Faiz Ahmed*

     Cite as: Faiz Ahmed, Afghanistan’s Reconstruction, Five Years Later:
Narratives of Progress, Marginalized Realities, and the Politics of Law in a
Transitional Islamic Republic, 10 GONZ. J. INT’L L. 269 (2007), available at

I.     INTRODUCTION ................................................................................ 269
       OR IMPOSITION OF LAW? ................................................................. 285
       THROUGH INDIGENOUS MEANS ....................................................... 294
       A. An Encouraging Start: The Afghanistan Independent Human
           Rights Commission Report ..................................................... 294
       B. The Role of Islamic Legal Scholars ........................................... 297
       C. Recommendations ...................................................................... 306
VI.    CONCLUSION ................................................................................... 311

                                      I. INTRODUCTION

     Autumn 2006 marked the fifth anniversary of a series of notable events
in Afghanistan’s recent history: the launch of a U.S.-led invasion of the
country, the fall of the Taliban regime, and the subsequent establishment of
the Islamic Republic of Afghanistan—a government now staunchly allied
with the United States and hailed by several international legal and political

270                     Gonzaga Journal of International Law                        [Vol. 10:3

observers for initiating pro-democracy reforms. 1 While the deepening
debacle in Iraq has assumed center-stage of American foreign policy
spotlight in recent years—having increasingly overshadowed events in
Afghanistan since the U.S. decision to invade Iraq in March 2003—the five-
year benchmark in Afghanistan invites sincere reflection on the specific
forms of progress achieved during an era of reconstruction that followed the
ousting of the Taliban and formation of a new Afghan government. Several
milestones come to mind. As the most recent example, on September 18,
2005, Afghanistan held its first parliamentary elections in over thirty years.
Images of cheering Afghan men and women displaying ink-stained thumbs,
or those still in line still anxious to cast their votes are the latest in a series
of accolades the present U.S. administration has used to frame its post-
September 11 intervention in Afghanistan as a campaign of liberation. Such
views are evident in the names of official U.S. government projects in
Afghanistan, from the military drive to oust the Taliban “Operation
Enduring Freedom,” to two recent USAID policy reports on reconstruction
entitled “Freedom Arrives” and “Afghanistan Reborn.” 2 In short, the
ongoing narrative of liberation as generally presented in U.S. media seems
to read as follows: before the American intervention, Afghanistan lay
enveloped in medieval barbarism and the darkest of tyrannies. The moment
of contact with Western civilization—initiated by the U.S. and British
bombing campaign that began on October 7, 2001—was the enlivening
moment that served as the necessary catalyst for progressive change. What
follows is a story of upward bound, unfailing progress—beginning with the
formation of a transitional government at Bonn in December of 2001, to the
ratification of a new constitution and presidential elections in 2004, and
most recently, country-wide parliamentary elections in September 2005.

* Ph.D. student, University of California, Berkeley; J.D., University of California Hastings
College of the Law. I would like to thank Professors Naomi Roht-Arriaza, Keith Wingate,
George Bisharat, Laura Nader, and Hatem Bazian for their classroom instruction and
insightful discussions during my years as a law student. It is through their critical and
thought-provoking approaches to law, each in their own unique way, that I drew inspiration
while formulating this article. All deficiencies in the text are solely my own.
     1.    Noah Feldman, A New Democracy, Enshrined in Faith, N.Y. TIMES, Nov. 13, 2003,
at A31; Afghan Charter Wins World Praise, BBC NEWS, Jan. 5, 2004,; Bush praises Afghanistan Progress,
BBC NEWS, Mar. 1, 2006,;
Interview by Hanif Sherzad of Radio Afghanistan with United States of America Secretary of
State       Condoleezza         Rice        (Oct.        12,       2005),      available    at
     2.    See Infinite Justice, Out - Enduring Freedom, In, BBC NEWS, Sept. 25, 2001,; Freedom Arrives, United States
Agency for International Development (USAID) Report, (Feb. 8, 2007) at;
Building          Democracy,           Afghanistan            Reborn,        available      at          (last
visited Feb. 8, 2007).
Spring 2007]                Afghanistan’s Reconstruction                            271

Freedom, human rights, and the rule of law, so the story goes on, are
inevitable products of these auspicious political developments.
     This article seeks to evaluate this master narrative as it is often
promoted in official speeches of both the U.S. and Afghan governments, by
contextualizing claims of liberation in light of the colossal legal, political,
and humanitarian conflicts that survived—and were born after—the
overthrow of the Taliban in winter of 2001. I raise the following questions
concerning accountability for ongoing human rights violations in particular:
How has the reconstruction of Afghanistan fared in terms of establishing
accountability for past war criminals and other human rights abusers? Has
sufficient attention been accorded to transitional justice in reconstruction
processes, or is accountability being treated as a sacrifice that the Afghan
people must make for their country’s stability? Finally, what can be done to
improve the reconstruction of Afghanistan from humanitarian and
transitional justice perspectives, including a more civilian-centered
     When considering the disturbing trends of incorporating suspected war
criminals into the government, the human toll of the ongoing U.S. War on
Terror in Afghanistan, and less tangibly, the imposition of law at the core of
legal and judicial reform activism in Afghanistan, the prevalent narrative
described above is an erroneous assessment of the harsh realities that exist
on the ground in Afghanistan today. Furthermore, gross simplifications that
focus on spectacular acts such as formal elections or new constitutions (the
sixth in the country’s history) actually impede efforts to build accountability
for past and ongoing human rights violations in Afghanistan by painting a
deceptively rosy picture for political purposes, covering up continuing
abuses in the process. For example, while present U.S. administration
officials persist in extolling the country as liberated, post-Taliban
reconstruction in Afghanistan has experienced the handover of power to
repressive feudal lords in the provinces and widely-suspected war criminals
in the Kabul-based government, all virtually immune from prosecution, with
many of the latter appointed to key posts in President Karzai’s cabinet or
even running as full-fledged candidates in the recent parliamentary
elections. 3 This is in addition to the over 1400% surge in opium production
since the overthrow of the Taliban—Afghanistan now provides 90% of the
world’s opium and in 2006 the country’s opium harvest reached the highest
levels ever recorded. 4 These facts have led numerous analysts to conclude

    3.    Rama Mani, Ending Impunity and Building Justice in Afghanistan, Afghanistan
Research and Evaluation Unit Issues Paper, (Dec. 2003), available at
    4.    Pam O’Toole, Afghanistan opium production leaps, BBC NEWS, Oct. 25, 2002,; Pierre-Arnaud Chouvy, The Ironies of
Afghan Opium Production, ASIA TIMES (Sept. 17, 2003), at
272                      Gonzaga Journal of International Law                         [Vol. 10:3

high levels of collusion exist between local traffickers, provincial officers,
and central government administrators active in the lucrative trade, which
the Taliban effectively banned in spring 2001. 5 Perhaps most difficult to
stomach of all, however, is the plague of violence targeting international aid
workers and Afghan civilians cooperating with coalition forces for the new
government. 6 To the surprise of military analysts, the rate of attacks
claimed by Taliban insurgents and sympathizers has not abated, and in 2006
it actually increased – last year bloodshed in Afghanistan returned to levels
not seen since the fall of the Taliban in 2001 – thus calling into question the
accuracy of terms like “post-Taliban” in the first place. 7
      With these background facts in mind, this paper argues that since late
2001, the present U.S. Administration’s triumphalist claims of liberating the
Afghan people, establishing human rights, and promoting democracy for the
first time in the country’s history are gross exaggerations that cloak ominous
trends of impunity in the country, concealing grave crises in Afghanistan’s
transition such as the short-shifting of accountability for past war crimes and
ongoing government abuses in the name of political stability. Therefore, the
master narrative of linear progress presented by U.S. spokespersons and in
popular media coverage must be critically engaged and reassessed in order
to more accurately reflect contemporary realities on the ground in
Afghanistan and as the first step towards building accountability for on-
going violence in the country. From this sociolegal perspective, some of the
most pressing yet overlooked problems that warrant immediate attention by
Afghan officials and international law and development advisors in
Afghanistan are (1) the support of suspected war criminals in the current
government, (2) human rights violations in the U.S.-led War on Terror, and
less visibly, (3) the continued marginalization of indigenous law through
transplantation of Western civil and criminal codes, the latter devices

ntral_Asia/EI17Ag01.html; Carlotta Gall, Opium Harvest at Record Level in Afghanistan,
N.Y. TIMES (Sept. 3, 2006); Scott Baldauf & Faye Bowers, Afghanistan riddled with drug ties,
CHRISTIAN SCIENCE MONITOR (May 13, 2005), available at
    5.     Id; Afghanistan eradicates opium poppy production, CBC NEWS, July 4, 2001,
    6.     Charles Haviland, Afghan Aid Workers Live in Fear, BBC NEWS, Jun. 10, 2004,; Susannah Price, UN Fear at Rise in
Afghan Attacks, BBC NEWS, Aug. 24, 2005,
8802.stm; Afghanistan: Wave of Attacks Alarms International Forces, IRIN NEWS Jun. 16,
2004,; April Witt, Afghan Political Violence
on      the     Rise,     WASH.       POST      (Aug.       3,    2003),      available       at         [hereinafter   Afghan       Political
Violence]; David Rohde, Afghan Symbol for Change Becomes a Symbol of Failure, N.Y
TIMES, Sept. 5, 2006, at A1.
    7.     Over 4,000 people are estimated to have died in Afghanistan as a result of insurgent
attacks in 2006 alone, about quarter of those are civilians. US defence chief in Kabul talks,
BBC NEWS, Jan. 16, 2007,
Spring 2007]                  Afghanistan’s Reconstruction                                  273

constituting the driving force behind recent legal reforms in Afghanistan
since the overthrow of the Taliban. 8 By ignoring these unpleasant aspects
of intervention, U.S. officials have framed a narrative substantially different
than what common people are experiencing on the ground in Afghanistan.
This disparity of stories leads to continuing support for errant policies on the
part of the Afghan government and international aid agencies, and increased
alienation amongst ordinary Afghans, who at the end of each day are not
reaping the benefits of auspicious promises made by so many countries in
     The goal of this paper, however, is not to limit analysis to critiquing
present law and development programs in Afghanistan. Therefore, the last
section of this paper will evaluate potential routes to improve flawed
reconstruction processes in Afghanistan, by bringing attention to
marginalized social and cultural aspects of Afghan society that are relevant
to analyzing legal reform in the current state. Two relevant points on the
sociocultural history and contemporary milieu of Afghan society in
particular are discussed. First, I argue that the Afghan government and
international development agencies must take a closer look at what ordinary
Afghan civilians on the ground actually desire in their daily lives, and in
what priority they rank their various needs. If the Afghan government and
development agencies continue to operate based on their own parochial
notions of what is important for the reconstruction of Afghanistan,
rebuilding the war-torn country will continue to be an unreachable project,
hampered and distorted by an imaginary notion of linear progress, out of
touch with actual needs and desires of people on the ground, and constantly
battling a stubborn insurgency that continues to grow in force, confidence,
and popular support with every misstep the dominant reconstruction actors
     Secondly, the Afghan government and reconstruction agencies must
reassess their tendency to marginalize local religious and tribal leaders in
their various development programs. In particular, I argue that Islamic legal
scholars in Afghanistan—i.e., the Afghan ‘ulama—are indispensable to
legal and social development programs in post-Taliban Afghanistan. Due to
the profound influence ‘ulama carry on the ground in Afghan society, and
the potentially unifying factor Islam can play in the severely ethnically-
divided polity of Afghanistan, a realistic implementation of accountability
projects requires the incorporation of this influential group to a far greater
degree than has been done thus far. As a crucial component to any effort to

    8.      I would like to stress that these are by no means the only urgent concerns in
Afghanistan’s enormously complex reconstruction process. For instance, one prominent issue
that is not addressed in this article (yet also frequently marginalized in the dominant narrative
of progress) is the widespread allegations of corruption against a number of Afghan
government officials as well as international non-governmental organizations operating in
Afghanistan since 2001. See discussion in note 64 below.
274                     Gonzaga Journal of International Law                       [Vol. 10:3

rebuild civil society in Afghanistan, the country’s ‘ulama could represent
not only an independent check on government excesses, they may well serve
as vital interethnic liaisons, conciliators, and dynamic facilitators of
communication between an otherwise insular international development
community and an increasingly alienated and frustrated Afghan public.


     A cursory glance of American media coverage of the post-September
11 U.S. war against the Taliban reveals a pervasive motif of liberating the
Afghan masses. 9 But who, in fact, have been the greatest beneficiaries of
externally-driven regime change in Afghanistan? This question has become
an increasingly poignant one, considering that independent human rights
monitoring groups have severely criticized the Afghan government for not
doing enough to vet suspected war criminals from public office and even
allowing many to run in the recent parliamentary elections. 10 These factors
have led many Afghans to conclude, not unreasonably, that the U.S.-led
overthrow of the Taliban has only resulted in the replacement of one group
of oppressors for another. 11 Human Rights Watch (HRW) in particular has
issued several reports documenting how numerous high-level officials and
advisors in Afghanistan’s current government are implicated in major war
crimes and human rights abuses that took place in the brutal civil war of the
early 1990s. 12 In its recent report, Blood-Stained Hands: Past Atrocities in

     9.     For example, see Christiane Amanpour, Sense of Freedom as Kabul Looks to
Future, CNN NEWS, Nov. 15, 2001,
/15/ret.amanpour.otsc/index.html; Andrea Koppel & Elise Labbott, U.S.: Ouster of Taliban
was a Human Rights Triumph, CNN NEWS, Mar. 5, 2002,
3/04/; Isabel Hilton, Behind the Veil, N.Y. TIMES (Apr. 28,
2002), available at
   10.      See Afghanistan on the Eve of Parliamentary and Provincial Elections, Human
Rights Watch, available at (last
visited Feb. 8, 2007) [hereinafter Afghanistan on the Eve of Elections]; Blood-Stained Hands:
Past Atrocities in Kabul and Afghanistan’s Legacy of Impunity, Human Rights Watch,
available at (last visited Feb. 8, 2007)
[hereinafter Blood-Stained Hands].
   11.      Id.
   12.      See The Rule of the Gun: Human Rights Abuses and Political Repression in the
Run-up to Afghanistan’s Presidential Election, Human Rights Watch Briefing Paper (Sept.
2004), available at
[hereinafter Rule of the Gun]; Afghanistan: Bring War Criminals to Justice, Human Rights
Watch, available at (last
visited Feb. 8, 2007) [hereinafter Bring War Criminals to Justice]; Afghanistan: World Report
2005, Human Rights Watch, at
(last visited Feb. 8, 2007) [hereinafter World Report 2005]; Afghanistan: Killing and Torture
by      U.S.    Predate     Abu     Ghraib,    Human     Rights      Watch,    available   at (last visited Feb. 8, 2007)
Spring 2007]                  Afghanistan’s Reconstruction                                275

