Faculteit Rechtsgeleerdheid

Universiteit Gent

Academiejaar 2009-2010

THE SAFETY AND DEMOCRATIZATION OF AFGHANISTAN : THE ROLE FOR

INTERNATIONAL LAW

(subtitle)

Masterproef van de opleiding

„Master in de rechten‟

Ingediend door

Yasmin Capitaine

studentennr. 20056023

major: national en international publiek recht

Promotor: Prof. Dr. M. Cogen

Commissaris: Dr. C. Vandewoude

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Acknowledgement

I am deeply indebted to all those who have supported and encouraged me during the writing

of this thesis. In particular, I should like to thank my supervisor, Professor Cogan, for his

advice and constructive comments. Special thanks go to my parents and sister for their

patience and support.

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Table of contents

General introduction

Chapter I: Security and military operations

Introduction

1. Major combat operations: NATO in Afghanistan

1.1. Legal basis

1.2. Purpose of the NATO mission

1.3. NATO strategy

1.3.1. Bucharest Summit Declaration

1.3.2. Counterinsurgency (COIN)

1.3.2.1. Obstacles for COIN in Afghanistan

2. Major combat operations: Operation Enduring Freedom

2.1. Legal basis

2.2. President Obama‟s new strategy for Afghanistan and Pakistan

2.2.1. Obstacles to the new US strategy

3. Major combat operations: Afghan National Security Forces

3.1. Afghan National Army (ANA)

3.2. Afghan National Police (ANP)

4. Obstacles to military success

4.1. Drugs in Afghanistan

4.1.1. Background

4.1.2. A threat to security, development and effective governance

4.1.3. US counternarcotics strategy

4.1.4. Afghan National Drug Control Strategy

4.1.5. Evaluation

4.2. Afghanistan – Pakistan border and the FATA – NWFP region

4.2.1. Pakistan: friend or foe?

4.2.2. US drone attacks: a violation of the right to territorial sovereignty?

4.3. National caveats

5. Conclusion

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Chapter II: Governance, democracy and the Afghan constitution

Introduction

1. Horizontal separation of powers

1.1. The presidency

1.2. The government

1.3. The parliament

1.4. The judicial branch

2. Vertical separation of powers

3. The rule of the people through free and fair elections

3.1. 2009 elections

4. Rule of law

5. Separation of church and state

5.1. An Islamic constitution

5.2. The relation between Islamic law and the constitution

6. Universal human rights

7. Conclusion

Chapter III: Economic and social development

Introduction

1. Economy and agriculture

2. Education

3. Health

4. Electricity

5. Water and sanitation

6. Refugees

7. Conclusion

General conclusion

Bibliography

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General introduction

“ […] that no one should ever submit to an evil, for the sake of avoiding a war. For a war is

never avoided, but is only deferred to one’s own disadvantage.”1

Although five centuries have elapsed since Machiavelli wrote these words to Lorenzo De‟

Medici, they have not lost their relevance. While evil has taken on different forms throughout

history, it has sustained its position as a constant of society. On 9/11, the international

community was violently reminded of this, when evil unleashed its ferociousness and

introduced the world to its newest child in care: terrorism. Although terrorism had already

emerged at the end of the 20th

century, the magnitude and callousness of the 9/11 attacks

illustrate that evil not only seeks to maintain its unlawful presence but grasps every

opportunity for expanding it. Evil, after all, happens at the hands of humans and can only be

stopped when these hands are bound. Therefore, terrorists, like all bullies, will only cease

their rule of intimidation when those affected force them to do so.

The realization that terrorism, like all evil, thrives in the playing field of inaction, led

President Bush to take a strong stance against those who had declared war upon the western

way of life. The attacks might have taken place on American soil, but it leaves no doubt that

they targeted the freedoms, rights and ideals on which not only the American, but all true

democracies are built. In compliance with these tenets, the US and UK recognized the

importance for the perpetrators, al-Qaeda and the Afghan Taliban regime supporting them, to

be brought to justice, without inflicting harm upon civilians who had already suffered

extensively at the hands of these religious extremists. When the US and UK officially

launched the “war on terror” on October 7, 2001, they were aware that it would not be easy.

However, nothing prepared them for the road ahead.

Since the war in Afghanistan commenced, it has been subject to numerous challenges. A war

that achieved one of its primary goals – the fall of the Taliban - just merely a month after its

initiation, has turned into a nine-year long struggle for military, political and social victory.

Although international security concerns were the initial reason for the invasion of

Afghanistan, legal and political documents have increasingly defined the need for governance

and development as equally important to military success. Not only have security, governance

1 N. MACHIAVELLI, The Prince, Hertfordshire, Wordsworth Editions Limited, 1997, 14.

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and development been qualified as the three main objectives in Afghanistan, they are also

perceived as being interlinked.

Since 2006, violence has significantly increased, causing the number of coalition casualties to

skyrocket. Furthermore, with new found safe havens across the Pakistani border and infinite

financial resources at their disposal, the tables seem to be turning to the advantage of the

enemy. Moreover, patience is wearing thin in the western hemisphere. Public support for the

war has dwindled in both Europe and the US, leading several countries to cease sending

additional troops and even announce withdrawal dates for the near future. Despite President

Obama‟s pledge to redirect attention to winning the war in Afghanistan, the US

administration seemed to be looking for a “quick-fix” when revealing a 2011 possible

withdrawal date.

Furthermore, the military component of the Afghan operation is not the only one encountering

problems. Although Afghanistan is now home to an officially elected government and

adopted a new constitution in 2004, corruption within the state-institutions and a weak central

government continue to hamper the quest for good governance. Finally, economic growth has

been stagnating during the last year and children‟s educational rights are being infringed upon

due to the fact that insurgents are wreaking havoc upon schools.

Due to these alarming circumstances, many view the war in Afghanistan as a lost cause.

Others estimate that the losses endured will reduce any possible triumph to no more than a

pyrrhic victory. Keeping in mind both the real and symbolic value of the Afghan mission, it

seems that failure is not acceptable. For failure – or abandoning ship - would translate into

admitting prevalence of terrorists over liberators, of serfdom over civil rights. Given the fact

that the need for a positive outcome in Afghanistan is non-negotiable, an analysis suggests

itself as to whether success is as unattainable as some choose to believe.

In my dissertation, therefore, I shall provide an overview of what is being done, what should

be done and the impediments that need to be overcome to ensure a reasonable ending for the

Afghan population and the international community. Keeping in mind the three main

objectives of the Afghan mission – security, governance and development - my dissertation

shall consist of three chapters.

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In the first chapter attention shall be given to the military component of the war in

Afghanistan. More specifically, the respective roles and strategies shall be discussed of the

key military players: the North Atlantic Treaty Organization (NATO), the United States and

Afghanistan. Furthermore, three main impediments – drugs, Pakistan and national caveats -

for military success shall be addressed.

The second chapter of my dissertation pertains to the goal of good governance. In this chapter,

I will take the liberty of limiting myself to answering the question whether Afghanistan has

managed to transform itself into a full-fledged democracy. In order to provide a satisfactory

answer, I shall assess whether the provisions of the new Afghan constitution - and their

translation into practice - meet the democratic requirements of separation of powers, free and

fair elections, the rule of law and respect for the universal human rights. Special attention

shall also be given to the role of Islam in the Afghan constitution and the problems that such

presence entails.

The third and final chapter focuses on the economic and social development issues facing

Afghanistan. Concretely, I shall concentrate on five specific fields: economic growth and

agriculture, health, education, water and energy, and refugees and internally displaced people.

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Chapter I: Security and military operations

Introduction

Over the years, the number of goals set for the Afghanistan mission has increased. Security,

governance and development are currently viewed as the three main objectives. Nonetheless,

the initial intent of the war was formulated in strict military terms. On October 7, 2001,

President Bush warned that patience would be of the essence and that it would take time

“[…] to disrupt the use of Afghanistan as a terrorist base of operations, and to attack the

military capability of the Taliban regime.”2

Since President Bush uttered these words, the military component of the war in Afghanistan

has not lost its relevance. On the contrary, some might argue that the military aspect of the

operation has become more important. For the predefined goal of “disrupting the use of

Afghanistan as a terrorist base of operations” has acquired an international dimension. The

insurgency threat is no longer limited to within the borders of Afghanistan, but has

increasingly spilt over into the neighboring country of Pakistan. The continuing relevance of

the war‟s military aspect is also illustrated by the media coverage that security and military

operations in Afghanistan have enjoyed over the years. In addition, the lion‟s share of the US

budget for the Afghan cause has been put at the disposal of the military.3

The focus on the military component of the Afghan mission is perhaps best illustrated by the

fact that three distinct military operations have been developed by three distinct key players.

First and foremost, the US and the UK launched Operation Enduring Freedom (OEF) on

October 7, 2001. Secondly, the International Security Assistance Force (ISAF) was

established under the auspices of the UN. In 2003, the command over the ISAF was

transferred from the US to NATO. As these two operations share several similarities, it has

often been suggested that they should merge. Nevertheless, this suggestion has not been put

into practice. To this day, Operation Enduring Freedom and the NATO mission remain two

separate operations. Finally, the Afghan National Security Forces (ANSF) also conduct

military and security operations. Trained by international personnel, the ANSF not only

2 President Bush’s address to the nation, 7 October 2001, available at: www.whitehouse.gov/news/releases/2001/10/2001-1007-8.html 3 Special Inspector General for Afghan Reconstruction, Quarterly Report to Congress, 30 October 2009.

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participate in ISAF-led operations, but have increasingly taken on independent missions.

Given the high-profile status of the war‟s military aspect, the first chapter of my dissertation

will focus on the key military actors – NATO, the US and Afghanistan – contributing to the

Afghan and international security. More precisely, attention will be given to their respective

roles and strategies. In addition, an analysis will be provided of the three main obstacles –

drugs, Pakistan and national caveats - hindering the path to military success.

1. Major combat operations: NATO in Afghanistan

1.1.Legal basis

On December 20, 2001, United Nations Security Council Resolution (UNSCR) 13864

established, in accordance with the provisions of Annex I in the Bonn Agreement5, the

International Security Assistance Force (ISAF). This resolution laid down the mandate for

ISAF to secure the area in and around Kabul and reconstruct Afghanistan.6 Initially under US

command, NATO assumed leadership over ISAF in August 2003, thereby following the act to

the letter.7

In the aftermath of the 9/11 terrorist attacks, NATO had, after all, taken the unprecedented

step of invoking article 5 of the North Atlantic Treaty.8 The aforementioned article reinforces

the allies‟ right to collective self-defense to restore and maintain the security of the North

Atlantic area in the event of an armed attack on any party to the treaty.9 Since UNSCR 1386,

ISAF‟s mandate has been subject to many changes, primarily expansions. In October 2003,

the UN Security Council geographically expanded ISAF‟s playing field from Kabul to the

whole of Afghanistan by adopting UNSCR 1510.10

At the moment, ISAF is authorized by

UNSCR 1890 to maintain its presence in Afghanistan until October 2010.11

4 UN Security Council Resolution 1386 (20 December 2001) UN Doc S/RES/1386. 5 Agreement on Provisional Arrangements in Afghanistan Pending the Re-Establishment of Permanent

Government Institutions ("Bonn Agreement") [Afghanistan], S/2001/1154, 5 December 2001, available at: www.unhcr.org/refworld/docid/3f48f4754.html [accessed 16 September 2009]. 6 UNSC Res 1386.

7 United States Congressional Research Service, NATO in Afghanistan: A Test of the Transatlantic Alliance, 25 August 2009, available at: www.fas.org/sgp/crs/row/RL33627.pdf [accessed 3 October 2009]. 8 ‘ibid’

9 NATO, The North Atlantic Treaty, Washington D.C., 4 April 1949, available at:

www.nato.int/cps/en/natolive/official_texts_17120.htm 10

UNSC Res 1510 (13 October 2003) UN Doc S/RES/1510. 11 UNSC Res 1890 (8 October 2009) UN Doc S/RES/1890.

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1.2. Purpose of the NATO mission

By invoking article 5 of the North Atlantic Treaty, NATO called upon its right to self-defense.

Generally speaking, the right of self-defense constitutes a legal justification for the use of

armed force. The fact that NATO is a military organization, combined with the fact that self-

defense implies the use of armed force, contribute to the assumption that NATO‟s presence in

Afghanistan is of a military purpose. It can be said that, initially, the main objective of the

Alliance‟s mission was to maintain the security of the North Atlantic area by undertaking

military action against those who threaten it. However, the strict military character of

NATO‟s mission in Afghanistan has been weakened by two important factors.

Firstly, when the organization took over responsibility of ISAF in 2003, it implicitly

subscribed to the policies of this UN mandated force: security, governance and

development.12

Therefore, NATO‟s mission was no longer a pure military one, but

incorporated a civil and social component.

A second factor transforming the original nature of the alliance‟s mission is that ISAF

commander, General Stanley McChrystal recently implemented a new military strategy.13

Due to the observation that security, governance and development are all inextricably linked,

the general adopted a counterinsurgency strategy. The new strategy combines military and

civil aspects. The main focus of the strategy consists not in the capturing of terrorists and

insurgents, but in gaining the trust of the Afghan population. Thus, the purpose of NATO‟s

mission is no longer a pure military one, as governance and development are not only a means

to secure military success, but have also been defined as goals in themselves.

Security, governance and development are undoubtedly the main objectives of NATO‟s

mission in Afghanistan. However, military and political success in Afghanistan could also

metamorphose NATO as an institution.

Since the Washington Summit in 1999, NATO has sought to expand its operations beyond the

borders of Europe and to actively combat emerging threats such as terrorism.14

The mission in

Afghanistan is, therefore, an osmosis of NATO‟s aforementioned ambitions.

12

UNSC Res 1386. 13

Julian Barnes, Interview with General Stanley McChrystal, Commander, International Security Forces Afghanistan (Kabul 25 July 2009). 14

Congressional Research Service Report RL33627, NATO in Afghanistan: A Test of the Transatlantic Alliance, 25 August 2009, p. 1.

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In this sense, success or failure in Afghanistan will clearly reflect the extent to which NATO

has been successful in reinventing itself. If NATO does not succeed in developing the

political tools and military capabilities to neutralize security hazards, originating outside the

North Atlantic area, the organization might well be without relevance in the 21st century.

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Unfortunately, this test of the transatlantic alliance has been met with difficulties.

First and foremost, external obstacles such as the rugged terrain, a defective government and

Taliban resistance have put under strain NATO manpower and equipment. Secondly, NATO

is still often internally divided due to diverging opinions and the occasional inability of the

parties to see eye to eye. This variety of opinions is clearly reflected in (continental) Europe‟s

reluctance to recognize the full magnitude of the threat that Afghanistan poses to international

security. Another sign of NATO‟s seeming inability to adopt a coherent and unanimous

policy are the national caveats, which permit countries to exclude military intervention

altogether or to impose conditions for allowing their troops into combat.16

Due to the serious

ramifications that these caveats entail upon the war on terror, they will be discussed in more

detail later in this chapter.17

The way NATO deals with these internal challenges and whether

it succeeds in its first out-of-area mission, will not only influence how this military

organization‟s future will be defined in the Alliance‟s new strategic concept, but will also

determine whether NATO has any future at all.18

1.3. NATO strategy

1.3.1. Bucharest Summit Declaration

In the Bucharest Summit Declaration19

, NATO reaffirmed its commitment to building a

peaceful and democratic Afghanistan and stressed the importance of achieving such

conditions to safeguard international security. Furthermore, in the declaration the Alliance

outlined four principles which would allow NATO to achieve the aforementioned goals.

These general principles boil down to: “a firm and shared long-term commitment; support for

enhanced Afghan leadership and responsibility; a comprehensive approach by the

15

CRS Report RL33627, NATO in Afghanistan: A Test of the Transatlantic Alliance, 25 August 2009, p. 2. 16

ibid. 17

See section 4.3 of this chapter. 18 CRS Report RL33627, p. 3. 19

North Atlantic Council, Bucharest Summit Declaration, Bucharest, 3 April 2008, available at: www.nato.int/cps/en/natolive/official_texts_8443.htm

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international community; bringing together civilian and military efforts; and increased

cooperation and engagement with Afghanistan’s neighbors, especially Pakistan.”20

While this

strategic vision guides the member states in their aforementioned quest for democratization

and stability, it does not offer specific details on how this strategy will take shape.

1.3.2. Counterinsurgency (COIN)

The NATO-led ISAF mission consists of both military (security) and civil (governance and

development) objectives. While the Bucharest Summit Declaration stays vague on how these

goals will concretely be achieved, the COIN strategy offers a more in-depth solution. The

main slogan of the COIN strategy is “ shape, clear, hold, build and transfer”. These five stages

reflect the process of targeting insurgents to institution building through civil-military

efforts.21

The Center for Strategic & International Studies defines the four stages in

Afghanistan as follows:22

Shape: the allies identify the key leaders, key infrastructure, tribal dynamics and the tribes‟

relationship with the government in Kabul, and the economic status of a given area while

deploying a mixture of coalition and host country troops to limit the insurgents‟ ability to

reinforce and disperse.

Clear: military operations are conducted to achieve a minimal standard of security. These

operations focus on eliminating insurgents in a given area and isolating them from the

population, thereby promoting stabilization and economic growth.

Hold: the secured areas are maintained by foreseeing a strong military presence. The Afghan

National Police (ANP) gains the trust of the people by correctly fulfilling its task of law

enforcement.

Build: attempts are undertaken to connect the local population with the Government of the

Islamic Republic of Afghanistan (GIRoA) by offering humanitarian relief and foreseeing

reconstruction initiatives. Advantage is taken of the obtained security and stability to build

human capital, institutions and infrastructure.

20

NATO, Bucharest Summit Declaration, 3 April 2008, available at: www.nato.int/cps/en/natolive/official_texts_8443.htm 21 CRS Report R40156, War in Afghanistan: Strategy, Military Operations, and Issues for Congress, 3 December 2009, p. 4. 22

Center for Strategic & International studies, “Shape, Clear, Hold, Build and Transfer”: The Full Metrics of the Afghan War, 18 February 2010, p. 117.

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Transfer: responsibility and activity is transferred to the government, the security forces and

the population of Afghanistan.

This type of warfare, which combines military and civil tactics, is the practical application of

the “Army and Marine Corps‟ Counterinsurgency Field Manual”. This instruction book, after

all, defines counterinsurgency as “ a mix of offensive, defensive, and stability operations

conducted along multiple lines of operations.”23

This document came into being under the

supervision of General David Petraeus, who assumed command of US Central Command

(CENTCOM) in October 2008 and has overall responsibility over the Afghanistan mission. 24

1.3.2.1. Obstacles for COIN in Afghanistan

Counterinsurgency and its “shape, clear, hold, build and transfer” strategy are not new

concepts. COIN was widely accredited for pulling back Iraq from the brink of failure.

However, its effectiveness has proven more hollow in Afghanistan. Stark demographical,

geographical and institutional differences between the two countries have led to different

levels of COIN success.25

While the war in Iraq has been, to a large extent, of an urban and

sectarian nature, the struggle in Afghanistan is of a more rural character and mainly

encapsulated within the Pashtun region. Furthermore, in contrast to Iraq, the war in

Afghanistan is increasingly spilling over into neighboring countries, more specifically

Pakistan. In the following, I shall give a short overview of what should be borne in mind

when applying the counterinsurgency strategy. More concretely, an analysis will be provided

of three considerations, pertaining to COIN - mentioned in the “ Army and Marine Corps‟

Counterinsurgency Field Manual”- and their applicability to the war in Afghanistan.

A first consideration, stated in the field manual, is that when it comes to counterinsurgency

“some of the best weapons, do not shoot.”26

The military booklet explains that, while force is

inevitable for bringing security, lasting victory comes from non-military undertakings. A

blooming economy or political participation can – once a certain degree of security has been

obtained - overtake military action. It is not only the basic rule of counterinsurgency, but also

23

J. NAGL and D. PETRAEUS, U.S. Army Field Manual FM 3-24 Counterinsurgency, Chicago, University of Chicago Press, 2007, p. 27-28. 24

www.centcom.mil/en/about-centcom/leadership/ [accessed 3 March 2010]. 25

N. FICK and J. NAGL, Counterinsurgency Field Manual: Afghanistan Edition, 5 January 2009, available at: www.foreignpolicy.com/articles/2009/01/05/counterinsurgency_field_manual_afghanistan_edition [accessed 14 November 2009]. 26

J. NAGL and D. PETRAEUS, U.S. Army Field Manual FM 3-24 Counterinsurgency, p. 28-29.

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the definition of it. As one of the poorest nations in the world, Afghans consider access to

electricity, water, education and employment their primary concerns.27

Improving these basic

living circumstances, rekindles the people‟s hope and their trust in the government, thereby

enhancing security. Reconstruction must, therefore, not only be seen as a sequel to security,

but also as a channel through which safety can be acquired. This hypothesis is, amongst other

things, supported by the calming effect which road construction had in Kunar province by

promoting commerce and transportation.28

A second consideration regarding COIN is that providing more protection for coalition forces

does not necessarily imply that they are more secure.29

In this regard, two observations can be

made. A first observation is that the counterinsurgency manual stresses that, at all times, the

population must be at the centre of interest. If coalition forces become dislocated from the

people, they run the risk that the population will turn to the enemy. For this reason, forces

must not merely live adjacent to the Afghans, but amongst them and further stimulate

interaction.30

According to the Center for Strategic and International Studies, in July 2009

merely 15% of the allied troops in Afghanistan were actively engaged.31

Therefore, the

coalition forces must seriously increase their level of engagement if counterinsurgency is to

be successful. Initially, this exposure may entail an increase in coalition deaths, but according

to COIN it is the only way to protect the Afghan population as well as the coalition forces that

strive to defend them. 32

Although the death of every soldier is regretful, I sincerely believe

that an elevated number of coalition deaths is not always a symptom of a deteriorating

security situation. Sometimes it is a token of transition, which the insurgents are staunchly

resisting, to safer times.

A second observation, inextricably linked to the requirement of inter-populous presence, is

that effective COIN demands around 20 to 25 counterinsurgents for every 1000 residents.33

According to NATO, as of October 2009, ISAF consisted of a total of 71,030 troops.34

Keeping in mind that Afghanistan is home to more than 28 million people, the current ratio of

27

N. FICK and J. NAGL, Counterinsurgency Field Manual: Afghanistan Edition. 28

T. WICKMAN, New Afghan roads promote peace, prosperity, September 24 2009, available at: www.army.mil/-news/2009/09/24/27807-new-afghan-roads-promote-peace-prosperity/ [accessed on 4 November 2009]. 29 J. NAGL and D. PETRAEUS, U.S. Army Field Manual FM 3-24 Counterinsurgency, p. 29. 30

CRS Report R40156, War in Afghanistan, Military Operations, and Issues for Congress, 23 January 2009, p.27. 31

Center for Strategic & International studies, “Shape, Clear, Hold, Build and Transfer”: Can the New Strategy Work in Afghanistan?, 1 March 2010, p. 15. 32 N. FICK and J. NAGL, Counterinsurgency Field Manual: Afghanistan Edition. 33

Ibid. 34 www.nato.int/isaf/docu/epub/pdf/placemat.html [accessed 6 November 2009].

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counterinsurgents to residents is approximately 1/400.35

Therefore, ISAF remains too

undermanned to be able to adequately fulfill the requirements for successful

counterinsurgency. Consequently, some may argue that, considering the population size of

Afghanistan – and more importantly its vast surface -, a COIN strategy is simply not the way

to go.

