Opinion: Justice is missing from Afghanistan

GENEVA, Switzerland — President Barack Obama describes the departure of Gen. Stanley McChrystal from the command of U.S. and coalition troops in Afghanistan as a change in personnel, not policy. But Gen. David Petraeus is unlikely to succeed if Afghan policy stays the same andpersists in ignoring the ramifications of a long list of injustices that continue to pile up in Afghanistan.

Afghans have little confidence that they will ever obtain justice under the current regime in Kabul. The absence of justice is a key driver of instability that is largely ignored by the major players. However, the justice deficit is well understood and exploited by the Taliban. A growing surge of disillusionment with the Karzai regime, and its international backers, can be traced to a long list of injustices that are systemic as well as systematic.

Injustices are built into a political system that rewards abusive power-holders whether in or outside government. Examples include a parliament that is dominated by warlords thanks to an electoral system that works to the advantage of those with cash, influence and a history of thuggish behavior.

Private security companies that help maintain the supply line for NATO troops are, effectively, a law unto themselves. Funded by U.S. and other taxpayers, they buy-off insurgents to secure unhindered passage and profit greatly from a $2 billion industry. They thrive on lawlessness and insecurity.

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The Kandahar Strike Force, a militia associated with the Karzai family, exemplifies the problem. They were involved in 2009 in a gun battle with the Kandahar police chief, Matiullah Qateh, after the local prosecutor refused their demand to release one of their associates held on theft charges. The police chief was killed but those involved in his killing were relocated away from Kandahar; they were never prosecuted nor held to account.

Injustices attributed to non-Afghans, especially the international military forces, are also a huge bone of contention. A botched night-time raid, in February in Gardez in southeastern Afghanistan resulted in the deaths of three women, two of them pregnant, and two men, a local policeman and a prosecutor. Initially the dead were described as insurgents. After a lot of angst and protest, a U.S. military investigation found that the dead were civilians and apologized for the raid that was conducted on the basis of erroneous information.

This is not infrequent in Afghanistan. The lack of impartial, public scrutiny and accountability for such incidents is widely seen as contempt for the rule of law and of Afghan lives. The situation of the hundreds of detainees at the Bagram Detention Facility, that rivals Guantanamo, given the total absence of due process, is another source of festering contention and resentment. Coupled with night-time raids and civilian casualties, Bagram puts into question the ability of Afghanistan’s partners to build credible and trustworthy rule-of-law institutions.

Afghans are astute analysts of changing political winds, and they see that change is on the way.

“Afghanization” — the euphemism for handing over to Afghans the accumulated mess of recent years as the United States winds down its engagement — is the newly minted narrative for a transition that is utterly different from the one that was promised in the heady days of 2002. The international community knows that Afghan institutions are too weak to stand on their own, but in the rush to leave that is not likely to make much difference.

In discussions surrounding the Bonn Conference, held at the end of 2001 as the Taliban regime was routed, Afghans were promised the moon or, at least, a semblance of justice, democracy, honest officials, and the prospect of a better future for their children. Women were going to emerge from the dark days of Taliban rule and enjoy the novelty of being treated as human beings; and the government headed by Hamid Karzai would make good on the promise of respect for their human rights.

As different policy gurus, think tanks and politicians scramble to re-work strategies that are failing, Afghans today can find little comfort in having their initial skepticism proved right.

From the onset of the B-52 campaign in October 2001, just a few weeks after 9/11, Afghans from different walks of life expressed the need for a break with the policies of the past. Afghans wanted an end to policies which excluded those individuals and groups eager to build a new political culture based on the rule of law and to create the framework for a stable and democratic state.

But in the weeks leading up to the Bonn Conference that provided the road map for Afghanistan’s future, the very people who had created the chaos that was responsible for bringing the Taliban to power were resurrected and "rehabilitated." These included the northern warlords. Some of them were responsible for acts that could be classified as war crimes.

With a few isolated exceptions, the Afghans who were at the receiving end of discrimination and abuse were excluded from Bonn. The injustices that Afghans had suffered, and which are at the center of the current discontent with the government in Kabul, were not even on the agenda.

The reality was that global war on terror took precedence over the safety and well-being of Afghans. That continues to be the reality today. The Bonn state-building process effectively denied the political space that was needed to strengthen respect for core human rights and democratic values including dignity, non-discrimination, inclusiveness, accountability and respect for the lives of others.

“Bonn was wrong” and this was clear to many from the outset. But the juggernaut of the Bonn state-building project — a series of events and processes that served primarily to legitimize well-known, alleged war criminals — shaped the dominant narrative that democracy was taking hold. Voices that challenged the status quo were ignored or silenced.

Bonn failed to provide a framework for a durable peace. It was not designed to roll back the injustices that sustain violence. It was not a peace agreement but, rather, an arrangement that excluded a significant portion of those from the Pashtun belt. Bonn brought back and empowered the warlords who had earned the population’s hatred, and it ignored the urgent need to bring an end to a long pattern of the abuse of power.

Bonn also glorified a jihadist culture that is opposed to democratic values. Jihadists do not want to see the emergence of Afghan voices that denounce warlordism as well as corruption and predatory power structures.

Injustice in Afghanistan is pervasive and profound. It shapes the perspective of all those at the receiving end of zalem or cruel behavior. Political marginalization and manipulation of tribal differences are of major concern. Land seizures, unlawful evictions, arbitrary detention and selective poppy eradication are rife. Deeply entrenched prejudices and discrimination are compounded by domestic violence, including rape.