Kabul and Afghanistan’s Legacy of Impunity, which includes more than 150
interviews with witnesses, survivors, government officials, and combatants,
HRW documents war crimes and human rights abuses during Afghanistan’s
civil war, from April 1992 to March 1993, a particularly unstable period
following the collapse of the Soviet-backed Najibullah government in
Kabul? 13 While some perpetrators have been killed or are in hiding, many
leaders suspected of abuses are now officials in Afghanistan’s defense or
interior ministries, or are even public advisors to President Hamid Karzai. 14
Upping the ante, several even competed for office in parliamentary and local
elections in September 2005. 15 Beyond those individuals in the public eye,
other known perpetrators currently operate as provincial drug lords or
regional strongmen in Kabul, directing proxies in official positions such as
the Ministry of Defense, national security, and even judicial organs of
government. 16
     HRW’s report implicates numerous factional leaders and commanders
by name for their eminent roles in the abuses, including: (1) Abdul Rabb al-
Rasul Sayyaf, a radical Islamist commander and leader of the Ittihad-e
Islami faction, who now advises President Karzai and exercises major
political power over the Afghan judiciary and has numerous proxies within
the Afghan government; (2) Abdul Rashid Dostum, the leader of the
Junbish-e Milli faction who now holds a senior post in the ministry of
defense and exercises political control of several provinces in the north of
Afghanistan; (3) Mohammad Qasim Fahim, Afghanistan’s defense minister
from 2001 to 2004 and a commander in the Jamiat-e Islami/Shura-e Nazar
faction of the Northern Alliance; and (4) Karim Khalili, a commander in the
Hezb-e Wahdat faction and now one of President Karzai’s two vice-

[hereinafter Killing and Torture by U.S. Predate Abu Ghraib]; New Accounts of Torture by
U.S. Troops, Human Rights Watch, available at
1776.htm (last visited Feb. 8, 2007) [hereinafter New Accounts of Torture by U.S. Troops];
U.S.: New Detainee Deaths Uncovered in Afghanistan, Human Rights Watch, available at (last visited Feb. 8, 2007) [hereinafter
New Detainee Deaths Uncovered]; Two Years After Bagram Deaths, Cases Unresolved,
Amnesty International,
5E4F697C8841F485256F5F0057E4F5 (last visited Feb. 8, 2007) [hereinafter Cases
   13.     See Blood Stained Hands, supra note 10. Note the use of extensive interviews of
Afghan civilians in this report. This is a critical component to any reliable evaluation of
reconstruction programs in Afghanistan, and is thus far best embodied in the Afghanistan
Independent Human Rights Commission Report methodology where 4151 Afghans were
interviewed for opinions on various aspects of the reconstruction process (discussed further in
Section V of this paper).
   14.     See Afghanistan on the Eve of Elections and Blood-Stained Hands, supra note 10;
Bring War Criminals to Justice, supra note 12.
   15.     Afghanistan on the Eve of Elections and Blood-Stained Hands, supra note 10.
   16.     Id.; see also Bring War Criminals to Justice and World Report 2005, supra note 12.
276                     Gonzaga Journal of International Law                      [Vol. 10:3

presidents. 17 This is only a partial list; however, of the most notorious
leaders suspected to have perpetrated countless acts of violence and war
crimes during the civil war era that now hold public office. Not included
above are other well-known suspects such as Gulbuddin Hekmatyar, leader
of the Afghan Hezb-e Islami faction (which perpetrated some of the worst
abuses during the civil war period), who is presently in hiding and believed
to be coordinating insurgent attacks on the new government and U.S.
military forces, though many also suspect him of controlling the present
Hezb-e Islami party that has 34 members in the lower house of the Afghan
parliament. 18 Needless to say, accountability goals have not been well
served by the mysteriously successful escape of nearly all the top brass of
the Taliban and al Qaeda leadership, who continue to release statements to
the Afghan and Pakistani public from time to time with relative confidence
and ease, leading many analysts to conclude high-level deals were struck
somewhere along the line for their safety. 19
     Adding to the politically complex but overall consistent theme of
warlord impunity in Afghanistan, a number of commanders from the Saudi-
backed Sayyaf’s Ittihad faction are also serving in important security and
judicial posts. 20 By and large, however, the predominant beneficiaries of the
U.S.-led overthrow of the Taliban were their most avid political and
economic adversaries—the Afghan Northern Alliance, a loose coalition of
sectarian political parties united only in their opposition to the Taliban and
intervention by neighboring Pakistan. Principally backed by Iran, Russia,
and India, this group has not taken power without a significant share of
public controversy (albeit largely suppressed) stemming from the group’s
role in atrocities against Kabul residents—in particular mass rapings, looting
and deaths of tens of thousands from indiscriminate shelling of whole
neighborhoods—during the civil war that followed Soviet withdrawal in the
early 1990s. 21 In addition to the more well-known war crime suspects

   17.     Afghanistan on the Eve of Elections and Blood-Stained Hands, supra note 10; Bring
War Criminals to Justice and World Report 2005, supra note 12. See also Afghanistan:
Communist era mass grave discovered highlights need for post-war justice, IRIN NEWS Dec.
22, 2006,
   18.     Afghanistan on the Eve of Elections and Blood-Stained Hands, supra note 10; Bring
War Criminals to Justice and World Report 2005, supra note 12.
   19.     See Taleban Leader 'Rejects Amnesty', BBC NEWS, May 10, 2005,; Gordon Carreram, US 'Impatience'
in Bin Laden Hunt, BBC NEWS, Jun. 20, 2005,
11524.stm; Afghan Insurgents Urged to Unite, BBC NEWS, July 25, 2005,
   20.     Wahidullah Amani, Have Hekmatyar’s Radicals Reformed?, Institute for War &
Peace Reporting: Afghan Recovery Report, No. 210 (Apr. 6, 2006), available at; Bring War Criminals to
Justice, supra note 12.
   21.     Robyn Lim, Russia is Back in Kabul and in the ‘Great Game’, Int’l Herald Tribune
(Nov. 29, 2001), available at;
Spring 2007]                  Afghanistan’s Reconstruction                                 277

described above, several other commanders from the Jamiat-e Islami and
Shura-e Nazar factions of the anti-Taliban Northern Alliance militias are
implicated in war crimes during the civil war period, yet are now candidates
for parliament or are serving in the police and military forces. 22 Moreover,
the recently passed parliamentary bill offering general amnesty from
prosecution to militia leaders, combatants, and factional organizations
accused of war crimes against Afghan civilians during the 1992-1996 civil
war has been widely criticized as protecting notorious abusers and
sacrificing victims’ rights under exceedingly suspicious (and self-serving)
banners of national reconciliation. 23
     Public attitudes of ordinary Afghans towards these warlords (many of
whom held prominent posts in the Anti-Taliban Northern Alliance and thus
have been allied to U.S. military forces since the Fall 2001 invasion) are not
difficult to discern. After the fall of the Taliban, while Northern Alliance
leaders were being legitimized by the U.S. and E.U. before the world at
Bonn in December 2001, the Revolutionary Afghan Women’s Association
(RAWA), by no means admirers of the Taliban, released the following
statement: “The people of the world need to know that in terms of
widespread raping of girls and women from seven to 70, the track record of
the Taliban can no way stand up against that of these very same Northern

Military Assistance to the Afghan Opposition, Human Rights Watch Backgrounder (Oct.
2001), available at
   22.     Blood-Stained Hands, supra note 10. In an alarming challenge to triumphalist
rhetoric celebrating Afghan women’s political progress in the new Afghan government, one
reporter noted that “Even among the 68 women in parliament, U.S. and United Nations
officials estimate that half have militia ties, and can be counted on to keep quiet and vote as
they are told.” Alissa J. Rubin, Living symbols of reform in Afghanistan, L.A. TIMES (Nov.
29,      2006)      available     at
parliament29nov29,0,3387557.story.           For further nuanced accounts illustrating the
complexities of conditions of women under the new government in Afghanistan, see also
Salima Ghafari, The Burqa: Prison or Protection?, Afghan Recovery Report: Institute for War
and        Peace       Reporting         No.       001      (May        20,     2005),        at; Sonali Kolhatkar, The Impact
of U.S. Intervention on Afghan Women’s Rights, 17 BERKELEY WOMEN’S L.J. 12 (2002); Pam
O’Toole, No ‘real change’ for Afghan women, BBC NEWS, Oct. 31, 2006, Additionally, an Amnesty International
Report asserts that “In parts of Afghanistan, women have stated that the insecurity and the risk
of sexual violence they face make their lives worse than during the Taleban era.” Sonali
Kolhatkar, Afghan Women Continue to Fend for Themselves, Foreign Policy in Focus Special
Report (Mar 2004), available at
(quoting Afghanistan: No one listens to us and no one treats us as human beings: Justice
denied to women, AMNESTY INTERNATIONAL REPORT (Oct. 6, 2003)).
   23.     For a critique of these recent legislative developments, see J. Alexander Thier &
Scott Worden, Path to peace, justice in Afghanistan, CHRISTIAN SCIENCE MONITOR (Mar. 13,
2007), available at; Afghan
warlords       in     amnesty      rally,     BBC      NEWS      (Feb.      23,   2007),      at
278                      Gonzaga Journal of International Law                         [Vol. 10:3

Alliance associates.” 24 Perhaps no other quote better reveals the pitfalls of
applying pre-fixed, mostly-western notions of feminist liberation in a
complex, multi-layered country like Afghanistan where, tragically, they
have been appropriated by foreign powers to justify military intervention in
the country.
     As the Argentine international human rights scholar and U.N. Special
Adviser Juan Méndez argued in his instructive article Accountability for
Past Abuses, “a lasting peace [following civil war] is only possible if the
process by which it is attained carefully and honestly addresses human
rights and laws of war violations by all sides.” 25 Such an evenhanded
perspective has long been in demand in Afghanistan, where the prevalence
of suspected war criminals in the current Afghan government and political
order—mostly beneficiaries of the U.S.-led overthrow of the Taliban—does
not give rise to the liberating vision as presented in the self-congratulating
speeches of the present U.S. administration. Rather, far from calling for
celebration, the process of favoring one faction over another has laid seeds
for further internal conflict in a society already severely fragmented by the
turmoil of recent civil war. 26

   24.     Charles Hirschkind & Saba Mahmood, Feminism, The Taliban, and Politics of
Counter-Insurgency 75 ANTHROPOLOGICAL QUARTERLY 2, 339-54 (Spring 2002). Note also
the RAWA report entitled Northern Alliance atrocities from 1992 to 1996, available at
   25.     Juan E. Méndez, Accountability for Past Abuses, HUMAN RIGHTS QUARTERLY 19,
237 (1997). A relevant issue that has also gone unexplored and forgotten in the smoke of
liberation talk and post-Taliban reconstruction is the role of foreign intervention in the 1990s
civil war in Afghanistan, particularly the arming and financial sponsoring of various Afghan
factions as proxies in geopolitical rivalries between Pakistan, India, Iran, Saudi Arabia,
Uzbekistan, and Russia. See PRISCILLA HAYNER, UNSPEAKABLE TRUTHS (2001). She writes,
    A particularly interesting issue is the extent to which truth commission reports have
    included an analysis of or commentary on the role of international actors in the
    political violence within the country. In virtually every case looked at here
    [Argentina, El Salvador, Guatemala, Chilé, South Africa, and Rwanda], there were
    international actors—usually foreign governments—that helped to fund, arm, train, or
    otherwise aid either or both sides of the conflict. Where domestic government forces
    have committed ongoing, massive human rights violations, the role of foreign
    governments in supporting such atrocities should be investigated or at least formally
    recognized in a truth report, especially where the abuses were well known at the time
    the support took place, as is usually the case.
Id. at 75. Hayner’s comments thus point to another unaddressed, black hole of accountability
in Afghanistan’s transition. Id.
   26.     For a in-depth discussion of the genesis and intensification of Afghanistan’s post-
Soviet civil war of the 1990’s, see BARNETT R. RUBIN, THE FRAGMENTATION OF
Spring 2007]                  Afghanistan’s Reconstruction                                 279


      While the undeniable atrocities of the Taliban regime against the
Afghan people were thoroughly displayed and propagated in Western
popular media and literature in the run-up to the fall 2001 U.S. and U.K.-led
invasion of Afghanistan (and less so before September 11), statistics on
civilian casualties resulting from “Operation Enduring Freedom” have been
less forthcoming in the American press. 27 Consequently, reports on this
incredibly important but largely ignored humanitarian component of the war
have been principally investigated by alternative media outlets and the
isolated studies of individual researchers. Dr. Marc Herold, Professor of
Economic Development at the University of New Hampshire, provides a
case in point. His Dossier on Civilian Victims of United States’ Aerial
Bombing of Afghanistan, released in December 2001, concluded that as a
conservative estimate, aerial bombardment killed over 3,700 Afghan
civilians in only the first eight and half weeks alone. 28 It is important to note
here that aerial bombing by coalition forces in Afghanistan has continued
into 2006, yet no major study has been conducted following up on Professor
Herold’s earlier report. In another independent inquiry, University of
British Columbia professor Derek Gregory in his 2004 book The Colonial
Present confirms the Herold report, adding the following estimations:

   27.     Compare, for example, the surge of western media attention to the plight of Afghan
women or other victims of Taliban rule in the run-up to Operation Enduring Freedom, with the
dearth of information on plight of Afghan civilians under the U.S.-led bombing campaign.
   28.     Marc W. Herold, A Dossier on Civilian Victims of United States’ Aerial Bombing
of Afghanistan: A Comprehensive Accounting, (last visited Feb. 8,
2007). See also Afghanistan’s civilian deaths mount, BBC NEWS (Jan. 3, 2002), at The latter report notes that according to
Professor Herold’s study, “The number of Afghan civilians killed by US bombs has surpassed
the death toll of the 11 September attacks . . . nearly 3,800 Afghans died between 7 October
and 7 December [2001].” Id. The BBC report proceeds to document the following major
incidents of Afghan civilian casualties in Fall 2001 alone:
      11 October: Two US jets were said to have bombed the mountain village of Karam.
      The death toll was estimated at between 100 and 160.
      13 October: Bombs fell on the Qila Meer Abas neighborhood, two kilometers south of
      Kabul airport. Four civilians were reportedly killed
      18 October: Some 47 civilians were said to have been killed when a central market
      place, Sarai Shamali, near Kandahar, was bombed.
      23 October: More than 90 civilians were reportedly killed when low-flying US gun
      ships fired on the farming villages of Bori Chokar and Chowkar-karez, north of
      31 October: An F-18 was said to have bombed a Red Crescent clinic in a pre-dawn
      raid, killing between 15 and 25 people.
      10 November: Villages in the Khakrez district were reportedly bombed, killing more
      than 150 civilians.
280                      Gonzaga Journal of International Law                          [Vol. 10:3