A third consideration in COIN states that “the host nation doing something tolerable is often

better than foreigners doing something well”.36

This motto is prompted by the idea that all

achievements will be in vain if the government and security forces of the host nation are

incapable of attaining a minimum standard of performance. Regarding Afghanistan, too little

is still being done to maximize the country‟s survival chances in the post-war era. Currently,

plans are being set in motion to boost the Afghan National Army (ANA) to 134,000 and the

Afghan National Police (ANP) to 82,000 by 2011.37

US General Stanley McChrystal, who

assumed command of NATO operations in 2009, however, is of the opinion that these

numbers are still unsatisfactory and advocates increasing ANSF to 400,000.38

The debate

concerning the growth and training of Afghan National Security Forces (ANSF) will be

analyzed in depth later in this chapter.39

Although the ANSF are, momentarily, insufficient in

strength and number, the heart of the problem regarding a basic level of performance lies with

the government. Corruption amongst Afghan officials is a clear sign that the government is

still a long way from meeting the COIN requirement that the host nation is capable of

delivering adequate performance.

35 www.cia.gov/library/publications/the-world-factbook/geos/af.html [ accessed 10 November 2009]. 36

J. NAGL and D. PETRAEUS, U.S. Army Field Manual FM 3-24 Counterinsurgency, p.30. 37

M. THOMPHSON, Left Out: How to Grow the Afghan Army, Time Magazine, 2 December 2009. 38

Christiaene Amanpour, CNN Interview with General Stanley McChrystal, Commander, International Security Forces Afghanistan (December 9 2009), available at: www.isaf.nato.int/en/articleicle/transcripts/news-transcript-gen.-stanley-mcchrystal-with-christiane-amanpour-cnn.html [accessed 5 January 2010]. 39 See section 3 of this chapter.

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2. Major combat operations: Operation Enduring Freedom

2.1. Legal basis

Article 2(4) of the UN Charter40

states that:

“All Members shall refrain in their international relations from the threat or use of

force against the territorial integrity or political independence of any state, or in any

other manner inconsistent with the Purposes of the United Nations.”41

Nonetheless, Operation Enduring Freedom is – almost universally - perceived as being in

compliance with international law. This compliance is based on the fact that there are two

generally accepted exceptions to the prohibition of article 2(4) of the UN Charter.42

The first

exception consists of obtaining a specific mandate from a UN organ, while the second

requires a case of legitimate self-defense in accordance with article 51 of the UN Charter.

Although in the aftermath of 9/11, the United Nations Security Council (UNSC) passed

resolutions 1368 and 1373 – condemning terrorism and summoning all states to bring the

perpetrators to justice -, none of these resolutions constitute a specific mandate for Operation

Enduring Freedom.43

Nonetheless, this military operation enjoys a sound legal basis, for it

irrefutably finds its legitimacy in the second exception to the UN prohibition of use of force,

namely article 51 of the UN Charter.

Article 51 of the UN Charter states:

“Nothing in the present Charter shall impair the inherent right of individual or

collective self-defense if an armed attack occurs against a Member of the United

Nations, until the Security Council has taken measures necessary to maintain

international peace and security.”44

The 9/11 terrorist attacks clearly constitute an armed attack, thereby granting the US the right

to self-defense under article 51 of the UN Charter. While article 51 sets forth the

40 UN Charter (adopted 26 June 1945), available at: www.un.org/en/documents/charter/chapter7.shtml 41

Art. 2 UN Charter. 42

J. MAOGOTO, War on the Enemy: Self-defense and State Sponsored Terrorism, available at: http://mjil.law.unimelb.edu.au/issues/archive/2003(2)/03Maogoto.pdf [accessed 2 February 2010]. 43 Standard note SN/IA/5340, The legal basis for the invasion of Afghanistan, 26 February 2010, available at: www.parliament.uk/commons/lib/research/briefings/snia-05340.pdf [accessed 2 February 2010]. 44 Art. 51 UN Charter.

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preconditions for invoking the right of self-defense, it does not stipulate the way in which this

right should be carried out. The latter, however, can be found in humanitarian law and the law

on use of force (ius ad bellum). Both suggest that the forceful actions of states – even when in

self-defense - are subject to the considerations of necessity and proportionality.45

The consideration of necessity “determines whether the situation warrants the use of armed

force”.46

Consequently, force is only accepted when it is necessary to achieve the legitimate

objectives of the UN Charter.47

In the aftermath of 9/11, the US and UK called attention to the

fact that the al-Qaeda network possessed sufficient means to plan future terrorist attacks upon

western society. Furthermore, they presented Osama bin Laden‟s statement of October 7,

2001 - which contained threats towards the US and its people - as proof that force was

necessary to stop these terrorists, hell-bent on wreaking great havoc upon America.48

While

these aforementioned arguments provide conclusive evidence for the necessity of use of force

towards al-Qaeda, one could argue that they do not automatically necessitate action upon the

Taliban. This line of thought, however, is without basis. Even before 9/11, the UNSC clearly

identified the Taliban as an accomplice of al-Qaeda in resolution 126749

and 133350

by

demanding that they hand over bin Laden and close down terrorist training camps within

Afghanistan. By ignoring these demands, the Taliban played a part in international terrorism

and violated international law. Therefore, the Taliban shared in the responsibility for the 9/11

terrorist attacks.51

While the requirement of necessity in self-defense was met, the question

remains whether the US and UK military action was proportionate.

The consideration of proportionality examines whether the means employed to achieve the

legitimate objective do not exceed the objective‟s value. In this regard, attention is paid to the

loss of civilian lives and the destruction of civilian property and the natural environment.52

45

J. GARDAM, Necessity, proportionality and the use of force by states, New York, Cambridge University Press, 2004, p. 3. 46

Ibid. 47

Mary Ellen O’Connell reviewing “Necessity, proportionality and the use of force by states” by Judith Gail Gardam, AJIL, Vol. 100, No.4. (Oct., 2006), p. 973-978. 48

Standard note SN/IA/5340, The legal basis for the invasion of Afghanistan. 49

UNSC Res 1267 (15 October 1999) UN Doc S/RES/1267. 50

UNSC Res 1333 (19 December 2000) UN Doc S/RES/ 1333. 51 Standard note SN/IA/5340, The legal basis for the invasion of Afghanistan. 52

Mary Ellen O’Connell reviewing “Necessity, proportionality and the use of force by states” by Judith Gail Gardam, AJIL, Vol. 100, No.4. (Oct., 2006), p. 973-978.

19

In October 2001, the Permanent Representative of the United States of America to the UN

stated that:

“These actions include measures against Al-Qaeda terrorist training camps and

military installations of the Taliban regime in Afghanistan. In carrying out these

actions, the United States is committed to minimizing civilian casualties and damage

to civilian property. In addition, the United States will continue its humanitarian

efforts to alleviate the suffering of the people of Afghanistan. We are providing them

with food, medicine and supplies.”53

These words clearly illustrate the intent to respect the rule of proportionality in humanitarian

law. First and foremost, the US counter-attack is only aimed at Taliban and Al-Qaeda

infrastructure. Secondly, it is stressed that all actions shall be carried out with due respect for

civilian life and property. Therefore, the US attack is indisputably proportionate.

In conclusion, it can be said that Operation Enduring Freedom is in compliance with

international law, for it is an act of self-defense under article 51 of the UN Charter and

respects the requirements of necessity and proportionality.

2.2. President Obama’s new strategy for Afghanistan and Pakistan

In March 2009, President Obama addressed the American nation to reveal his new strategy for

Afghanistan and Pakistan.54

In his speech, the president distinguished three objectives that

the aforementioned strategy seeks to realize.55

The first and primal objective is

“ to disrupt, dismantle, and defeat al Qaeda in Pakistan and Afghanistan, and to prevent their

return to either country in the future.”56

A second goal, inextricably linked to the first

objective of denying safe haven to al-Qaeda, consists of preventing the Taliban from

regaining power. Finally, the new strategy strives to strengthen Afghanistan‟s government and

security forces.

53

UNSC Doc S/2001/946, Letter from the Permanent Representative of the United States of America to the United Nations addressed to the President of the Security Council, 7 October 2001. 54 President Obama’s address to the nation concerning the new strategy for Afghanistan and Pakistan, 27 March 2009, available at: www.cfr.org/publication/18952/ [accessed 10 December 2009]. 55

J. DOUGHERTY, J. HANNA, M. MOUNT and L. SHAUGHNESSY, Key points of Obama’s strategy for Afghanistan, 2 December 2009, available at: http://edition.cnn.com/2009/POLITICS/12/01/afghanistan.key.points/index.html [accessed 12 December 2009]. 56

President Obama’s address to the nation concerning the new strategy for Afghanistan and Pakistan, 27 March 2009.

20

The proposed means for achieving these objectives boil down to: a US troop surge of 34,000,

offering support to and demanding action from Pakistan and increased concentration on

civilian efforts. Although at the time of Obama‟s speech, the administration only intended for

an additional 21,000 troops, this number was later increased to 34,000.57

This total number

consists of 17,000 combat troops, 4,000 training units and 13,000 support troops (engineers,

medical personnel, intelligence agents et cetera). The combat troops would be deployed in

eastern and southern Afghanistan to fight the insurgency and secure the Afghan-Pakistani

border. Meanwhile, training units would concentrate on building a 134,000 strong Afghan

army and a police force of 82,000.58

By implementing such measures, the administration

hopes to accelerate the transfer of the primary security responsibility to Afghan forces. This

in turn would, according to the Obama administration, permit the withdrawal of US troops as

soon as 2011.59

In addition to the troop surge, the new strategy also views Pakistan as essential to finishing –

and winning - the war in Afghanistan. In his speech President Obama reminded the people

that “ the future of Afghanistan is inextricably linked to the future of its neighbor, Pakistan.”60

The porous border has caused extremists to hide in – and plan attacks from - Pakistan, thereby

not only jeopardizing the coalition‟s effort in Afghanistan but also undermining the Pakistani

democracy. With regard to Pakistan, the new strategy focuses on two aspects.61

The first relates to the necessity of strengthening Pakistan‟s democracy and infrastructure,

thereby not only helping its people but also isolating al-Qaeda from the Pakistani population.

In this context, the 111th Congress passed the Kerry-Lugar bill, which foresees an annual $ 1.5

billion in developmental assistance over the next five years.62

The second aspect pertains to the military support, pledged by the US, to help Pakistan in

fighting al-Qaeda. While Pakistan can count on US military assistance in the form of training,

equipment and back-up, the president stated that the US will no longer be handing out “blank

57

A. TYSON, Support Troops Swelling US Force in Afghanistan, The Washington Post, 13 October 2009, available at: www.washingtonpost.com/wpdyn/content/articleicle/2009/10/12/AR2009101203142.html [accessed 12 December 2009]. 58 Ibid. 59

D. SANGER and P. BAKER, Afghanistan Drawdown to Begin in 2011, Officials Say, 1 December 2009. 60

President Obama’s address to the nation concerning the new strategy for Afghanistan and Pakistan, 27 March 2009. 61 J. DOUGHERTY, J. HANNA, M. MOUNT and L. SHAUGHNESSY, Key points of Obama’s strategy for Afghanistan, 2 December 2009 62 Article over Kerry lugar bill!!!!!!!!!!!!!!!!!!!!

21

checks” to cover Pakistan‟s military needs. Only when Pakistan has proven its commitment to

rooting out extremists, shall financial means be placed at the disposal of the Pakistani

military.

A final point, raised by the president, pertains to the fact that military efforts should not

overshadow the need for civilian assistance. The new strategy calls for additional civilian

personnel to enhance security, opportunity and justice. Furthermore, new resources shall be

provided in order to realize these objectives. However, the president warns that the days of

unaccountable spending are over. To ensure cost-efficiency, the new strategy foresees funding

for a strong Inspector General at USAID and the State Department. Funding for the Special

Inspector General for Afghan Reconstruction, a post established under the previous

administration, would also be increased. The president also stressed the need to put an end to

the corruption undermining the authority and legitimacy of the GIRoA. To this end, a new

compact would be sought with the Afghan government. Last but not least, the strategy calls

for hard work in cracking down on the narcotics trade, which continues to undermine the

Afghan economy.

While the new strategy for Afghanistan concentrates on the three aforementioned means –

troop surge, strong US-Pakistan relations and an increase in civilian efforts - for winning the

war, another, less obvious manner is also briefly touched upon. Obama does not shy away

from defining reconciliation as a precondition for true peace. Furthermore, the commander in

chief suggests that a reconciliation process be organized in every province to reach out to

those insurgents fighting out of coercion or greed. However, the president does clearly

exclude “the uncompromising core of the Taliban”63

from any such initiative.

2.2.1. Obstacles for the new US strategy

The new strategy for Afghanistan and Pakistan initially gave rise to great enthusiasm and

rekindled the hearts of many with hope that the war on terror could actually be won. One year

after president Obama revealed his “magic potion” for succeeding in Afghanistan, cracks are

63 President Obama’s address to the nation concerning the new strategy for Afghanistan and Pakistan, 27 March 2009.

22

beginning to appear. In the following, I shall be discussing what I believe to be weaknesses

characterizing the new US strategy.

A first possible criticism regards the president‟s over-ambitious plan to start withdrawing US

troops as soon as 2011. While recently, government officials have nuanced the certainty of

this withdrawal date, it remains clear that the administration is not planning on sticking

around when a minimum level of security has been reached. Announcing possible withdrawal

dates – certainly those in the near future - is always a bad idea. Such information reinforces

the Taliban‟s sentiment that time is on their side, more than it appeases domestic frustration.

Taliban commanders, in relation to the presence of international forces, are known for saying:

“ They have the watches, but we have the time”.64

With Canada withdrawing in 2011 and the

Dutch government collapsing over a possible extension of Dutch military participation in

Afghanistan, the Taliban do not need yet another piece of evidence to support their theory.

Besides revitalizing Taliban stamina, the announcement of a possible 2011 US withdrawal

also raises concerns whether Afghan National Security Forces will be ready to relieve the US

from its tasks.

A second weakness of the Obama strategy pertains to the magnitude of the troop surge in

absolute numbers. Between his address to the nation concerning the new strategy and

November 2009, the president increased US presence in Afghanistan by 30,000 troops.

Previously, however, top US commander General McChrystal recommended an additional

40,000 troops.65

Obama sought to fill that void by encouraging NATO allies to share in the

burden of sending extra manpower. At NATO‟s 60th

anniversary summit the president

declared: “ This is a joint problem, it requires a joint effort”.66

However, this demand fell on

deaf ears. Months later, NATO Secretary General Rasmussen announced that the allies had

agreed to deploy an additional 7,000 troops, still 3,000 short of Obama‟s request.67

Furthermore, a substantial number of allies have failed to deploy the promised troops, raising

concerns that this promise was no more than empty words.

A third criticism on the new strategy pertains to an important omission. While the strategy

addresses the problem of man power, it stays mute when it comes to the problem of man

64

Taliban uitspraak 65

Obama 66

M. EVANS and D. CHARTICLEER, Barack Obama fails to win NATO troops he wants for Afghanistan, The Times, 4 April 2009, available at: www.timesonline.co.uk/tol/news/world/us_and_americas/articleicle6032342.ece [accessed 12 January 2010]. 67 Bericht Rasmussen over extra troepen

23

distribution. Some analysts believe that the latter is the real reason why we are losing in

Afghanistan. Thomas Johnson, research professor at the Naval Postgraduate School in

California, claims that the guarantee for success lies in isolating the villages in the rural

areas.68

A rural counterinsurgency, professor Johnson argues, is won by maintaining a

constant presence, not in the urban areas, but at the village level. The researcher implies that

an increase in manpower, therefore, will remain without tangible results, if the man

distribution problem is not dealt with at the same time. To support his point of view, Johnson

refers to the Soviet occupation, which – despite a presence of hundreds of thousands of troops

- did not succeed in controlling the mujahedin insurgency. Applying the professor‟s theory to

practice would call for a dispersal of currently urban-based troops to more rural, insurgency

tainted areas. Furthermore, it would imply transferring the international troops from their

forward operating bases to the rural villages of Afghanistan. After all, the centre of gravity in

counterinsurgency is, as has already been discussed, always the local population. Therefore, it

can be concluded that while the Obama strategy states that the additional troops would be sent

to the perilous regions of southern and eastern Afghanistan, it omits the crucial aspect of

district-level presence.

A fourth criticism regarding the new strategy for Afghanistan and Pakistan is more inspired

by concern than by disagreement. In his speech the US president outlined his intention to

strengthen the Afghan government. It is evident that there is a strong symbiotic relationship

between good governance and security. The question, however, remains how a strong central

government can be achieved in a country where centralized democracy is often no more than

an alien concept.69

Obama faces many challenges in overhauling existing socio-political

structures. At the 2001 Bonn Conference, the need for a strong government in Kabul was

pushed forward as an important factor in rebuilding the Afghan state. Shortly after, however,

the difficulty of such a mission started to dawn as the government struggled to expand its

authority beyond the capital.70

A first factor undermining the authority of the central government is its dependency on

warlords.71

These former mujahedin freedom fighters allied themselves and ousted the

Soviets from Afghanistan, only to push the country into a civil war. When the Taliban came

68

D. EPHRON, Winning in Afghanistan: A military analyst on what’s wrong with US strategy, 23 September 2008, available at: www.newsweek.com/id/160439/page/1 [accessed 20 February 2010]. 69 Ibid 70

Ibid 71 Iid

24

into power in 1996, warlords receded into the background only to come back stronger than

ever. In the aftermath of September 11, the US called upon warlords in northern Afghanistan

to help remove the Taliban regime. Following this event, many of these militia leaders

wormed their way into prominent positions within the new Afghan government. Others are

equally satisfied just knowing that the Afghan government and international community need

them on their side. The warlords can provide militias to support the coalition‟s

counterinsurgency efforts. Furthermore, already faced with one ardent enemy, the coalition is

in no place to take on yet another opponent. These conditions have led warlords to reprise

their tradition of gross human rights violations such as extortion, rape, murder and

kidnapping with impunity.72

In a society where such injustices are caused by government

officials or people affiliated to those in power, the central government has no hope of

expanding its authority. On the contrary, it only fuels insurgency, thereby boosting the

Taliban‟s rather than the government‟s authority.

A second factor undermining Obama‟s bid for strengthening the central government lies in the

Pashtun tribal belt. In the past, most civil wars have been fought over whether Kabul should

exercise its power over these areas or grant them de facto autonomy.73

Here, tribes adhere to

their own social, political and legal structures. Not Kabul, but tribal laws and tribal

governance dictate the Pashtun way of life. Pashtuns prefer their customary mediation and

arbitration system to the state‟s judicial institutions because of the latter‟s lower efficiency

level, higher exposure to corruption and time demanding aspect.74

A possible compromise

could consist of foreseeing recognition and enforceability for the decisions reached through

these informal legal systems, with the exception of those violating basic legal principles and

human rights. However, at all times, the right to seek dispute settlement through the state‟s

judicial institutions should be safeguarded. Nevertheless, the danger exists that socially

weaker groups, such as women, might encounter difficulties or pressure to abstain from

seeking recognition of their rights through formal legal institutions. It is safe to say that the

central government - and those trying to strengthen it - face a number of hurdles. Even if a

72

=71 73

The Hollings Center for international dialogue and the American Institute of Afghanistan Studies, Fundamentals of Governance in Afghanistan: conference summary, June 2009, p. 3, available at: www.bu.edu/aias/reports/governance_short.pdf [accessed 15 January 2010]. 74 Ibid 5.

25

compromise is reached regarding the rule of law, this still leaves the question of local versus

central governance unresolved.75

A final criticism regards the president‟s plan - which is increasingly being put into action - to

engage in diplomatic talks with moderate Taliban insurgents. Although the initial objective of

the war in Afghanistan not only consisted of ousting al-Qaeda, but also the Taliban regime

supporting them, current events, indicate that the war in Afghanistan is likely to end with the

Taliban resuming some role in governing Afghanistan.76

General McChrystal and US

Secretary of Defence Gates have both hinted that a political solution is unavoidable. The

Obama troop surge is, therefore, more of a means for demoralizing the Taliban and

weakening their bargaining position round the diplomatic table than a tactic for true military

victory. Undoubtedly, Pakistan‟s refusal to fight insurgents (within their borders), who do not

challenge the Pakistani state‟s authority played a role in the decision to resort to a political

solution. Furthermore, Turkey, the UN and even the Afghan government have been trying to

reach out to the Taliban leadership. Recently, CENTCOM commander General David

Petraeus stated that direct talks with the higher echelons of the Taliban was a possibility.77

These developments, however, are in stark contrast with the Obama policy as set out in the

president‟s address to the nation in March 2009. In his speech the commander in chief

expressively excluded “ the uncompromising core of the Taliban”78

from any negotiation

process. The current conditions in Afghanistan beg the question whether such reversal of

policy is justified. What does reinstating Taliban leadership hold for the future and what does

it say about the war?

Firstly, the ANSF, who have progressed enormously over the past years, are still far from

taking over chief responsibility and providing security. Keeping in mind the aforementioned

observation, two theories come to mind.

A first, more optimistic, theory is that by engaging in talks and granting the Taliban

representation within the Afghan government, insurgents will lay down their weapons. After

Mullah Omar and other Taliban leadership promise, as they have been doing so in recent

75

The question pertaining to the devolution of powers will be discussed in Chapter II. 76

T. KARON, Fighting for a Draw in Afghanistan, Time Magazine, 27 January 2010. 77 David Petraeus over diplomatieke overhandelingen. 78

President Obama’s address to the nation concerning the new strategy for Afghanistan and Pakistan, 27 March 2009.

26

months, that a Taliban regime will pose no threat to the security of any other state, all can go

back to normal. Coalition soldiers can return to their wives and children, the ANSF will be

relieved of its task of fighting an enemy it cannot control, while the UN and western states

monitor whether the reinstated Taliban is keeping its promises as the Afghan democracy

continues to blossom. Everyone is a winner. Unfortunately, the odds of such a scenario

becoming reality are not favourable. The improbability of the aforementioned (happy)

outcome can be found in a variety of reasons which not only discredit the first scenario but lay

the foundations for a second, less bright theory.

The first reason is that – contrary to what one may think - the Taliban are calling the shots. In

recent years, the US has evolved from a strict non-negotiation policy under the Bush

administration, through limited talks with moderate insurgents following the Obama strategy,

to - what seems to be - outright future diplomatic negotiations with the Taliban leadership.

The Taliban, on the other hand, have not budged from their condition that all foreign troops

must leave Afghanistan before the negotiation-process can be set in motion.79

While the troop

surge is trying to weaken the Taliban so as to reverse the distorted bargaining positions, it is

uncertain to what extent this strategy will prove successful. Even if the troop surge proves the

military supremacy of the US over the insurgents, the Taliban has a – not to be

underestimated - psychological advantage. The growing eagerness of the international

community and US for negotiation, the announced 2011 withdrawal and even the troop surge

are, in the mind of the Taliban, clear indicators that the US is looking for an exit. Therefore,

the US bargaining position is – despite military success - weakened by its apparent

desperation to bring an end to the current stalemate. As mentioned earlier, time is on the side

of the Taliban, and they are well aware of it.

The second reason for not getting one‟s hopes up is the fact that while the Taliban may

promise to cut their ties with terrorist organizations, their sincerity is questionable. After all,

the Taliban continued to support al-Qaeda, during their 1996-2001 regime, even after the UN

repeatedly asked them not to. Furthermore, in the aftermath of 9/11, the Taliban refused

President Bush‟s ultimatum to hand over al-Qaeda operatives and close all terrorist training

camps within Afghanistan, knowing full well that such refusal might lead to war.

79 T. KARON, Fighting for a Draw in Afghanistan, Time Magazine, 27 January 2010.

27

Certainly, the Taliban going to war is a clear sign that they do not take their beliefs and

ideology lightly. Therefore, the Taliban‟s promise to deny safe heaven to terrorists - one could

argue - only suggests that they agree not to act upon their beliefs, not that they have forsaken

them. Furthermore, distancing oneself from al-Qaeda is still far from recognizing the rights

and freedoms set forth in the Afghan constitution. As the international presence and

monitoring diminishes, it is likely that the Taliban‟s actions will increasingly reflect their

violent ideology and eventually give way to the conditions which allowed for the 9/11

terrorist attacks.

