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Islamic Human Rights Commission
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21st December 2001
(updated 1st January 2002)
IHRC Briefing: Administration of Afghanistan
Introduction
With the overthrow of the Taliban regime, the fate of war-torn Afghanistan hangs in the balance. The four Afghan factions, the Northern Alliance, the Pakistan-based Peshawar Front, the Iran-backed Cyprus Group, and the Rome Process representing former King Zahir Shah, holding talks at the UN sponsored conference in Bonn, have reached agreement on the establishment of a 30 member interim administration, and a transitional government six months later, until the handing over of power to a representative, democratic government of Afghan nationals.
The UN blueprint requires the interim government to govern for six months. It also includes plans to set up a 21 member special independent commission to convene a traditional grand assembly – Loya Jirga – who would then elect a transitional government to rule for about two years. During that two-year period a constitution would be drawn up and elections will be held. The blueprints also contain plans to build a central bank and a supreme court.
The agreement acknowledges “the right of the people of Afghanistan to freely determine their own political future in accordance with the principles of Islam, democracy, pluralism and social justice.”
Interim Government
The interim government will take office in Kabul from 22 December headed by Pashtun leader Hamid Karzai. The 30-member cabinet will include 11 Pashtuns, eight Tajiks, five from the Shi’a Hazara population, three Uzbeks, with the remaining six representing other minorities. Two women will serve as deputies to Hamid Karzai. The Northern Alliance will hold the three most powerful ministries.
The agreement notes that “these interim arrangements are intended as a first step toward the establishment of a broad-based, gender-sensitive, multi-ethnic and fully representative government, and are not intended to remain in place beyond the specified period of time.”
Transitional Authority
It is envisaged that a broad-based transitional administration will be in place no later than two years after convening the Loya Jirga “to lead Afghanistan until such time as a fully representative government can be elected”. The Emergency Loya Jirga will be convened within six months of the establishment of the Interim Authority, and will be opened by former King Mohammed Zahir Shah. It will also have the task of electing a Head of State for the transitional administration.
A Constitutional Loya Jirga will be convened within 18 months of the establishment of the Transitional Authority, in order to adopt a new constitution for the country.
Upon the official transfer of power, all mujahedeen, Afghan armed forces and armed groups in the country “shall come under the command and control of the Interim Authority, and be reorganized according to the requirement of the new Afghan security and armed forces.”
Role of the UN in the administration of Afghanistan
Such an administration raises questions of the UN’s role within it. Indeed, the UN has previously been involved in administrations of countries namely East Timor where it was given the widest and most comprehensive mandate during its transitional phase towards democracy. According to some, the UN experiment in East Timor was a failure and should not be repeated again.
The blueprint for Afghanistan is based on the blueprints of the United Nations administration in Kosova and East Timor. The main difference between the East Timor model and the proposals for Afghanistan is that the UN will not have its own officials occupying the positions within the interim and transitional government. Despite this, it is envisaged that it will have a significant behind-the-scenes role to play in the country’s transition to democracy. It would therefore be helpful to consider the failure of the UN’s role in East Timor and draw parallels where relevant.
Handing over of power
The interim government has been set up to last for a period of six months before handing power over to an transitional government, which will face the daunting task of rebuilding the country from ‘ground zero’ and organise elections within two years. The East Timor experience shows that it is not always possible to observe the time period. When such an administration operates for a lengthy period without electing officials, the objective of establishing a democracy becomes defeated and creates what is essentially a dictatorship of a few elite. The United Nations Administration in East Timor (UNTAET) was allowed to govern the country as a sovereign with immunity privileges for its officials. Some of these officials have been accused of failing to observe human rights law.
What roles will the transitional administration assume?
No clear proposals have been issued about what specific roles the transitional government will assume. However, the UN may suggest a similar mandate to that of East Timor. The mandate in East Timor was community building and self-government. The United Nations Transitional Administration for East Timor (UNTAET) was given the overall responsibility of administration – legislative, judicial and executive authority. Unlike Bosnia and Kosova where civilian administration and military assistance were carried out by separate bodies, the situation was different in East Timor where the UN carried out both military and administrative control.
As in East Timor, immensely wide powers of legislative, judicial and executive authority will be vested in the transitional government of Afghan nationals. Clearly a separation of powers is needed in any state to prevent the abuse of those powers. The need is even greater at this crucial stage in a country facing greater obstacles because of its ethnic composition where smaller ethnic groups may feel marginalized by the actions taken by representatives of larger groups.