     The high-level war from the air also took a heavy toll of the [Afghan]
population. By May 2002 it was estimated that 1,300-3,500 civilians had
died and 4,000-6,500 civilians had been injured, many of them seriously, as
a direct result of American bombs and missiles. Probably another 20,000
civilians lost their lives as an indirect consequence of the American-led
intervention; this includes thousands who died when relief columns from
international aid agencies were halted or delayed, and others died through
the secondary effects of targeting civilian infrastructure (especially electrical
power facilities vital for hospitals and water-supply systems). 29
     While causing the deaths of thousands of Afghan civilians–and refusing
to pay compensation–seem sufficient violations to challenge the liberationist

IRAQ 70 (2004). Professor Herold and a handful of other researchers at U.S. and Canadian
universities have also contributed to a dossier for an ongoing civilian body count in Iraq,
where attention to civilian deaths has been relatively more systematic. See, e.g., Sabrina
Tavernise, Iraqi Death Toll Exceeded 34,000 in 2006, U.N. Says, N.Y. TIMES (Jan. 17, 2007),
available at
000&en=78b2f7d3f00a4a2a&ei=5088&partner=rssnyt&emc=rss; Sabrina Tavernise &
Donald G. McNeil, Jr., Iraqi Dead May Total 600,000, Study Says, N.Y. TIMES (Oct. 11,
2006), available at
ex=1318219200&en=516b1d070ff83c15&ei=5088&partner=rssnyt&emc=rss.                       As for
Afghanistan, the paucity of private media infrastructure and independent journalists’ lack of
access to rural provinces (where most combat takes place) means reports are far more
anecdotal, resulting in the frequent dismissals of such reports by coalition officials as
“propagandistic.” Yet in all fairness, the “propagandistic” potential of such reports does not
negate their veracity, nor their instructive value for monitoring coalition “progress” in the war
in Afghanistan and the country’s reconstruction. For example, in 2004 world-renowned South
Asian journalist Ahmed Rashid observed:
    In two bungled air bombings of villages in the first week of December, US aircraft
    killed fifteen Afghan children and two adults in eastern Afghanistan. The US
    government neither apologized nor offered compensation to the victims’ families.
    “The US military takes precautions to minimize civilian loss of life during its
    operations—but obviously not enough,” said HRW’s John Sifton in Kabul on
    December 13. “There is now a pattern of mistakes, apparently as a result of faulty
    intelligence, that has led to too many civilian deaths and no clear changes in the way
    the US plans are carried out in military operations.”
Ahmed Rashid, The Mess in Afghanistan, THE NEW YORK REVIEW 27 (Feb. 12, 2004).
     Carl Conetta has also conducted a study comparing the U.S. bombing campaigns in 1999
over Serbia and Kosovo with Operation Enduring Freedom in Afghanistan. “Despite the
adulation of Operation Enduring Freedom (OEF) as a ‘finely-tuned’ or ‘bulls-eye’ war, the
campaign failed to set a new standard for precision in one important respect: the rate of
civilians killed per bomb dropped,” writes Conetta. “In fact, this rate was far higher in the
Afghanistan conflict–perhaps four times higher—than in the 1999 Balkans war.” Carl
Conetta, Operation Enduring Freedom: Why a Higher Rate of Civilian Bombing Casualties,
Project on Defense Alternatives Briefing Report #11 (Jan. 18, 2002), available at For further discussion of the humanitarian disaster
in the early stages of U.S. led military strikes in Afghanistan in Fall 2001, see Carl Conetta,
Strange Victory: A Critical Appraisal of Operation Enduring Freedom and the Afghanistan
War, Project on Defense Alternatives Research Monograph #6 (Jan. 30, 2002), available at
Spring 2007]                  Afghanistan’s Reconstruction                                281

narrative surrounding U.S. military action in Afghanistan, human rights
groups operating in the country continue to report that U.S. forces operating
against Taliban and Al Qaeda insurgents are liable for a range of other
human rights abuses against the Afghan civilian population, including
arbitrary arrests, employing excessive force, and mistreating detainees,
many of whom are held outside the protection of the Geneva Conventions. 30
In addition, human rights monitoring agencies have documented Afghan
soldiers deployed alongside U.S. forces beating Afghan civilians suspected
of Taliban sympathies, looting homes, and even seizing lands of the
detained. 31 Human Rights Watch reports that civilians caught up in military
operations and arrested are unable to challenge the legality of their detention
or obtain hearings before a judicial body. 32 There is no access to legal
counsel when detained, and release is wholly dependent on decisions of the
U.S. military command, “with little apparent regard for the requirements of
international law—whether the treatment of civilians under international
humanitarian law or the due process requirements of human rights law.” 33
In the same exclusive study on Afghanistan in 2005, HRW declared that
“generally, the United States does not comply with legal standards
applicable to their operations in Afghanistan, including the Geneva
Conventions and other applicable standards of international human rights
law.” 34 An investigative report by independent journalist Emily Bazelon in
2005 documents incidents of torture of Afghans by U.S. military forces at
clandestine prisons at the Bagram air base, reminding us that “before Abu
Ghraib, there was Afghanistan.” 35 Another major source of condemnation
by human rights critics is that in pursuing its mission of hunting down all
Taliban and Al Qaeda renegades, coalition forces have resorted to
supporting regional warlords, including members of the former anti-Taliban
force known as the Northern Alliance, many of whose members are
suspected of egregious war crimes against Afghan civilians during the civil
war years. 36

   30.     World Report 2005, supra note 12; The Afghan Independent Human Rights
Commission Calls for Investigation and Trial of Those Involved in Alleged Abuse of Afghan
Prisoners in Coalition Forces Custody, Afghan Independent Human Rights Commission, (last visited Feb. 8, 2007); Killing and Torture by U.S.
Predate Abu Ghraib, New Accounts of Torture by U.S. Troops, New Detainee Deaths
Uncovered in Afghanistan, and Cases Unresolved, supra note 12.
   31.     Afghanistan: Human Rights Overview, Human Rights Watch, at (under subsection “U.S. Military
   32.     Id.
   33.     Id.
   34.     World Report 2005, supra note 12.
   35.     Emily Bazelon, From Bagram to Abu Ghraib, MOTHER JONES (March/April 2005),
available at
   36.     Rule of the Gun and Bring War Criminals to Justice, supra note 12; Blood-Stained
Hands, supra note 10. See also interview with Dr. Barnett Rubin, Rubin: U.S. Must Confront
282                     Gonzaga Journal of International Law                        [Vol. 10:3

      In short, the U.S. war in Afghanistan has not led to an increase in
stability and peace in the country. There are abundant indications that the
exact opposite has occurred. 37 For example, the U.S. bombing that began in
October 2001 has led to thousands of civilian deaths, and a manifold
increase in opium production after the Taliban virtually eradicated the crop
in early 2001. 38 The return of an opium-based economy in Afghanistan is
relevant not only because of increasing rates of heroin addiction and related
deaths in Afghanistan and Pakistan, but also the ramifications for
Afghanistan’s stability because opium is now funding an increasingly
vigorous insurgency and re-emerging warlords. Afghanistan scholar and
New York University political scientist Barnett Rubin explains,
      Afghanistan cannot build a constitutional order on a criminalized base.
The IMF says at least 40% of the economy is illicit: the drug trade,
trafficking in emeralds and timber, smuggling of artifacts, land grabs by
warlords, and trafficking of women. Income from illicit exports finances
most of the imports and provides much of the demand for the remaining
parts of the economy—trade and construction. This illicit economy is the tax
base for insecurity. Those who profit from it command resources to resist
the rule of law. And they’re not alone: 25 years of war have ravaged the
agriculture and herding from which Afghans formerly made a hard but self-
sufficient life. Opium cultivation, or employment in opium harvesting or
trafficking provide indispensable income. 39

Warlords, Deal with Taliban, Council on Foreign Relations (July 14, 2004), available at
   37.     For a tangible example of the effects of a return to war in one Afghan village, see
Pamela Constable, Home schools operate secretly in fear of violence, WASH. POST (Oct. 13,
2006); see Rohde, supra note 6, at A1; Afghans ‘could switch allegiance,’ BBC NEWS, Oct.
8, 2006,; Andrew North, Doubts grow
over US Afghan strategy, BBC NEWS, Nov. 23, 2005,
   38.     Pierre-Arnaud Chouvy, The Ironies of Afghan Opium Production, ASIA TIMES,
Sept. 17, 2003.
   39.     Barnett R. Rubin, Afghan Dispatch, THE WALL STREET JOURNAL (Feb. 10, 2004).
For an appallingly close-to-home demonstration of negative consequences of the boost in
opium production in Afghanistan since the overthrow of the Taliban, note the impact of
Afghanistan’s opium upsurge on deaths from heroin overdoses in the U.S. from 2002-2005. A
December 2006 article published in the Los Angeles Times states:
    Heroin-related deaths in Los Angeles County soared from 137 in 2002 to 239 in 2005,
    a jump of nearly 75% in three years, a period when other factors contributing to
    overdose deaths remained unchanged, experts said. The jump in deaths was especially
    prevalent among users older than 40, who lack the resilience to recover from an
    overdose of unexpectedly strong heroin, according to a study by the county's Office of
    Health Assessment and Epidemiology.

    "The rise of heroin from Afghanistan is our biggest rising threat in the fight against
    narcotics," said Orange County sheriff's spokesman Jim Amormino. "We are seeing
    more seizures and more overdoses."
Spring 2007]                  Afghanistan’s Reconstruction                                    283

     Amply demonstrating the connection between opium trade and
insecurity, “post-conflict” Afghanistan has witnessed a scourge of violence
against international aid workers and government employees. 40 The latter
has prompted the withdrawal of leading humanitarian and non-governmental
organizations, including Medicines Sans Frontières (Doctors Without
Borders)—the world-renowned relief agency that operated in Afghanistan
throughout the Soviet occupation, civil war, and Taliban rule. 41 To the
surprise of many military analysts, the frequency of attacks claimed by
Taliban members or sympathizers has not only failed to decline, but has
actually increased. 42 Moreover, it has become increasingly clear that

    According to a Drug Enforcement Administration report obtained by The Times,
    Afghanistan's poppy fields have become the fastest-growing source of heroin in the
    United States. Its share of the U.S. market doubled from 7% in 2001, the year U.S.
    forces overthrew the Taliban, to 14% in 2004, the latest year studied. Another DEA
    report, released in October, said the 14% actually could be significantly higher.

Garett Therolf, Afghan heroin’s surge poses danger in U.S., L.A. TIMES (Dec. 26, 2006),
available at,0,6587078,full.story.
   40.      Afghan Aid Workers Live In Fear, supra note 6; Stephanie Holmes, Aid workers
under fire, BBC NEWS, July 29, 2004,
   41.      Six days surrounding MSF’s decision to withdraw from Afghanistan, Medecins
Sans Frontieres (Jan. 8, 2004), available at
   42.      Afghan Political Violence, supra note 6; Barbara Starr, U.S. troops unaccounted
for in Afghanistan, CNN NEWS, July 1, 2005,
han.crash/index.html. These developments beg the fundamental question – why? Note the
comments of one Afghan national army Brigade Sgt. Major Kefaitullah, who states one
explanation of why the Taliban has succeeded in increasing its ranks is because they have
“capitalized on the frustration ordinary Afghans felt toward the government, particularly over
civilians killed by U.S. forces.” David Zucchino, Afghan army could help unify a nation, L.A.
TIMES (Nov 13, 2006), available at
     In line with this theme, the former aide-de-camp to the commander of the British task
force in southern Afghanistan, Captain Leo Docherty, described the recent British campaign in
Helmand as “a textbook case of how to screw up a counter-insurgency.” Christina Lamb, Top
soldier quits as blundering campaign turns into 'pointless' war, THE TIMES (U.K.) (Sept. 10,
2006), available at,,2087-2350795,00.html. In a Fall
2006 interview with the U.K. Times, Docherty stated: “All those people whose homes have
been destroyed and sons killed are going to turn against the British,” he said. “It’s a pretty
clear equation—if people are losing homes and poppy fields, they will go and fight. I
certainly would . . . We’ve been grotesquely clumsy—we’ve said we’ll be different to the
Americans who were bombing and strafing villages, then behaved exactly like them.” Id.
     Concluding the article, Docherty added, “We’re now scattered in a shallow meaningless
way across northern towns where the only way for the troops to survive is to increase the level
of violence so more people get killed. It’s pretty shocking and not something I want to be part
of.” Id. Doherty resigned his post in the British army in August 2006. Id.
     Finally, BBC reporter David Loyn observes an equally striking phenomena in southern
Afghanistan while reporting on Taliban forces mobilizing against British forces in Helmand
province in late October 2006:
    There is growing support [for the Taleban insurgency] for a variety of reasons: firstly
    they see the Karzai government as corrupt and too keen on promoting the old warlords
284                      Gonzaga Journal of International Law                          [Vol. 10:3

Taliban and Al Qaeda renegades are not the only forces behind widespread
violence; insurgency analysts are now paying more attention to the role of
heavily armed, narco-funded autonomous warlords in the provinces that are
often the most wary of a central government or even foreign troops
encroaching on their turf. 43
     In light of the above setbacks, the preeminent body for enforcing
international law in the world, the U.N. Security Council, has responded by
reiterating a popular mantra amongst law and development agencies in the
present era, declaring that “re-establishment of the rule of law in
Afghanistan is essential to the peace process.” 44 Such remarks should come
as no surprise, and indeed are fairly obvious platitudes that even Taliban
leaders would be likely to agree with at face value—after all, there is no
single authoritative definition of a “rule of law” in practice, and the term
often raises more epistemological and practical questions than it does
answer. 45 For example, from where are the sources of law to be derived? Is
Islamic law to be the preeminent source of law in society, local

    - I was shocked to see soldiers from the newly-formed Afghan national army taking
    money at gunpoint from every car that passed. This was happening on the main road
    linking Iran to Pakistan across the south of Afghanistan, and has powerful resonances
    since it was to stop corruption on this very road that the Taleban first emerged, with
    some popular support, in 1994. The trucking companies are paying the Taleban again
    to see if they can clear the road for them again. The Taleban are also winning support
    because of the failure of the international aid effort to make enough difference to
    people's lives. Civilian casualties in the worsening conflict also play into their hands.

David Loyn answers your questions on the Taleban, BBC NEWS, Oct. 29, 2006,
   43.    See Rule of the Gun, at supra note 12:
    [I]n most parts of the country Afghans told Human Rights Watch that they are
    primarily afraid of the local factional leaders and military commanders—not the
    Taliban insurgency. Far from a Taliban problem, most Afghans tell us that their main
    fear is jangsalaran—the Dari and Pashto word for ‘warlords.’ They say that
    Afghanistan has a warlord problem—a problem with military factions dominating
    government and national institutions, including local governments and the army,
    police, and intelligence services.
Id. at 2.
   44.      Mani, supra note 3, at ii (quoting Report of the UN Secretary-General to the
Security Council, July 23, 2003).
   45.      Rama Mani’s discussion of the multiple uses of “rule of law” as term in transitional
justice settings is particularly insightful:
    The rule of law has been portrayed in various ways. Some see it as a conceptual ideal,
    others as a tangible legal institution. Some consider it the centerpiece of any viable
    political system, while others demonize it as the enemy of democracy. For some it is
    a current reality, for others a distant aspiration . . . Despite the concept’s recent
    resurgence in academic debate and international practice, and its popularity with aid
    donors in post-conflict and post-communist states, confusion persists about its
    meaning and scope among scholars and practitioners alike.
Spring 2007]                  Afghanistan’s Reconstruction                                    285

customary/tribal law, or imported Western legal codes? Who has ultimate
authority of legislation and interpreting the law? Beyond the celebratory
rhetoric, there has been little critical evaluation of present legal reform
projects in the context of Afghanistan’s complex political, ethnic, and
sociocultural norms, or in light of Afghanistan’s extremely turbulent history
with foreign intervention. Our next section grapples with these topics of

                         IMPOSITION OF LAW?