A third and final reason why negotiating with and reinstating Taliban leaders is likely to

backfire, is that it could prove to be the final nail in the coffin of an already weak central

government. Plagued with corruption and inefficiency, the Karzai government is already

struggling to maintain its limited power. Under these circumstances, the danger exists that,

after the war has ended, the Taliban will seize this opportunity to expand, directly or

indirectly, its political powers. For once the war is over and troops have left, it is unlikely that

new military action will be taken if the Taliban do not stick to the conditions of their

reinstatement. Unstoppable because of an insufficient ANSF and a weak government, the

Taliban will have some sort of “carte blanche” when it comes to Afghanistan. The only

solution would be for the UN to impose sanctions, which history shows have had little effect

when it comes to the Taliban. Leaving aside this gloomy scenario, allowing the Taliban a

certain degree of representation within the government reinforces the Afghan‟s view of a

weak central government. After all, strong governments need not cave into the demands of

extremists. An added problem is that reinstating the Taliban into government, is not merely a

slap in the face for Afghans, who suffered a great deal following the Taliban‟s brutal

enforcement policy of Sharia law, it is also a direct violation of their electoral rights. The

decision to alter the composition of a fairly elected government –although the fraud-

allegations of the 2009 presidential elections gave rise to uproar- should be one of the people,

not the Taliban or international community. If democracy is truly to be achieved in

Afghanistan, one must start by treating it as one.

28

3. Major combat operations: Afghan National Security Forces (ANSF)

3.1 Afghan National Army (ANA)

The Afghan army is viewed by many – Afghan and international observers - as a trustworthy

and capable force. Even though, the ANA has more than a couple of flaws, it seems to have

captured the hearts of Afghans. In 2009, the ANA enjoyed a public confidence rate of 91%,

outshining all other institutions and surpassing its own record of 89% achieved in the previous

year.80

Furthermore 87% of Afghans believe that the ANA is helping to improve security.81

The trust of Afghans in the ANA is invaluable, for the war in Afghanistan ultimately hinges

on public support. When coalition troops withdraw, the security and future of Afghanistan

will be – to a large extent - in the hands of the ANA, whose existence in return is dependent

on the trust of the people.

Unfortunately, this national survey, conducted by the Asia Foundation also revealed less

promising statistics. While approximately 2/3 of those interviewed believe that the ANA is

unable to operate without the support of coalition forces, more than half consider the

institution to be unprofessional and poorly trained. Although there is a certain degree of truth

in these appraisals, the ANA has made vast improvements in its combat and leadership skills

in recent years. ANA troops are said to be participating in all operations - even taking the lead

in half of them - and some units are even running their own operations.82

While the

operational proficiency of the army has improved tremendously, its logistical ability is still

suffering with regards to planning and execution.83

The assumption that the ANA is unable to

operate without the support of coalition forces is not only fuelled by skepticism concerning

the ANA‟s operational proficiency. Many believe that this state of dependency is the result of

insufficient manpower within the Afghan army. Originally set at 70,000 in the Bonn

80

The Asia Foundation, Afghanistan in 2009: A survey of the Afghan People, 2009, p. 24, available at http://asiafoundation.org/resources/pdfs/Afghanistanin2009.pdf [accessed 2 February 2010]. 81

D. EPHRON, Winning in Afghanistan: A military analyst on what’s wrong with US strategy, 23 September 2008, available at: www.newsweek.com/id/160439/page/1 [accessed 20 February 2010]. 82

Rand National Defense Research Institute, The Long March: Building an Afghan National Army, available at http://www.rand.org/pubs/monographs/2009/RAND_MG845.pdf [accessed 20 February 2010]. 83

Ibid.

29

Agreement, the target end strength of the force has, over the years, been raised significantly.84

While the number was increased to 86,000 in early 2008, current plans aim to boost the ANA

to 134,000 by 2011.85

With an estimated man force of 94,000 in September 2009, the army

seems well on its way to achieving the aforementioned goal.86

Recently, however, General

McChrystal and Afghan officials have raised concerns that this number is still insufficient to

secure a long-lasting peace in Afghanistan. Consequently, they have been seeking to increase

the combined size of the ANA and ANP to 400,000.87

The Obama administration has stayed

clear of endorsing such plans. Cost seems to be the primary reason for this lack of enthusiasm.

Pentagon officials estimate that the annual bill for an army of such magnitude would amount

to over $2 billion.88

Some argue that, while western countries might agree to pay the bill

initially, the Afghan government will be expected to pay up when more stability has come to

the region.89

Taking into account Afghanistan‟s underdeveloped economy, it is safe to say that

the GIRoA would have insufficient means to finance such a force.

Disregarding the quality and quantity debate, the ANA is also plagued by various other

problems. A first difficulty pertains to the composition of the Afghan army. While Tajiks are

overrepresented in the officer corps, Hazaras and Uzbeks are underrepresented.90

To secure

safety and unity, it is highly recommended that the ANA‟s composition and command, clearly

and proportionally, reflects the multitude of ethnic-groups living in Afghanistan. Aside from

the distorted ethnic balance, the ANA is also faced with a demographic gap.91

There is a

severe lack of personnel between the ages of 35-55 capable of assuming leadership functions,

should senior officials need replacing. This shortage cannot be filled by new recruits, for it

will take a generation to shape them into suitable military seniors.

A second difficulty for the achievement of a well - functioning army is the lack of military

infrastructure and equipment.92

Estimates show that only 40% of planned infrastructure-

84

CRS Report R40156, War in Afghanistan: Strategy, Military Operations, and Issues for Congress, 3 December 2009, p. 41. 85

M. THOMPSON, Left Out: How to Grow the Afghan Army, Time Magazine, 2 December 2009. 86

www.nato.int/isaf/topics/factsheets/ana.pdf [accessed 5 February 2010]. 87

Christiaene Amanpour, CNN Interview with General Stanley McChrystal, Commander, International Security Forces Afghanistan (December 9 2009), available at: www.isaf.nato.int/en/articleicle/transcripts/news-transcript-gen.-stanley-mcchrystal-with-christiane-amanpour-cnn.html [accessed 5 January 2010]. 88

M. THOMPSON, Can Afghanistan Support a Beefed Up Military?, Time Magazine, 20 March 2009. 89

Ibid. 90

Rand National Defense Research Institute, The Long March: Building an Afghan National Army, 2009, p. 57. 91 CRS Report R40156, p. 38. 92

Rand National Defense Research Institute, The Long March: Building an Afghan National Army, 2009, p. 57.

30

projects have been completed.93

Shortage of equipment is mainly a problem for combat

troops, who are generally less well equipped than special units. With a planned increase of

40,000 troops, the problems regarding military infrastructure and equipment are likely to

worsen.

The progress made, in recent years, by the ANA is without a doubt to be applauded. Not only

has it grown in number to over 90,000 troops, but the force has made much headway in

improving its operational capabilities. Afghan troops participate in all - and lead some -

coalition operations, even sporadically engaging in independent counter insurgency efforts.

Nevertheless, the ANA still has a long way to go before it is able to assume primary

responsibility over Afghanistan‟s security.94

As mentioned earlier, the Obama administration

stated that US troop withdrawal would commence at the latest by July 2011.95

In view of the

remaining challenges facing the Afghan army within the fields of manpower, equipment,

infrastructure, logistics and military proficiency the 2011 deadline seems a little premature.

While overstaying one‟s welcome could lead to animosity and a sense of wrongful occupation

among Afghans, an overly hasty withdrawal could undo all the progress made in Afghanistan.

Plans for withdrawal should only be put into action once the ANA has proved it can maintain

the security which the coalition forces fought so hard to establish. Even in the event of

withdrawal, some form of international security assistance must be provided in the wake of

the ANA‟s assumption of responsibility. In Afghanistan, longstanding peace requires

longstanding measures.

3.2. Afghan National Police (ANP)

“These guys wear the uniform of a policeman, but that is all that is police about them.”96

In 2009, the people of Afghanistan reaffirmed their trust in the Afghan police force by

endowing them with a confidence rate of 83%.97

Furthermore, the population‟s perception of

the ANP is similar to the way Afghans view the ANA. Both enjoy high approval ratings for

trustworthiness and their help in improving security. In addition, both are considered to be

93

Rand National Defense Research Institute, The Long March: Building an Afghan National Army, 2009, p. 60. 94

Ibid. 95

US troops could withdraw from Afghanistan ahead of 2011 deadline, The Telegraph, 10 March 2010. 96 Afghan firearms instructor, Lt. Ahmed Zay Mirweis in “ With Raw Recruits, Afghan Police Buildup Falters” by Rod Nordland, The New York Times, 2 February 2010. 97 The Asia Foundation , Afghanistan in 2009: A survey of the Afghan People, 2009, p.39.

31

lacking in professionalism and viewed to be too dependent on foreign troop assistance. While

the ANA‟s efforts and progress justify its popularity, the faith of Afghans in the ANP seems

misguided and misplaced, as will be made clear in the following.

In recent years, the media and state officials have raised concerns about the deep-rooted

corruption and Taliban infiltration within Afghanistan‟s police. In November 2009, 5 British

soldiers died after an Afghan police officer opened fire.98

It remains uncertain whether the

officer in question was a Taliban infiltrator or was paid by Taliban insurgents to switch sides.

Other reports have accused police officers of accepting bribes from insurgents to look the

other way, selling their guns to local militia‟s, actively enabling the narcotics trade and even

sexual abuses.99

Furthermore, due to positive drug tests, a high number of officers have been

dismissed in recent years.100

The ANP‟s problems do not stop here. According to NATO there

were 60,000 Afghan police officers working last year, while 82,000 were on the payroll.101

This inconsistency is due to the phenomenon of “ghost recruits”, which implies corrupt local

commanders pocketing the salaries of non-existent officers. These troublesome facts clearly

illustrate that the ANP is in dire need of a serious mentality change. Many officers have no

sense of loyalty to the central government and see no wrong in lending their services to the

highest bidder.102

Surmounting the problem of schizophrenic loyalty within the ANP will require promoting a

greater sense of nationalism. Many officers‟ primal loyalty lies with their tribes rather than

their country. In addition, transformation of the ANP into a reliable and efficient institution,

requires making the admission procedure more stringent. While trainees are scrutinized for

corrupt tendencies and tribal prejudices, the current mechanism identifies less than 5% as

unsatisfactory.103

The reticence to impose tighter entry-requirements – although compulsory

drug testing has been introduced - can be explained by the fact that the ANP is being

encouraged to grow by more than a third to 140,000.104

The downside of this aspiration is that

more attention tends to be spent on the quantity rather than the quality of ANP officers.

98

J. PARTLOW, 5 British soldiers slain by Afghan policeman, The Washington Post, 5 November 2009. 99 T. HARDING and J. KIRKUP, Afghan National Police penetrated by Taliban at every level, The Telegraph, 4 November 2009. 100

B. BRADY, Drugs and desertion: how the UK really rates Afghan police, The Independent, 28 March 2010. 101

J. FERGUSON, A force divided by unreliable loyalties, The Independent, March 28 2010. 102 Voetnoot checken of het komt van nordland NY times 103

A. BAKER, Policing Afghanistan, Time Magazine, 1 October 2008. 104 “ Nearly half of recruits for Afghan police fail drugs test”, The Daily Mail, 14 March 2010.

32

Evidence of dwindling concern for a qualified force is the shortening of the police training

course from eight to five weeks.105

This is surprising, considering the fact that ANA officers

enjoy several months of training. Furthermore, the ANA is also provided with better weapons.

The difference in treatment has brought some to the conclusion that the police force is being

used as cannon fodder.106

In 2009, a total of 646 ANP officers died compared with 282

Afghan army soldiers and 388 NATO troops.107

While the army is focused on “shaping” and

“clearing” a certain area, the police are responsible for the “holding” aspect of the counter

insurgency mission. Some argue that the task of “holding” an area, leaves the ANP fighting

on the front line, which leads - in view of their limited training and equipment - to a

substantial number of deaths. Others, like General Burgio from Italy‟s paramilitary

Carabinieri force, advocate that the majority of ANP casualties is not caused by participation

in combat but due to ambushes and unarmored vehicles.108

Another worrisome fact is that

police and army trainers are in short supply. US Secretary of Defence Gates has asked NATO

for an additional 4000 trainers to help build the ANP and further boost the ANA.109

Also the

fact that various agencies and countries are involved in the training program has led to a

diverse mixture of training techniques and standards. However, recently a new initiative was

set up to secure uniform training methods.110

Finally, effective training is also thwarted by the

high illiteracy-rate within the Afghan police force.

Disloyalty and lack of policing values are a widespread phenomenon within the ANP. These

negative points reduce the force to a bunch of corrupted and treacherous thieves rather than a

national institution. This is, keeping in mind the counter insurgency strategy, an enormous

impediment to the present and future stability of Afghanistan.111

As mentioned earlier, the

centre of interest in COIN is always the population. While, the Afghans perception of the

ANP is – for unfathomable reasons - largely positive, this is likely to change if the police

force maintains its present behavior. Perception is of the essence, for distrust in national

institutions provides the Taliban with a strong propaganda tool. Therefore, a negative

perception of the police force could, in turn, damage the image of an already fragile central

105

T. HARDING and J. KIRKUP, Afghan National Police penetrated by Taliban at every level, The Telegraph, 4 November 2009. 106 A. BAKER, Policing Afghanistan, Time Magazine, 1 October 2008. 107

R. NORDLAND, With Raw Recruits, Afghan Police Buildup Falters, The New York Times, 2 February 2010. 108

Ibid. 109

F. W. BAKER III, Gates to Ask NATO for More Trainers, Mentors, 4 February 2010, available at: www.defense.gov/news/newsarticleicle.aspx?id=57856 [accessed 1 March 2010]. 110

R. NORDLAND, With Raw Recruits, Afghan Police Buildup Falters, The New York Times, 2 February 2010. 111 CRS Report R40156, p. 40.

33

government.112

The police force is, after all, its most visible extension. Transforming the

police, however, is easier said than done. The ANP not only suffers from inaptitude but also

from divided loyalties. While coalition forces could foresee a standardized and longer training

course, more trainers and better equipment, this would only improve the capabilities of the

ANP. However, this would do little to address the loyalty issue, which can only be solved by

a coherent form of nationalism. In the long run, the contribution of the ANP to a stable and

secure Afghanistan will depend on the officers realization that their unlawful actions

jeopardize their country‟s future. In order for a country to change, the people leading it must.

4. Obstacles to military success in Afghanistan

4.1. Drugs in Afghanistan

“Controlling drugs in Afghanistan will not solve all of the country’s problems, but the

country’s problems cannot be solved without controlling drugs.”113

It is estimated that Afghanistan supplies over 90% of the world‟s illicit opium.114

Although

the international community has managed to reduce Afghanistan‟s poppy cultivation and

opium production over the last two years, the latter still presents an enormous and dangerous

threat on several levels.115

For the purpose of this dissertation I will limit myself to the

discussion of the strategic threat which the narcotics industry poses to the counterterrorism,

counterinsurgency and reconstruction efforts.

4.1.1. Background

Afghanistan‟s history of poppy cultivation and opium production is mainly the result of the

civil war and violence that have characterized the country since the Soviet invasion of 1979.

During the Soviet war in Afghanistan, these activities were primarily seen as a means to

finance anti-government rebels, known as the Mujahideen. An increasing number of poor also

resorted to poppy cultivation as a way to economic relief. The gaining of power remained the

112

A. BAKER, Policing Afghanistan, Time Magazine, 1 October 2008. 113

United Nations Office on Drugs and Crime (UNODC)and The Government of Afghanistan Ministry of Counternarcotics (MCN), Afghan Opium Survey 2009, September 2009, p. 8. 114 United Nations Office on Drugs and Crime ( UNODC)/Government of Afghanistan Ministry of Counternarcotics (MCN), Afghan Opium Survey 2008, November 2008. 115 Drug addiction among refugees, drug trafficking of heroin to the United States, Russia and Europe...

34

main incentive for the cultivation and production of illicit drugs even after the withdrawal of

the Soviet troops, when numerous warlords established themselves as local leaders. Initially,

the rise to and seizure of power by the Taliban did not bring any changes to the narcotics

policy. The opium trade continued to blossom and the Taliban benefited by collecting taxes

on the output.116

Although the Taliban did announce a ban on opium poppy cultivation, not on

trade, it was believed that it was no more than an attempt to gain international legitimacy for

their government, to increase the market price of Afghan opium and to avoid further UN

sanctions.117

The ban and the strict enforcement of it did however manage to reduce opium

production by 94% in 2001.118

Unfortunately, the lack of alternative livelihood programs and

the extreme drought resulted in many cases of starvation. After the fall of the Taliban

following Operation Enduring Freedom lots of farmers resumed their illicit activities. In

January 2002 the Interim Government under Hamid Karzai did impose a new ban on the

cultivation of opium poppy. This was ineffective due to the fact that farmers had already sown

their fields. The opium economy remains an important factor in the war in Afghanistan.

4.1.2. A threat to security, development and effective governance

The war on terror has not been easy. One of the main obstacles during this ongoing conflict

has been the inability to overcome the illicit drug cultivation and trade that seem almost

inherently linked to Afghanistan. The effects of Afghanistan‟s drug economy can especially

be felt in three crucial areas, which are all interlinked and pivotal for the ultimate outcome of

the war in Afghanistan.

A first concern regards the direct threat the opium industry poses to the securitization of

Afghanistan. It has been established that “ there is a clear and direct link between the illicit

opium trade and the insurgents in Afghanistan.”119

This report further underlines the fact that

while the Taliban has always been one of the main beneficiaries of Afghanistan‟s drug

economy, its involvement has been subject to an evolutionary process. As stated above, the

Taliban regime of 1996-2000 restricted itself to collecting tax revenues on opium output. In

recent years the Taliban and other insurgent groups have increasingly adopted and

implemented strategic plans, which allow the Taliban high profitability on all levels of the

production ladder by offering protection to those engaged in narcotics activities. It is to be

116

CRS Report RL32686, Afghanistan: Narcotics and US Policy, 12 August 2009, p. 22-24. 117 UNODC, The Opium Economy in Afghanistan, January 2003, p. 93. 118

Ibid. 119 US Counternarcotics Strategy for Afghanistan, August 2007, p.9.

35

noted that the vast majority of opium production is situated in the Taliban strongholds of

southern and western Afghanistan. The Taliban now actively promotes the cultivation of

opium poppies as a means for funding their insurgency activities and recruiting impoverished

farmers. These revenues permit the Taliban to offer recruited insurgents a good salary, largely

exceeding the average amount offered to officials in the Afghan National Security Force.120

A

vicious circle arises as the opium economy feeds the ongoing conflict, while the war in its

turn incites the growing opium cultivation and trade. It is, therefore, of the utmost importance

that this cycle be broken by incorporating an efficient counternarcotics strategy in the counter

insurgency efforts. This is not always an easy task. The success of counter narcotics measures

is more likely in areas where a certain degree of stability and security has been obtained.121

In

areas where insurgency activities are frequent, counternarcotics measures - specifically

eradication efforts - are often met by strong resistance.

A second concern regarding Afghanistan‟s opium culture is its negative impact on the

national economy. The export of opium in 2007-2008 was equal in value to 33% of the licit

GDP of Afghanistan.122

In contrast to countries like France and Turkey, which produce opium

for legally based medical purposes, Afghanistan‟s opium production is illegal. In the long run,

the future of Afghanistan as a stable and democratic state will largely depend on the ability to

transform the present, illicit economy in a full-fledged, legal economy.

A third and final concern regarding Afghanistan‟s opium culture is the corruption that this

produces at all levels of the official Afghan government. Narcotics-related corruption varies

from the acceptance of bribes by the police or law enforcement personnel to the ignoring of

narcotics activities and the facilitating of them. In 2007 it was believed that government

officials were involved in more than 70% of opium trafficking.123

Not only does this

widespread corruption inflict damage on the legitimacy of the government, it also undermines

the rule of law. When official institutions are perceived as corrupt, civilians are less likely to

obey their rules, regulations and binding decisions or will regard them as unjust. These

feelings of injustice and frustration may ultimately lead to an increase in support for

alternative, unofficial authorities. In this context the international community has put pressure

on the Afghan government to take action against official corruption. Despite the

120

CRS Report RL32686, Afghanistan: Narcotics and US Policy, 12 August 2009, p. 22-24. 121

Ibid. 122 Ibid. 123

US State Department and The Strategic Studies Institute, Opium and Afghanistan: Reassessing US Counter Narcotics strategy, October 2007.

36

acknowledgment of corruption as a hazard to the future of Afghanistan in the Afghanistan

Compact and the ratification of the United Nations Convention against Corruption (UNCAC),

corruption remains an unresolved problem. In 2008 the High Office of Oversight and Anti-

Corruption (HOOAC) was established, in accordance with Article 6 UNCAC. This body has a

coordination and monitoring task with regard to the implementation of the anti-corruption

strategy and the administrative procedural reform of Afghanistan.124

However, due to a lack

of independence, a weak legal framework and human resources problems the HOOAC has

been unable to fulfill all its operational tasks.125

After being declared the winner of the August 2009 elections, Karzai promised to fight

corruption.126

He even announced the establishment of a new anti-corruption unit in an

attempt to regain the confidence of Afghan civilians and the international community.127

This

unit, trained by British, American and Europol personnel, would investigate and prosecute

high-level officials suspected of corruption. Despite these efforts Karzai and his government

have a long way to go before retrieving their status of legitimate and incorrupt authorities.

The fraud allegations regarding the 2009 elections have given rise to questions concerning the

reliability of the Afghan leader. Of further concern is the alleged ties between Karzai‟s

brother and the narcotics industry128

and Karzai‟s choice of Muhammad Qasim Fahim,

previously accused of corruption and keeping an armed militia, as his running mate.129

Karzai‟s tarnished reputation is best illustrated by a popular Afghan joke:

“A group of officials go to meet President Hamid Karzai and ask him, "What's your plan for

fighting corruption?" Mr. Karzai says, "I will tell you, but first you must give me some

money."130

The impact of Karzai‟s weakened position has, nevertheless, to be taken seriously. As stated

above, a weak and corrupt central government will only enhance Taliban support among

124 http://anti-corruption.gov.af/index.php?page=en_Introduction [accessed 5 December 2009]. 125

Office of the Special Inspector General for Afghanistan Reconstruction, Afghanistan’s High Office of Oversight Needs Significantly Strengthened Authority, Independence, and Donor Support to Become an Effective Anti-Corruption Institution, 16 December 2009. 126

A. RUBIN, Karzai Vows Corruption Fight, but Avoids Details , The New York Times, 3 November 2009. 127 D. MCELROY, Afghanistan: Hamid Karzai Unveils New Anti-corruption unit, the Daily Telegraph, 16 November 2009. 128

J. RISEN and C. GALL, Reports Link Karzai’s Brother to Afghanistan Heroin Trade, The New York Times, 5 October 2008. 129 C. GALL, Afghan President’s Running Mate Poised for a Comeback, The New York Times, 5 October 2009. 130

Ben Arnoldy, “The man leading Afghanistan’s anti-corruption fight”, the Christian Science Monitor, November 16, 2009.

37

civilians, jeopardizing a positive outcome to the war in Afghanistan. While coalition forces

possess a substantial amount of discretionary power in fighting opium cultivation and trade,

their authority regarding narcotics-related corruption is limited. It is primarily the Afghan

government that must take the necessary measures to eradicate all forms of corruption,

including those linked to narcotics. While the Afghan government fails to take efficient and

genuine action, corruption will continue to pose a threat to the security and stability of the

country.