When victims seek help from the police or others, they are frequently further victimized. Presidential pardons are dispensed for convicted rapists and drug traffickers. Actions by international military forces, which are offensive and culturally inappropriate as well as deadly on occasion, reinforce deeply held feelings of being wronged.

Injustices are closely linked to poverty and powerlessness and the inability of many Afghans to carve out a dignified life. But it was the issue of impunity that arose most often in conversations I had with Afghans in all parts of the country. Immunity from prosecution or the ability of the powerful to operate above the law, without fear of having to answer for the harm inflicted on others, is corrosive and corrupting. It is central destabilization, the spreading insurgency, and armed violence.

Impunity is shaping and aggravating a political culture that is increasingly divisive, violent and predatory. It is the source of alienation and repulsion. It is a boon to the armed opposition.

A meeting, last March, with a group of elders from the contested district of Marjah was typical.

Marjah is the district in Helmand in southern Afghanistan where, mid-February, McChrystal launched “Operation Moshtarak” a new-style counter-insurgency initiative designed to quickly “build” and “hold” after the initial phase of “clearance” or ridding the place of fighters. McChrystal’s “government in a box”, the rapid infusion of district administrators, police and other government personnel, was still in vogue. McChrystal’s “bleeding ulcer” description of this faltering operation had not yet hit the headlines.

The elders were eloquent in describing the ramifications of Operation Moshtarak on the lives of farmers and their families in Marjah. They had no interest in being the object of a "hearts and minds" campaign. They disdained an operation that claimed to be helping them, but, from the perspective of the elders, was doing the opposite.

To illustrate their view that things had gone wrong since 2002, they told a story: A farmer hires a shepherd to take care of his sheep. When several sheep are missing a few weeks later, the farmer gets angry and threatens to fire the shepherd. The shepherd points to the farmer’s two dogs. They have grown enormously fat. In Afghanistan, corrupt officials, and international consultants are getting fat while ordinary Afghans are unable to protect themselves. The story has an added meaning: in a traditional Islamic setting, dogs are seen to be alien and impure.

Afghans have an innate sense of justice. They have a strong sense of dignity and self-worth. Every time anyone has bothered to ask, Afghans have “voted” overwhelmingly for a just peace. More than 75 percent of respondents in a 2005 survey conducted by the Afghanistan Independent Human Rights Commission underlined the need for accountability for a long list of human rights violations.

Afghanistan’s human rights defenders led the challenge to a blanket amnesty law that came to light earlier this year. This law effectively green-lights impunity and sends the message that perpetrators have nothing to fear. Importantly, Afghanistan’s partners have, essentially, ignored this law. It needs to be repealed, as does another recent piece of legislation, the Shia Personal Status Law, as it reinforces the de facto second-class status of women and girls.

The distance between the rhetoric surrounding the situation of Afghan women and girls and the reality on the ground is apparent in the latest dominant narrative of Afghanization. The basic idea is that the capacity of Afghans will be strengthened so that the U.S.-led drawdown can take place on schedule by the middle of next year. But the danger is that many of the Afghans and institutions that benefit are a threat to those who want justice and the rule of law.

U.S. largess is being used to finance private security companies and local militias that are essentially a re-grouping of “the men with guns” who held sway in the past. The CIA is funding power brokers such as the President’s own brother, a major architect of the dysfunctional governance that now imperils Kandahar. What we are seeing is a replay of the U.S.’ past history in Afghanistan.

In the 1980s, warlords such as Hekmatyar profited handsomely from U.S. support although his tactics included throwing acid at women. Nowadays, Hekmatyar is on a U.S. wanted list, but he is already positioning himself for another round of deal-making and power-sharing.

The failure of the agenda for justice is central to the overall lack of success in Afghanistan over the last nine years. This is evident in the growing disconnect between the Afghan people and the Karzai regime, which grew out of the Bonn state-building project. The relationship between widespread disillusionment and the deepening crisis needs to be acknowledged and remedied.

The absence of justice is a critical driver of the insurgency and needs to be understood in terms of realpolitik. The Taliban are actively exploiting the justice deficit. They will continue to do so as long as counter-insurgency and other strategies purport to prioritize the protection of civilians while simultaneously propping up a predatory regime that fuels a vicious cycle of violence and insecurity.

Traditionally, the minimum that Afghans expected from a ruler was to be a good Muslim and to provide justice and security.

Afghans today are no less keen to be free of oppression. What they and their country need is a transformation that puts an end to a long pattern of human rights violations and the injustices that egregious crimes entail.

Afghans want peace and a reconciliation process that reflects what the term implies, namely a process that is geared to healing the wounds of a brutalized and fractured society. In other words, peace-making and not deal-making between abusive power-holders.

Part of the real, as opposed to the concocted, narrative of the war in Afghanistan is that Afghans desperately want an end to violence. They want an end not only to armed violence but also to the structural violence that enables contemporary warlordism to flourish.

Given the history of the past nine years, a “Bonn II” is needed to negotiate a new, inclusive, and equitable political framework. This requires switching gears and facing up to the realities that encourage violence. It requires that all the major stakeholders — all those who literally and figuratively call the shots — acknowledge that injustice is no less a strategic concern than corruption or bad governance. There can be no short or long-term peace while the vast majority of the Afghan people are held captive to home-grown as well as external injustices.

Norah Niland was the chief U.N. human rights officer in Afghanistan until a few months ago. She also worked with the U.N. in Afghanistan promoting human rights during the Taliban regime period.