     A fundamental controversy surrounding legal and judicial reforms in
post-Taliban Afghanistan—considered to be of the foremost goals of
reconstruction—involves the imposition of law. At a time when the
transplantation of laws from Western countries (what some comparative
lawyers describe as contexts of legal “production”) constitute the hallmarks
of legal reform projects in Afghanistan (a context of “reception”), critics
allege nothing less than neocolonial dynamics are in place. 46 Owing to the

   46.      The theory of legal change through legal transplants is most often attributed to the
comparative law scholarship of Alan Watson, legal scholar at the University of Georgia.
Professor Watson’s metaphor of the legal transplant has received considerable praise, and
criticism, for its novel approach to analyzing legal reform. In an enlightening recent article on
the history and evolution of legal transplants theory, Maximo Langer summarizes some of the
strengths of Watson’s approach:
    Through numerous books and articles, Watson has shown that the transfer, borrowing,
    and imposition of legal rules have been common since time immemorial, and he has
    used the metaphor of the transplant to explain such occurrences.” the transplant
    metaphor is powerful because of its inherently comparative nature: the transplant, as a
    medical or botanical metaphor, supposes an original body or environment and a
    receiving one. Thus, the metaphor allows for the comparison between both the
    original and receiving legal systems as well as comparison between the original and
    transplanted legal rules, ideas or institutions. This can be a particularly interesting
    approach to comparative law and a useful way to analyze the phenomena of cultural
    legal influences--like Americanization--and other theses concerning the trend of legal
    globalization (such as the convergence thesis). Finally, the idea of the transplant is
    also powerful because, as a medical and botanical metaphor, it includes the transferred
    legal rule's necessity for adjustment to the new organism or environment--the
    practices of an existing legal system-- and, at the same time, the possibility of
    rejection by the receiving organism or environment--the receiving legal system.
Maximo Langer, From Legal Transplants to Legal Translations: The Globalization of Plea
Bargaining and the Americanization Thesis in Criminal Procedure, 45 HARV. INT’L L.J. 1, 29-
30 (2004). See also ALAN WATSON, SOCIETY AND LEGAL CHANGE 98 (2d ed. 2001); UGO
MATTEI, COMPARATIVE LAW AND ECONOMICS 201-56 (1998). For a critique of Watson’s
legal transplants theory, see William Ewald, Comparative Jurisprudence (II): The Logic of
Legal Transplants, 43 AM. J. COMP. L. 489 (1995). For some enlightening critiques of legal
transplant literature, see Ugo Mattei, Efficiency in Legal Transplants: An Essay in
Comparative Law and Economics, 14 INT’L REV. L. & ECON. 3, 10 (1994); Julie Mertus,
From Legal Transplant to Transformative Justice: Human Rights and the Promise of
Transnational Civil Society, 14 AM. U. INT’L L. REV. 1335, 1380-82 (1999); Gianmaria Ajani,
286                      Gonzaga Journal of International Law                          [Vol. 10:3

present Afghan government’s extreme reliance on the international donor
community for the necessary economic and military support in post-
conflict 47 Afghanistan, pressure from European and American donors has
resulted in largely top-down legal reforms with little or no participation
from local Afghans on the ground. For example, in a previous article the
present author examined one of the Italian government’s foremost
contributions to Afghanistan’s judicial reform—a hastily-drafted criminal
procedure code it presented to the transitional Afghan government in
February 2004. 48 At a subsequent donor conference in Qatar, Italian
officials praised the code as “a simplified text designed to make the work of
the criminal police and judges easier and compliant with international
human rights,” and added that “the Code has been adopted by the Afghan

43 AM. J. COMP. L. 93, 97 (1995). In his article on legal transplants Maximo Langer also cites
the example, ironically, of Italian import of law from a context outside the Italian legal
    Italian reformers tried to import an adversarial trial by introducing the principle that
    evidence produced at trial has to be requested by the parties before its production can
    be ordered by the judge. However, the criminal procedure code also provided an
    exception to this principle, allowing the trial court, if absolutely necessary, to order,
    even sua sponte, the production of new evidence. While this exception is not unusual
    in U.S. rules of procedure, it is rarely exercised by American judges. Yet in Italy,
    because a substantial number of legal actors are accustomed to the inquisitorial model
    (and thus possess a predominantly inquisitorial set of internal dispositions) this
    exception has been interpreted as giving the court large scope to order new evidence.
    The result seems to be a trial that is sometimes interpreted through the model of the
    dispute--as was originally envisioned by the reformers--but is as often interpreted and
    understood through the model of the official investigation.

Langer, at 31-32.
  47.      Rama Mani’s BEYOND RETRIBUTION also insightfully discusses the problems with
“post-conflict” terminology, particularly in its implication that conflict is “over.” MANI, supra
note 45, at 11. Her problematization of the term applies quite well to “post-conflict”
    [T]he term is at best a simplification to describe countries that have nominally
    terminated hostilities, either through negotiation or on the battlefield, and that have
    not—or not yet—relapsed into violence. However, violence and conflict rarely end
    with formal settlement. Continued political tension, social instability, economic
    disruption and heightened crime often mark what are described as ‘post-conflict’
    societies. Insecurity and violence frequently arise with arms proliferating through
    ‘post-conflict’ societies and into neighboring countries, as former combatants sell or
    use their weapons to earn their livelihoods.
Id. A simple perusal of weekly news in Afghanistan will reveal similar circumstances, where
cessation of hostilities is far from the case. Hence, this paper uses the term “post-conflict”
with caution and some hesitation to refer to Afghanistan after the overthrow of the Taliban
government and official establishment of a transitional government in December 2001.
   48.    Faiz Ahmed, Judicial Reform in Afghanistan: A Case Study in the New Criminal
Procedure Code, 29 HASTINGS INT'L & COMP. L. REV. 93 (2005).
Spring 2007]                  Afghanistan’s Reconstruction                                  287

Government.” 49 The Italian officials failed to mention, however, that no
Afghan or even Islamic jurists were consulted in the code’s drafting process,
nor was Afghan customary law or Islamic law a fundamental source for this
significant legal document. Even the United States Institute of Peace, a
U.S-funded research center founded to promote global democratization and
the rule of law (and heavily invested in Afghanistan’s reconstruction),
invoked dissatisfaction with the new code in its introductory report
Establishing the Rule of Law in Afghanistan. 50 The fact that foreign jurists
drafted the document, with little to no Afghan involvement, has mired the
reception of this attempted legal transplant. With similar lessons being
drawn from other international development experiences, it is revealing to
note that such dilemmas of transitional justice/post-conflict imposition of
law are not unique to present-day Afghanistan. For example, there are some
parallels here to the problematic interaction between the United Nations
Transitional Administration in East Timor (UNTAET) and local judicial
personnel in East Timor. In her article Cambodia, East Timor and Sierra
Leone: Experiments in International Justice, international human rights
scholar Suzannah Linton writes,

      The persistent failure to provide adequate support to the court,
      prosecution and defence, coupled with resentment of alleged
      interference in professional independence, led to difficult relations
      between UNTAET’s Ministry of Justice and East Timorese
      judicial personnel. To cap it all, the adoption of the Serious
      Crimes project was viewed with much anger by the East Timorese
      jurists, who felt that they had been excluded from the process and
      that the atrocity cases, which they had previously been dealing
      with, were being taken away from them by the international
      community. 51

     Needless to say there are abundant differences between the political
and sociocultural contexts of Afghanistan and East Timor. Yet the point of
the analogy is not to compare their national histories, but to highlight how
local jurists’ resentment (and eventual resistance) to international

   49.      Conferenza Sulla Sicurezza Regionale e Coopreazione Di Polizia Sul Tema
‘Riconstruzione Della Polizia In Afghanistan – Un Appoccio Regionale (May 19, 2004),
available at
   50.      See Ahmed, supra note 48; ESTABLISHING THE RULE OF LAW IN AFGHANISTAN,
UNITED STATES INSTITUTE OF PEACE: SPECIAL REPORT 117, (Mar. 2004), available at [hereinafter USIP SPECIAL REPORT 117]. The
report mildly states “[t]his interim code has been the subject of some controversy, as it was
prepared by Italian officials with help from U.S. military lawyers but relatively little input or
support from the Afghan justice institutions, and was reportedly adopted under strong foreign
political pressure.” Id.
   51.      Suzannah Linton, Cambodia, East Timor and Sierra Leone: Experiments in
International Justice, CRIMINAL LAW FORUM 12, 185-246 (2001) (emphasis added).
288                      Gonzaga Journal of International Law                          [Vol. 10:3

development organizations is not an uncommon phenomenon, nor one that
is unique to Afghanistan, no matter how worthy the agency’s assistance may
be. To return to our core discussion here, I will argue that such top-down,
foreign-driven judicial reform projects are reigniting the center-vs.-
provinces conflict that has plagued Afghanistan’s history throughout the
twentieth century.
     Let us begin by examining the broader historical context of political
centralization and legal reform in Afghanistan. Ever since the Afghan
state’s founding in 1747, one of the leading indicators of the central
government’s weakness in the country has been the prevalence of competing
legal systems, particularly in the outlaying provinces. 52 On numerous
occasions in Afghanistan’s history, central governments based from
Kandahar and Kabul attempted to impose a unified legal system on the vast,
mountainous provinces, but were unable to displace local tribal mechanisms
of adjudication and political control. The failure of the former Afghan King
Amanullah’s Nizamnama reforms in the 1920s and the rejection of
communist agrarian programs in the 1980s are illustrative cases in point. 53
This is, of course, in addition to Afghans’ renowned tradition of
independence and fierce resistance to foreign invasions by colonial powers,
especially Britain and Russia. 54 J. Alexander Thier, a frequent commentator
on Afghan legal development, aptly summarizes:
     The historical reality is that power in Afghanistan has almost always
operated through a negotiation between the central authority and local
power-holders – and tensions between these two levels have existed for as
long as there has been a state. Even the Taliban, which exerted a greater
measure of central control than its immediate predecessors, was forced to
negotiate with local elites and accept a degree of local autonomy. Most of
Afghanistan has always been remote from the center, and the infrastructure
is insufficient to impose high levels of central control. Moreover,
centralization has never been popular. This is due in part to strong local
social organization and a tradition of independence, which means that
decisions imposed from outside are usually resented locally. Distrust of

   54.      One event particularly carved in to Afghan history and collective memory is the
repulsion of British invaders in January 1842, in which every single soldier of a British army
of 16,500 was annihilated, except one. The British medic, Dr. Brydon, was spared, as Afghan
oral traditions tell us, in order to convey the message of what he saw to his superiors stationed
in British India. Contemporary British author Patrick MacRory has also written a book
recounting these formative events, RETREAT FROM KABUL: THE CATASTROPHIC BRITISH
Spring 2007]                 Afghanistan’s Reconstruction                                289

central government is also based on the experience of authoritarianism and
brutality. 55
     In this way, Afghanistan’s long history of decentralized governance,
combined with the exceedingly factionalized politics and discontinuity of
Kabul’s political regimes over the last thirty years, has produced a recipe for
extreme legal pluralism today. American legal analysts who recently visited
the country described the contemporary scenario as “a patchwork of
differing and overlapping laws, elements of different types of legal systems,
and an overall incoherent collection of law enforcement and military
structures,” 56 adding that such diversity and internal dissonance surfaces
even within individual branches and ministries of the Afghan state. 57 While
a majority of state institutions reside in Kabul and a handful in other large
cities, in most of the country regional power brokers exercise de facto
political and administrative control through their own militias. 58 Such
warlords operate relatively free from any state supervision, enjoying sizable
profits from the illegal but bustling opium trade or simply taxing all who
pass under their dominion. 59 Some have even assumed prominent state
positions after the takeover of power by leading Northern Alliance officials
following the fall of the Taliban. 60 Apart from these autonomous warlords
(and the official provincial governors who hold power de jure), in rural
areas traditional Afghan tribal councils made up of elderly notables in each
village resolve day-to-day disputes. 61 Known as shuras or jirgas, each of

   55.     J. Alexander Their, The Making of a Constitution in Afghanistan, Conference on
State Reconstruction and International Engagement in Afghanistan, Panel IV: Re-Establishing
a Legal System, 11 (2003), available at
   56.     USIP SPECIAL REPORT 117, supra note 50, at 3.
   57.     Note, for example, the three main permanent legal institutions of the Afghan state—
the Ministry of Justice, the Supreme Court, and the Attorney General’s office (Saranwali). Id.
at 6. All “are coequal in stature, and for a variety of political, personality, and turf-
consciousness reasons have fractious relations with each other.” Id. Others have noted “the
combative relationship” that has emerged between the Ministry of Defense and the Ministry of
Finance . . .”, discussed in Mark Sedra, Security Sector Transformation in Afghanistan,
Geneva Centre for the Democratic Control of Armed Forces, Working Paper No. 143 (Aug.
2004), available at
   58.     USIP SPECIAL REPORT 117, supra note 50, at 3.
   59.     Id.; Ann Marlowe, The Afghan Model, NATIONAL REVIEW (Mar. 19, 2003),
available at
   60.     Complicating the picture, see also Paul Watson, In Afghanistan, money tips the
scales of justice, L.A. TIMES (Dec. 19, 2006), at
=show&type=news&id=1554 (who notes “Karzai’s defenders maintain that some of the
president’s worst mistakes in rebuilding the legal system, such as making former warlords
police chiefs and putting them in other powerful positions, were forced on him by foreign
backers, led by the United States.” ).
   61.     USIP SPECIAL REPORT 117, supra note 50. See Fatima Gailani, Human Rights in
eds., 2000).
290                      Gonzaga Journal of International Law                         [Vol. 10:3

these councils apply their own sophisticated and historically evolved canons
of law, often combining aspects of Islamic Shar’ia with local customary law
(‘adaat) in resolving community problems. 62 In this manner, non-codified
customary law governs the vast majority of the population especially outside
of Kabul and other urban areas. 63
     In this highly decentralized sociolegal environment, clashes with the
presently state-centric, Kabul-based modes of legal development are bound
to surface. Part of this lies in the fact that with such highly evolved, local
justice systems firmly in place, it is unlikely tribal councils will voluntarily
relinquish their roles as respected adjudicators in order to be replaced by
state-employed judges citing an Italian-designed criminal procedure code. 64
The history of the Afghan provinces is replete with local resistance to
Kabul’s laws, let alone that of foreign powers or judicial reform
commissions. 65 Like Amanullah’s social and educational reforms in the
early twentieth century, and similarly with Afghan Communist party
policies in 1970s-80s, the present attempts to impose centralization on local
adjudicatory actors in the provinces are likely to crumble. While the
congenial welcome of humanitarian aid projects in the form of building vital
infrastructures such as clean water wells, sanitation, and sturdy winter
shelters for common Afghans—who were and continue to be deprived of
such basic necessities through years of war and abandonment by the
international community—may indicate a healthy relationship between
external and local actors in Afghanistan today, such collaboration is not
likely when the dynamics are translated as foreign interference into Afghan
culture and social life. After all, imposing a foreign criminal code in