4.1.3. US Counternarcotics strategy

Initially, the US military and the International Security Assistance Force severely

underestimated the importance of an efficient counter narcotics strategy as a pillar of the

counter insurgency efforts in Afghanistan.131

Only the UK, one of the main consumer markets

for Afghan heroin, recognized this necessity and developed a counter narcotics strategy. Due

to a shortage of personnel and the reluctance of many ISAF countries to adhere to such an

initiative, the implementation of the British counter narcotics strategy was, to a large extent,

unsuccessful.132

While the Bush Administration was clearly aware of the need to integrate

counter narcotics programs in the counter insurgency strategy, senior military officials

opposed this idea.133

Opponents expressed concerns that such a mode of operation would put

a strain on the limited resources and make security matters worse. In 2004, the US finally

adopted a counter narcotics strategy which was reviewed in 2007. The US counter narcotics

strategy, commonly known as the US five pillar plan, consists of 5 priorities.134

The first priority of the US Counter Narcotics Strategy is that of public information. Afghan

and coalition officials have cooperated to increase public awareness regarding the negative

effects of drug cultivation, trade and use by stating that engagement in these activities is

illegal and detrimental to the economy and public health. Religious leaders also play an

important role. Characterizing narcotics- related activities as contrary to Islam law, has been a

crucial deterrent for Afghan farmers to grow poppies.135

131

United States Senate Report to the Committee on Foreign Relations, Afghanistan’s Narco-War: Breaking the Link Between Drug Traffickers and Insurgents, 10 August 2009, p.5. 132

Ibid. 133 CRS Report RL32686, Afghanistan: Narcotics and US Policy, 12 August 2009. 134

Ibid. 135 T. SCHWEICH, Is Afghanistan a Narco-State?, The New York Times, 27 July 2008.

38

A second element of the US five pillar Strategy consists of judicial reform and law

enforcement. In this context the Criminal Justice Task Force, with jurisdiction over narcotics

cases, and the Central Narcotics Tribunal were established. These institutional instruments are

vital for reinforcing the rule of law and upholding the implementation of anti-narcotics

legislation.136

In order to convince local farmers to abandon the cultivation of illicit drugs, a replacement

must be offered to guarantee their financial security. The third pillar is, therefore, dedicated

to the development of alternative livelihood programs.137

Popular initiatives are the

“immediate needs” and “cash-for-work” programs. The aforementioned programs aim to

promote alternative livelihood by bringing together local farmers in a joint effort to build up

agricultural infrastructure. The result is twofold.138

On the one hand, infrastructure will

facilitate engaging in agricultural activities. On the other hand, participating farmers also

receive compensation for their construction efforts, replacing lost opium revenues. Another

known initiative is the “comprehensive development” program which focuses on a broader

range of services such as financial support.

A fourth component of the US counter narcotics strategy regards interdiction efforts. The US

Drug Enforcement Administration (DEA) has played a significant role in this field. It is under

the auspices of the DEA that “Operation Containment” continues to tackle drug trafficking

and other drug-related hazards. Initially, it was believed that rules of engagement, decreed by

the US Defense Department, restricted the right of US troops to engage in counter narcotics

offences.139

The seizure of drugs and use of armed force against narcotics traffickers was only

deemed to be permitted when an ongoing counter terrorism operation accidently gave rise to

such action. Currently, however, counter narcotics activities can be carried out independently

from counter terrorism operations.

The last pillar of the US counter narcotics strategy for Afghanistan – eradication - is also the

most controversial. Opponents of eradication appeal to the fact that poppy cultivation has

136

US Counternarcotics Strategy for Afghanistan, August 2007, p. 18. 137 Ibid. 138

Ibid. 139 US Counternarcotics Strategy for Afghanistan, August 2007, p. 19.

39

continued to grow in spite of eradication campaigns. Furthermore, they argue that eradication

efforts tend to alienate farmers and cause animosity.140

Advocates of eradication state that

reducing drug cultivation implies more than rewarding those growing alternative, licit crops.

According to them, precedents in Pakistan and Thailand illustrate the need to combine

economic remuneration with eradication, incentives with disincentives to make short work of

drug cultivation.141

Until 2009, eradication was perceived as the most important element of

the five pillar strategy, while alternative livelihoods received the least attention. The Obama

administration has stated that eradication efforts will be scaled down in favor of interdiction

efforts and alternative development programs.142

4.1.4. Afghan National Drug Control Strategy

UN Security Council Resolution 1378 and the Bonn Agreement of 2001 emphasize

Afghanistan‟s international obligation to combat illicit drug trafficking.143

The Afghan

National Drug Control Strategy (ANDCS), adopted in January 2006, is the concretization of

this commitment.144

This strategy sets forth eight priorities for eliminating drug cultivation

and trade.145

The first 5 components of the Afghan counter narcotics plan – public

information, judicial reform, alternative livelihood, interdiction and eradication - overlap with

the above-mentioned elements of the US Counter narcotics strategy.

However, three additional priorities distinguish the Afghan from the US program. It is

important to note that the US government still plays a supportive role in the execution of these

additional initiatives, primarily by offering substantial financial aid.

A first characteristic, differentiating the Afghan counter narcotics strategy, is the strong

emphasis on curtailing drug abuse. The government of Afghanistan offers logistical and

financial support to drug abuse prevention and rehabilitation programs. Institution building is

the second specific feature of the Afghan National Drug Control Strategy. The basic

assumption of this policy is that strengthening existing or building new institutions is

imperative for winning the narcotics war. A functioning and accessible education system

shapes young children into trained and qualified adults, thereby diminishing the likelihood of

140

CRS Report RL32686, Afghanistan: Narcotics and US Policy, 12 August 2009 141

Ibid. 142

R. DONADAIO, New Course for Antidrug Efforts in Afghanistan, The New York Times, 27 July 2009. 143 UNSCR 1378 144

Afghanistan national drug control strategy 145 UNODC 2007

40

them resorting to drug cultivation as a means of income. Finally, the Afghan strategy – in

contrast to the U.S plan- pays more attention to the regional context of drug related issues.

Following the devastating effects of Afghan produced heroin to neighboring countries, the

Central Asian Regional Information Coordination Centre (CARICC) was established and a

number of transnational programs were set up.146

4.1.5. Evaluation

The Afghanistan Opium Survey 2009, carried out by UNODC, states that in 2009 there was a

22% decrease in opium cultivation in Afghanistan.147

Furthermore, the survey illustrates that

the number of poppy-free Afghan provinces rose from 18 to 20 in the previous year. While

opium cultivation dropped, opium production failed to follow this trend due to the fact that

farmers extracted more opium per bulb. To assess whether the aforementioned facts are

indeed as promising an indicator as one may presume, one must analyze the underlying causes

of the decrease in Afghan opium cultivation in 2009. The factors influencing the average

opium production rate are often more revealing than the figure itself. If the drop in opium

cultivation was largely due to uncontrollable variables, such as weather and market changes,

the established drop would more likely be pure coincidence than the expression of an efficient

and viable counter narcotics policy.

While no specific poll was taken regarding the main disincentives for growing poppies in

2009, the Afghanistan Opium Survey 2009 does cite common reasons of Afghan farmers who

stopped growing poppies in or before 2009. In this poll, the ban on poppy cultivation,

imposed by the GOA, was cited as the primary discouragement. Other popular reasons were

the low sale price of opium and the fact that it is against Islam. Taking into account that the

farm gate value of opium in Afghanistan fell over 1/3 in 2009,148

it is highly probable that the

low sale price was indeed a decisive factor in the decrease of overall opium production.

Nevertheless, counter narcotics efforts cannot be taken for granted. The poll clearly

demonstrates that government legislation and public information campaigns are paying off.

Furthermore, encouraging religious leaders to speak out against poppy cultivation and opium

production may lead to a change in mentality, drastically needed when aiming for eliminating

opium production in the long run. The Afghanistan Opium Survey 2009 also illustrates that

146 OPrichting CARICC 147

UNODC, Afghanistan opium survey, 2009. 148 Ibid.

41

poverty was one of the main reasons why Afghan farmers continued growing poppies in 2009.

Therefore, if alternative livelihood programs were to be extended, poverty and hence opium

production could be reduced. This implies that counter narcotics strategies not only serve as

incentives for stopping opium production, but can also have a use as disincentives for

continuing poppy cultivation.

A final observation is that throughout 2009 the relation between security and opium

cultivation remained extremely strong. A total of 99% of Afghan opium production occurred

in the perilous western and southern provinces.149

However, the UNODC report indicates that

even in Helmand province opium cultivation dropped by 38% in 2009. This decrease was

largely accredited to the “food zone” program which promotes the cultivation of cereal crops.

While implementing counter narcotics strategies is always more difficult in hostile territory, it

is may be the only option to break the vicious cycle of opium production and violence.

Incontestably, uncontrollable variables have influenced the growth or decline of opium

cultivation to a large extent. However, the counter narcotics strategies have proven not to be

completely fruitless. The biggest challenge is not adjusting the content of the counter

narcotics plans, but extending it to a bigger public especially to the people of western and

southern Afghanistan.

4.2. Afghanistan-Pakistan border and the FATA- NWFP region

“US forces find themselves restrained by political and diplomatic concerns from pursuing

enemy targets inside Pakistan, while the loyalties of Pakistan’s security forces are clearly

divided”150

Since the war on terror commenced, all eyes have been not only on Afghanistan, but also on

its most renowned neighboring country, Pakistan. While former Pakistani President

Musharraf declared support for the war in Afghanistan in 2001, the sincerity of Pakistan‟s

alliance to the US has been ambiguous and dubious at the least. Among the population, anti-

American sentiments are often stronger than the hatred towards the Taliban. Furthermore, a

weakened central government is losing its grip on the country to the benefit of an

ideologically divided army. Taking into account the aforementioned problems, a first question

arises: “Is Pakistan a friend or foe”? A second point of controversy concerning Pakistan

149 Center for Strategic & International studies, “Shape, Clear, Hold, Build and Transfer”: The Full Metrics of the Afghan War, 18 February 2010, p. 84. 150 M. THOMPSON, Border Clashes Add to US-Pakistan Tensions, Time Magazine, 26 October 2008.

42

pertains to the right of US troops to execute attacks on Pakistani soil. It is general knowledge

that the Federally Administered Tribal Areas (FATA) and the North-West Frontier Province

(NWFP), bordering Afghanistan, function as safe havens for Taliban insurgents. While the US

has often launched attacks against these insurgents, a vast majority of Pakistanis view this as a

direct violation of their right to territorial sovereignty.151

A second question, therefore, is

whether the right to territorial sovereignty should be circumvented or even ignored in order to

facilitate a positive outcome of the war on terror. In the following I will be discussing these

two questions.

4.2.1. Pakistan: friend or foe?

The ambiguous US-Pakistan relation is best illustrated by Musharraf‟s address to the nation

on September 19, 2001. While Musharraf declared his decision to support the war on terror,

he also implied that this decision was not truly his. Not only did he suggest that his

proclaimed support was only the result of immense American pressure and threats, but he also

insinuated that, left to him, the Taliban would remain untouched. A first sign was, hereby,

given that although Pakistan had forged an alliance with the US, it had done so reluctantly.

Furthermore, the fact that Pakistan was the only country in the world, with the exception of

Saudi-Arabia, to maintain diplomatic relations during and with the Taliban regime, could be

seen as a second omen of the weakness of the US-Pakistan relation.152

When Musharraf resigned in August 2008, newly elected president Zardari vowed to help

combat terrorism. Since then, the Pakistani government has pointed to the Bajaur operation of

2008 and the recent arrest, in February 2010, of Mullah Abdul Ghani Baradar as proof of their

reinvigorated commitment. While the capture of the Taliban‟s second in command may be a

promising sign that Pakistan is finally taking matters seriously, the latter does not assure plain

sailing. Serious obstacles still prevent a sincere, functional and sustainable cooperation from

Islamabad.

The main impediment to a strategic collaboration between Washington and Islamabad to

overcome jihadists lies in the weakening position of president Zardari. Faced with an ever

shrinking popularity rate and being commonly depicted by the media as a villain, Zardari is

on the verge of becoming no more than an impotent bystander. In this climate of political

turmoil, the Pakistan army has revealed itself as the main decision-making establishment with

151

CRS Report RL33498, Pakistan-U.S. Relations, 6 February 2009, p.13. 152 Ibid.

43

regard to defense and security issues. On top of the intrinsic problem that such a phenomenon

poses, the various political and ideological beliefs within the army echelon produce an added

difficulty for the US-Pakistan coalition. The problem concerning the political diversity of the

military is twofold.

While a first concern pertains to treason by military operatives, the second regards the

reluctance of the Pakistani army to recognize the Taliban as an imminent threat. In the

following, I will be discussing these two problems related to the Pakistani military.

The severity of the first problem, treason within the army, was clearly illustrated when reports

showed that operatives within the military intelligence agency provide the Taliban and other

militant groups with various forms of support.153

Criticism has specifically been leveled at the

S Wing of the Directorate for Inter- Services Intelligence (ISI). This Pakistan spy service had

previously helped plan the bombing of the Indian embassy in Kabul. Reports have also

indicated that Pakistan‟s Frontier Corps often functions as an accomplice to attacks on US

forces in the border region.154

These regretful events beg the question: “ which motives induce

these operatives to commit such treacherous acts”?

Three potential explanations can be given. The first and most obvious reason is that they

actually adhere to the beliefs and politics of the Taliban. After all, many Pakistanis view the

strict religious regulations imposed by the Taliban as the correct practice of their faith.

A second, more complex, explanation pertains to the longstanding rivalry between Pakistan

and India.155

In the early‟90s Pakistani ISI officials helped the Taliban to power in order to

stabilize a nation destroyed by civil war. The underlying idea was that an eventual power

vacuum could give rise to Indian influences, ultimately leading to Indian supremacy in

Afghanistan. Considering the disturbing impact that an Indian predominance in Afghanistan

could have on the fight for Kashmir, Pakistani officials viewed the Taliban as the ideal tool to

secure their interests.156

This fixation on evading Indian tutelage at all cost, is still of great

relevance today. Many people in Pakistan believe that the war on terror will either end with

the Americans abandoning ship in the near future or a negotiated deal with the Taliban. As the

153 M. MAZETTI and E. SCHMITT, Afghan Strikes by Taliban Get Pakistan Help, US Aides Say, The New York Times, 29 March 2009. 154

J. PAGE, British Forces Train Pakistan’s Frontier Corps to Fight Al-Qaeda, The Times, 21 March 2009. 155

CRS Report RL33498, Pakistan-U.S. Relations, 6 February 2009, p.17. 156 M. MAZETTI and E. SCHMITT, Afghan Strikes by Taliban Get Pakistan Help, US Aides Say, The New York Times, 29 March 2009.

44

first would most probably lead to the return of the Taliban, both scenarios favor maintaining

good relations with the Taliban leadership, even if this implies jeopardizing Afghanistan‟s

fragile stability. Some Pakistanis argue that, taking into consideration the Kashmir problem,

Taliban government, after all, is better than no government or a weak one.

A third possible reason why some Pakistani military officials conspire with the Taliban is

more a question of hatred for a mutual enemy than of concurring with Taliban policies.

Pakistan, like many countries, has fallen victim to the general culture of unfounded anti-

Americanism. In Pakistan, however, this phenomenon is not limited to making the US the

scapegoat for all of the world‟s problems, a classic component of anti-Americanism. Feelings

of resentment are further instigated by raging mullahs, ludicrous conspiracy theories and a

sensationalist media.157

While one conspiracy theory claims that the US has visions of

confiscating Pakistan‟s nuclear arsenal, another suggests that countless secret agents are

kidnapping people and placing bombs around the country, for which Taliban insurgents then

get innocently blamed. These speculations not only exist among the unskilled population.

Suspicion concerning US motives is also high within the Pakistani military and intelligence

service.158

Unfortunately, there is not much the US can do to overcome this paranoia. Even

the Kerry-Lugar bill, which foresees $7.5 billion in financial aid for Pakistan, could not

placate the masses. On the contrary, the wording of a condition in the bill further angered the

military, who interpreted the unfortunate phrasing as a deliberate ploy to restrict Pakistan‟s

sovereignty.

Even if Taliban support within the military and intelligence service were magically erased,

US-Pakistan coordination and cooperation efforts would still be tarnished. A second

impediment to a functional alliance is the reluctance of the Pakistani army to recognize the

Taliban as an existential threat. Many dismiss the rise of the Taliban in Pakistan as a natural

consequence of the controversial war in Afghanistan.159

Furthermore, they believe that the

Taliban insurgency in Pakistan will wither when the US pulls out of Afghanistan. This line of

thought, however, can be highly dangerous. Underestimating the tenacity of the Taliban not

only harms the international commitment to combat terrorism, but could further involve

Pakistan in a downward spiral of violence and war. The seizure of Swat-Valley and Bruner in

157 T. MCGIRK, Pakistanis See a Vast US Conspiracy Against Them, TIME Magazine, 16 February 2010. 158

Ibid. 159 T. KARON, Pakistan and the US Still at Odds over Taliban Threat, TIME Magazine, 4 May 2009.

45

2009 is evidence of the growing strengths and perseverance of the Pakistani Taliban.160

While

the Pakistan army succeeded in expelling the insurgents from Swat-Valley and Bruner,

important lessons remain unlearned.

First and foremost, the army still refuses to acknowledge the need for a full-scale military

intervention against the insurgents on the whole of the Pakistan territory.161

A second lesson,

which Pakistan has seemed to overlook, is the disastrous and reverse effects that peace-

agreements with the Taliban tend to bring about. The truce-agreement between the Pakistani

government and the Taliban, which introduced Shariah law and limited the use of armed force

to retaliation in the Swat-Valley, did not produce the desired peace.162

On the contrary, it only

led to further oppression and enabled the Taliban to plot their next take-over of power in

Bruner. The Taliban is not a force open to debate and compromise. Behind the façade of

peace-agreements is an inexhaustible sense of persistence and twisted Machiavellianism

urging them to continue their politics of warmonger. Therefore, I believe that Pakistan should

not only abandon this form of solution, which boils down to the abdication of the government,

but also seriously review existing peace-agreements such as those with Taliban militias in

North Waziristan. Furthermore, the inadequacy of peace-agreements as a means to alleviate

Taliban pressure in Pakistan raises doubts as to the extent to which diplomacy can be

successful in brokering a peace in Afghanistan.

Considering the aforementioned problems, it is clear that the US-Pakistan relation is far from

where it should be to win the war on terror. While Pakistani cooperation has increased in

recent months, it is still insufficient to secure a positive outcome. First and foremost, the

Pakistani government must regain control of the situation instead of playing second fiddle to

the military. Furthermore, the threat that Taliban insurgents pose should be taken seriously.

This newfound attitude should be reflected by making Taliban militant groups, not India, the

top national security issue. Finally, a realistic and all-embracing national policy and military

strategy is needed to oust the insurgents from Pakistan. Only when these measures are

implemented, can Pakistan be called a true friend and trustworthy ally.

160 J. PERLEZ, Taliban Seize Vital Pakistan Area Closer to the Capital, The New York Times, 22 April 22 2009. 161

T. KARON, Pakistan and the US Still at Odds over Taliban Threat, TIME Magazine, 4 May 2009. 162 J. PERLEZ, Pakistan Makes a Taliban Truce, Creating a Haven, The New York Times, 6 February 2009.

46

4.2.2. US drone attacks: a violation of the right to territorial sovereignty?

On January 23rd

2009, US drones launched a missile attack over the Pakistani border, killing

15 people. It was the first attack of this kind since president Obama came to power and a clear

sign that a change in government need not necessarily imply a change in modus operandi.163

While US strikes on Pakistan have taken place since January 2006, the methodology used in

these attacks, and the circumstances leading up to them, have evolved over recent years.

Initially, they occurred sporadically and with due warning to the Pakistani military. In 2008,

however, cross-border strikes became more frequent. Furthermore, the US decided to forego

notifying the Pakistani army as militants seemed increasingly in the know of what was to

come. Last but not least, from September 2008, US forces have even engaged in ground

operations on Pakistani soil.164

These airstrikes and ground operations have been met with vehement criticism and agitation

from the Pakistani population and government. While some claim that President Zardari and

US officials might have reached a silent agreement concerning drone attacks, the Pakistani

government has repeatedly denied such allegations, stressing that such attacks are in violation

of Pakistan‟s right to sovereignty and territorial integrity.165

Nevertheless, the US has stuck to

its guns, even planning a 75% increase in drone attacks for 2010.166

US officials have pointed

out that Predator strikes have successfully targeted many senior al-Qaeda leaders and

contributed to the waning of this terrorist network.167

Reports indicate that top al-Qaeda

officials are being forced to replace former trustees and operatives, targeted by drones, by

strangers.168

Furthermore, the risk of drone attacks hampers crucial, outdoor al-Qaeda training

activities such as bomb-making and combat fighting. While the US Predator mission has

managed to shake the foundations of the world‟s most renowned terrorist organization, this

has not come without a price.

Civilian casualties accompanying these strikes have been a huge drawback and source of

criticism. Many fear that this loss of innocent lives only fuels anti-American sentiment and

163

T. REID, President Obama orders Pakistan drone attacks, The Times, 23 January 2009. 164

A.BAKER, US Stepping Up Operations in Pakistan, TIME Magazine, 10 September 2008. 165

CRS Report RL33498, Pakistan-U.S. Relations, 6 February 2009, p. 21-23. 166 A. IQBAL, US plans 75pc increase in drone operations, Dawn, 3 February 2010. 167

G. MILLER, US missile strikes said to take heavy toll on Al Qaeda, The Los Angeles Times, 22 March 2009. 168 M. EVANS, Death from above: how Predator is taking its toll on al-Qaeda, The Times, 3 January 2009.

47

that public anger will ultimately solidify the power of the jihadists.169

Unfortunately, this

prediction is not completely improbable. As suggested by a recent poll 67% of Pakistanis

oppose drone attacks, and a vast majority of the population also perceives the US as a greater

threat than the Pakistani Taliban or India.170

At the same time other surveys suggest that these

numbers should not be taken too seriously. One survey, for instance, seems to indicate that the

inhabitants of the FATA, where the attacks take place, perceive the drones as liberators and

the drone approach actually enjoys an approval rate of 6 to 10 in these areas.171

While the

Pakistani government and the UN have spoken out and condemned the recklessness with

which the US continues to take innocent lives, the exact number of civilian casualties remains

blurred.172

This lack of clarity is due to the fact that the targeted area is mostly not accessible

to independent journalists so that reports often rely on statements issued by terrorists in

charge of that given area.173

The question concerning civilian casualties extends itself well beyond a pure humanitarian

debate. According to Philip Alston, the United Nations‟ special reporter for extrajudicial

executions, civilian casualties and what is done to prevent them are important indicators as to

if drone attacks are in compliance with international law. The selection procedure of targets

and the approval of the Pakistani government for the drone attacks will be important factors in

that assessment.174

Much confusion surrounds the point of view of the Pakistani government.

While Pakistani officials have stated that drone attacks are in direct violation of the right to

territorial sovereignty, it has been reported that these drones are flown from a base in

Pakistan, unveiling a secret cooperation between the US and Pakistan.175

Therefore, these

drone attacks are, in contrast to what one may presume, not undeniably an infringement of

international law since the government of Pakistan tacitly enables these attacks.

I believe that the US Predator system is the pre-eminent example of the distrust that

characterizes the US- Pakistan relation. For the US, drone attacks are the ideal instrument

with which to eliminate hiding terrorists without being at the mercy of a less capable and

often unreliable army. On the other hand, the protest with which these attacks are met,

169

D. KILCULLEN and A. MCDONALD, Death From Above, Outrage Down Below, The New York Times, 16 May 2009. 170

O. KHAN, Pakistanis see US as bigger threat than Indie, Taliban: Poll, The Times of India, 19 November 2009. 171

S. SHANE, C.I.A. to Expand Use of Drones in Pakistan, The New York Times, 3 December 2009. 172

K. SILVERSTEIN, Is Secrecy on Drone Attacks Hiding Civilian Casualties?, Harper’s Magazine, 12 June 2009. 173 F. TAJ, Drone Attacks: challenging some fabrications, Daily Times, 2 January 2010. 174

S. SHANE, C.I.A. to Expand Use of Drones in Pakistan, The New York Times, 3 December 2009. 175 G. MILLER, US missile strikes said to take heavy toll on Al Qaeda, The Los Angeles Times, 22 March 2009.

