. A key element of this is to embed
the principle of the Rule of Law within the country, thereby providing both legitimacy
to the Government of President Karsai and also a framework whereby its role can be
scrutinised and subject to challenge and, as a consequence, any potential abuse of
power by that Government can be inhibited. The rest of this worksheet focuses on
examining how successful this strategy has been and will specifically rely on the
views of William Malley, of the Australian National University, as set out in The rule
of law and the weight of politics: challenges and trajectories W Malley, ch. 5 The
Rule of Law in Afghanistan: Missing in Action [2011] Edited by W Mason. Malley
concludes that the attempt to build the Rule of Law in Afghanistan has failed and he
identifies two main reasons for this. The first is that the history and tradition of
Afghanistan has, inter alia, lead to a very complex set of overlapping and conflicting
bodies of law and associated legal institutions. This has made it very difficult to
impose a system based on the Rule of Law. The second reason is the bungling or
incompetent nature of the ways used to seek to build the Rule of Law as a central
feature of Afghan society. These two reasons are examined below
1) LAW IN AFGHANISTAN
In most countries, it is generally a quite straightforward exercise to determine what
the law is e.g. in England & Wales, laws are created by Parliament (i.e statute) and
the higher courts (case law/common law) although, in respect of Wales at least, this
has been supplemented, in recent years, by the Welsh Assembly having powers to
make law. In Afghanistan, however, identifying what the law is can be much more
difficult:
When we come to Afghanistanwe confront a decidedly confused situationin
which arguably there is a long-standing tension, reflecting a multiplicity of deep
conventions between different kinds of [legal] rules that have carried weight in
Afghan societyHistorically, law has had a range of different sources in Afghanistan,
and the more recent experience of state failure and foreign intervention has only
complicated the situation. (Malley, ibid. pp.66-7)
Malley, in fact, identifies four main sources of law:
1. Islamic, or Sharia, law
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2. Law created by the state

3. Customary law with different groups have different codes of customary law
4. Legal obligations arising out of international law e.g. treaties and human rights
documents
TASK: Read pp.66, 67, 68 and the first paragraph of p.69 of Malley and provide an
account of the features of each of these four sources of Afghan law:
1.
2.
3.
4.

Shari a law (p.67)

Law created by the state (pp.67/8)
Customary law (p.68
Legal obligations arising out of international law (p.69)

A major consequence of having different sources/systems of law competing within

Afghan society is that this provides a degree of choice of which system to use if a
dispute arises or a criminal act is deemed to have taken place. For many Afghans,
the choice in question may not, in practice, be based on free will e.g. the power of
local war lords, the limited authority of the Government in many parts of
Afghanistan, particularly rural areas, the ability to buy court decisions and the
(closely associated) issue of the extensive corruption within the legal system often
mean that individuals, in practice, are forced to use a particular legal institution.
Nevertheless, the existence of these competing legal arrangements:
points to one of the most troubling difficulties in seeking to establish the rule of
law in Afghanistan, namely the existence of competing models of legitimacy. A major
challenge of the post-2001 era has been to find ways of re-establishing the position
of state-based legal rules in the face of bodies of law with greater religious or
traditional resonance. (Malley, ibid. pp.69)
Malley, however, goes on to point out that the state-based system has not been
particular successful, with clear evidence of continuing widespread support for
alternatives.
TASK: Read the last 2 lines of p.69 and the whole of p.70 (except the last 2 lines)
and set out below the main points that are made.

2) WEAKNESSES IN THE STRATEGY TO BUILD THE RULE OF LAW AS PART

OF AFGHAN SOCIETY
It should now be clear that seeking to introduce the principle of the Rule of Law in
Afghanistan, as part of a general strategy of extending the authority of the
Government headed by President Karsai, has been, and continues to be, very
challenging. However, Malley points to major weaknesses in the way that the Karsai
regime and its international supporters have attempted to do this. Quite simply, some
of the activities both within the state system, headed by the Karsai government, and
by international actors operating in Afghanistan have substantially undermined this
strategy.
ACTIONS OF THE AFGHAN GOVERNMENT AND STATE INSTITUTIONS