   62.     See Customary Laws of Afghanistan: A Report by the International Legal
Foundation (Sept. 2004), at [hereinafter Customary Laws
See also Gailani, supra note 61, 144-49; Thomas J. Barfield, On Local Justice and Culture in
Post-Taliban Afghanistan, 17 CONN. J. INT’L L. 437 (2002).
   63.     See generally The Customary Laws of Afghanistan, supra note 62; Gailani, supra
note 61, at 147.
   64.     Such resistance is likely to be emboldened by rife allegations of corruption and
inefficiency in official state courts. It is worthy to note here that “corruption” in post-2001
Afghanistan is an immense topic worthy of book-length studies, and is a conspicuously absent
topic in this article. For some brief comments on this extraordinarily complex issue, note the
commentary of former Lehigh County Judge Thomas A. Wallitsch, a senior judicial adviser in
the Afghanistan Rule of Law Project of USAID. Thomas A. Wallitsch, Corruption, lack of
resources hobble Afghan courts, THE MORNING CALL (June 23, 2006), available at
5DA?OpenDocument. See also Paul Watson, In Afghanistan, money tips the scales of justice,
L.A. TIMES (Dec. 18, 2006), available at
fg-justice18dec18,0,4393580.story. The article goes as far to state in the subtitle, “The
nation’s legal system in driven by bribes, and the public’s disgust is stoking nostalgia for the
Taliban.” Id.
   65.     KAMALI, supra note 52, at 1-2.
Spring 2007]                  Afghanistan’s Reconstruction                                  291

Afghanistan is not simply a matter of technical administrative procedures or
“legal engineering.” Rather, it is an intensely political act, and one that can
trigger larger forces of anti-government instability to accumulate over time,
a process that has already begun.
     At this critical juncture in Afghanistan’s history, it is also important to
place post-Taliban reconstruction within the broader context of a global
resurgence of law and development activity in the past fifteen years;
specifically since the fall of the Berlin wall and end of the U.S.-Soviet Cold
War. Prior to this recent reemergence, the failure of the American Law and
Development movement of 1960s was a topic of great curiosity,
consternation, and disappointment amongst international development
lawyers as well as comparative legal scholars. 66 James Gardner, for
example, in his study of American development lawyers working in Latin
American countries in the 1960s and 70s, presented a bold criticism of
American development lawyers, describing the latter group by the term
“legal missionaries.” 67 Gardner argued that American-trained lawyers’
parochial definitions of law in non-U.S. jurisdictions, lack of consultation
with local actors, and inexperience in interacting with the multiplicity of
legal actors and layers of law in post-and neo-colonial settings was the
writing on the wall for the American law and development movement. 68
Numerous other commentators have discussed the “naïve view that by
simply channeling some resources to poor countries, development would
follow”, 69 overlooking social and cultural complexities and political
dynamics that could stymie reform efforts. 70 One can trace the forbearers of
this mid-twentieth century movement to nineteenth century European
orientalists who, in studying colonial lands of Africa, Asia, and Latin

   66.     See, for example, David M. Trubek, The “Rule of Law” in Development
Assistance:     Past,     Present,     and    Future   (June     2003),     available    at;  JAMES     A.     GARDNER,       LEGAL
Trubek and Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in
Law and Development Studies in the United States, 124 WIS. L. REV. 1062, 1102 (1974).
Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the “Rule of Law”, 101
MICH. L. REV. 2275 (2003); Ruth E. Gordon & Jon. H. Sylvester, Deconstructing
Development, 22 WIS. INT’L L.J. 1 (2004).
   67.     GARDNER, supra note 66, at 285.
   68.     Id. The concluding remarks to James Gardner’s book are poignantly relevant:
      Have legal missionaries and legal elites learned from the law and development
      experience? . . .[S]ome of the American participants learned a great deal about the
      legal models they carried abroad—and learned how little we know of law, change,
      and choice in developing nations, and in our own. The entire movement could be
      termed ‘educational,’ though not in the sense originally intended.
   69.    Evan Davis, Why development matters, BBC NEWS, Mar. 15, 2002,
   70.     Id.
292                  Gonzaga Journal of International Law                [Vol. 10:3

America, implicitly compared the law of their own societies with what they
constructed to be monolithic, inherently flawed, and overall lacking “non-
Western” legal systems. On this topic, Professor Laura Nader notes the
parallels between past and present eras of law and development:

      A Euro-American configuration of institutions and belief systems
      has normalized and powered a Euro-American use of “rule of law”
      and lack, an ideology key to the colonial and imperial project
      whether it was being exercised by the British, French, American,
      Belgian, Dutch, Portuguese, German, or Italian colonial interest in
      pursuit of their enrichment. In the contemporary period, the
      appropriation of resources and ideas belonging to other peoples are
      sometimes justified by notions of civilization, development,
      modernization, or alternative dispute resolution. Lack has been
      used to highlight positional superiority, an important mechanism
      for constructing and legitimizing conditions for plunder...Thus, the
      European roots of the colonial project were tied to a theory of lack
      - a theory that justified taking property from those deemed lacking
      the ability to exploit resources around them. Other peoples lacked
      law - a provider of order, beneficial to the public good. Steeped in
      19th century unilineal evolution - whereby human society
      progressed from savagery, to barbarism, to civilization as
      exemplified by Europe - Western countries identified themselves
      as being civilized because they were governed by the rule of law,
      no matter what the actual history of a present situation might be.
      Such identity was acquired by knowledge of and false comparison
      with other peoples, those who were said to lack the rule of law,
      such as indigenous people, or in reference to China, Japan, India or
      the Islamic world more generally. In addition, today the Third
      World developing countries lack further, the minimal institutional
      system necessary for the unfolding of an efficient market, one that
      serves, today as in the past, to further the construction of Western
      superiority. Of course, the Other is often aware that “lack” is about
      the building of a universal rule of law that, while ethnocentric, is
      capable of facilitating efficient transfers of property rights from
      whoever values them less to whoever values them more, such that
      global rule makers claim sovereignty over local politics. 71

     Far from being a distant era of the past, it appears we are witnessing a
return of the law and development movement in Afghanistan, albeit with

  71.     Laura Nader, Law and the Theory of Lack, The 2005 Rudolf B. Schlesinger
Lecture, 28 HASTINGS INT'L & COMP. L. REV. 191, 192-93 (2005).
Spring 2007]                 Afghanistan’s Reconstruction                                   293

considerable refinements and differences. 72 Some of the unique aspects of
the latest revival of law and development appears to be a profuse Western
confidence in free-market economic structures following the collapse of the
Soviet Union, the forceful backing of foreign-imposed judicial reform by
Western governments and multinational firms seeking new markets and
untapped natural resources, all fortified with the domestic political support
of an open-ended, fear-driven “war on terrorism.” 73 On a less cynical note,
another difference is an emerging body of international law compiled
through decades of statutory and case law evolution. Nevertheless, major
questions remain as to how to implement statutory rights or formal
international case law in non-centralized-state contexts like Afghanistan,
considering the significant administrative and sociocultural complexities of
even implementing the respective nation-state’s law. Indeed this paper
argues not so much that human rights law is flawed or a dead-end run, but
rather more research is needed to contextualize how human rights struggles
can be owned and implemented by indigenous communities themselves
without sacrificing their traditional means of dispute resolution and legal
process. Agency and sovereignty, after all, have proven to be the absolutely
crucial values to indigenous groups throughout the world. 74
     Without such sociocultural contextualization, we face the constant
danger of imposing Euro-American sociolegal norms in “receiving”
societies where they will not resonate and may even be interpreted as the
Trojan horses of neocolonial projects, meanwhile hoisted with self-
congratulating attitudes in the Western countries portraying their actions as
brave new forces promoting liberating, civilizing processes in the darker

   72.    On the revival of law and development activism, see Brooks, supra note 66;
Thomas Carothers, The Rule of Law Revival, 77 FOREIGN AFFAIRS 95, 95-107 (1998), and
LEGAL ORTHODOXY (Yves Dezalay & Bryant G. Garth eds., 2002).
   73.    Brooks, supra note 66, at 2276-79.
PROCESS 584-88 (3d. ed. 2001) (citing to multiple conventions and declarations regarding the
indigenous people of the Americas); Francois Tanguay-Renaud, Post-Colonial Pluralism,
Human Rights & the Administration of Criminal Justice in the Federally Administered Tribal
Areas of Pakistan, 6 SING. J. INT’L & COMP. L. 541, 579 (2002). For example, international
human rights scholar S. James Anaya notes,
   ILO Convention No. 169 upholds the right of indigenous peoples to “retain their own
   customs and institutions”; and requires that “the methods customarily practiced by the
   peoples concerned for dealing with offences committed by their members shall be
   respected.” Similarly, the 1993 Working Group Draft Declaration states: ‘Indigenous
   peoples have the right to promote, develop and maintain their institutional structures
   and their distinctive juridical customs, traditions, procedures and practices, in
   accordance with internationally recognized human rights standards.

S. James Anaya, The Native Hawaiian People and International Human Rights Law:
Toward a Remedy for Past and Continuing Wrongs, 28 GA. L. REV. 309, 355 (1994).
294                     Gonzaga Journal of International Law                      [Vol. 10:3

corners of the world. Such attitudes are summed up best in the State
Department’s description of Afghanistan’s reconstruction, where it boldly
states on its webpage, “Today, the U.S. is assisting the Afghan people as
they rebuild their country and establish a representative government that
contributes to regional stability, is market friendly, and respects human
rights.” 75 If this paper has achieved anything thus far, I hope it is to
complicate and problematize simplistic portrayals of Afghanistan’s
extraordinarily complex reconstruction—a reconstruction that is laden with
covered-up failures and exaggerated praise of isolated success stories, and
has resulted in little progress on the ground when it comes to improving
ordinary Afghans’ lives, furthering Afghanistan’s self-sufficiency, or
promoting accountability through local vehicles of law.

                         INDIGENOUS MEANS

   A. An Encouraging Start: The Afghanistan Independent Human Rights
                           Commission Report
     In January 2005, the Afghanistan Independent Human Rights
Commission (AIHRC) published a report analyzing common Afghan
civilians’ perspectives of the reconstruction process.76 This one of a kind
study interviewed 4,151 Afghans, from the urban milieu of Kabul to Afghan
villages across the rural and mountainous provinces, to even refugee camps
in neighboring Pakistan and Iran. 77 The report makes powerful points and
recommendations, especially considering the fact they are based on the
views of Afghans on the ground themselves. It appears to be the first time a
major agency involved in the reconstruction process spent a substantial
amount of time and energy solely to ask what Afghans on the ground think,

(Dec. 2006), available at
   76.      Afghanistan Human rights challenges facing Afghanistan’s National and Provincial
Assemblies – an open letter to candidates, 6, Amnesty International report, (Sept. 15, 2005)
available at (Sept. 15, 2005).
   77.      AIHRC Report Methodology:
     In total, we applied the survey to 4151 people in one-on-one interviews. Over 2000
participants participated in over 200 focus groups around the country. The demographic data
on these is included in the respective Annexes. Our consultation took us to 32 of
Afghanistan’s 34 provinces (two new provinces having been declared only recently). We also
interviewed around 400 Afghan refugees in Peshawar and Quetta, and about 300 refugees in
Mashad and Tehran. The national consultation took almost eight months to complete, and was
conducted from January 2004 to August 2004. A Call for Justice: A National Consultation
on Past Human Rights Violations in Afghanistan, Afghan Independent Human Rights
Commission Report, 55 available at
justice.pdf (last visited January 25, 2007) [hereinafter AIHRC Report].
Spring 2007]                    Afghanistan’s Reconstruction                                         295

feel, and experience in daily life. It also seems to be the first time a major
agency genuinely sought to hear what Afghan civilians have to say about
reconstruction processes, including its announced goals versus practical
shortcomings, and incorporate their voices into policy circles in the Afghan
government and NGO community. Moreover, this survey provides personal
stories and a more textured glimpse into the human tragedies of an on-going
quarter-century war in Afghanistan. Relevant to this paper, the report made
the following conclusions:
     Security has consistently been ranked as by far the number one concern
of Afghan civilians in Afghanistan, followed by lack of electricity as a
distant second, and disappearances of loved ones as third. 78
     Accountability for past human rights violations, at the very least vetting
offenders from public office, is very important to common Afghans, and
should not be cheaply sold in the name of reconciliation. 79
     Transitional justice policy must be respectful of pre-existing legal
cultures, including the vital role Islamic law plays in the lives of common
Afghans, who generally envision a prominent role for Islam in
reconstruction. Religious leaders can thus play a crucial role in encouraging
and facilitating reconciliation and unity on the local level. 80
     These findings are extremely important because they shed light on what
common Afghans hold to be important and what speaks to their actual
needs, as opposed to those imagined by central government and
international actors detached from life on the ground. While prominent
Afghan and U.S. officials frame liberation as the overthrow of the Taliban
and their draconian social policies, these reports shed light on the less
glamorous, but just as crucial socioeconomic issues that are not being
addressed with sufficient attention and resources: public safety, adequate
winter shelter, heating, clean water, and protection of indigenous law and

  78.      Id. at 16.
  79.      Id. at 17-22, 27, 34, 40.
  80.      Id. at 7, 42, 45. In a revealing section on this theme, the report writes:
    Participants displayed a strong sense of human rights as rights granted by God to
    allow people to live in society in freedom, under circumstances of equality. Focus
    group participants identified the following as fundamental rights: the right to live and
    the right to its necessary components of food, shelter, clothing, and basic health care;
    Islamic rights; the right to security and justice; and the right to an occupation and
    employment; freedom of thought and speech; ethnic, religious and gender equality;
    political rights such as the right to participate in free and fair elections; and the right to
Id. at 7. The report proceeds to conclude that, “Afghans in general consider such rights to be
granted and protected by Islam.” AIHRC Report, supra note 77, at 7. The following are some
quotes from participants: “Human rights means the establishment of a true Islamic adalat
[conception of justice].” Id. “God-given rights, within the framework of Islamic laws, are
inherently based on equality and mutual respect.” Id. at 8.
296                  Gonzaga Journal of International Law              [Vol. 10:3