48

symbolize the suspicion of the Pakistani population about the US motives for being in the

Middle- East. While this military technique may be on the borderline of what is acceptable to

international law, its effectiveness is undeniable. This new technology - thanks to which a

number of high -profile terrorists have been eliminated- could be the breakthrough needed to

turn the war around. Nevertheless, it is crucial to proceed with caution. Firstly, necessary

steps must be undertaken to avoid civilian casualties. Secondly, the causal relation between

drone attacks and al-Qaeda recruits should be closely monitored. Only when these measures

are put into effect, will the drone program reach its full potential to metamorphose the war on

terror.

4.3. National caveats

Over the years, NATO has fought an uphill battle to secure a sufficient number of troops for

its ISAF mission. The reasons why finding troop contributors has proven such a struggle vary.

While insufficient domestic support is undoubtedly the main reason, another important factor

to take into account is NATO‟s long-standing practice that troop - contributing countries have

to pay their own costs. In December 2009, however, NATO Secretary General Anders Fogh

Rasmussen proudly announced that the number of ISAF troops deployed would increase by

37,000 in 2010.176

While this can be seen as a sign of reinvigorated commitment, its value

should not be overestimated. First and foremost, the expected boost in ISAF troops is largely

due to the promise of President Obama to send an additional 30,000 US troops.177

France‟s

refusal and Germany‟s initial reluctance to deploy more combat troops illustrate that Europe

is still not wholeheartedly on board.178

The biggest blow to morale, however, comes from the

knowledge that the total of these international forces, amounts to less than the sum of its

parts.179

This prophecy is the result of the counter-productive effect national caveats tend to

have on the coalition‟s mission.

National caveats are defined by NATO as “restrictions placed on the use of national military

contingents operating as particle of a multinational operation”.180

A prime example of such

restrictions is the prohibition, imposed by the Bundestag, for German KSK special forces to

176

J. DOUGHERTY and E. LABBOT, NATO to send more troops to Afghanistan, 5 December 2009, available at: http://edition.cnn.com/2009/WORLD/asiapcf/12/04/afghan.nato.troops/index.html [accessed 4 April 2010] 177

E. SCHMITT, Obama Issues Order for More Troops in Afghanistan, The New York Times, 30 November 2009. 178

I. DRURY, France risks diplomatic row after snubbing Obama’s call to send more troops to Afghanistan, the Daily Mail, 26 January 2010. 179CRS Report R40156, p. 14. 180

NATO Resolution 336 on Reducing National Caveats, 15 November 2005, available at: www.nato-pa.int/default.asp?SHORTCUT=828. [accessed 7 April 2010].

49

use lethal force, except in the event of an attack.181

Other radical limitations include the

decision by some countries to forbid their military from taking particle in combat in the

southern and eastern regions of Afghanistan or embarking on night-time activities.182

Not all

ISAF participants, however, impose national caveats of such magnitude. In addition to

causing friction within NATO itself, these national constraints cripple the international

mission in two ways.183

Firstly, national caveats infringe upon the liberty of commanders to

disperse and utilize forces as they see fit. Secondly, they risk tainting the relationship between

the ANSF and the ISAF. When the ANSF are left to engage in offensive operations without

the backing of the ISAF – because national caveats prevent them from participating - the

former tend to lose respect for and start resenting the latter.

Given these disastrous effects, high ranked military officials have, over recent years, repeated

the need to remove – or at least limit - caveats. Following the NATO Riga Summit in

November 2006, leaders agreed to remove some national restrictions and stated that in the

event of an emergency, despite remaining restrictions, every ally must come to the rescue of

the forces that require assistance.184

Furthermore, during the Bucharest Summit in 2008, the

allies renewed their commitment to reducing existing limitations.185

Nonetheless, it is

estimated that half of ISAF troops are still hampered by some form of caveats. 186

In light of

these revelations, it is safe to say that the additional 37,000 soldiers, who will be deployed in

Afghanistan through 2010, are not the be all and end all of the matter. Lifting national caveats

may prove more efficient than increasing troop levels. After all, the importance of

performance ability - and possibility - should not be underestimated. A team of 20 crippled

football-players is still less likely to win the match than a team of ten healthy ones.

181

S. KOEBLE and A. SZANDAR, German Special Forces in Afghanistan Let Taliban Commander Escape, Spiegel International, 19 May 2008, available at: www.spiegel.de/international/world/0,1518,554033,00.html [accessed 5 April 2010]. 182

H. DALE, NATO in Afghanistan: A Test Case for Future Missions, 6 December 2006, available at: www.heritage.org/Research/Reports/2006/12/NATO-in-Afghanistan-A-Test-Case-for-Future-Missions [accessed 7 March 2010]. 183 CRS Report R40156, p. 13-14. 184

NATO, Riga Summit Declaration(29 November 2006), available at: www.nato.int/docu/pr/2006/p06-150e.htm [accessed 4 March 2010]. 185

NATO, Bucharest Summit Declaration (3 April 2008), available at: www.nato.int/cps/en/natolive/official_texts_8443.htm [accessed 5 March]. 186

CRS Report RL33627, NATO in Afghanistan: A Test of the Transatlantic Alliance, 25 August 2009, p. 10.

50

5. Conclusion

Initially, the main strategy for achieving the military objectives of the war in Afghanistan

consisted in targeting al-Qaeda and Taliban insurgents. Due to the fact that the security

situation had been deteriorating since 2006, it was suggested that a reversal in policy was

needed to bring a halt to this alarming trend.

Following developments in the war in Iraq, a new counterinsurgency (COIN) strategy

emerged. In contrast to the former strategy which focused on the enemy, the new strategy

places the population at the center of interest. The COIN strategy emanates from the

presumption that improving civil elements, such as reconstruction and governance, enhance

the chances of military success.

Unfortunately, in the context of Afghanistan, counterinsurgency is not a fool-proof plan.

Successful counterinsurgency requires military presence at the local level. However,

transferring soldiers from their forward operating bases to the heart of the insurgency, implies

increased exposure to violent attacks. In addition, successful counterinsurgency necessitates

having 20 to 25 counterinsurgents for every 1000 residents. Bearing in mind the present troop

levels, coalition forces are nowhere near meeting this demand. The lack of manpower and the

risk of increased exposure to danger lead some to believe that successful COIN is simply not

attainable or will come at too high a cost.

COIN was also a main element of President Obama‟s new strategy for Afghanistan and

Pakistan. In his speech, the president emphasized that the military troop surge should be

matched by increased efforts in the fields of governance and development. The

(over)confidence of the Obama administration in the new counterinsurgency strategy was

illustrated when officials announced a possible 2011 withdrawal date. On the other hand, this

announcement could also be seen as evidence that the US administration is giving in to

international demands for reconciliation talks with the Taliban leadership.

Any future withdrawal plans seem a little premature. The Afghan National Security Forces do

not meet the quantitative nor qualitative requirements for assuming responsibility for security.

It has little sense, therefore, to contemplate possible withdrawal dates, as withdrawal

ultimately depends on whether the situation has progressed sufficiently to warrant departure.

If withdrawal is the objective, the best way to achieve it is to focus on the factors hampering

military success in Afghanistan, and thus delaying withdrawal. More specifically, further

51

attention should be paid to implementing both the Afghan and US counternarcotics strategy.

The best way to limit insurgency activity is to cut off the means that finance them. Another

problem to be dealt with is Pakistan. The international community must continue to pressurize

the Pakistani state into taking a strong stance on terrorism, even when it does not pose a direct

threat to the Pakistani authorities. Finally, military success will also depend on the willingness

of individual states to share in the military burden. To this end, it is crucial that national

caveats be restricted to a minimum so as to maximize the effect of the military presence.

52

Chapter II: Governance, democracy and the Afghan constitution

Introduction

Over the years the lion‟s share of media coverage concerning the war in Afghanistan has

covered just that: the war. Amidst reports of Taliban attacks, rising death tolls, new military

leaders it is easy for the public to forget that the war is not just being fought on the battlefield.

While Kabul is not at the centre of actual, physical fighting, within the walls of the capital a

different but equally ferocious war is being fought: the struggle for democracy. Following a

Taliban regime which was the direct antithesis of modern democracy, the Afghan state has its

work cut out to transform the war-torn nation into a democratic society.

Following the Bonn agreement, which served as a blueprint for democracy, a variety of

Afghan and international legal documents have emphasized the need for strong governance in

the form of democracy. This form of government, if successful, would allow the people of

Afghanistan to taste the freedoms and rights for which they hunger. The choice of democracy

as a form of government, however, is not merely justified from a humanitarian perspective.

Strategically speaking, democracy has the best credentials for preventing the return of the

Taliban. As mentioned in the previous chapter, military assistance is for a limited time. Given

the limited capacities of the ANSF, only a strong democracy can protect the country from

falling back into the hands of insurgents and terrorists. It is, therefore, not only in the interest

of the population that the Afghan state acquires and sharpens its democratic tools, but for the

benefit of the entire international community. A democracy does not waiver at the whims of

the unlawful, nor does it falter at callous acts of desperation. A democracy stands tall, when

all else has been razed to the ground. To bring down a democracy one must bring down every

person in the community on which the democracy is built. The supremacy of democracy over

acts of terror was best illustrated by President Bush in the speech he gave on 9/11 in which he

so truthfully said:

“Terrorist attacks can shake the foundations of our biggest buildings, but they cannot

touch the foundation of America. These acts shattered steel, but they cannot dent the

steel of American resolve.”187

187

President Bush, address to the nation, 11 September 2001, available at: http://edition.cnn.com/2001/US/09/11/bush.speech.text/ [accessed 2 February 2010]

53

If the above is to be applicable to Afghanistan, the country must first pass the test of

democracy. In the following, therefore, I shall examine whether Afghanistan has succeeded in

transforming itself into a democratic nation. More specifically, I shall investigate if the basic

principles of democracy – separation of powers, free and fair elections, the rule of law and

respect for human rights - are sufficiently present and protected by the Afghan constitution.

1. Horizontal separation of powers

1.1 The presidency

In contrast to classic democratic republics where the role of the presidency is often linked to

the executive branch, Afghanistan has chosen a different course.188

In view of the ongoing

conflict, the then president of the Transitional Government, Hamid Karzai pleaded for a

strong presidential system to be included in the constitution. As the constitution drafters

agreed to this vision, they decided to merge the functions of the former king and prime

minister under the 1964 constitution in the person of the president.189

In order to allow the

president to fulfill the former monarchial responsibility of overseeing the smooth functioning

of the state, his powers are not limited to the executive branch. Article 60190

of the new

constitution allocates legislative, executive and judicial powers to the president. Furthermore,

the president‟s take-over of the prime minister‟s functions under the old constitution not only

boosts his executive powers, but even appoints him head of the government under article71.

Concretely, the president‟s status as head of state and that of Prime Minister translate into his

ability to decide which policies shall be pursued (article 64, n°2) and which regulations shall

be adopted to implement them (article 76).191

Furthermore, the president is also commander in

chief (article 64, n°3), appoints ministers and ambassadors (article 64 n° 11,14) and signs

laws adopted by the parliament (article 16). As stated above, the president also enjoys powers

in the legislative and judicial branch of government. With regard to his legislative

prerogatives, article 84 n°3 of the constitution states that the president appoints one third of

188

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), 897-915. 189 Ibid 190

All articles of the constitution can be found.... 191 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), 906.

54

the members of the Meshrano Jirga (the House of Elders). Therefore, the president possesses

a mighty tool, as he can appoint those more favorable to his political agenda.192

The president not only influences the composition of the parliament but also has a significant

input in shaping the composition of the judicial branch.193

Firstly, article 117 states that the

nine members of the Supreme Court are appointed by the president with the approval of the

Wolesi Jirga (House of the People). Considering the fact that this highest judicial organ

reviews the constitutionality of both national laws and international treaties, it is clear that any

president would welcome such an opportunity. Secondly, other judges are appointed by the

Supreme Court, whereby the president – through his choice of Supreme Court judges -

indirectly exerts influence over the appointment of all national judges (article 132).

Furthermore, the - by the Supreme Court nominated - judges must be approved by the

president before being effectively appointed (article 64 n°13).

In his duties, the president of Afghanistan is assisted by two vice-presidents, who do not enjoy

any decision-making powers.194

However, the constitution does foresee that they may acquire

other political responsibilities if elected to a ministerial post, for there is no prohibition on

them cumulating the function of vice-president with that of minister. While the first vice-

president acts as a stand-in if the president is unable to fulfill his duties, the title of second

vice-president is strictly symbolic.

Given the magnitude of the president‟s authority, one could presume that there is a strict

mechanism in place to rectify the system of checks and balances. While article 69 of the

Afghan constitution does state that the president is responsible vis-à-vis Wolesi Jirga, this

responsibility is more of a criminal than a political nature.195

According to the aforementioned

provision, the president can be removed from office if he is guilty of a crime, national treason

or a crime against humanity. The procedure to remove the president on the grounds of one of

these criminal charges consists of various steps.196

First and foremost, the charges must be brought by the Wolesi Jirga with a two-thirds

majority. If this requirement is met, this establishment is obliged to convene a Loya Jirga. The

192

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), 907. 193

Ibid. 194 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), 908. 195

Ibid. 196 Ibid.

55

decision to remove the president from office will then depend on whether a two-thirds

majority of this grand assembly agrees to the charges.

Nevertheless, the dismissal of the president is not tantamount to a criminal conviction. After

his dismissal the Loya Jirga refers the case to a special court which assesses whether the

president is guilty under criminal law.197

In the event that the president is found not-guilty by

the special court, he can only be reinstated in his function when winning a newly organized

election, which takes place within the three months following his dismissal by the Loya Jirga.

Even if the special court has not reached a verdict within this period of time, the removed

president can stand as a candidate. However, if the president is found guilty after winning the

elections, the vice-president will take-over his functions until new elections are called.198

The

constitution does not foresee any other grounds than the criminal charges under article 69

which could entail the president‟s removal. This implies that the president cannot be

castigated for political failures, thereby giving him a sort of “carte blanche” in the field of

policy-making.

These three factors – excessive executive power, influence in the legislative and judicial

branch of government and non-existing civil responsibility - all contribute to the strong

presidential system that characterizes Afghanistan.

1.2. The government

The dominant role of the president in the new Afghan constitution is accompanied by a weak

government that lacks political autonomy.199

Not only are the ministers appointed by the

president with the approval of the Wolesi Jirga (article 71), but they are also responsible to

these two establishments (article 77). The government is, therefore, caught in the middle.

On the one hand, the ministers are at the mercy of the president, for he can choose to dismiss

them by unilateral presidential decision if he sees fit.200

On the other hand, article 91 foresees

that the Wolesi Jirga can, at any time during his term, decide to interpellate a minister in

accordance with the procedure under article 92.

The interpellation of a minister should be based upon the proposal by one-tenth of all

members of the House of the People. In the event that the minister in question provides an

197

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), 902-904. 198 Ibid. 199

Ibid. 200 Ibid.

56

unsatisfactory answer, the Wolesi Jirga can consider proceeding to a vote of no confidence.201

When it has been decided to take such action, the actual vote of no confidence requires the

approval of the majority of all members. While not specifically outlined in the constitution, it

is most likely that such a vote of no confidence would entail the dismissal of the minister

concerned.202

The government‟s lack of political autonomy is not the only factor contributing to its weak

position. Not only do the ministers have their hands tied due to their extensive responsibility,

but the constitution assigns them limited powers.203

Article 75 assigns to the government

primarily administrative functions or general duties of supervision such as the maintenance of

public law and order and the regulation of financial affairs. Therefore, it can be said that in

the executive branch, the government serves more as an aid to the president, who pulls the

strings and is really entrusted with the task of policy-making.

1.3. The parliament

The basic structure of the Afghan national assembly mimics the one known under the 1964

constitution. Now as then, the parliament – which consists of the Wolesi Jirga on the one hand

and the Meshrano Jirga on the other - is based upon a bicameral system. Both houses

represent different units and this is also reflected in their composition.204

Article 83 states that

“ Members of the Wolesi Jirga are elected by the people through free, general, secret, and

direct elections.”205

In contrast, the members of the Meshrano Jirga are not all elected.206

While one-third of its members are elected by and amongst the members of the provincial

council and another third by and amongst the members of the district council, the remaining

members are appointed by the president.207

As mentioned above, the new parliament is based upon the system known under the old

constitution. Nevertheless, two important innovations can be distinguished.208

The first

201 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 904-906. 202

Ibid. 203

Ibid. 204

Ibid. 205 Art 83 of the Afghan Constitution. 206

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 907. 207

Art 84 of the Afghan Constitution. 208 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 907.

57

innovation, which pertains to the Meshrano Jirga, is that article 84 requires that half of those

members appointed by the president must be women.

In contrast to the first innovation, which is the result of a constitutional provision, the second

novelty finds its basis in the Electoral Law adopted by Presidential Decree in May 2004.

Under the 1964 constitution, members of the Wolesi Jirga were elected according to the rule

of simple majority. This electoral system was one whereby the candidate obtaining the most

votes in each constituency was awarded a place in the House of the People.209

While the new

constitution does not in itself overturn this system, it does offer a framework for future laws to

do so by stating: “ In the Electoral Law measures should be adopted for so the election system

shall provide general and just representation for all the people of the country.”210

The

aforementioned Electoral Law acts upon this request by awarding seats, not only to those who

obtained the majority of votes, but to each candidate of every province according to the

number of votes they received.211

The functions of the parliament are twofold.212

While the parliament enjoys functions of a

legislative nature it also operates as a control mechanism to ensure that neither the president

nor the government oversteps its authority provided for by law. The legislative function of the

National Assembly is formulated in article 90 of the Afghan constitution, which stipulates that

this establishment has the power to ratify, modify or abrogate laws and legislative decrees.213

Furthermore, the assembly even has the authority to ratify international treaties or abrogate

Afghanistan‟s membership to them.

In general, it can be said that both houses of parliament enjoy the same legislative power, for

the approval of both is needed in order for a law to be adopted.214

However, there are some

exceptions to this assumption of equality of power.215

When the two houses have diverging

opinions on whether or not to adopt a bill, the Wolesi Jirga has the final say. Normally such

disagreement will lead to the establishment of a joint committee, composed of equal members

209

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p.908. 210

ZOEK OP in gw article 211

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 909. 212

Ibid. 213

Art 90 of the Afghan Constitution. 214

Art 94 of the Afghan Constitution. 215 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 909.

58

of each house, which has the task of seeking a compromise.216

However, if the committee

does not succeed in reaching an alternative solution and it was the Meshrano Jirga which

originally rejected the proposed bill, the Wolesi Jirga can opt to adopt it at their next session,

despite any objection from the Meshrano Jirga (article 100). Furthermore, if the bill in

question relates to financial matters, the Wolesi Jirga can adopt the controversial bill without

awaiting the next parliamentary session. This prerogative of the House of People to disregard

the objections of the House of Elders also applies to the ratification of treaties and all other

decisions which generally require the approval of the national assembly as a whole.217

The second function of the National Assembly consists in ensuring that the president and

government do not exceed the limits of their powers. To recapitulate, the Wolesi Jirga decides

whether or not to dismiss the president on the grounds of criminal charges and can remove

ministers after a vote of no confidence.

The system of checks and balances implies, however, that the National Assembly will in its

turn be subject to control mechanisms of some sort. Both the government and the president

play a role in restricting the legislative powers of the parliament.218

The restriction of the

assembly‟s legislative powers by the government can be found in article 97 of the

constitution.219

Article 97 obligates the national assembly to “ give priority to the

promulgation of laws, treaties and development plans of the government that require urgent

consideration and decision as per the request of the government”.220

Not only do the bills

introduced by the government receive priority, but in certain cases – such as those pertaining

to budget or loans - the proposal shall be considered approved if the parliament does not take

a decision within the prescribed time (article 98). In addition, the government can directly

adopt those regulations that it deems necessary to implement its policies.221

These regulations

are not dependent on the prior approval of the parliament. However, it is required that when

the government makes use of its own law-making powers, the enacted regulations are not

contradictory to any constitutional or statutory provisions. Furthermore, should the House of

216

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 910 217

Ibid. 218

Ibid. 219

Ibid. 220 Art 97 of the Afghan Constitution. 221

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 910.

59

the People be in recess, the government can take over the legislative role of this establishment

in the event of an emergency arising (article 79).

Another important tool for restricting the legislative freedom of the parliament lies in the

hands of the president. Article 94 of the constitution endows the president with a presidential

veto.222

This implies that whenever the president does not agree with the decisions of the

National Assembly, he can send the document back within a timeframe of 15 days. However,

the parliament can overrule the presidential veto in the (unlikely) event of a two-thirds

majority in the Wolesi Jirga. Another presidential tool for limiting the legislative authority of

the parliament is the referendum as provided for in article 65.223

According to this provision,

the president can call for a referendum for important issues of national, social or political

concern.

1.4. The judicial branch

Modern constitutionalism considers the presence of an independent judiciary as essential to

achieving true separation of powers.224

In general, independent judicial organs are required to

apply adopted laws but also to interpret these so as to ensure their conformity with the

constitutional provisions.225

The Afghan constitution complies with this demand by ordering

the courts of Afghanistan to apply the provisions of the constitution and other laws when

presiding over a litigation (article 130). Moreover, the constitution establishes a Supreme

Court to further ensure the legal certainty and the constitutional supremacy.226

While this

highest judicial organ has the power to review the constitutionality of national and

international legal documents, some - like the Constitutional Review Commission - would

have preferred to entrust a separate constitutional court with this task.227

The power of the Supreme Court to assess the compliance with constitutional provisions is

dependent on whether the government or the courts have requested the Supreme Court to do

so.228

The fact that the national assembly is deprived of this opportunity is not only an

excessive restriction of its powers but could also endanger the effectiveness and credibility of

222

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 910. 223 Ibid. 224

Ibid. 225

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 911. 226 Ibid. 227

Ibid. 228 Art 121 of the Afghan Constitution.

60

the Afghan constitutional review proceedings.229

Furthermore, because only the government

and courts have the right to call upon the powers of the Supreme Court, the question arises as

to how best to protect those individuals whose constitutional rights have been violated by

state action.230

To partially fill this void, the constitution established an Independent Human

Rights Commission as an alternative to direct individual access.231

If individuals feel that their

constitutional rights have been infringed, they must file a complaint with this commission.

After assessing the complaint, this establishment can choose to refer the case to the courts,

who can amend the situation by applying the constitutional provisions.

Although the constitution clearly defines the role of the Supreme Court, it does not explicitly

state what happens when this judicial body finds a law or legislative decree to be

unconstitutional.232

Implicitly, the answer to this question can be found in article 162 of the

constitution, which states that “Upon its enforcement, laws and decrees contrary to the

provisions of this constitution are invalid”.233

This provision supports the idea that the

Supreme Court is, therefore, authorized to declare all laws and decrees that it finds

unconstitutional, void.234

It can be said that the organization of the judiciary as put forward in chapter 7 of the

constitution widely ascribes to the principle of judicial independence vis-à-vis the other

branches of government. Clear examples of this independency can be found in article 116 and

122 of the constitution. While article 116 describes the judicial branch as an independent

organ, article 122 prohibits the transfer of a case from the jurisdiction of the judicial branch

to other government organs. It should be noted, however, that despite this judicial

independence, the new constitution is less severe with respect to the secular aspect of judicial

organization.235

Article 118 n°3 requires Supreme Court judges to have received a higher

education in (secular) law or Islamic jurisprudence. While the old constitution of 1964

229

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 911. 230

Ibid. 231 Ibid 232

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 912. 233

Art 162 of the Afghan Constitution. 234 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 912. 235 Ibid.