In respect of the Afghan Government and its associated institutions, there have been
a number of activities that illustrate a disregard for the notion of the Rule of Law.
There are three obvious elements of this:
Corruption [There is] abundant anecdotal evidence of perceived corruption in the
state-based system, with attendant frustration on the part of litigants who feel that
money can buy positive outcomes, irrespective of the merits of a legal case. (Malley,
ibid. pp.70)
Corruption also takes place in other parts of the state and its institutions and its
corrosive impact is set out by Malley on p.74.
TASK: Read the paragraph on p.74 of Malley that starts with The problem is
compounded by the problem of financial corruption and set below the main points
raised.Government Policy that undermines the Rule of Law
[A]buse of power has become a serious source of angst for ordinary citizens, who
find themselves relatively powerless. It is arguably this area of failure in the
rebuilding of the rule of law that has done the most to compromise the legitimacy of
the transition processOne specific difficulty is that the central thrust of
Afghanistans constitutional and political development has been towards the
consolidation of power and away from the establishment of checks and balances.
Central to this has been a presidential politics of personalised networking rather than
institution building[with President] Karzai offering [local power holders] positions
within the state. The last thing that they brought with them was any interest in
respecting the rule of law or being constrained by it. (Malley, ibid. pp.73)
The 2009 Afghan Election
This election has acted as a major episode that highlighted the disregard for the Rule
of Law by the Karzai Government and, therefore, contributed substantially to the
failure of the principle becoming embedded in Afghan society. Malley describes it as
one of the most spectacular exercises of electoral fraud in modern electoral
history. (Malley, ibid. pp.74)
TASK: Read the section headed The 2009 Afghan election: some implications for
the rule of law on pp.75-8 of Malley and explain below what the features of this
general election were that lead to Malley making the above comment.
THE ROLE OF THE INTERNATIONAL ACTORS
A number of activities by the international actors within Afghanistan have also
contributed, according to Malley, to the failure to embed the principle of the Rule of
Law within its systems of constitutional and governmental authority. The first of these
relates to misunderstanding the scope of what is required.
Failure to address the complexity of the process
Malley makes it clear that introducing the Rule of Law is a complex undertaking and
implementation failed to address key elements of the process:
[I]t is important to recognise the complexity involved in attempting to restore a
justice system. It is far from sufficient to focus simply on the building of a judiciary.
Effective judiciaries are nested in more complex institutional environments, in which
it is necessary to bring some degree of coordination to policing, witness protection,
6

adjudication, enforcement of judgments, and penal and corrections policy. Weakness

in any of the spheres is likely to compromise progress in the others. In post-2001
Afghanistan, this coordination was complicated still further by the adoption of a lead
nation model of support for reconstruction, in which Italy was given responsibility for
judicial system reform while Germany took responsibility for the reform of policing.
After years of effort, there was little to show in either sphere, with policing little better
than a disaster area. (Malley, ibid. pp.71)
Misuse of the 2004 Constitution
An early attempt to provide a basis for the construction of a new structure of
government, incorporating the Rule of Law was the adoption of the 2004
constitution embodying international human rights standards (Malley, ibid. pp.69).
The 2004 general election soon followed, largely reflecting this, but the 2009 general
election took place in clear breach of this new constitution:
article 61 [of the constitution] made it absolutely clear that President Karzais term
of office expired on 22 May 2009. This had in fact been clear since his election in
2004. However, the wider world had not geared up to provide electoral assistance
that matched this constitutional timetable, and international actors thus endorsed the
postponement of elections until 20 August 2009. This blas approach to explicit
constitutional requirements sent a very poor message to Afghan observers, namely
that even the most fundamental law was able to be twisted. This in turn reinforced
their sense of how the world was destined to work, based on at least thirty years of
conflict: that might trumps right. (Malley, ibid. pp.71-2)
International actors acting with impunity
The armed forces and other representatives of the international community within
Afghanistan were rightly seen as operating, and continue to do so, outside Afghan
and international law:
[I]nternational actors sent out dangerous signalson the issue of impunity. In the
absence of a status of forces agreement, international forces in Afghanistan
effectively functioned beyond the reach of Afghan law, putting at risk the liberty of
Afghans[Yet it is important to appreciate that w]hen foreign militaries are a
significant presence in a society, they will be observed by locals seeking to gain a
sense of what it is that the wider world values. It is therefore important that, by word
and deed, they signal a commitment to the rule of lawThis problem was magnified
by the abusive behaviour of various private security companies, which reinforced the
impression that those who were well-connected were above the law. (Malley, ibid.
pp.72)
TASK: Set out below & overleaf, in you own words, the various ways that the
activities of international actors in Afghanistan undermined attempts to build the
Rule of Law in that country
CONCLUSION
This worksheet provides an examination of the attempt by a group of Western
countries to introduce the Rule of Law in Afghanistan, a country engaged in serious
internal military conflict, as part of a strategy to end the conflict and create an orderly
7

society sympathetic to the views and interests of those other countries, most notably
by not acting as a base for international terrorism. The main theme of the worksheet
is that this has not, at least to date, been a success and the failure to embed the
Rule of Law in Afghan society is based on a lack of appreciation of the full scope of
such a project supplemented by a recognition that many actions of both the Afghan
state and the international actors with the country actively undermined such a policy.
As such the following statement seems particularly appropriate:
Rule of law promoters in transitional and post-conflict societiestoo often talk as
though establishing the rule of law where it has not existed or is being shot to pieces,
at times quite literally, is in principle the same sort of legalistic job requiring the same
legal tools, if harder and more dangerous, as cultivating it where it has long grown
and has deep roots, and where its presence is an often unreflected-upon ingredient
of everyday life. A moments comparative reflection on the extra-legal contexts of
such ambitions make it hard to see why anyone would think that. (M Krygier op.cit.
p.248)