      While clearly not every single relevant issue was covered in the
AIHRC questionnaires, nor was an exhaustive survey conducted of the
entire Afghan population, this report is an inspiring move in that direction.
Because many of the problems discussed in sections II-IV of this paper deal
with the failure to incorporate indigenous Afghan perspectives, voices, and
actors in the internationally-led reconstruction process, the AIHRC report is
profoundly important because it tackles the flawed approach of most
international and Afghan government agencies by listening first, rather than
jumping into prompt but unguided action. At the very least, these types of
engagements with ordinary Afghans open lines of communication that are
crucial to the future of reconstruction processes actually improving the lives
of Afghanistan’s people. Hence, this paper urges that more surveys and
consultations of indigenous actors, particularly Afghan civilians on the
ground, be incorporated into reconstruction goals and processes. Accessing
these pools of information needs to be the starting point—and an evaluative
gauge throughout—of reconstruction projects regardless of the field.
Interviews and consultation councils with civilians at large should not be
dismissed based on the highly technical nature of any given project. Indeed,
the receiving end of the successes, and failures, of reconstruction projects
are the Afghan people themselves, and so they should be invested with more
decision-making power with the directions of investments that will
inevitably impact their daily lives, for the better or for the worse. This can
be achieved by not merely reports and surveys that are based on extensive
interviews of Afghan individuals, but also by organizing a combination of
public consultation gatherings and smaller, private sessions in local districts
where Afghan voices are heard, on the provincial and national levels.
Needless to say this is a complex undertaking that requires advanced
planning, continuous refining, and of course, constant input from the
Afghan public at large. While it is beyond the scope of this paper to
blueprint such a scheme, the goal of this section nevertheless is to cite a
practical example in the AIHRC survey, as well as underscore the
importance of increasing the NGO community’s understanding of rural
Afghanistan’s indigenous cultures and legal systems, which would shed
light on how locally established tribal and village councils could contribute
to the processes of national reconciliation and building accountability rather
than being viewed as backwards “obstacles.” A practical example of the
latter is the customary law reports produced by such organizations as the
International Legal Foundation; a rudimentary study of customary law in
Afghanistan’s diverse provinces. 81 If dominant reconstruction actors fail to
entrust indigenous actors with more agency in the process, and continue to
alienate Afghans with parochial visions and plans of reform, Afghanistan
will face a vicious cycle of violence fed by the struggles between foreign

  81.   Customary Laws of Afghanistan, supra note 62.
Spring 2007]                 Afghanistan’s Reconstruction                                  297

intervention and indigenous resistance, resulting in exponentially increasing
costs and lost opportunities for all.

                       B. The Role of Islamic Legal Scholars
      While proponents of democratization have conventionally viewed
secular elites to be the natural pioneers of reform in Muslim countries—and
religious leaders as backwards, regressive opponents—emerging studies in
comparative law and anthropology suggest such views stem from Western
jurisprudential paradigms that overlook the dynamic roles of Islamic legal
scholars (“‘ulama”), in societies where formal divisions between law,
religion and politics are often suspect. 82 This paper has discussed how tribal
elements and rural warlords traditionally competed with the central
government for political control of the provinces. Yet there is another group
of influential sociopolitical actors in Afghanistan: the urban ‘ulama, or
Islamic religious scholars. 83 As the custodians of Afghanistan’s religious
institutions, the Afghan ‘ulama have historically shared a complex
relationship with the Afghan state, but generally did not oppose the
government, with the notable exceptions of the protests against Amanullah’s
liberalizing Nizamnama reforms, and widespread resistance to the Afghan
communist parties and subsequent Soviet invasion of the 1970s-80s. 84 Dr.
Mohammad Hashim Kamali, an Afghan legal scholar and former professor
of Islamic jurisprudence at McGill University explains in his pioneering
study Law in Afghanistan: A Study of the Constitutions, Matrimonial Law
and the Judiciary,
      The religious leaders [in Afghanistan have historically been] recipients
of government grants and subsidies.... The qadis [judges], muftis [jurists],

parochial attitudes towards religious leaders are not limited to international involvement in
Muslim countries. A recent example of condescending views towards religious leaders and
secular arrogance was evident in the views of some members of the South African TRC.
Joanna Quinn and Mark Freeman write,
    TRC Chair Desmond Tutu, considered by most to have been the right (and even only)
    person for the job, had been a long-time anti-apartheid activist and the leader of a
    substantial faith community throughout the apartheid era. Grobbelaar and others from
    the TRC, however, query whether his religious position and demeanor at times
    perhaps clashed with the secular activities of the truth commission.
Joanna Quinn & Mark Freeman, Truth Commissions of Guatemala and South Africa, 25
HUMAN RIGHTS QUARTERLY 1117, 1128 (2003) (emphasis added).
   83.   KAMALI, supra note 52, at 6-8.
   84.   Id. at 8-9
298                     Gonzaga Journal of International Law                        [Vol. 10:3

and muhtasibs (religious superintendents) were keen enforcers of Shari’a
[Islamic law] which was the authoritative law of the land. The rulers
proclaimed themselves to be patrons of the faith to whom allegiance was
declared as a religious duty by the congregation leaders in their Friday
sermon of khutba. In sum, so long as the government avoided radical
measures against the religious leaders and did not attempt a direct clash with
the principles of Islam, the religious leaders were, unlike the tribal chiefs, in
potential alliance with the political authority. 85
     Despite strong historical alliances, as a class Afghan ‘ulama now stand
at a crossroads moment in their relationship with the central government,
primarily due to a growing threat to their traditionally-held legal authority
arising from the contemporary judicial reform and legal codification
movement. 86 With regard to present efforts to establish a unitary legal
system in Afghanistan, it is important to keep in mind that ‘ulama have
often opposed attempts to codify and homogenize Shari’a, for both
theoretical and pragmatic reasons. From the perspective of many ‘ulama,
codifying Shari’a amounts to imposing human limits on law of the Divine. 87
Wael Hallaq, Professor of Islamic law at McGill University, elaborates on
the contentious relationship between modern codification movements and
Islamic jurists, noting that:

      Codification is not an inherently neutral form of law-making, nor
      is it an innocent tool of legal practice, devoid of political or other
      goals. It is in fact a deliberate choice in the exercise of political
      and legal power, a means by which a conscious restriction is
      placed upon the interpretive freedom of jurists, judges and
      lawyers. In the Islamic context, the adoption of codification had a
      particular significance since it represented a highly efficacious
      modus operandi through which the law was refashioned and
      altered in fundamental ways. No longer could the traditional jurists
      rely on their hermeneutical methods to determine what the law
      was; the new order had severed the organic link between the divine
      texts and the positive legal stipulations deriving therefrom. 88

    For these very reasons it is not surprising that ‘ulama in countries like
Afghanistan have grown increasingly suspicious of codification measures,

  85.      Id.
  86.      See Ahmed, supra note 48.
  87.      As the late professor of Islamic jurisprudence Joseph Schacht pointed out, “Islamic
law, being a doctrine and a method rather than a code . . . is by its nature incompatible with
being codified, and every codification must subtly distort it.” SHERMAN       A.    JACKSON,
AL-QARAFI xvii (1996).
   88.     Wael B. Hallaq, “Muslim Rage” and Islamic Law, 54 HASTINGS L.J. 1705, 1712-
13 (2003).
Spring 2007]                  Afghanistan’s Reconstruction                                     299

considering them to be the latest attempts of foreign powers to subjugate
Islamic law and religious actors to secular authorities. 89 Because of the
inherent threat legal codes pose to ‘ulama’s authority to interpret the law,
the chances that Afghan ‘ulama will accept codification movements quietly
are extremely slim. 90 Indeed, mounting resistance of Afghan ‘ulama to
recent adoptions of foreign legal codes, 91 and the Afghan public’s wide
scale uproar over what many see as inexcusable foreign intervention in
Afghanistan’s judicial system 92, have shaken the very foundation of
reconstruction efforts in the legal arena. In light of the profound influence
of ‘ulama in social and cultural life in Afghanistan, as well as the fierce
traditions of independence and historical resentment of foreign intervention
in domestic affairs, present designs to build a rule of law in Afghanistan on
the basis of legal transplants are prone to failure. 93

   89.      Id. One may cite, by analogy, the traditionally protected concept of academic
freedom in the U.S., whereby scholars of various ideological backgrounds preciously guard
the right to pursue research and publish their opinions free from state supervision or political
CUSTODIANS OF CHANGE 95-97 (2000). For example, note how Justice Taqi Usmani of the
Supreme Court of Pakistan has commented with regard to the region’s experience with
English law imposed in the colonial era and its continuing influence in contemporary times:
    [E]ven if, hypothetically, everything that is explicitly in conflict with the Qur’an and
    the sunna [Prophetic example] is excised from English law, that law can still not be
    characterized as Islamic law. For the former is the product of an entirely different
    context, and its guiding concepts cannot be separated from the framework from which
    it has evolved.

Id. at 96. For additional studies on ‘ulama and their interaction with codification movements
of modern nation-states, see Brinkley Messick’s historical ethnography of ‘ulama in Yemen,
in MESSICK, supra note 82; Said Amir Arjomand, Constitution-Making in Islamic Iran: The
Impact of Theocracy on the Legal Order of a Nation-State, in HISTORY AND POWER IN THE
eds., 1989); Lawrence Rosen, Islamic “Case Law” and the Logic of Consequence, in
(June Starr & Jane F. Collier eds., 1989); S. FREDERICK STARR, ED., XINJIANG: CHINA’S
MUSLIM BORDERLAND 27-100, 101-19, 299-396 (2004).
    91.    Ahmed, supra note 48.
    92.    As a prominent case in point, see for example the tensions provoked by
international intervention in the early 2006 Afghan convert case, Andrea Elliott, In Kabul, a
Test for Shariah, N.Y. TIMES (Mar 26, 2006), or the mitigation of sentences for three U.S.
citizen mercenaries convicted by a Kabul court for torturing Afghans. See Kabul cuts US
vigilante sentences, BBC NEWS, Mar. 31, 2005,
29.stm. Interestingly, note some of the BBC’s prior coverage of the case’s development. See,
e.g., US disowns Kabul 'bounty-hunters', BBC NEWS, July 8, 2004,; Kabul 'bounty hunter' accuses US, BBC
NEWS, July 21, 2004,; Andrew North, US
admits 'bounty hunter' contact, BBC NEWS, Aug. 26, 2004,
    93.    For a historical discussion of Afghan ‘ulama, see SENZIL K. NAWID, RELIGIOUS
300                    Gonzaga Journal of International Law                       [Vol. 10:3

      It is also vital to remember here that it in present-day Afghanistan,
particularly the rural provinces where the majority of Afghans live, local
justice mechanisms have evolved through a centuries-long process of
synthesizing Islamic and pre-Islamic Afghan customary law.                   As
demonstrated in the International Legal Foundation’s study of customary
law in several Afghan provinces, it is also quite remarkable that these bodies
of local law have survived, responded to, and reflect decades of foreign
invasion, occupation, and civil war in the modern era. 94 It is this resilience
of locally shaped law that led law professor Mark Drumbl to conclude in his
recent study on judicial reform in Afghanistan that only “when international
legal intercessions resonate with lives lived locally that their potential to
actualize social change is maximized.” 95
      While this article is certainly not suggesting that the contributions of
international human rights activists are futile endeavors in Afghanistan, it
does underscore the need for development lawyers to be far more self-
critical, and to rethink their ethnocentric approaches to the “reform” of legal
institutions in society different from their own. Comparative law and
anthropological studies have revealed more than enough blunders in law and
development encounters to warrant a far greater degree of humbleness in the
most development lawyer’s goals—particularly in how such projects tend
open a greater host of problems than they actually solve. In a previous
paper I presented a few reflections as to the sources of such failures:

      International intervention in the law of another society, particularly
      when it relates to social and cultural norms, tends to only
      exacerbate internal conflicts by politicizing and distorting the
      original issues.     The latter can often have the effect of
      transforming local disagreements into full-blown wars whereby
      parties can lodge their conservative arguments in a call for
      defending the homeland against foreign imperialist motives,
      thereby stymieing indigenously-supported legal growth and a more
      organic development of the local legal system. This is precisely
      the predicament of Afghanistan, where it is not uncommon for
      Afghans to construe the widespread international attention to the
      conditions of Afghan women as another missionary war on Islam,
      an attempt to demonize Afghan men, and a precursor to outright
      colonization of the country itself. 96

   94.     Mark A. Drumbl, Rights, Culture, and Crime: The Role of Rule of Law for the
Women of Afghanistan, 42 COLUM. J. TRANSNAT’L L. 349, 352 (2004).
   95.     Id. at 353.
   96.     For a few fascinating discussions relevant to the themes of feminism, secularism
and cultural imperialism in Afghanistan, see Hirschkind & Mahmood, supra note 24, at 339-
54; Anila Daulatzai, A Leap of Faith: Thoughts on Secularistic Practices and Progressive
Politics, 56 (182) INTERNATIONAL SOCIAL SCIENCE JOURNAL 565-76 (Dec. 2004). See also
Spring 2007]                  Afghanistan’s Reconstruction                                 301

     Stoking such “clash of civilizations” fears – trepidations that of course
are not limited to Muslim societies 97 – could be avoided by first respecting
the complexity and interdependency of local sociocultural norms in tightly-
knit societies like those of rural Afghanistan, paying special attention to how
such norms operate in practice, instead of how they are imagined and
decontextualized by outside observers. This symbiotic approach to
development requires a much deeper understanding of Afghanistan’s history
(both pre-modern and contemporary), diversity of legal cultures, and
customary judicial systems by foreign development agencies, as compared
to the highly-skewed, politicized, and overly-simplistic depictions of the
Taliban’s “Islamic oppression” in Western media after September 11, 2001.
Needless to say, the constant repetition of categorical dichotomies, such as
“us” and “them”, “good” and “evil”, “freedom” and “tyranny” (symbolizing
an apocalyptic battle Western secular-liberal modernity on the one hand
versus Islamic extremism on the other), exacerbates the polarization
between international and local, destroying bridges of cross-cultural
understanding that thrive on the sharing of world-views and goal of building
a peaceful Afghanistan. 98
     One means of incorporating a more humble approach that is conducive
to cross-cultural exchange in Afghanistan’s transitional processes, is for
development lawyers to increase their communication with indigenous
‘ulama in reconstruction processes, enhancing the role of the latter in the
process, rather than limiting interaction to largely secular-liberal Afghan
elites or powerful warlords linked to anti-Taliban factions only. ‘Ulama,
after all, are an independent class who draw their influence and authority
from a knowledge of Islamic law, a source of legislation and public morals
shared by all of Afghanistan’s diverse ethnic groups. 99 To illustrate, it is