61

prescribed this as a cumulative condition, this is not the case in the new one. This means to

say that judges who have only been educated in Islamic jurisprudence can be appointed.

The lack of secularism in the Afghan judicial organization can be attributed to the more

general phenomenon of theocratic elements within the Afghan constitution. Some argue that

scholars in Islamic law are needed, because the assessment of constitutionality by the

Supreme Court implies judging whether laws are in compliance with the principles of

Islam.236

By adopting article 3, which states that all laws must be in conformity with the

provisions and beliefs of Islam, a law found violating these religious provisions automatically

becomes unconstitutional.

2. Vertical separation of powers

Although vertical separation of powers is not a prerequisite for democracy, there are two

reasons why it would be interesting to see whether and how Afghanistan allocates power to

sub-national and, more specifically, ethnic-entities.237

The first reason is that in societies like

Afghanistan, where different ethnicities coexist, federalism is often viewed as a handy tool for

ensuring adherence to a common constitutional framework. The second reason is that (ethnic)

federalism implies some form of power-sharing between ethnic communities. In this way

there is an enhanced chance that minority rights are respected, which is a prerequisite for

democracy. Despite these apparent advantages that ethnic federalism might have offered

Afghanistan, the new constitution sticks to the principle of centralism.238

While article 4 of

the constitution does acknowledge the country‟s multi-ethnic character by including a non-

exhaustive list of ethnic groups, various provisions also stress its unity.

A first indicator that the constitution drafters have opted for a centralistic approach is the

preamble, which states that Afghanistan is “a single and united country and belongs to all

ethnicities residing in this country.”239

Furthermore, articles 66 and 80 respectively prohibit

the president and ministers from basing their political actions upon considerations of a

regional or ethnic nature. These provisions are the practical applications of the principle of

236

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 912. 237

Ibid. 238 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 913. 239 Preamble of the Afghan Constitution.

62

non-discrimination.240

Another provision underlining the quest for Afghan unity and

centralism is article 35, which prevents certain elements - such as ethnicity - from functioning

as a basis on which a political party can be formed. This prohibition was not known under the

previous constitution of 1964, which endorsed the right to form political parties as long as

their policies did not contradict the values enshrined in that constitution.241

The innovation

regarding political parties in the new constitution entails risks, for it could ultimately lead to

division rather than unity. By restricting the political mobility of ethnic communities, these

minorities no longer possess a means for channeling their demands and frustrations.242

Deprivation of the right to form a political party implies denying these ethnic groups an outlet

in which they can formulate their perceived injustices, which is an essential role of political

parties in pluralist democracies. This political void, in to which ethnic communities are in

danger of falling, is further enlarged by the fact that little power is devolved from the centre to

these constituencies.243

The 2004 constitution offers the possibility for power to be delegated to the provinces in order

to promote economic, social or cultural affairs and to increase the participation of people in

the nation (article 136). Except for the aforementioned provision, the constitution does not

specify the delimitation of the respective central and provincial powers.244

In article 159 n°2

the constitution implies that the question pertaining to the devolution of power is subject to

legislative measures. However, the constitution does provide for a provincial council and a

municipal council which enjoy certain advisory functions.

The constitution‟s reluctance to attribute concrete and comprehensive powers to the sub

national level can be partially explained by the circumstances in which the constitution was

negotiated.245

It is clear that when plagued by warlords and regional faction leaders, the

central government would shy away from formalizing such a structure, which ultimately

undermines its own quest for authority. The reasons for adopting a centralist approach are

thus understandable. However, one must keep in mind that that the prohibition on certain

240

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 913. 241 R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 914. 242

Ibid. 243

Ibid. 244 Ibid. 245

R. GROTE (Max-Planck-Institut), Separation of Powers in the New Afghan Constitution, ZaöRV 64 (2004), p. 915.

63

political parties, the combination of a strong president and weak parliament and the limited

devolution of power to a sub national level may give way to frustration and even ethnic

tensions.

3. The rule of the people through free and fair elections

One of the fundamental principles of democracy is popular sovereignty. This concept

encapsulates the idea that the ultimate authority lies with the people, for they are the source

of the government‟s authority. The Universal Declaration on Democracy246

affirms that

popular sovereignty is realized by enabling people to express their will through free and fair

elections at regular intervals. Furthermore, the document states:

“these elections must be held on the basis of universal, equal and secret suffrage so

that all voters can choose their representatives in conditions of equality, openness

and transparency that stimulate political competition.”247

The Afghan constitution ascribes to these requirements in various articles. According to

article 61 the presidential elections are held through free, general, secret and direct voting

every five years. A similar provision can be found in article 83 with regard to the members of

the Wolesi Jirga. Pursuant to articles 33 and 159 of the constitution, Afghanistan also adopted

an Electoral Law in May 2004. In democratic societies, the electoral law is of great

importance. It not only lays the foundation to ensure the real and fair representation of the

population but also aims to guarantee the transparency of the election process.248

In the general provisions under chapter one, the Afghan Electoral Law not only reaffirms that

“elections shall be conducted on the basis of free, secret, universal, and direct ballots” but

further stresses the democratic values which dictate the right of vote.249

More specifically it

stipulates that all voters have equal right of participation (article 2), that they have the right to

a single vote (article 3) and that participation is based on the principle of free will (article 5).

Furthermore, the Electoral Law sets forth the conditions under which one has the right to vote

246

UNESCO, “ Universal Declaration on Democracy”, adopted by the Inter-Parliamentary council at their 161st

Session on 16 September 1997, Cairo 247

UNESCO, “ Universal Declaration on Democracy”, adopted by the Inter-Parliamentary council at their 161st

Session on 16 September 1997, Cairo 248

Free&Fair Election Foundation of Afghanistan: “ Analysis in the Amendment of the Electoral Law”, February 22 2010, p. 1., available at http://fefa.org.af/report/English-%20Electoral%20Law%20Analysis%20-22%20Feb.pdf 249 Articleicle 1 of the Decree of the President of the Transitional Islamic State of Afghanistan on The Adoption of Electoral Law, May 27 2004, available at http://unama.unmissions.org/LinkClick.aspx?link=Elections+2009%2FElectoral-law-eng.pdf

64

and the right to stand as a candidate. In addition, the law provides an insight into the

designation of electoral boundaries, the electoral process for the diverse political

establishments and the mechanisms available when electoral complaints and offences arise.

In recent months attempts have been made to amend some of the provisions in the 2004

Electoral Law. President Karzai even adopted a presidential decree amending the former

Election Law. However, much controversy has risen as to whether the new provisions, which

have not been approved by the Wolesi Jirga, are applicable to the parliamentary elections,

which have been pushed back to September. Some observers believe that the decree is

contrary to the constitution, which states that election laws should not be changed within one

year of the applicable election.250

Aside from this procedural question, the amendments also give rise to a number of objections

with respect to their content. A first objection concerns the fact that the decree, which was

issued in February 2010, drastically changes the composition of the Electoral Complaints

Commission.251

Formerly, the UN appointed three foreign members to this commission.

Under the new decree, all of the five members would be Afghans, leaving no room for

international appointees. However, in March, President Karzai – in response to criticism -

announced that a compromise would be made so as to include two international

representatives.252

A second objection is that the new provisions could seriously diminish the number of female

representatives in the Wolesi Jirga. The amended article 29 n°3 of the Electoral Law foresees

that in the event of insufficient female candidates listed to fill all the seats normally allocated

to women, the vacant seats will be awarded to male candidates.253

It is needless to say that in

a society were women‟s rights used to be an alien concept, this could put them right back on

the backburner. Given the cultural context of the Afghan society, it is not unlikely that male

candidates waiting for a seat might threaten or dissuade their female counterparts from taking

part in the election process.

250

CRS Report, Afghanistan: Post-Taliban Governance, Security, and US Policy, 25 March 2010, p.12. 251

J. PARTILOW, “ Afghanistan’s government seeks more control over elections”, The Washington Post, 15 February 2010. 252 CRS Report, Afghanistan: Post-Taliban Governance, Security, and US Policy, 25 March 2010, p.12. 253

Free & Fair Election Foundation of Afghanistan, in the Amendment of the Electoral Law Analysis, 22 February 2010, p. 4.

65

Finally, a third objection pertaining to the content of the Electoral Law amendments is the fact

that it introduces a new series of conditions for political candidates.254

The amount of names

and card numbers of voters that candidates must provide to acquire eligibility has been greatly

increased. Presidential candidates must provide a minimum of 100,000 cards and Wolesi Jirga

applicants a minimum of a 1,000 cards. Not only could this thwart the chances of new and

less known political parties but it could also give way to corruption in an attempt to meet the

aforementioned target.

The presidential candidates are also under the obligation to provide a monetary guarantee of

five million Afghanis.255

The reimbursement of this sum, which amounts to around $ 100,000,

is dependent on the condition that the candidate in question receives at least 20% of the vote.

In the August 2009 presidential elections, only 2 of the 32 candidates listed succeeded in

clearing this threshold.256

Furthermore, keeping in mind the economic climate of Afghanistan,

imposing such a monetary obligation upon candidates would ironically only play to the

advantage of warlords or drug lords with political ambitions.257

Despite the aforementioned disadvantages, some amendments to the Electoral Law bring

about positive and much needed changes to the Afghan electoral process. Most notably, the

issued decree states that the Electoral Complaints Commission must be established within 120

days prior to the election day.258

In this way, the commission will have ample time to appoint

the necessary staff, will have a better chance at effectively fulfilling its duties and have the

opportunity to gather public support by raising awareness about its role and methodology.

3.1. 2009 elections

The recent attempts to amend the Electoral Law of 2004 are clearly a reaction to the chaos

that marred the 2009 presidential and provincial elections.259

These elections would be the

first organized by the Afghan state in over 40 years. Therefore, many viewed them as an ideal

gauge to measure the progress Afghanistan had made in the field of political development.

254 J. PARTILOW, “ Afghanistan’s government seeks more control over elections”, The Washington Post, 15 February 2010. 255

Ibid. 256

Ibid. 257 Ibid. 258

CRS Report, Afghanistan: Post-Taliban Governance, Security, and US Policy, 25 March 2010. 259 Ibid.

66

Needless to say that the fraud allegations following the election day convinced many that

Afghanistan had failed this test of political emancipation. While it is undeniable that the

election saga exposed some serious political faux pas, I believe that there are a few positive

signs which might mitigate in Afghanistan‟s favor.

I believe that a first positive sign of Afghanistan‟s political development lies in the fact that

numerous disputes to which the election gave way were resolved through constitutional

mechanisms. A prime example of democratic dispute settlement can be found in the prelude

of the election, namely the (dis)agreement on an election date. In February 2009 the

Independent Election Commission of Afghanistan decided to set the elections for August

20.260

However, Karzai‟s first term was to come to an end in May 2009. Therefore, opposition

parties argued that the decision to have the elections in August contravened article 61 of the

constitution, which requires elections to be held within 30 to 60 days prior to the end of the

presidential term.261

The Independent Election Commission (IEC) on the other hand based the

5-month postponement on the grounds of article 33 of the constitution. More specifically, the

IEC argued that if the elections took place in April, the security situation and the logistical

pitfalls - such as training staff - would hamper the universal accessibility to the voting.262

Following accusations that he was trying to prolong his term, President Karzai appealed to the

IEC to review the election date so that it would be in accordance with all the constitutional

provisions. Nevertheless, the IEC stuck to its original decision of August 20.

When opponents demanded that a caretaker government replace the Karzai administration

from May to August 2009, the matter was brought before the Supreme Court.263

Ultimately,

the court sided with the president by pointing out that the constitution only calls for a transfer

of power in the event of election or death of the president.

The debates concerning the election date and the formation of a caretaker government

illustrate that both parties based their claims on constitutional provisions and that a potentially

tumultuous situation was avoided by embracing the rule of law. Those concerned respected

the authority of the IEC, as called for in the Electoral Law, and the constitutional provisions

regarding the authority of the Supreme Court.

260

Congressional Research Service, “Afghanistan: Politics, Elections, and Government Performance” by Kenneth Katzman, January 11 2010, p. 18-19. 261 Ibid. 262

Ibid. 263 Ibid.

67

A second sign of Afghanistan‟s political emancipation is that while it is definitely regrettable

that fraud occurred, the fraud allegations were investigated. When the butterfly ballot in

Florida was accused of being “confusing” during the 2000 US presidential election, a recount

was ordered. It is hard to argue that this unfortunate event undermines the democracy that is

the US. Though I am aware that in the US scenario one cannot speak of fraud, this illustrates

that the level of democracy is not necessarily measured by whether or not political elections

pass off quietly. A true democracy does not guarantee plain sailing, but is characterized by its

democratic approach and mechanisms to redress the perceived injustices. Therefore,

Afghanistan should deserve some credit for acknowledging – in the midst of their blame-

game policy – and investigating the fraud allegations. Furthermore, when the IEC and ECC

concluded that Karzai did not receive more than 50% of the vote which is needed for a first-

round victory, the president eventually agreed to hold a second round as called for in article

61 of the constitution.264

Although it should be noted that Karzai‟s decision was somewhat a

result of international pressure, it is nonetheless a decision which respects the authority of the

two election commissions. Karzai chose to avoid dividing the nation and placed the need for

legitimacy above personal interests. By acknowledging the need for legitimacy, Karzai

adhered to the essential, democratic principle of popular sovereignty.

Although I do not wish to downplay the negative impact that these fraudulent elections may

have had on Afghanistan‟s political development, I believe that they have, ironically, also

strengthened its democratic evolution. The maturity with which some situations were handled

not only proves that there are notions of democracy but have helped to consolidate these.

While Afghanistan is far from fulfilling the democratic requirement of free and fair elections,

it is taking baby-steps in this direction.

The most important test was not to succeed in organizing free and fair elections. Keeping in

mind the history and security situation of Afghanistan, together with its economic, social and

cultural malfunctions, such a task is quite ambitious given the relatively short time-span of

eight years. The true test is whether Afghanistan will implement the lessons learned and seek

to continually improve its electoral process. In this regard, the parliamentary elections in the

fall will prove to be conclusive.

264 Congressional Research Service, “Afghanistan: Politics, Elections, and Government Performance” by Kenneth Katzman, January 11 2010, p. 20.

68

4. Rule of law

Throughout history the rule of law has not only evolved into a vital principle of democracy,

but it has been subject to numerous attempts at definition and interpretation. For the purpose

of my dissertation I have chosen to work with a “substantive” interpretation of the rule of law.

More specifically, I shall be applying the concept as defined by the United Nations. In 2004,

then UN Secretary General Kofi Annan defined the rule of law as:

“ a principle of governance in which all persons, institutions and entities, public and private,

including the State itself, are accountable to laws which are publically promulgated, equally

enforced and independently adjudicated , and which are consistent with international human

rights laws and standards. It requires, as well, measures to ensure adherence to the principles

of supremacy of law, equality before the law, accountability to the law, fairness in the

application of the law, separation of powers, participation in decision-making, legal

certainty, avoidance of arbitrariness and procedural and legal transparency.”265

Under the Bonn agreement of 2001, the various nations of the G8 were attributed a particular

sector in which they would have lead- nation responsibility. On the basis of this distribution-

model, Italy assumed lead- nation responsibility in the sector of the rule of law. Despite its

huge efforts – in the form of the “Rebuilding the Justice Sector of Afghanistan” project and its

follow-up project “Strengthening the Justice System of Afghanistan”- one must unfortunately,

conclude that Italy has known limited success in implementing the rule of law in

Afghanistan.266

According to The Afghanistan Human Development Report of 2007267

a vast majority of the

population still relies on traditional, non-state mechanisms to settle their disputes.

Furthermore, there is a poignant shortage of attorneys and widespread corruption in the

judicial sector. Legal professionals also frequently lack an in-depth training or have no access

to up-to-date legal sources. To this end, Italian professionals tried to update the 1965 Afghan

Criminal Procedure Code by producing an Interim Criminal Procedure Code in 2004.

265

UN Secretary General, The rule of law and transitional justice in conflict and post-conflict societies, 23 August 2004, S/2004/616 ,p.4. 266 T. RODER, Little Steps Forward: Some Remarks on the Rome Conference on the Rule of Law in Afghanistan, Max Planck UNYB 11 (2007), p.307-312. 267 Afghanistan Human development Report, 2007.

69

However, the code had little impact due to the fact that Afghan judges view it as being too

abstract and are therefore reluctant to use it.

In view of this virtual inability to establish rule of law in Afghanistan, a conference was held

in Rome in 2007 which specifically focused on how to achieve this goal. Unfortunately, the

conference failed to produce a coherent strategy. However, in addition to reaffirming their

commitment to bring justice and the rule of law to Afghanistan, participants agreed to donate

an additional $ 360 million.268

While the EU proposed to provide the bulk of this financial

support, the US pledged to offer increased technical assistance. The Provincial Justice

Coordination Mechanism which seeks to coordinate donor actions was established under the

auspices of the UN in the following year.269

At the Rome Conference attention was also given to university education. More specifically,

participants toyed with the idea of bridging the gap between the legal education at Sharia and

secular faculties of Law by implementing a general compulsory curriculum.270

It was also

suggested that the National Legal Training Centre, which had already been established in a

joint US/Italian effort in May of that year, should offer preparation courses for the whole

spectrum of legal professions. The ideas mentioned at the Rome Conference were gathered

together in the Conference Joint Recommendations. This document, in conjunction with a

Afghan justice sector strategy, was to form the basis for a National Justice Program.

The fact that the implementation of the justice sector strategy in the Afghan National

Development Strategy271

has brought little progress to the field of rule of law, is largely due to

the presence of article 3 in the constitution. As will be discussed in the following section. This

article constitutes a major obstacle for the fulfillment of the conditions necessary for rule of

law as defined by former UN Secretary General Kofi Annan. More specifically, article 3

268 Declaration rome conference 269

United Nations Development Program Project Report on the support to Provincial Justice Coordination Mechanism, p.6, available at www.undp.org.af/Projects/Justice/PJCM_ProDoc_Dec08.pdf [accessed 18 December 2010]. 270 Tilmann J. Röder, Little Steps Forward: Some Remarks on the Rome Conference on the Rule of Law in Afghanistan, Max Planck UNYB 11 (2007), p.311. 271 GIRoA, Afghan National Development Strategy, 2008.

70

renders impossible the requirement of equality before the law, fairness in the application of

the law, legal certainty, procedural and legal transparency and the requirement that all laws be

consistent with international human rights.

5. Separation of church and state

5.1. An Islamic constitution

The Afghan constitution is impregnated with provisions demonstrating the important role of

Islam in the Afghan state, society and way of life. Not only the preamble – which emphasizes

the Afghan‟s belief in “ the sacred religion of Islam”272

- but various provisions of the

constitution273

illustrate the prominent position the Muslim faith holds in Afghanistan. The

first article of the constitution defines Afghanistan as an Islamic republic while article 2 states

that Islam is the religion of Afghanistan. Remarkably, article 2 makes no distinction between

the different Islamic fractions, thereby excluding preferential treatment.274

Nevertheless, this

article – in conjunction with article 1- illustrates that in Afghanistan there is no separation of

church and state. The fact that church and state are intertwined, becomes even clearer when

reading article 3 of the constitution, which states: “ In Afghanistan, no law can be contrary to

the beliefs and provisions of the sacred religion of Islam and the values of this

Constitution”.275

This article, probably the most controversial of all, not only establishes the

church and state as competing powers but actually suggests the predominance of the

former.276

In practice the requirement of compliance with Islamic provisions, boils down to

the adherence to Sharia Law.277

The fact that the Afghan constitution is an Islamic one is

further exemplified by article 35 which requires that all programs and charters are in

compliance with the principles of Islam when exercising one‟s right to form political parties.

Furthermore, according to article 45 the provisions of Islam will be considered when

compiling the educational curriculum. With regard to family life, article 54 obliges the state to

take all necessary measures to eliminate non-Muslim traditions. Finally, article 19 and 20 of

272

1.1 preamble of the Afghan Constitution. 273

All references to the provisions of the Afghan constitution can be found at www.afghan-web.com/politics/current_constitution.html 274

S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p. 867-880. 275

Art 3 of the Afghan Constitution 276 S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p. 871. 277 Ibid.

71

the constitution respectively foresee an Islamic national insignia and a reference to Allah in

the Afghan national anthem.

In light of all the aforementioned articles, it is clear that the Afghan constitution does not

recognize the principle of separation of church and state. What is more, the Afghan

constitution intends to keep it this way.278

This is clearly reflected in article 149 where the

Islamic character of the state and the constitution is made irrevocable by excluding provisions

of adherence to Islam from the possibility of amendment.

5.2. The relation between Islamic law and the constitution

In a society that recognizes the principle of separation of church and state, it is evident that

the constitution – with the exception of international treaties - is ranked the highest in the

hierarchy of norms. The supremacy of the constitution over all other sources of law, however,

is less evident in societies, like Afghanistan, where religious norms enjoy enforceability. To

this extent, an analysis should be provided as to how the Afghan constitution itself views its

relation with Islamic law. In the Afghan constitution, 3 articles provide an insight into this

matter.279

Articles 130 and 131 of the constitution point to a complementary role for Islamic law.280

Article 130 states that when an issue cannot be resolved, through the provisions of the

constitution or other laws, the decision shall be sought in the Hanafi jurisprudence, one of the

6 branches of Sharia law. This, stipulation, however, is subject to 2 conditions, for the applied

jurisprudence must at all times be within the limits of the constitution and serve justice in the

best possible manner. While article 130 caters to the Sunni Muslims, article 131 foresees a

similar provision for those of the Shia school of thought. Their jurisprudence is referred to

when dealing with personal matters or in all other matters when both parties are followers of

the Shia Sect, and neither the constitution nor other laws offer a solution. In the

aforementioned articles, it is clear that the constitution only views Islamic law as a means to

fill the voids of the constitution and other laws.

278

S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p. 871 279

Ibid. 280 Ibid.

72

The complementary function of Islamic law, as described under article 130 and 131, seems,

however, to be in stark contrast to its assigned role under article 3 of the constitution.281

Article 3 states: “ in Afghanistan, no laws can be contrary to the beliefs and provision of the

sacred religion of Islam”. The aforementioned provision insinuates that Islamic law is not

merely complementary, but trumps all other legal norms, including the constitution itself.

However, to evaluate the true impact of this provision, one must also take into account

whether mechanisms are available for “securing” its implementation. Three mechanisms can

be distinguished: the president, the Independent Commission for the Supervision of the

implementation of the Constitution and the Supreme court. 282

Article 63 of the constitution foresees that the president-elect, prior to taking office, takes an

oath in which his pledge to safeguard the provisions of Islam takes center stage. Keeping in

mind the extensiveness of his powers, the person of the president shall, therefore, have a

considerable impact on the interpretation and implementation of article 3. In accordance with

article 94 the president approves the laws, thereby determining the relation between enacted

laws and the Sharia.

However, the president‟s influence does not stop here. Article 157 of the constitution foresees

that the members of The Independent Commission for the Supervision of the Implementation

of the Constitution shall be appointed by the president. Therefore, this second mechanism will

also ultimately be at the mercy of the president‟s convictions. A religious moderate president

implies a religious moderate commission, more inclined to modern interpretation of the

constitution in general and article 3 in particular. On the other hand, a fundamentalist

president is likely to appoint religious radicals, who could use article 3 as a means to reinstate

Sharia law.283

The same problem occurs in relation to the third mechanism, for article 117 states that

appointing supreme court judges is a competence of the president. Article 121 of the

constitution suggests that the supreme court can – under certain circumstances - function as a

constitutional court. If summoned, therefore, it is authorized to check the compliance of

enacted laws and regulations with all the provisions of the constitution, including article 3.

281

S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p. 872. 282

Ibid. 283 Ibid.

