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The rule of law in Afghanistan has been, generally speaking, fragile. The _[Bonn Agreement|http://www.afghangovernment.com/AfghanAgreementBonn.htm]_ (2001) began the process, focusing on political institutions and procedures, emphasizing the reform of Afghanistan's justice system by stating that "with the assistance of the United Nations, a Judicial Commission \[should be established\] to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions." (Chapter II. 2. on "Legal framework and judicial system")_._ Subsequently, the _[_Afghanistan Compact_|http://unama.unmissions.org/Portals/UNAMA/Documents/AfghanistanCompact-English.pdf]_ (London Conference 2006) followed up on that initiative by signalling an agreement between the Afghan government and the international community. Moreover, the Rome _[Conference on the Rule of Law in Afghanistan|http://www.rolafghanistan.esteri.it/NR/rdonlyres/C555AE7E-E27F-4475-A050-75BD50F2B637/0/RomeConferenceChairsConclusions.pdf]_ (2007) - based on UN Security Council [Resolution 1746|http://www.unhcr.org/refworld/docid/460b8acb1c6.html] (2007) - reaffirmed the crucial importance of judicial and legal reform and the implantation of the rule of law reform for the reconstruction of Afghanistan. Finally, in 2008, the United Nations Development Programme Afghanistan arranged the _Support to Provincial Justice Coordination Mechanism_ project. Accordingly, the legal rule of law discourse and analyses have been centred primarily under the overall scope of Afghanistan's justice system reform. Disquisitions on the rule of law in Afghanistan are therefore rather focusing on efforts dealing with practical issues such as the establishment of procedures and strengthening the judiciary as stipulated e.g. in the "<span style="color: black"><em>qānūn-e tashkīlāt va salāhiyāt-e mohākem-e qove-ye qasā-ye jomhūrī-ye eslāmī-ye Afghānestān" (Law of Organisation and Jurisdiction of Courts of the Islamic Republic of Afghanistan, Official Gazette o. 851, 31 Sawar 1384 (21 May 2005))</em></span><span style="color: black">.</span> At large, the evaluation of the situation seems to be disheartening (Barnett 2007: 1). Some observers state that the rule of law in Afghanistan has not improved since the overthrow of the Taliban in December 2001. Many point out that security and freedom from corruption - key elements in fostering the rule of law - are nowhere near a reality in a country that has been ranked in the second or third lowest percentile for corruption by the World Bank Institute (Wardak et al. 2007: 37-50; RoederRöder 2007: 307). |
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I. Rule of Law in Afghanistan's Context
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Both the Bonn Agreement (2001) and the Afghanistan Compact (2006) strongly emphasize the duty of the executive and legislative authorities to bring Afghan laws in conformity to fundamental principles of human rights. This dimension, reflected also in the (proposed) definition largely represents the demands of the international community and donor countries. Noteworthy, according to the Afghanistan Human Development Report (_Wardak/Saba et al. 2007), few Afghans who were consulted saw this as an important dimension of the rule of law. Yet, despite the importance of understanding the issue of "cultural relativism" in the Afghan context (and potential tension between certain Islamic and human rights principles), the Afghan Constitution and new amended Afghan laws are, in general terms, formally consistent with the fundamental principles. Concerning the judicial sector, one has to state, however, that more than 80 per cent of disputes are still settled outside the state courts. The majority of legal professionals has no or very limited access to up-to-date legal sources. Legal norms enacted by the legislative branch should therefore be described as a "patchwork" (United States Institute for Peace 2004: 3; Senier 2006: 1) rather than a vivid system (Röder 2009: 257/258). Hence, the discrepancy between Islamic considered and so-called secular provisions remains unresolved and a legal policy issue. New codes like the Interim Criminal Procedure Code of 2004 even worsened this situation. Due to the fact that Italian legal reform consultants had streamlined the five-hundred articles of the 1965 qānun-e ejra'āt-e jazā'i (Criminal Procedure Code), Afghan judges, accustomed primarily to the civil law tradition, seem to find the new code too abstract - if they have ever seen it at all - and resort to its predecessor. (Röder 2007: 309). In addition, many observers also express deep concern at the evident lack of apparent understanding and appreciation by judges by foundational notions of the judicial role and process (Armytage 2007: 198; Pfeiffer 2009: 27): concepts of judicial independence, justice and the rule of law are not very much _au fait within the judicial body.
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