A JAG blogs about creating law in Afghanistan
posted by Kaimipono D. Wenger
Here’s an excerpt from a fascinating post on the blog of a JAG officer in Afghanistan, about the ongoing process of instructing Afghan army officers (in this case, military judges) on legal principles:
One day we met with COMA – the Court of Military Appeals. That was a very productive meeting and at the same time a very frustrating meeting. We had spent the morning talking about how in order for the prosecutors to learn how to better prepare and present a case, they need to be allowed to make mistakes. The judges agreed with this idea. In the past what has happened if COMA has not liked an outcome, they have sent the case back to be retried. Not only is this a violation of the principle of double jeopardy, it has no effect of establishing any form of case law, of which the Afghans have none. Anyway, as we talked about this issue in the morning session, the judges all seemed to realize that if the prosecutor made a mistake and the accused was found not guilty, they needed to uphold the finding of the basic court. Well in the afternoon session we were talking about appeals and the role of the appellate prosecutor. I was sort of not paying attention, (No, I was not sleeping, I was just thinking of something else that involved warm beaches, clear water and blue skies – I’ll be writing about that sometime in the future so stay tuned) when one of the judges made a comment that brought me back to reality.
I gave them a scenario where the prosecutor failed to prove his case and the defendant was found not guilty. The prosecutor, in my example, appealed the case. I then asked the judges what they would do. They were all in agreement that they would send the case back to the basic court with instructions to the prosecutor to fix the problem, retry the case so the defendant could be convicted. You can imagine the stir that caused among the mentors. We thought we had made such great progress in the morning, getting them to agree that they needed to NOT do that very thing and now we were back to where we had been. We tried to explain the problem with this but they said that their law allowed them to do that very thing. As Paul and I started looking for that particular provision – which we never found by the way – they explained that since a crime had been committed, some form of punishment needed to take place. Just as an aside, their law allows them to hear the evidence all over again but at their level. It does not say anything about sending it back to the basic court and prosecutor. When we brought up this point it seemed to fall upon deaf ears. Unfortunately we never did resolve this issue and I’m afraid that it won’t be resolved for some time to come.
It’s a fascinating account of some of the problems that these lawyer-soldiers face as they try to help establish some important legal principles. They’re trying to develop the rule of law — both as a legal and a cultural matter — in a legal environment lacking a rule of law tradition, and a without much in the way of case law either. Not a bad subject for a blog post.
February 15, 2007 at 10:50 pm
Posted in: Criminal Law, Criminal Procedure, International & Comparative Law
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Responses (4)
Patrick S. O'Donnell - February 16, 2007 at 1:20 am
If Afghanistan lacks a ‘rule of law tradition’ why is an Amnesty International report titled, ‘Afghanistan: Re-establishing the Rule of Law’?
See: http://www.web.amnesty.org/library/index/engasa110212003
‘The Bonn Agreement states that Afghanistan’s judicial system shall be rebuilt in accordance with Islamic principles, international standards, the rule of law, and Afghan legal traditions.’ It thus will not do to state, without qualification or elaboration, that this is a ‘legal environment lacking a rule of law tradition.’
What role have earlier constitutions (1923, 1931, 1964, 1987) played in Afghanistan?
And what about Islamic fiqh (specifically, in this case, the Hanafi legal tradition)?
Do tribal law codes (e.g., Pashtunwali) count for anything?
Patrick S. O'Donnell - February 16, 2007 at 1:28 am
Addendum to above: In other words, ‘White Man’s Burden’ redux?
Russell Arben Fox - February 16, 2007 at 8:41 am
Patrick, I’d say your comments are right on all counts. Bob Church is my cousin–that’s how Kaimi came upon this subject; I e-mailed an extract from one of Bob’s blog posts to a bunch of lawyer friends of mine–and on more than one occasion I’ve been tempted to write him, making the case that what he sees as an absense of military justice is merely an absense of case law which reflects the West’s historically grounded pre-occupations with state power, the rights of the accused, etc. Not that I dismiss such things, but they aren’t necessarily obvious concepts to grasp. (Another lawyer friend of mine even commented that the Aghani system was, in a sense, more “morally intuitive” than ours–I mean, if someone has committed a crime, you should punish him, right?) As it happens though, I’ve never actually written such an e-mail to Bob, as I figure that would probably be about as unhelpful an e-mail he could possibly receive. He’s doing his job as best he knows how.
Patrick S. O'Donnell - February 16, 2007 at 8:56 am
Russell,
Small, small world!
‘He’s doing his job as best he knows how.’–That, I don’t doubt (and one wouldn’t have it otherwise).
Best wishes,
Patrick
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