Saba Mahmood’s POLITICS OF PIETY, supra note 82, at 36-39, 189-99 and her recent article
Retooling Feminism and Democracy in the Service of the New Empire, 16 (1) QUI PARLE
(Fall/Winter 2006).
   97.     Sufficient to demonstrate the point, the “clash of civilizations” term was originally
formulated by famed British-American Orientalist Bernard Lewis in his 1990 article of the
Atlantic Monthly, “The Roots of Muslim Rage”, a thesis subsequently popularized by Samuel
Huntington in his 1993 Foreign Affairs article “The Clash of Civilizations.”
   98.     While most international development agencies and lawyers would likely object to
such polarizing language as well, I would nevertheless argue that similar motifs of linear
progress permeate the contemporary law and development discourse (with a presumption of
secular-liberal modernity belonging at the apex). Similarly, the persistent references in
Western media and policy studies to “Islamic extremists” or “Muslim fundamentalists”
without a nuanced examination of the myriad actors and their agendas who tend to fall under
such overbroad expressions likewise misses opportunities for more comprehensive
understandings of contemporary Islamic legal-political movements and the societies they
emanate from, with detrimental consequences for peace in Muslim societies and indeed, the
world at large.
   99.     It would not be too much of stretch to analogize here with the role of law
professors, legal scholars and other jurists of academia in Western societies, who earn the
respect of lawyers and general public through their legal scholarship, and who do not suffer as
302                     Gonzaga Journal of International Law                       [Vol. 10:3

revealing to note the comments of prominent leaders across the political and
ethnic spectrum re the central role of Islam in Afghanistan’s future. For
example, as ballot-counting proceeded during Afghanistan’s landmark
parliamentary elections in September 2005, prominent Northern Alliance
leader and power broker Younus Qanooni warned in politically-astute
language that the country’s future cannot be modeled on a Western liberal
democracy. “Afghans will never agree on any secular or liberal system.
Islam is the modern system and Afghanistan’s future is tied with Islam,” he
said, in an exclusive news interview with Adnkronos International...
Quanooni, who was a key figure in the Northern Alliance which helped the
U.S. overthrow the Taliban in 2001, heads the 12-party National
Understanding Front. 100 Whether he personally espouses these beliefs or not
is less important than the audience he was addressing: an attentive Afghan
public in the midst of elections. In this way, the prominent role of ‘ulama in
social life in Afghanistan becomes all the more clear when one considers
they are the custodians of Islamic law in a country where Islam is integrally
intertwined with Afghan identity and society.
     With this background in mind, it is all the more interesting to consider
here how the U.S. decision to go to war in response to the September 11
attacks—as opposed to seeking international cooperation in the prosecution
for the criminal acts of a small, insular group of rogue radicals—is a
practical illustration of long-term damage that is done when ‘ulama are
marginalized in public policy in Muslim-majority states like Afghanistan.
Operation Enduring Freedom has had enduring consequences for
Afghanistan indeed, creating daily instability, death and violence from a
burgeoning insurgency that has long survived the overthrow of the Taliban.
The decision to go to war has bred more war, intensified resistance, and
attracted more militants to the country (south and east in particular),
resulting in increased internal violence and fragmentation in Afghanistan,
and Central and South Asia as a whole. 101 In his study of Islamic legal
scholars in South Asia and Afghanistan, Muhammad Qasim Zaman has
explored the diverse body of ‘ulama in this region, and drawn relevant
lessons for us in the post-September 11th attacks context. Particular to the
Taliban reign, Zaman writes that the picture is far more complex than what
certain political forces promoting war in Afghanistan have made it out to be.
‘Ulama in Pakistan, home to the Taliban’s origins and greatest source of

much from the political constraints of judges on government payroll or those seeking judicial
  100.     Syed Saleem Shahzad, Afghan Vote: No Future Without Islam, Says Qanooni,
ADNKRONOS INTERNATIONAL (Sept. 20, 2005) available at
  101.     Afghan Political Violence, supra note 6. For a broader regional discussion of the
effects of U.S. war in Afghanistan, see AHMED RASHID, JIHAD: THE RISE OF MILITANT ISLAM
Spring 2007]                Afghanistan’s Reconstruction                       303

financial, political and moral support, were not so united on Taliban social
policies as previously thought.         In fact, there were fissures and
disagreements within the Islamic scholarly community, and even amongst
the Deobandis (adherents of the school of law which the Taliban leaders
were schooled in) over the Taliban’s controversial closing of schools for
girls, to cite a prominent example. Zaman notes:

     The Deobandi ‘ulama were never unanimously euphoric about the
     Taliban . . . . In a letter to the leaders of the Taliban shortly after
     the latter’s capture of Kabul, a number of leading Deobandi ‘ulama
     of Karachi had congratulated them on their victories but had also
     expressed the hope that the “Taliban would do everything possible
     to ensure that Afghanistan commences its journey on the path of
     culture and civilization and [thereby] establishes a luminous
     example for other countries.” . . . [T]his letter also emphasized the
     expectation that everyone—man and woman—would receive
     ‘basic education’ under the Taliban. In June 1997, an editorial
     entitled ‘The Government of the Taliban: Better Expectations’ in
     al-Balagh, the monthly journal of the Dar al-’Ulum of Karachi
     [one of Pakistan’s preeminent madrasas], had again expressed
     hope not only that the Taliban would attend to the educational
     needs of the people but that “in addition to considering the
     requirements of Islam, the system of education would also take
     account of the needs of the time.” Couched in the language of
     advice and expectations, these mildly worded criticisms pointed to
     a certain discomfort among some of the ‘ulama regarding the
     policies of the Taliban. 102

     One can draw from the above that internally-inspired reform was
possible in Afghanistan at the time, since prominent voices were confident
enough to voice their concerns to the Taliban leadership directly, rather than
through secret, conspiratorial channels. The U.S. decision to go to war
against the Taliban and thereby invade and occupy a Muslim land, of
course, has overridden much of these concerns in the eyes of many local
ulama. Dr. Zaman notes,

     After the United States gave an ultimatum to the Taliban to turn
     over Usama bin laden, thirty-three scholars of Karachi’s Dar al-
     ’Ulum—including Mawlana Rafi ‘Uthmani and Mawlana Taqi
     ‘Uthmani [two of the most prominent Islamic scholars in South
     Asia]—issued a written appeal to the Taliban to be mindful of the
     interests of Pakistan and Afghanistan in this crisis and try to
     resolve it with ‘an open mind.’ They recognized, the ‘‘ulama said,

 102.     ZAMAN, supra note 90, at 139-40.
304                     Gonzaga Journal of International Law                         [Vol. 10:3

      the difficult choices confronting the Pakistani government in this
      crisis, and they approved of its cooperation with others in
      combating terrorism. At the same time, however, these ‘‘ulama
      had also criticized the American stance as ‘unjust’ because, to
      them, Bin Laden’s culpability for the terrorist attacks had yet to be
      established and to go to war without doing so meant ‘giving
      official sanction to terrorism with the backing of state power.’ 103

     The U.S. decision to go to war precluded key opportunities for internal
reform by drowning out voices of the most moderate ‘ulama in the fog of
war, for now any militant could bolster the call to arms by the fact foreign
armies were invading the neighboring Muslim country of Afghanistan. This
reminds us of the profound need to recognize and acknowledge internal
discourses of reform, which are present even in as starkly controlled a
society as Afghanistan under the Taliban. But foreign military action stifled
those voices. The lasting lesson here seems to be that we must fully
understand the internal dynamics of local societies before deciding they are
ripe to be fixed by external action, in order to remedy what we see as human
rights violations. After all, failing to do so will not only fail to solve the
problem, it incites greater resistance, and irreparably disrupts the internal
struggles for accountability and a rule of law in the whirlwind of war. As
veteran Afghan affairs analyst Barnett Rubin remarked in a 2005 interview,
“the fact that the country’s Muslim clergy, which have a national network
that can mobilize the populace in ways the central and local governments
cannot, still have not reached a consensus on the legitimacy of the
government constitutes another serious vulnerability to the U.S.-backed
regime.” 104
     A critical part of the effort to understanding internal dynamics of
Muslim societies, then, is acknowledging the role of ‘ulama in Muslim-
majority societies like Pakistan and Afghanistan. As seen in the prominent
sociolegal positions held by ‘ulama in Pakistan and Iraq 105, ‘ulama
command the esteem of lay men and women in contexts where Islamic law,
in a flexible meshing with local customary law, constitutes the overarching
principles of what is normatively considered to be noble conduct. As the
headmasters and instructors in local religious seminaries, also known as
madrasas, ‘ulama are often the only available educators in rural villages and

 103.      Id. at 141-42.
  104.     Jim Lobe, Afghanistan: Four Years After US Campaign, Perils Abound, IPS NEWS
(Oct. 5, 2005), available at
 105.      Note for example, the tremendous influence held by Ayatollah Ali Sistani in
southern Iraq, whom eventually U.S. military forces were forced to seek assistance in
negotiating a truce with local insurgents after weeks of battle in Najaf. Matthew Price, Crisis
deal is a show of strength, BBC NEWS, Aug. 27, 2004,
e_east/3604086.stm .
Spring 2007]                 Afghanistan’s Reconstruction                                    305

poor urban neighborhoods. 106 On a national level the most renowned
‘ulama are respected as knowledgeable and not suffering from the
corruption that has plagued state actors in Afghanistan and Pakistan. There
is a long legacy behind this reverence. Professor Hallaq provides some
context as to the status of ‘ulama in the history of Muslim societies,

     The authority of the [Islamic] jurists...must not be confused with
     any notions of worldly power, since they wielded none. Nor was
     their authority of the charismatic or even moral type, though these
     types of authority were not entirely precluded. Nor, yet, was their
     authority purely religious, for the Islamic scene witnessed a
     number of learned religious classes who, despite their impressive
     erudition and intellectual output, were entirely devoid of legal
     authority. The jurists’ authority was predominantly, if not
     essentially, epistemic. Their very learning and erudition bestowed
     on them the authority that they enjoyed, in the first place the
     authority to interpret the law, but also the authority to command
     what is morally good and forbid what is morally bad, to lead and
     administer society and its civic institutions, to collect taxes, to
     represent the orphans and the downtrodden, to run educational
     institutions and law schools, and to supervise charities and public
     works. 107

     With this background in mind, independent ‘ulama can, as they have in
the past, be a key source of civil-society promotion and curb against the
presently increasing state power over the lives of common Afghans. 108 As

 106.     Dr. Zaman provides some important context; speaking on Pakistan, he writes
    In a country where almost half of the population is still illiterate, madrasas often
   provide all the education that many from the poorest segments of the population will
   ever have. Such education is typically free, as are the food and boarding that
   madrasas provide to their students, and graduates of madrasas are frequently able to
   earn a livelihood as religious functionaries – at the bottom of the scale, but still a
   livelihood which allows them to get by. Again, in a state with large-scale
   unemployment, this is not an inconsiderable achievement. The point here is not that
   madrasas provide most of such needs, or that they provide them well, it is rather that
   in an arena largely left vacant by the inefficiency and perceived corruption of the
   state, madrasas have, in many cases, offered services that are not otherwise available,
   and such services may arguably seem the more attractive to at least some segments of
   the population because they are provided in the name of Islam.
Muhammad Qasim Zaman, Muslim Politics and U.S. Policies: Prospects for Pluralism and
Democracy in the Muslim World at the Pew Forum on Religion and Public Life and the
Institute of Religion and World Affairs (Sept. 17, 2003), available at
  107.     Hallaq, supra note 88, at 1709.
  108.     That religious leaders play a role in building accountability in a variety of
transitional settings, not just Muslim societies, is abundantly clear. For example, Denis
Martinez, a statement-taker in the Guatemalan Comisión para el Esclarecimiento Histórico
306                     Gonzaga Journal of International Law                           [Vol. 10:3

demonstrated in Zaman’s pioneering study of ‘ulama in modern South Asia
and Afghanistan, ‘ulama continue to be powerful voices of dissent and
protectors of common people’s rights against state intrusion and control.
Thus religious scholars represent a vital area for international development
and reconstruction actors to more purposefully acknowledge and open lines
of communication with, as part of an attempt to salvage a reconstruction
process that has become increasingly tainted with neocolonial overtones. 109

                                  C. Recommendations
     Current designs to institute uniform legal codes in Afghanistan suffer
from a failure to contextualize the initiative with Afghanistan’s history of
turbulent center-vs.-provinces conflict, its extremely complex politics and
ethnically diverse societies, and multiple adjudicatory mechanisms that
govern, de facto, in rural areas. The decision to implement highly-
centralized state-based codes, however, reflects an even broader problem
with judicial reform in Afghanistan: a tendency to impose Western legal
models in the name of “development” or “legal reform”, goals which are
skewed from the start by the lack of sociocultural awareness of
Afghanistan’s legal history, principles of Islamic law, and Afghan
customary law systems. 110 In a country that has long resisted foreign
intervention, authenticity of law and participatory involvement on the local
level are all the more important. If judicial reform initiatives are to take
firm root in Afghanistan, they must spring from an authentic base of Afghan
history and sociolegal cultures, of which both Afghan customary law and
Islamic jurisprudence play integral roles. Otherwise, judicial reform will

(CEH) recommends that those involved in documenting past crimes “go beyond interviewing
witnesses and seek out other key players in each local context, such as mayors and clergy,
who can provide key background and contextual information regarding historical antecedents
as well as individual cases” (emphasis added). Quinn & Freeman, supra note 82, at 1135.
  109.     For an in depth study of the neocolonial argument, see GREGORY, supra note 29.
See also Brooks, supra note 66.
  110.     Dr. Frank Vogel, professor and founding director of the Islamic Legal Studies
Program (ILSP) at Harvard Law School, apparently came to the same conclusion after a recent
trip to Kabul. The website for the Afghan Legal History Project, a program he introduced at
ILSP, states,
   The idea for such a project began with a visit by the Director of ILSP, Frank Vogel, to
   Kabul in the fall of 2002, where he immediately recognized that reconstruction efforts
   were crippled by a lack of understanding of numerous issues concerning the role of
   law in Afghanistan. . . . The team’s starting point was that Islamic legal history is an
   essential and hitherto under-utilized tool for understanding current events, and that
   Afghanistan in particular offers an extraordinarily dramatic yet exemplary and
   instructive chapter in modern Islamic legal history. Appreciation of the role of Islam
   in Afghanistan’s legal past is vital to ongoing efforts to establish a viable legal system
   for the future of the country and its people.
Afghan Legal History Project, Harvard Law School Islamic Legal Studies Program (June 21,
2004), available at
Spring 2007]                  Afghanistan’s Reconstruction                                307

follow the path of previous state-driven reforms in Afghanistan: at the local
level they will be at best ignored, and most probably resented, poisoning an
already bitter relationship between Kabul and the provinces.
     In light of the above principles, this paper argues that in order to
rebuild a stable legal order and rule of law in Afghanistan, of which
accountability for past war crimes is a crucial component, legal
development projects can no longer afford to marginalize the customary law
structures that govern life de facto in Afghan provinces. Reconstruction can
no longer afford external advisors assuming that rural Afghan societies
“lack” legal systems; to the contrary, provincial areas of Afghanistan have
highly sophisticated, adaptable, even formal legal systems that outside
observers may easily not understand or appreciate, and thereby dismiss as
“informal” justice. 111 Local and autonomous legal systems serve many
advantages, including more prompt and effective justice processes than what
otherwise slow, inefficient, and heavily red-taped state bureaucracies would
struggle to provide. Moreover, legal anthropologists have demonstrated
time and again that local adjudicatory systems in contexts like rural
Afghanistan carry more authority on the ground than state-made law. 112
     This does not compel the conclusion, however, that state ministries or
international agencies chartered to promote international development,
human rights, or legal reform of any sort—including organizations which
commonly employ Afghan expatriates and refugees returning to assist in the
rebuilding of their country—cannot shoulder a meaningful role in post-
conflict Afghanistan. Rather, such organizations can play a critical role in
challenging the strangleholds of power and immunity widely enjoyed now
by suspected war criminals. 113 In the realm of accountability for war
crimes, human rights agencies can play a critical role in depoliticizing the
issue by paying equal attention to all perpetrators across the ethnic and
political spectrum in Afghanistan—rather than focusing attention on the
crimes of the Taliban alone, as did U.S. officials in the lead-up to the recent
war. 114 This is similar to the role Abel Madariaga’s attorney, Alcira Ríos,