Military assistance – Peacekeeping Force
The initial operational strategy in East Timor was that of peacekeeping, including peace and security within the territory and facilitating the return of refugees. In Afghanistan there already are reports of a general breakdown of law and order in Afghanistan and greater protection is needed to respect the basic human rights of the displaced and civilian population.
An Annex to the agreement on the issue of a United Nations mandated force in Afghanistan has resulted in the deployment of an international peacekeeping force to guarantee security in Kabul, the Afghan capital and its surrounding areas.
An important factor that is likely to play a massive role in the success of the peacekeeping force is the different nature of the conflicts in East Timor and Afghanistan.
The military intervention or ‘humanitarian intervention’ in East Timor was the result of an escalation of human rights abuses by the Indonesian forces. The East Timorese were seeking independence from Indonesia and the military intervention was conducted to enable them to assert that right to independence.
The situation in Afghanistan is different. Afghans will undoubtedly regard the cause of conflict to be the aggressive acts of the international coalition led by the USA on the grounds of ‘harbouring terrorism’. The peacekeeping troops will face hostility from Afghan civilians, who have suffered unimaginable tragedies and who will see them as an occupying force.
So even though the UN was able to set up an administration in East Timor, without the consents of the nationals, it was able to remain there without much hostility. However, it will be unable to do so in Afghanistan and is likely to face hostility from the nationals, even though their leaders have consented to such military assistance.
Construction of a judicial system
One of the main priorities identified at the onset of the administration was that of creating a judicial system. East Timor bears witness to the fact that during turbulent transitional periods, criminal activities and human rights violations flourish. The sudden collapse of previous ruling regimes result in vacuums of lawlessness. Such societies are in immediate need of a framework of law and order to prevent them from spiraling into chaos. Indeed, such societies breed human rights abuse and criminal perpetrators, and it is vital that past and ongoing violations are dealt with promptly and effectively to assist in the challenge of ‘nation-building’.
The blueprints agreed upon in Bonn explicitly propose the setting up of a supreme court in Afghanistan. It has been agreed that a Judicial Commission be set up to rebuild the justice system “in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions.”
Endowed with the task of creating an entire judicial system, the transitional government will undoubtedly be faced with practical difficulties. As in East Timor where there were few lawyers and judges, they will face a shortage of qualified and experienced personnel who may have left the country during Taliban rule, the preceding civil war, and the war with Russia,. Efforts will have to be directed at training in order to initiate a judicial system.
Any appointments system must be fair, transparent and based on legal framework. As well as relevant qualifications and experience there is also a need for ethnic balance. Furthermore, the candidate must be acceptable according to public view. Placing individuals in high legal positions for the administration of justice who have themselves records of criminal activities and human rights abuses would taint the whole system, and ultimately render it as weak.
One of the most crucial steps in rebuilding a judicial system is the physical reconstruction of the judicial infrastructure. This will involve rebuilding court buildings and offices, infrastructure which is heavily damaged by the bombing campaigns.
In East Timor, Indonesian law was implemented during that period since that was what was in use immediately before the UN intervention. In Afghanistan it is unlikely that the transitional government will want to continue implementing the same laws drawn up by the Taliban regime. In such a case, Afghanistan will be left in a complete legal vacuum that was not experienced by East Timor. In such a situation, the level of criminal activities and human rights abuses is likely to drastically escalate.
Similar to the implementation of international human rights norms and standards in East Timor, Afghanistan may find itself pressurized into accepting the entire body of international human rights law. The problem with doing so is that many believe that international human rights laws is based on western ideals, and is meaningless in a poverty-stricken, Muslim country. Although there is room for application of these standards and norms at a regional level, the issue still remains as to what extent they will be able to deviate away from the western model and reflect their own beliefs and ideals and incorporate Islamic law. Moreover, Afghanistan will be forced to give effect to those human rights values that many particularly in the West fail to recognize themselves.
This problem will also re-emerge in the drafting of the constitution. It is not clear which will be given precedence when international law and Islamic law conflict. Afghanistan is a Muslim country and many will want to see the constitution give effect to Islamic values and beliefs. The transitional government will undoubtedly find itself being pressurized by the United Nation to conform to alien legal cultures developed primarily to protect property in a post-feudal European setting, that are incapable of delivering any kind of justice to the people of Afghanistan.