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In conclusion it is safe to say that while article 130 and 131 see Islamic law as

complementary, the same cannot be said for article 3, which suggests the precedence of

Islamic law over all other legal forms. However, all the mechanisms – the president,

Independent Commission for Supervision of the Implementation of the Constitution and the

Supreme court - for “securing” the implementation of article 3 are embodied in the person of

the president. Therefore, the role of Islamic law will ultimately depend on the convictions of

the president. The question remains, however, whether attributing a superior role to Islamic

law – even when leniently interpreted and implemented with caution - impedes upon the

democratic rights and freedoms of citizens. “Can there truly be equality under the law for men

and women, Muslims and non-Muslims…in effect genuine secular justice… when religious-

based law plays any role in a judicial system, particularly when that religion does not treat

gender equally and Muslims and non-Muslims equally?”284

6. Universal human rights

The constitution of Afghanistan is viewed by many as the most innovative and modern of all

Islamic countries. This is largely due to the central role that human rights enjoy in the

constitution.285

Both point 5 and 8 of the preamble as well as article 7 require that the Afghan

state acknowledges and respects the Universal Declaration of Human Rights and the UN

Charter. It is beyond doubt that, by making direct reference to the aforementioned documents,

the constitution wants to do away with the daily occurrence of atrocious human rights

violations which characterized the Taliban regime. Such reference to these documents is –

even for non-Islamic constitutions – almost unheard of.286

Nonetheless, the Afghan

constitution further attempts to secure the respect for human rights by establishing the

Independent Human Rights Commission for Afghanistan in article 58. The emphasis on

human rights within the Afghan constitution is a hopeful sign that Afghanistan is seeking

another course and is trying to break free of its past.

Nevertheless, the question arises as to whether Afghanistan is not undermining this

opportunity by institutionalizing Islam in its constitution. The relationship between Islam and

284

Interview with Afghan Judge Hashimi concerning legal reform in Afghanistan, July 21 2008, transcript available at www.america.gov/st/washfile-english/2008/July/20080721130845eaifas8.115786e-02.html [accessed 20 April 2010]. 285 S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p.873. 286 Ibid.

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human rights – the two main points in the Afghan constitution - is a complicated matter.287

Often accused of being contradictory, Islam and human rights seemed to reach the peak of

incompatibility in 2006 when the Abdul Rahman apostocy case embroiled Afghanistan in its

own “clash of civilizations”.

While there are numerous factors impeding the implementation of human rights throughout

the globe, Islam stands out as the most controversial. One could argue, however, that Islam in

itself is not the real obstacle for implementing the universal principles of human rights. In

Afghanistan, article 1 of the constitution, which defines the country as an Islamic republic, is

not the issue at hand. Neither is article 2 which states that Islam is the state-religion. The real

problem is that rather than attributing a mere symbolic place to Islam, the constitution

indirectly imposes Sharia law in article 3.288

Therefore, instead of unifying the Afghans

through their common respect for Islam, the constitution divides the Afghan people by

enforcing a law based on inequality.

It is article 3 that complicates compliance with the Universal Declaration of human rights,

even rendering it impossible. The constitution, however, seems to take the view that Islamic

legal provisions and human rights declarations can harmoniously coexist within the Afghan

legal system.289

Nonetheless, article 3 does foresee that when a legal provision, even

provisions of the Universal Declaration of human rights protected by the constitution, conflict

with Islamic beliefs, the latter has unassailable precedence. This alleged supremacy poses a

threat to the freedoms and rights that the United Declaration seeks so hard to protect, for in

crucial areas it is undeniable that both Islam and human rights propagate contradicting

principles. To illustrate this problematic and alarming inconsistency, three characterizing

examples can be given: gender equality, religious freedom and crime and punishment.290

A first example illustrating the discrepancy between the two normative systems pertains to

gender equality.291

Article 2 of the UN Declaration of Human Rights, which states that

everyone is entitled to the rights and freedoms enshrined in this document, specifically

287

H. BIELEFELT, Western versus Islamic Human Rights Conceptions? A Critique of Cultural Essentialism in the Discussion on Human Rights, Political Theory, Vol. 28 no 1. (Feb., 2000), p.102. 288

S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p. 874. 289

Ibid. 290 S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p. 875. 291 Ibid.

75

mentions that sex is no ground for discrimination.292

Furthermore, article 7 of the declaration

implies judicial gender equality by upholding the principle that all have right to equal

protection of the law.293

On the other hand, the Afghan constitution also grants gender

equality, not only by proclaiming its respect for the UN declaration, but also by the specific

phrasing of article 22 of the Afghan constitution which states: “ The citizens of Afghanistan –

whether man or woman - have equal rights and duties before the law”.294

It can be said,

therefore, that a remarkable effort has been made to encompass gender equality in the

constitution.

Unfortunately, these progressive provisions are in danger of being pushed into the background

because of the alleged inconsistency with their Islamic counterparts. Some advocate that

Islamic law subscribes to a less absolute rule of gender equality in which they recognize that

both sexes are equal, but do not recognize absolute equality of roles between them.295

While

in every society - even the most modern - men and women are attributed diverging roles, I

believe that the rule of “equality but not equivalent” in the context of Islamic law is often no

more than a tool for extremists to justify their discriminatory attitude. Hereby, the rule of

“equality but not equivalent”296

is reminiscent of George Orwell‟s Animal Farm in which “all

animals are equal but some animals are more equal than others”.297

The idea that Islamic law does not adhere to the principle of gender equality – even in a less

absolute form than western democracies - is reinforced when reading the provisions of Sharia

law. This religious-based legislation clearly discriminates against women in the field of

family law and procedural law.298

More specifically women do not enjoy equal rights in

marriage, divorce, family life, inheritance and other rights that do accrue to women under the

UN declaration.

Finally, the stark contrast between the requirement for and interpretation of gender equality in

the context of universal human rights and in Islamic law, can be found in the Cairo

292

Article 2 of the United Nations Universal Declaration on Human Rights (December 10 1948), available at: www.un.org/en/documents/udhr/index.shtml#a2 293

Art 7 of the UN Universal Declaration on Human Rights. 294

Art 22 THE Afghan Constitution. 295 S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p.876. 296

Ibid. 297

G. Orwell, Animal Farm, 298 S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p.877.

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Declaration on Human Rights in Islam.299

In article 6, the declaration attributes equality in

human dignity to women, but stays mute on equality of rights.300

In general, the mere fact that

the Islamic Conference felt the need to “ complement the Universal Declaration by

addressing the religious and cultural specificity of the Muslim countries”301

testifies to the

discrepancy between the two normative systems of human rights and Islamic law. It is

difficult to adhere to the vision of the Organization of the Islamic Conference that the Cairo

declaration complements the UN declaration, for it seems that the clauses of the former curtail

the rights – and not only women‟s rights - granted under the latter.

The declaration of Cairo is interesting because, just like the Afghan constitution, a clause is

embedded in it pertaining to the role of Islamic law. Both documents propagate compliance

with Sharia law. Therefore, the interpretation of religious freedom in article 10 of the Cairo

declaration forms a clear indicator of how the religious freedom granted in the Afghan

constitution may be understood when strictly adhering to the supremacy of Islamic law as

envisioned in article 3 of the constitution.

With regard to religious liberty, article 10 of the Cairo declaration states that: “ It is prohibited

to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to

convert him to another religion or to atheism.”302

This provision boils down to the fact that

conversion from Islam is forbidden; for in the Islamic world it is widely believed that only

ignorance or compulsion could lead someone to abandon his Islamic beliefs.303

It is clear that,

unfortunately, Afghanistan has taken this road of an “Islamic” interpretation of religious

freedom. Although President Karzai is not viewed as a fundamentalist, this goes to show that

opening the door for Islamic law – or any religious law for that matter - is always a risk even

without extremists in power.

The aforementioned Abdul Rahman case illustrates that Sharia not only prohibits apostasy but

also foresees draconian sanctions. In 2006 Rahman was arrested - in a country whose

constitution specifically mentions its respect for the Universal Declaration on Human Rights -

299

S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p.877. 300 Organization of the Islamic Conference (OIC), The Cairo Declaration on Human Rights in Islam ( August 5 1990) available at: www.religlaw.org/interdocs/docs/cairohrislam1990.htm 301

Speech of Pakistani Ambassador Masood Khan,on behalf of the OIC to the Human Rights Council, 10 December 2007. 302 Art 10 of The Cairo Declaration on Human Rights in Islam. 303

International Humanist and Ethical Union, The Cairo Declaration and the Universality of Human Rights, 28 May 2008, available at: www.iheu.org/node/3162 [accessed on 1 May 2010].

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for having converted to Christianity 16 years earlier. Caught between human rights

advocating Rahman‟s release and Sharia law ready to pass the death penalty, Karzai‟s

government ultimately decided to have Rahman declared mentally ill so he would be unfit to

stand trial. However, the government is only postponing the inevitable, for future

contradictions between Islamic law and human rights are bound to give rise to new

altercations.

It is noteworthy that the Rahman apostasy case not only deals with the question of religious

freedom. The fact that the convert faced a possible death penalty illustrates another area of

prima facie contradiction between Sharia and human rights, namely crime and punishment.304

With regard to Islamic punishments three categories can be distinguished.305

A first group, known as the hudûd, constitutes punishments for serious offences – among

which apostasy - and finds its legitimacy in the Koran. Punishments which take the form of

retaliation by the victim or retribution make up the second category. Finally, the third group

consists of punishments by state institutions.

The biggest human rights concern regards the first group of punishments. Hudûd punishments

violate the prohibition of torture or cruel, inhuman or degrading punishment as stated in

article 5 of the Universal Declaration. As these punishments are mentioned in the Koran they

constitute Divine Law and cannot be ignored.306

By imposing the supremacy of Islamic Law

in article 3 of the Afghan constitution, it is possible that these Islamic punishments will find

their way into the legal system. Iran and Sudan, whose constitutions also require consistency

with Sharia Law, often impose hudûd punishments. Egypt, however, which has a similar

provision regarding Islamic law to article 3 of the Afghan constitution, abstains from applying

such sanctions.307

It is likely that Afghanistan, despite article 3, will follow Egypt‟s example

and refrain from imposing hudûd punishments. The constitution emphasizes in article 29 that

torture and punishment contrary to human integrity are prohibited.308

Furthermore, in

postTaliban Afghanistan the courts for the greater part distance themselves from sharia

criminal law. Nevertheless, this corporal punishment remains an important extra-judicial

304 S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p.876. 305

Ibid. 306

Ibid 307 S. MAHMOUDI (Max-Planck-Institut) , The Sharia in the New Afghan Constitution: Contradiction or Compliment, ZaöRV 64 (2004), p.876. 308 Art 29 of the Afghan Constitution.

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problem.309

Keeping in mind the aforementioned discrepancies – gender equality, religious

freedom and the prohibition of corporal punishment – between human rights and Islamic law

it can be said that Afghanistan may well have opened Pandora‟s box by institutionalizing

Islamic law.

7. Conclusion

When the Taliban regime fell in 2001, Afghanistan and the international community agreed

upon the necessity to transform the country into a strong democracy. In order to facilitate the

democratization process, a new constitution was adopted in 2004. Afghanistan‟s new legal

document was widely accredited as being one of the most democratic and modern of all the

constitutions in the Muslim world. However, a close analysis reveals that the level of

democracy provided by the constitution is not as high as one may have been led to expect.

It leaves no doubt that the main beneficiary in the Afghan system of separation of powers is

the president. Not only does the president enjoy strong executive powers, but the constitution

also endows him with certain legislative and judicial ones. While the Afghan context partially

explains the need for a strong presidency, one cannot help but wonder whether the Afghan

constitution has not taken it too far. In itself, the excessive powers of the president do not pose

a threat. However, the limited number and restrictive nature of the mechanisms verifying that

the president does not exceed his constitutional powers, open the gate for possible abuse of

power. The predominant position of the president is also illustrated by the fact that he is

attributed the role of safe-keeper of both the constitution and Islamic law.

The fact that the Afghan constitution does not adhere to the principle of separation of church

and state implies that in Afghanistan, contrary to secular countries, there are two powers at

work: the state and Islam. While many view secularism and democracy as interlinked, one

could argue, however, that Afghanistan‟s choice for a joint structure does not automatically

hamper its quest for democracy. Some of the most advanced democracies in the western

hemisphere, like the UK, have adopted a state religion and do not adhere to strict secularism.

On the other hand, Turkey often falls short when it comes to respecting human rights even

though it is an active secularist country and shares many similarities with the French model of

laïcité.

309

US Bureau of Democracy, Human Rights, and Labour, 2009 Human Rights Report: Afghanistan, 10 March 2010, available at: www.state.gov/g/drl/rls/hrrpt/2009/sca/136084.htm [accessed 2 May 2010].

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The problem with Afghanistan and its constitution therefore, is not so much the fact that it

attributes a place to the religion of Islam in se, but that it institutionalizes Islamic law. By

subjecting all laws to the provisions and beliefs of Islam, these laws may come to reflect the

discriminatory views that still reside within the Islamic legal system of Sharia law. Strictly

abiding by Sharia law implies violating some human rights – specifically those regarding

women, religious freedom and prohibition of corporal punishment - enshrined in the

Universal Declaration of Human Rights, to which Afghanistan is a signatory.

It is clear that the debate pertaining to the alleged supremacy of Islamic law in article 3 of the

Afghan constitution must be viewed in the larger context of cultural relativism in human

rights. But is there really room for cultural relativism when human rights are supposed to be

universal? If the result of cultural relativism is something along the lines of the Cairo

Declaration on Human Rights in Islam it surely does not constitute an added value to the

International Bill of Human Rights.310

If culture should play a role in redefining human rights,

it should concentrate on further shaping them and offer concrete ways in which cultural

followers can put them into practice. Cultural relativism should in no way be an excuse for

signatory states to restrict these human rights which they voluntarily agreed to uphold. In the

same way article 3 of the Afghan constitution should not be an excuse to backtrack on

Afghanistan‟s promise to respect all the rights enshrined in the Universal Declaration. Human

rights are, after all, a package deal, implying that signatory states do not get to pick which

ones they choose to uphold.

Some may argue that, bearing in mind that Afghanistan is an extremely religious society, the

population would perceive the constitution as illegitimate if it were not for its Islamic

character. However, given the tender age and fragility of the Afghan democracy, it would

seem that it is more important to nourish the democratic values above anything else.

Therefore, I believe that while there is no inherent problem with defining Afghanistan as an

Islamic republic and Islam as the state religion, the drafters of the constitution have created an

insurmountable problem by adopting article 3. Although Islamic law may share a majority of

the values enshrined within human rights, it is incontestable that it also clashes with a few

values which are simply not open for negotiation. Supremacy of Islamic law could eventually

undermine Afghanistan‟s transformation process. For just as a plant cannot survive when

310

The International Bill on Human Rights is the totallity of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the Covenant on Civil and Political Rights.

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surrounding trees block its light, so the seeds of democracy are unable to grow when

smothered by the bindweed of religious law.

Chapter III: Economic and social development

Introduction

Over the years numerous legal documents have emphasized the need for Afghan economic

and social development. However, the extent to which these documents have offered specifics

on how to achieve such development vary. While some have stayed vague and contented

themselves with reaffirming their commitment to developing the war-torn nation, other

documents provide a clear overview of development objectives and strategies. It leaves no

doubt that the Afghanistan Compact and the Afghan National Development Strategy (ANDS)

have been the two main driving forces behind past and current economic and social reform.

By setting ambitious benchmarks both testify to the fact that Afghanistan has not lost faith in

its chance to acquire economic and social welfare for all its inhabitants. One might even say,

that the country‟s tragic past has reinforced its willpower to succeed in establishing the basic

level of development that it has so long been deprived of.

The focus on development is not only the result of humanitarian considerations. There is a

growing view that development can contribute to improving security. President Obama has

called upon the need to match the military troop surge with an increase in civilian personnel.

The fact that security and development are interlinked, could play to the advantage of the

latter. An increase in development might hold the key to improving security. However, one

must also keep in mind that the opposite holds true. The deterioration in security may well

have a negative impact on the scale of development. After all, areas in which there is violence

and a lack of security will suffer the withdrawal of international aid workers.

Given the importance of development from both a humanitarian and security point of view, it

is essential to evaluate the progress made and the challenges that lie ahead in the economic

and social field. In the following, therefore, I shall evaluate to what extent the United Nations

Assistance Mission in Afghanistan and the Afghan state – through the implementation of its

national development strategy – have been successful in their efforts towards achieving the

Millennium Development Goals. Specific attention shall be given to the following areas:

economy and agriculture, education, health, electricity, water and sanitation, and the social

protection of refugees.

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1. Economy and agriculture

Since the fall of the Taliban, Afghanistan‟s economy has grown substantially. However, the

growth of Afghanistan‟s real gross domestic product has varied over the years and seems to

be in decline.311

Initially, the GDP grew by 28% in 2002/2003.312

However, the GDP growth

rate plummeted to a mere 9% in 2004/2005, increased by 16% in 2007/2008 only to drop to

an all time low of 2% in 2008/2009.313

Nevertheless, observers remain optimistic. The World

Bank estimates that the increase in cereal crop production could boost the growth rate up to

more than 10%.314

This optimism is also shared by the US Department of the Treasury. These

encouraging prognostics are due to the fact that the World Bank predicts that rainfall will put

an end to the drought, which has severely affected the output of the agricultural sector over

the past year.

Agriculture is of great importance as it not only permits social, economic and cultural

wellbeing for rural communities - where poverty is more common than in urban areas - but

also allows them to be reintegrated in the national economy.315

The Afghanistan Compact set

a broad variety of benchmarks, directly or indirectly related to agricultural and rural

development in the hope of overturning the declining trend in agricultural production. While,

not all of these benchmarks have been met, it is undeniable that significant progress has been

made.

By 2008, more than 500,000 rural households enjoyed the perks of irrigation projects, 20,000

km of rural access roads had been built and one third of the rural communities had access to

safe drinking water.316

The production of wheat, horticulture and industrial crops has increased

significantly over the last years. To further this positive trend and to deal with the problems

which have remained unresolved, the Afghan National Development Strategy (ANDS)

focuses on five thematic areas of programming: local government, agricultural production,

agricultural and rural infrastructure, economic regeneration and disaster and emergency

preparedness.

311

Special Inspector General for Afghanistan Reconstruction (SIGAR), Quarterly Report to the United States Congress, 30 January 2010, p. 97. 312 Ibid. 313

Ibid. 314

World Bank, Afghanistan Economic Update, September 2009, p. 3. 315

GIRoA, Afghanistan National Development Strategy (ANDS), 2008, p.87, available at: www.embassyofafghanistan.org/documents/Afghanistan_National_Development_Strategy_eng.pdf [accesed 24 April 2010]. 316 ANDS, p. 88.

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These five central themes are also reflected in the Comprehensive Agriculture Rural

Development Program (CARD). This program is the practical application of the ANDS policy

on agricultural development. The CARD consists of 15 sub-programs and seeks to aid the

poorest and most vulnerable of the rural population.317

By implementing these sub-programs

the Afghan government offers the population a means to acquire direct assets, skills or market

opportunities to help them in their quest for sources of income.318

In this way, the government

hopes to dissuade the rural population from participating in illicit poppy cultivation.

Out of the 15 programs of the CARD, the National Solidarity Program (NSP) is the most

well-known. The NSP is not only an example of what can be achieved when government,

NGO and donor efforts are well coordinated, but also deserves praise for its community-

centered approach. After allowing local, rural communities to formulate their needs, the NSP

offers the necessary funds to realize these small scale activities. The program played an

important role in meeting some of the benchmarks set forth in the Afghan compact and has

benefited more than 2 million people.319

Other noteworthy CARD programs are the National

Food Security Program, which counters malnourishment by promoting food security at the

household level, and the Livestock Program, which supports the production of livestock for

women farmers.

In addition to the CARD, the ANDS also mentions The Agriculture and Rural Development

Zones program (ARDZ).320

While the CARD is primarily focused on developing rural

infrastructure so that farmers can be self-sufficient, the ARDZ is more concentrated on

supporting commercial agriculture. More concretely, the program encourages the international

community to buy products from local Afghan farmers and promotes large scale

production.321

Hereby, the ARZD seeks to create job opportunities, provide incomes and

prepare the country for agro-based export. In order to achieve the aforementioned goals the

program has called upon the government to release publicly owned land for private

development. It has also identified five agricultural zones in which conditions are favorable

317

Afghanistan National Development Strategy (ANDS), 2008, p.90. 318

Ibid. 319 Ibid. 320

Afghanistan National Development Strategy (ANDS), 2008, p.91. 321 Ibid.

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for growth and commercial agricultural activities are most likely to succeed. These zones are

at the heart of the ARDZ initiative.322

Together the CARD and ARDZ are expected to have a significant impact on the daily lives of

Afghan farmers and the country‟s economy. The two programs are expected to realize the

ANDS objectives of strong local governance, poverty reduction and food security and boost

agricultural infrastructure and productivity.

2. Education

“Above all, education opens doors to new ways of thinking about Afghanistan, by Afghans,

and thus will be necessary to Afghanistan realizing its potential as a nation.”323

In March 2004, Afghanistan endorsed the Millennium Declaration and the Millennium

Development Goals (MDS‟s). Due to its lost decades of war, Afghanistan modified the target

date of 2015and set itself goals to be achieved by 2020.324

One of these goals entails that, by

this date, all the children of Afghanistan will be able to enjoy a full course of primary

education. As an intermediate stage, however, the Afghanistan Compact set forth a few

benchmarks to be achieved by 2010. These benchmarks included: increasing primary school

net enrollment to 60% for girls and 75% for boys, boosting the number of female teachers by

50%, implementing a new curriculum in secondary schools and building-up the number of

university students to 100,000, of which a minimum of 35% ought to be female.325

The story of education in Afghanistan has been one of mixed results. While the country has

been successful in getting the children back onto their school chairs, some observers complain

that this focus on quantity of students has overshadowed the need for qualitative education.

The only certitude, on which all agree, is that education will play a crucial role in shaping the

country. For education is not merely a goal, it is a means to achieving other social and

economic development objectives.326

By attending school, the children of Afghanistan will

322

ANDS, p. 94. 323

The John Hopkins University and Paul H. Nitze School of Advanced International Studies, The Importance of Education in Afghanistan’s Reconstruction, 14 May 2009, p.3. 324

UNDP, Afghanistan Millennium Development Goals: Progress at a glance, p.1. 325

The Afghanistan Compact, signed at the London Conference on Afghanistan (1 February 2006), p.10, available at: http://unama.unmissions.org/Portals/UNAMA/Documents/AfghanistanCompact-English.pdf. [accessed 7 February 2010]. 326

The John Hopkins University and Paul H. Nitze School of Advanced International Studies, The Importance of Education in Afghanistan’s Reconstruction, 14 May 2009, p.3-4.

84

acquire the skills and knowledge needed to overcome the practical hurdles of social and

economic reform.

Since the fall of the Taliban enrollment increased from approximately 900,000 in 2001 to an

estimated 6.1 million in 2008, the highest number in the modern history of Afghanistan.327

According to the Afghan Ministry of Education, due to enrollment over the last two years, this

number is about to reach 7 million. Furthermore, the ministry estimates that girls make-up

37% of this total, an increase of 35% since 2001.328

While this is far from the 60% benchmark

set forth in the Afghanistan Compact, it is still an enormous achievement. Other noteworthy

results mentioned are the high number of adults participating in literacy courses, the 800%

increase in teachers and the improvement in educational infrastructure.