Governance and public administration
In terms of governance and public administration, the transitional administration in Afghanistan is likely to have a similar mandate as that in East Timor. It will have the task of drawing up a skeleton of administrative structure and in parallel set up structure of an independent government. This will involve recruitment of civil servants, including those that served previously as well as new ones, and provide them with training. The administration will have the responsibility of creating a work force and preparing them for skilled labour. In East Timor, the UN helped in training, reconstruction, in particular education and support of students and training teachers though there was a lack of logistical facilities.
The transitional government will need to recruit and train personnel to carry out his role. Again, they will need to ensure that the composition of the police force reflects the ethnic composition of the ethnic groups within the country. A further problem will be ensuring that those recruited do not have a record for committing human rights abuses. Recent AP photographs showing an Afghan policeman beating a crowd of women outside the World Food Program in Kabul indicate that there already is a problem with the record of police recruited after the collapse of the Taliban administration.
As agreed, the blueprints require the setting up of a central banking and tax revenue system. It will result in the operation of foreign international businesses.
Humanitarian assistance
In East Timor, 80 % of the infrastructure was destroyed. They needed electricity, sanitation, education etc. UNTAET played the crucial role of coordination of the role and tasks of NGOS and other international bodies. Here the UN and NGO link shown the strongest and brought in other actors such as banks and financial institutions. They carried out joint assessment missions to see needs and target them. They jointly engaged in the implementation of emergency projects e.g. water, sanitation – Red Cross, UNICEF all under the umbrella of the UN. This task was successfully carried out, leaving the long-term task of administration.
This is perhaps the area that requires the most and immediate attention in Afghanistan. After heavy bombardment of a country already in need of massive emergency aid, the UN should concentrate on the humanitarian assistance it can provide. It is estimated that one million displaced persons within Afghanistan are facing deplorable conditions. They are in need of immediate relief and the UN and the Afghan authorities must work together to ensure immediate, safe and unhindered access by human rights organizations to the internally displaced and other vulnerable populations in the country. They must work together to ensure that emergency project of water and sanitation can be implemented as in East Timor, and in the long-term, they must work together to rebuild the infrastructure that was destroyed
Gender
The original plan in East Timor had intended to include gender units, but was dropped when the mandate carried out into effect. The people consulted by the UN were overwhelmingly male and the UN officials were male dominated. In a country, which has been severely criticized for its treatment of women, it will be important to involve women in all spheres of the governance of Afghanistan.
Independence of the interim and transitional governments
It remains to be seen to what extent the interim and transitional governments will be able to exercise their decisions. In East Timor, UNTEAT established National Council (the legislature), and the cabinet (executive) in July 2000. The Special Rapporteur appointed members of the National Council and all were East Timorese whereas the cabinet consisted of half East Timorese and half others. However the overall responsibility remained with the UN, which gave power to the local responsibility, the power to veto cabinet decisions and approve legislation, remained in the hands of the UN. So it exercised a form of gradual handing over power while retaining control.
Fears concerning Afghanistan are that they will not be able to operate independently and will succumb to pressure exerted upon they by the international community. Despite the fact that all the positions will be occupied by Afghan nationals in the interim and transitional governments, contrary to the situation in East Timor, the real power may remain in the hands of the UN or the international coalition who will want the Afghans to act in a manner consistent with their plans and ideas.
Community empowerment was vital to the reconstruction of East Timor. Distinction between different actors in different administration matters e.g. who consulted by the UN, who are the beneficiaries. The UN can actively pick out certain people or certain sections of the community. It empowers those it consults and disempowers those it does not. This was one of the main problems.
The UN has been criticized for its role in East Timor for its failure to empower the community. Retaining complete power over all aspects of governance was one of the defects of the East Timor experience, as was those that it chose to consult. For example, the UN consulted the older elites, many of whom had fled the country during the atrocities, and added them into the power structure. The younger generation who had refused to leave their homeland and thus suffered felt maginalised by the fact that they were not consulted and involved in the running of their country. These feelings were further aggravated by the UN declaring the national language to be Portuguese, the language in which the elders were educated and failing to recognize Indonesian as the language of education of the youngsters.
In Afghanistan, many of those that have been consulted and included into the administration are exiles. Those that have suffered may feel that they have been marginalized and may feel that the hardships they suffered have not been recognised. The administration in Afghanistan must ensure that all sections of the population are heard and represented.
The immediate aftermath of conflict poses strong challenge to those that are vested with the task of rebuilding that country. There are valuable lessons to be learnt from the East Timor experience. The UN should concentrate on the humanitarian aspect of providing aid to those in need and allow the nationals of the country to build their own future.