Despite these triumphs, the Afghan and international community still have their work cut out

if they are serious about long-lasting educational reform. Both the ANDS and the Afghan

Ministry of Education distinguish five fields in which further improvement is necessary:

access, quality, relevance, funding and management. Regarding access, it can be noted that

the central issues are the discrepancy in enrolment between rural and urban areas, the

remaining gender gap and the lack of basic infrastructure.329

However, since 2006 another important factor has been thwarting the constitutional right to

education: terrorism. Over the years the education sector has increasingly fallen victim to the

Taliban‟s campaign of intimidation. In a desperate attempt to deprive Afghans of a better

future they have burnt down schools, threatened teachers and students and even murdered

them. Between January 2006 and December 2008, the number of attacks directed at

educational facilities, students and teachers nearly tripled.330

The severity of the situation was

illustrated once again in May 2009 when 98 students and 6 teachers were admitted to hospital,

following a poisoned gas attack at their school. In July 2009, more than 400 schools had to

327 SIGAR, quarterly report to the US Congress, 30 January 2010, p.102. 328

Islamic Republic of Afghanistan: Ministry of Education, Where we are now, 12 January 2010, available at: http://english.moe.gov.af/index.php?option=com_content&view=articleicle&id=68:where-we-are-now&catid=63:about-moe&Itemid=90 [accessed 2 April 2010]. 329 ANDS, p. 98. 330

UN Educational, Scientific and Cultural Organisation, Education under Attack 2010 - Afghanistan, 10 February 2010, available at: www.unhcr.org/refworld/docid/4b7aa9e6c.html [accessed 19 March 2010].

85

remain closed due to security threats.331

Specially, all-girl schools and those situated in the

southern provinces of Afghanistan have fallen victim to Taliban attacks.

While many children are still deprived of access, observers argue that this should not detract

from the need to offer balanced and quality education to those who do have access. The

ANDS stresses that the quality of education is dependent on the quality of teaching.332

According to the Afghan Ministry of Education, 73% of teachers lack the minimum required

qualification and are in need of professional development.333

Therefore, the ministry has

decided to take a number of measures.334

Firstly, 60% of existing teachers will be retrained so

that they achieve a minimum grade of 14 in the relevant subject. In general, teacher training

programs are to become more efficient and accessible. Secondly, the ministry intends to have

no less than 80% of teachers pass a national competency test by 2014.

Nevertheless, good teachers are not sufficient if the curriculum is not adapted. If education is

to be the gateway to reducing poverty and promoting economic growth, it is important that the

acquired knowledge actually be relevant and enable Afghans to surmount the country‟s

problems.335

Therefore, education skills should be provided that can reduce unemployment

and dependency on international experts. To this extent, the Afghan state and international

community have sought to broaden the curriculum in Islamic schools and are trying to acquire

the infrastructure and personnel needed to accommodate all those who wish to benefit from a

higher education.336

It is clear that these ambitious projects to make education more accessible, qualitative and

relevant cost a great deal. For Afghanistan to bring about these much needed changes, it is

imperative that the country reassesses its annual budget. While the Ministry of Education

employs over 67% of all Afghan civil servants, only 15 % of the annual budget is allocated to

this department. As such, education is largely funded by donors. Unfortunately, donor

commitment is not always long-term and is often unpredictable. The Afghan government

331

SIGAR, quarterly report to the US Congress, 30 January 2010, p.102. 332 ANDS, p.117. 333

Islamic Republic of Afghanistan: Ministry of Education, Our key challenges, 13 January 2010, available at: http://english.moe.gov.af/index.php?option=com_content&view=articleicle&id=70:our-key-challenges&catid=63:about-moe&Itemid=90 [accessed 25 February 2010]. 334 Islamic Republic of Afghanistan Ministry of Education, Our Way Forward, January 13 2010. 335

ANDS, p. 118 336 Ibid.

86

should, therefore, seek to acquire new means or redirect existing means to the benefit of

education.337

3. Health

In recent years, attempts have been made to improve health and nutrition in Afghanistan.

Benchmarks pertaining to public health were not only set in the Millennium Development

Goals but also in the Afghanistan Compact. According to a 2009 report,338

the population of

Afghanistan fares far worse, in terms of health, than any other country in the region.

However, this assessment should not give way to disappointment. Since the fall of the

Taliban, public health has significantly and rapidly improved.

A first improvement pertains to the access by the population to basic health service.

According to the ANDS and the MoPH 2009 report, the Basic Package of Health Services is

on its way to being implemented in 85% of districts. Furthermore, after the Afghanistan

Household Survey 2006 revealed that many families had to walk several hours before

reaching the nearest primary health care facility, the government became adept at opening

sub-centers and even mobile health facilities.339

A second important improvement, in recent years, has been the increase in the number of

people using maternal and child health care services. A contributing factor for this increase is,

undoubtedly, the increased presence of women professionals in the health sector.340

In 2009

there were 5% more births in which skilled birth attendants took part than in the previous

year.341

In general these pre and post-natal services have helped to reduce the maternal

mortality rate. Nevertheless, out of 100,000 live births there is still an average of 1600

mothers who die.342

Another noteworthy fact is that the Afghanistan Health Survey indicates

that there was an increase of 10% in the use of modern contraceptives between 2003 and

2006.343

Child health services have contributed to a reduction in the infant mortality rate

(IMR) and the under 5 mortality rate (U5MR). Both were reduced respectively to 129 and 191

337 Islamic Republic of Afghanistan MoE, Our key challenges, 13 January 2010. 338

Islamic Republic of Afghanistan: Ministry of Public Health (MoPH), 2009 annual report, p. 1. 339

MoPH, 2009 annual report, p. 6. 340

Ibid. 341 Ibid. 342

www.unicef.org/infobycountry/afghanistan_statistics.html#65 343 MoPH ,2009 annual report, p. 8.

87

deaths per 1000 live births, ahead of the 2010 target date set forth in the Afghanistan

Compact.344

Finally, immunization coverage has also soared due to the rebuilding of the health service and

campaigns by UNICEF, WHO and other organizations. According to UNICEF statistics 85%

of 1-year-old children were immunized against tuberculosis, polio, DPT and hepatitis B and

75% of them were vaccinated against measles.345

Not only did a high percentage of children

receive vaccinations against these diseases, but health care facilities also improved their

ability to detect and control them.346

With regard to tuberculosis, Afghanistan already

achieved its 2010 goals of a 70% detection rate and a case management success rate of 85% in

2007. Furthermore, between 2005 and 2009, the number of facilities offering tuberculosis

detection and treatment services almost doubled. A similar positive trend is visible with

regard to the detection and treatment of malaria.

Unfortunately, children still suffer widely from malnutrition. To combat malnutrition, an

additional 7 Therapeutic Feeding Centers were opened in 2009, bringing the total amount to

44 nationwide.347

It is clear, however, that there is still a long road ahead. According to the

2006 Afghanistan Health Survey, 83% of children aged between 0 and 5 months had received

only breast milk in the previous 24 hours. This percentage plummeted to 28% for children of

6-59 months of age. 70% of this group was given Vitamin A supplement during the last 6

months as a temporary remedy.348

However, the fact that so many young children are severely

underfed could have severe repercussions on their physical development and needs a long-

lasting solution.

The fact that health care facilities have succeeded in extending and improving the quality of

their services is largely due to the administrative and finance reforms. Over the past several

years a tremendous effort has been made with regard to human resources and capacity

building.349

In 2009, the MoPH took on 3,500 new recruits.350

Furthermore, workshops and

training courses enabled more than 7,000 people to improve their practical and administrative

skills.351

One of the greatest capacity building accomplishments was the high number of

344

ANDS, 2008, p. 109. 345 www.unicef.org/infobycountry/afghanistan_statistics.html#65 346

MoPH , 2009 annual report, p. 9-10. 347

MoPH ,2009 annual report, p. 10. 348

Ibid. 349 MoPH ,2009 annual report, p. 11. 350

Ibid. 351 Ibid.

88

female recruits. More than half of the new community health workers were female. As

mentioned earlier, the access to female personnel is a major consideration for Afghan women

seeking healthcare.

4. Electricity

In comparison to other sectors, which have managed to make some progress, the energy

sector in Afghanistan is lagging behind. While the energy availability has almost doubled

since 2002, this is largely the result of imported supplies.352

Afghanistan‟s capacity to

generate electricity is still lower than it was in 1978 and non-existent in comparison with

neighboring countries. An even greater source of concern is that the generated energy often

does not reach the Afghan population due to the lack and poor quality of power distribution

networks. According to a February 2010 report353

, 85% of urban households and 94% of rural

ones have no electrical power. Therefore, the benchmark set in the Afghanistan Compact to

ensure that 65% of urban and 25% of rural households have electricity by 2010 has not been

met.354

The ANDS mentions a number of obstacles that need to be overcome in order to transform the

energy sector into a well-functioning market-based system. The strategy underlines the

importance of a transparent and efficient policy framework. The ANDS noted that energy

policy was dispersed among too many ministries, so the Inter-ministerial Commission for

Energy was established. In addition, the ANDS also indicated that Afghanistan suffers from a

lack of commercial energy law specialists and is in need of a clear legal framework to serve as

a guideline for energy operations. Unclear policies and legal shortcomings not only effect the

government‟s efficiency but also dissuade private investment. Although a Law on Oil and Gas

was adopted in late 2006, the government has failed to provide a much needed coherent

national strategy on energy.355

Instead of being a source of revenue, the energy sector has

emerged as a major drain on government resources.356

It is essential for the Afghan

government to create new ways in which to enhance the national power capacity and obtain a

352

ANDS, 2008, p. 78. 353 Civil-Military Fusion Centre, Afghanistan: Developments in Infrastructure, February 2010, p.1, available at www.cimicweb.org/Documents/CFC%20AFG%20Infrastructure%20Archive/Afghanistan%20Infrastructure%20Newsletter%2001-28%20Feb%2010.pdf [accessed 30 March 2010]. 354

Afghanistan Compact, p.9. 355 SIGAR, Afghanistan Energy Supply Has Increased but An Updated Masters Plan Is Needed and Delays and Sustainability Concerns Remain, 15 January 2010. 356 ANDS, p. 79.

89

better distribution method. This would not only improve the living conditions of the Afghan

population but would also have a substantial impact on the country‟s economy.

5. Water and sanitation

In contrast to other developing countries, Afghanistan does not necessarily suffer a shortage

of water. Precipitations generally generate a sufficient amount of water.357

However, the

problem is that a substantial part of these precipitations is in the form of snow – which melts

after a few months - and is limited to certain areas. Therefore, Afghanistan‟s main problem is

one of precipitation catchment systems.358

In an attempt to circumvent this problem, Afghans

have directed their attention to extracting groundwater. Efficient water resource management

will not only secure access to safe drinking water and sanitation facilities but also influence

agriculture by allowing for irrigation. In the Afghanistan Compact diverging benchmarks

were set with regard to urban and rural development. While 30% of households in urban cities

were expected to have piped water and improved sanitation by 2010, 90% of rural villages

would have access to safe drinking water and 50% to sanitation.359

Furthermore, all 34

Provincial Development Plans have defined access to safe drinking water as a priority.

Important steps have already been taken in order to achieve these goals.360

A first initiative

was taken by establishing the Supreme Council for Water Affairs Management (SCWAM).

This council oversees that the distribution of responsibilities – among several ministries -

regarding water resources does not lead to inefficiency. In addition, the Afghan state has, as

part of its Water Sector Strategy, adopted an Integrated Water Resource Management System

(IWRMS), which will coordinate the specific projects concerning each of Afghanistan‟s five

main river basins.361

The IWRMS will, as its name implies, adopt an integrated approach by

taking into consideration all water related activities and requirements. Another initiative is

the Afghanistan Urban Water Supply and Sewage Corporation, which has increased

accessibility to safe drinking water and improved sanitation in urban and rural areas. Finally,

more than 1.8 million hectares have already been irrigated as 2.100 irrigation projects are

being completed. However, more can still be done as it is estimated that 5.3 million hectares

of Afghanistan‟s territory is eligible for irrigation.362

357

ANDS, 2008, p. 81. 358

Ibid. 359

Afghanistan Compact, p. 9-10. 360 ANDS, p. 83. 361

Ibid. 362 ANDS, p.84.

90

Despite having taken these measures, water resources management is still plagued by a

variety of problems and the MDGs relating to water resource management are still far from

being met. Like most of the other development departments, the improvement in the water

sector is hindered by human resources and capacity building issues.363

There is insufficient

data available on groundwater resources, a high risk for underground water contamination and

experts in water management are scarce. Despite the establishment of the SCWAM, there is

still confusion regarding the responsibilities of the ministries and a lack of overall

coordination.

6. Refugees

Since 2002, more than 5 million refugees have returned to Afghanistan. The country is

estimated to have more than 160,000 internally displaced people (IDPs).364

Although the

voluntary return of refugees has been in decline since 2006, following the deteriorating

security situation, refugees and IDPs are the number one population movement challenge

facing the Afghan government.365

The United Nations High Commissioner on Refugees

(UNHCR) estimates that the voluntary return of refugees has resulted in a 20% population

growth and that in certain areas a third of the local population is a returnee. Obviously, this

mass migration has put a strain on the already limited Afghan resources. In a country faced

with scarcity, it is not evident to offer returnees shelter, water and livelihood support.366

Nevertheless, the Afghan government has committed itself to offering assistance to refugees

and IDPs. In the ANDS, the government set forth a policy framework which would allow

them to facilitate the return of refugees and enable the integration of returnees. Therefore, the

goals of the Afghan government pertaining to the social protection of refugees and IDPs are

twofold: return and integration. As mentioned earlier, the amount of voluntary returns has

been limited since 2006. It is estimated that there are still 2.1 million Afghan (registered)

refugees in Pakistan and close to 1 million in Iran.367

In the ANDS, emphasis is put on “

maintaining frameworks to manage repatriations”.368

The frameworks in question are the

tripartite agreements that the UNHCR and Afghanistan signed respectively with Iran and

363

ANDS, p. 127-128 364 United Nations High Commissioner for Refugees (UNHCR), 2010 UNHCR country operations profile-Afghanistan, available at: www.unhcr.org/cgi-bin/texis/vtx/page?page=49e486eb6 [accessed 30 December 2009] 365

Ibid. 366 Ibid. 367

ANDS, p. 129. 368 ANDS, p. 132.

91

Pakistan, prior to the ANDS. The tripartite agreements are the main legal framework in the

region to secure the principle of voluntary repatriation. The signatory states agreed to uphold

the principle of “voluntary, dignified and gradual return” and discuss the aspired-to number of

annual returnees within the tripartite commissions.369

The emphasis on voluntary return is a

consequence of the observation that forced repatriation seldom leads to humane or sustainable

outcomes. However, the continued outgoing migration from Afghanistan and low return

numbers have led neighbouring countries to put pressure on the Afghan government to more

actively promote and facilitate voluntary returns. As a result, Iran decided in September 2008

not to renew the tripartite agreements due to the slow pace of voluntary repatriation.370

It is to

be noted, that Iran has repeatedly been accused of forced – even hostile - deportations, even

when it was still bound by the tripartite agreement. In April 2008, Afghan and Pakistani

media reports claimed that Iranian troops had killed 13 Afghan refugees, just over the Afghan

border. Iran denied the allegations and claimed to have shot a number of drug traffickers in

the border region.371

Despite the agreements with these countries of asylum, the Afghan

government also tries to promote voluntary repatriation by increasing its own capacity.372

More concretely, the state is making an effort to enhance internal government coordination,

implement information campaigns and national programs promoting voluntary return, ensure

better accessibility to land for refugees and IDPs.373

Better accessibility to land is not only a

means to promote voluntary return but is also an essential part of the government‟s integration

strategy. As mentioned earlier, both return and integration are the main objectives of

Afghanistan‟s refugee social protection policy. The necessity to facilitate the integration of

refugees was also underlined in the Afghanistan Compact which stated that:

“ By end-2010, all refugees opting to return and internally displaced persons will be

provided assistance for rehabilitation and integration in their local communities; their

integration will be supported by national development programmes, particularly in key areas

of return.”374

369 ANDS, p.132. 370

UNHCR, Afghanistan situation operational update, September 2008, p. 3. 371

US Committee for Refugees and Immigrants, Iran country report 2008, available at www.refugees.org/countryreports.aspx?id=2329 [accessed 14 April 2010]. 372 ANDS, p. 133. 373

Ibid. 374 Afghanistan Compact, p.11.

92

To achieve the aforementioned benchmark, the ANDS proposes to “provide housing, facilities

and social services to returnees”.375

Special attention is given to the most vulnerable of

refugees and IDPs, such as women and children. As illustrated above, distribution of land to

returnees has become an essential element for the integration process. In some regions, a plot

of land does not only serve as an alternative to providing housing, but allows returnees to

engage in agricultural activities. The ANDS estimates that, between 2002 and 2008, more

than 170,000 houses were built.376

Access to primary health care and skill development

training programs are also viewed as major contributors to integration. While the ANDS set

forth an ambitious policy for facilitating the return and integration of refugees and IDPs, a

2008-2009 assessment report377

indicates that limited, but encouraging concrete progress has

been made. During the previous year, more than 14,000 damaged houses were repaired, 3,600

plots of lands were attributed, 200 families benefited from job opportunities and the basic

infrastructure of major returnee hotspots was improved.378

Finally, it should be noted that all

these achievements were the result of a joint effort between the Afghan state and the UNHCR,

which has played an active and contributing role in helping Afghan refugees over the years.

7. Conclusion

There are well-coordinated efforts to ensure agricultural and rural developments. Programs,

such as those of the CARD have been instigated to offer the poorer, rural population the

opportunity to acquire the skills necessary to earn money and become self-sufficient. Yet

others, like the ARDZ are more geared to helping commercial agriculture. Such programs

have encouraged local agricultural infrastructure and are well on course to increasing

productivity and reducing poverty are expected to achieve a reduction in poverty

In general it can be noted that access to and quality of basic health care has increased at an

impressive rate since the fall of the Taliban. These accomplishments are clearly reflected in

essential health care indicators as the IMR, U5MR and the percentage of people who have

access to basic health care. Nevertheless, there is still a lot of work to be done as illustrated by

Afghanistan‟s low global ranking position. To enable further progress, it is essential that more

funds be made available for the MoPH. It is therefore recommended that the Ministry of

375

ANDS, p. 133. 376

Ibid. 377

UNHCR, 2010 UNHCR country operations profile-Afghanistan. 378 Islamic Republic of Afghanistan and International Monetary Fund, Afghanistan National Development Strategy: First Annual Report (2008/09), IMF Country Report No. 09/319, November 2009, p.40, available at www.imf.org/external/pubs/ft/scr/2009/cr09319.pdf [accessed 18 January 2010].

93

Finance takes into considerations the programs and plans of the MoPH when allocating the

annual budget.

Education in Afghanistan still faces problems. Children are deprived of access, teachers lack

qualifications and the Taliban has been carrying out more and more attacks on schools.

However, it is through education that skills are learned and there are ambitious projects to

bring in much-needed changes. But as with health, more funds need to be made available.

The electricity sector has proved to be devoid of the personnel or policies necessary for it to

become a well-organised system with a coherent strategy. Until it is overhauled it will remain

a burden on the government‟s resources. Similarly, the water system suffers from a lack of

good coordination and is struggling to meet its MDGs.

General conclusion

The journey towards a more stable and secure Afghanistan has not been easy. For the road to

success has been –and continues to be- more of a long, winding and bumpy wood path than a

straightforward highway. However, amidst the bloodthirsty animals lurking behind every tree,

the international community has managed to book progress. While this progress may not live

up to the predefined expectations and timeframe, it rekindles hope that –someday- these

expectations could be met.

In the field of security, Afghanistan poses less of a threat than it did in the days of the Taliban

regime. Al-Qaeda and other terrorist networks may not have ceased their diabolical plans to

wreak havoc upon the western world, but they have been hampered in their freedom to

execute them. Terrorist infrastructure and training camps have been destroyed. Furthermore,

the higher ranks of the Al-Qaeda echelon are being forced to replace murdered trustees with

strangers, hereby continuously having to look over their shoulder. Although, terrorists have

not been fully eliminated, the fact that terrorists are in hiding is already a vast improvement

over the pre 2001 era when terrorists were free to roam Afghanistan and use it as a base of

operations.

What is concerning, however, is that terrorists seem to be shifting their activities from

Afghanistan to neighbouring Pakistan. This assumption was emphasized when it was revealed

that Faisal Shahzad – who attempted to blow up a car bomb earlier this month in New York‟s

94

Times Square- had attended a terrorist training camp in Waziristan, Pakistan. Although the

Pakistani authorities claim to be taking action against terrorists within their borders, it is

evident that their commitment is questionable. The Pakistani military should redefine

Pakistani Taliban insurgency and increasing terrorist presence as their number one security

issue.

Both NATO‟s counterinsurgency strategy and president Obama‟s new strategy for

Afghanistan encapsulate some promising elements for further improving the present security

situation. The troop surge is a positive sign of reinvigorated commitment and could help

overturn the momentum of the Taliban in southern and eastern Afghanistan. Keeping in mind

the basic principles of counterinsurgency- which require that the Afghan population be at the

centre of interest- the additional troops should be distributed at the district level. Furthermore,

eventual military success of the troop surge should not be seen as an excuse for a quick

withdrawal. Due to the current inability of the Afghan National Security Forces to

independently safeguard security, any near future – American or European- withdrawal plans

should be seriously reconsidered. To this extent, the need for quantitative growth of the

Afghan forces should in no way overshadow the necessity for building a capable and

committed force. Therefore, it is highly recommended that entry requirements become more

stringent and additional training personnel be put at the disposal of the Afghan cause. It is not

only the Afghan National Security Forces who will play a crucial role in securing

Afghanistan‟s future. The country‟s military will play a role too. General stability will largely

depend on the state-institutions ability to meet the criteria of good governance.

With regard to governance it can be stated that Afghanistan has been relatively successful in

transforming itself into a democracy. The newly adopted constitution is without a doubt the

most modern of Islamic countries. However, while the constitution foresees provisions to

safeguard the basic principles of democracy, their actual implementation is often far from

satisfactory. A prominent example of this is that -despite constitutional and electoral law

provisions regarding free and fair elections- widespread fraud allegations tainted the 2009

presidential election. However, the Afghan state partly redeemed itself by adhering to the

decision of the Electoral Complaints Commission and the Independent Electoral Commission.

As far as the separation of powers is concerned the main impediment to securing an adequate

system of checks and balances is the excessive powers given to the president under the new

95

constitution. Though the need for a strong presidency is understandable in view of the

circumstances, the president‟s far ranging powers and the lack of presidential civil

responsibility could give way to abuse of power. However, the main factor hampering the

democratic level of Afghanistan is the requirement, under article 3, that all laws be in

compliance with the provisions of Islam. By allowing Islamic law to creep into the Afghan

justice system, the rule of law is being put under considerable strain. Furthermore, the

inconsistency of Islamic law with several human rights – gender equality, religious freedom,

prohibition of cruel and unusual punishment- sabotages any attempt by the constitution to

pledge adherence to the Universal Declaration of Human Rights.

Finally, progress has also been made in the field of economic and social development. Some

of the main Millennium Development goals are well on their way to being achieved by 2020.

Furthermore, several economic and social development benchmarks set forth in the

Afghanistan Compact have even been met ahead of schedule. Reconstruction efforts in

Afghanistan have, above all, been fruitful in the health and education sectors. Basic health

services have expanded their reach to a wider public. Specifically noteworthy is the increase

in the number of female health professionals, which has encouraged more women to seek pre

and post-natal care. In addition, the infant and under-5 mortality rate are both in decline. With

regard to education, a higher number of children are now benefiting from primary school

education and steps are being undertaken to improve the quality of education. Unfortunately,

Taliban attacks on schools, teachers and students are still frequently carried out. Regrettably,

the advances made in health and education are not being mirrored in the agricultural and

energy sectors. It is crucial that improvement be made in the latter sectors in order that the

economy may reach its full potential.

Though the war in Afghanistan has not been an overwhelming success, a number of

improvements can be felt. Keeping in mind the history of Afghanistan, it would be

unreasonable to expect a world of difference after merely eight years. The story of

Afghanistan might not go down in history as the most successful one, but it shall nonetheless

be remembered for its importance.

96

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