 111.       Barfield, supra note 62.
 112.       Barfield, supra note 62; Drumbl, supra note 94; LAURA NADER, THE LIFE OF THE
LAW: ANTHROPOLOGICAL PROJECTS 51, 133-35, 174 (2002).
  113.      For example, see Soutik Biswas, Exile returns to help Afghan women, BBC NEWS,
Oct. 3, 2004, at For some examples
of meaningful contributions international legal actors can often make in transitional justice
settings, see MANI, supra note 45, at 14-15.
  114.      Unfortunately the international community largely seems to have been complicit in
focusing on the atrocities of one side while ignoring others during the Taliban era. In one
particularly revealing case, Northern Alliance forces were alleged to have killed and buried in
mass graves approximately 2,000 Taliban prisoners. The New York Times designated a few
paragraphs to the incident in the back pages of its newspaper at the time:
    “The whole northern alliance is responsible for these killings,” Abdul Hakeem
    Mujahid, the Taliban’s representative-designate to the United Nations, said in an
308                      Gonzaga Journal of International Law                         [Vol. 10:3

played in humanizing the struggle to bring accountability for such past
crimes as child theft in Chile under the brutal regime of Augusto Pinochet.
      “The first task in these cases was to depoliticize them,” Ríos stated.
“We kept emphasizing that these children were innocent victims and had the
right to know their true identity. We got to the point where no one would
defend the practice of child-stealing. When the amnesty laws were written,
they specifically excluded these crimes because they were so politically and
morally unjustifiable.” 115
      In a similar vein, Afghan civil society must be allowed to grow to the
point where no one, not even the most powerful and immune warlords, can
openly defend past aggressions against innocent Afghan civilians. This can
only be done by applying political, economic, and media pressure on the
most immune perpetrators across the political spectrum—which is
something international human rights watch groups and analysts critical of
reconstruction can do with greater ease and safety than common Afghans at
this time.
      In addition to the above, international aid and development agencies
can play a fundamental role in not only providing the necessary capital for
rebuilding vital civilian infrastructure and improvements in quality-of-life
arenas such as public health, adequate housing and access to education, but
they can also aid in civil society promotion, such as spreading knowledge of
the technologies that can help build independent media services. Most
importantly, expatriate Afghans working for development agencies could
potentially play a major role in promoting a more constructive dialogue
between native Afghans who have remained in the country during the
decades of war, and the present multitude of foreign legal advisors engaged
in rebuilding the country. In the area of rule of law promotion, for example,
legal aid agencies can assist constructively in the training of personnel for
the state apparatus, which has traditionally held a presence in the largest
Afghan cities, such as Kabul, Kandahar, Jalalabad, Mazar-i-Sharif, Kunduz,
and Herat. 116 The new state-based, official law has a greater chance of

    interview today. He blamed the United Nations, human rights groups and the news
    media for not listening when some prisoners escaped [and] reached Kabul with stories
    of atrocities and executions of soldiers in groups, night after night. “We are very,
    very, very sorry about the attitude of the United Nations and human rights
    organizations, because we have repeatedly told them that our prisoners are being
    killed in Mazar-i-Sharif, and they didn’t take notice. . . . If the hair of a person is
    being cut in Kabul, the whole media is talking about it,” he added. “But 2,000 people
    being killed, and there is no serious interest.”

Barbara Crosette, U.N. Investigates Report of Slaying of 2,000 Taliban Fighters, N.Y. TIMES
(Nov. 18, 1997) at A11.
 116.     Gailani, supra note 61, at 147: “Ninety percent of the Afghan nation use these
codes of honour [such as Pashtunwali] instead of official legislation, which is only used in the
Spring 2007]                Afghanistan’s Reconstruction                               309

taking root in these major municipal centers and is arguably less
problematic of an imposition, because of the diversity of ethnic groups and
legal traditions thriving in these cities (due to increasing urbanization and
the influx of migrants from rural provinces to urban centers in search of
economic opportunities and employment). 117            In light of growing
urbanization and rural flight to cities in the wake of greater economic and
educational opportunities, the Afghan state’s legal structures may be far
more suitable for these urban municipal centers than the more homogenous
rural provinces, where decision-making and mediation by non-state-
sponsored shuras or jirgas are the norm.
     When it comes to building a network of official courts limited to urban
areas, the Afghan state should rework the formal legal codes with the
genuine participation of a diverse council of Afghan ‘ulama and tribal
leaders. In pursuit of this goal, the judicial reform commission should
recruit ‘ulama from all the various provinces, sponsor an inclusive assembly
in Kabul or any other municipal center (similar to the Constitutional loya
jirga process), which would provide administrative laws with far more local
legitimacy than it currently holds. Such a gathering could focus on
incorporating the Islamic law expertise of ‘ulama in such exceedingly
relevant areas as contracts, property, inheritance, and criminal procedure.
Contributions in the latter could include the stringent rules of evidence
required for prosecutions, mitigating elements for those accused of theft in a
state of hunger, and other potential annulments encouraged by Islamic legal
precedents in cases of doubt, duress, or extreme poverty—contextual factors
that are certain to arise and therefore must be taken into account in
Afghanistan’s courts. 118 Furthermore, an Afghan legal code committee
should go beyond incorporating minimum of defense protections for the
accused, such as prohibitions on torture, arbitrary detention, and bribing of
prosecutors; the even more significant contribution would be to do so by
drawing from Afghan sources of law, such as defendant’s rights in Islamic

cities.” Id. The paper hereinafter uses the term “municipal centers” to refer to these more
relatively diverse, multi-ethnic cities in Afghanistan. Id.
  117.     USIP SPECIAL REPORT 117, supra note 50.
  118.     Procedural safeguards in Islamic law and criminal procedure are discussed in the
following works: Gamal Attia, The Right to a Fair Trial in Islamic Countries, in THE RIGHT
TO A FAIR TRIAL 343 (David Weissbrodt & Rudiger Wolfrum eds., 1997); JAMILA HUSSAIN,
RESPONSIBILITY IN ISLAMIC LAW: SHARI’A (1991). The International Legal Foundation’s
recently-established Legal Aid Afghanistan project, which is currently training public
defenders in Kabul, Kandahar, and Kunduz, is a practical example of Afghan lawyers who are
trained in both Shari’a and Afghan customary law, and use their knowledge of Islamic
jurisprudential principles while representing defendants in court.
310                      Gonzaga Journal of International Law                         [Vol. 10:3

jurisprudence. 119 Since one of the underlying objectives is to unify and
standardize state law, judicial reformers should not be blind to the fact that
Afghan lawyers continue to cite to Islamic law and Afghan customary law
in courts regardless of what is written in the new codes, and moreover,
Afghan judges are sympathetic to such efforts to incorporate Afghan
indigenous legal cultures in reform process increasingly tainted by foreign
influence. 120 Rather than excluding or marginalizing Islamic law and
Afghan customary laws, judicial reformers should endeavor to form a
healthier, cross-fertilizing exchange between indigenous law practiced on
the ground, and state law emanating from the courthouses of Kabul.
     By encouraging the involvement of a diverse council of ‘ulama from
the different provinces, there is potential for overcoming legitimacy
problems, and there is some precedence here with the constitutional Loya
Jirga process. On a related note, while virtually all development agencies
have stressed increasing spending on education, they should not shy from
including traditional Islamic educational institutions that will promote a
dynamic and nuanced study of Islamic law in the context of Afghanistan’s
grave humanitarian realities and needs of a modern state, rather than
unilaterally branding Islamic schools with ludicrously broad strokes, such as
“bastions of hate” or “Anti-American pedagogy.” 121 This will also alleviate
fears and concerns on the part of Afghans and Muslims in the region that the
international community is trying to do away with traditional Islamic
seminaries (madrasas) and historically valued institutions of religious
education in Muslim countries, to be replaced by Western-modeled secular
schools. 122

  119.     Id.
  120.     For more information on project Legal Aid Afghanistan, see Projects, The
International Legal Foundation, Ltd., available at (last
visited Feb. 8, 2007).
  121.     For more nuanced analyses on the largely understudied but exceedingly important
topic of the history and possible future of Islamic educational institutions in Afghanistan, see
Pia Karlsson & Amir Mansory, Islamic and Modern Education in Afghanistan – Conflictual
or Complementary?, Stockholm University Institute of International Education (2002),
available at For a
relevant study on conditions of madrasas in Pakistan see Saleem H. Ali, Islamic Education
and Conflict: Understanding the Madrassahs of Pakistan (2005), available at Ali’s study is
neither an imbalanced dismissal nor exaggerated acclaim of madrasas in Pakistan, but rather a
critical overview of the phenomena in the country as a whole, with several noteworthy
observations. For example Dr. Ali notes that “madrassas have been perceived as a
counterweight to feudalism in Southern Punjab. Coupled with environmental resource
scarcity and underdevelopment, the madrassas have provided a physical and emotional refuge
for many families.” Id. at 80.
  122.     Dr. M.Q. Zaman, at a conference in September 2003 aptly summarized the current
tension in Pakistan between the central government and private Islamic educational
institutions, a context with vivid parallels to the situation in Afghanistan:
Spring 2007]                 Afghanistan’s Reconstruction                                    311

     In light of the brutal history of foreign invasions, occupations, and
attempts at imposing colonialism, it should be clear to all that an
indigenously-supported rule of law in Afghanistan will not grow from the
importing of legal texts and institutions. Rather, reestablishing a true “rule
of law” in Afghanistan is only likely to evolve from the presently-
functioning systems of legal order that are active in the provinces, while
limiting new state legal institutions to the major cities. Supplanting
traditional adjudicatory systems in provincial areas with foreign codes will
only obstruct a natural development of legal reform, rendering judicial
reform movements as futile and counterproductive. State resources would
be far more efficiently invested in combating rampant poverty, abysmal
health care services or lack thereof, and gross economic inequalities in
general. The fledgling Afghan state’s failure to respect local legal histories
and customs, exacerbated by a reliance on highly-formalistic foreign-drafted
codes, will actually promote trends of impunity and social disorder by
displacing respected legal actors on the ground such as Islamic jurists or
tribal leaders versed in Afghan customary law, who are precisely the people
capable of settling disputes and resolving conflicts authoritatively in
Afghanistan. Furthermore, as Juan Méndez has argued, “true reconciliation
cannot be imposed by decree; it has to be built in the hearts and minds of all
members of society through a process that recognizes every human being’s
worth and dignity.” 123 This is a process that Afghan ‘ulama—as prominent
educators, independent scholars, and influential members of civil society
across the ethnic spectrum in Afghanistan—can play a pivotal role in
building through the central role of the mosque and Islamic legal norms in
Afghan communal life. 124

                                   VI. CONCLUSION

     This article has argued that the master narrative of post-September 11
foreign intervention in Afghanistan, as presented in speeches of U.S.,

   [G]overnmental initiatives towards integrating madrasas into the educational
   mainstream are but a thinly veiled effort to undermine their status as bastions of what
   the ‘ulama call ‘an unadulterated Islam’ in society and politics. In the 1990s, when
   government officials repeatedly pointed to links between madrasas and sectarian
   terrorism in Pakistan, the ‘ulama often labeled any effort towards reforming their
   institutions, these madrasas, as an excuse to shut them down altogether. In the
   aftermath of the September 2001 attacks, the government’s renewed efforts to regulate
   madrasas came to be seen as the result of international, and especially American,
   pressure to do so as part of the global war on terrorism.

Zaman, supra note 106.
 123.    Méndez, supra note 25, at 274.
 124.    For further reading on the roles of ‘ulama in Muslim societies, see ZAMAN, supra
note 90. Specific to Afghanistan, see SENZIL K. NAWID, RELIGIOUS RESPONSE TO SOCIAL
312                      Gonzaga Journal of International Law                         [Vol. 10:3

Afghan, and European government officials involved in the country’s
reconstruction process, gravely misrepresents local realities by
marginalizing the massive human rights dilemmas and civil disorder that
have survived the overthrow of the Taliban in late 2001. When considering
the ongoing trends of empowering suspected war criminals embedded in the
Afghan government, the human toll of the U.S.-led War on Terror in
Afghanistan, and the imposition of law at the core of legal and judicial
reform activism in the country, the above narrative is an erroneous
assessment of the harsh realities that exist on the ground in Afghanistan
today. Furthermore, gross simplifications that focus on spectacular acts
such as formal elections or new constitutions actually impede efforts to
build accountability for past and ongoing human rights violations in
Afghanistan by framing a misleading portrait of linear progress based on a
Westernizing, civilizing mission—all the while covering up the ongoing
human rights abuses, the tragic consequences of more war on Afghan lives,
and the failure to meaningfully incorporate indigenous actors in the
reconstruction process.
      The exaggerated claims of liberating the Afghan people and
establishing human rights for the first time in Afghanistan’s history are
concealing trends of impunity in the country, by covering up grave problems
inherent to post-Taliban transition in the name of political stability. As an
initial step towards genuine accountability, this paper sought to expose the
master narrative of liberation framed by U.S. media coverage for what it is:
a cloaking of the support of war criminals in the current government, human
rights violations in the U.S. War on Terror in Afghanistan, and even less
visible to the American public’s eye, how the continued marginalization of
indigenous law as legal transplants along Western lines constitute the
driving force behind legal reform in Afghanistan. By sidestepping these
unpleasant realities of intervention, U.S. officials have framed a narrative
substantially different than that of what common people are experiencing on
the ground in Afghanistan. This disparity of stories leads to continuing
support for errant policies on the part of the Afghan government and
international aid agencies, the all-too-familiar insistence by U.S. officials to
“stay the course” in the War on Terror and uphold the status quo, all the
while generating more alienation amongst ordinary Afghans as empty
promises surface day by day. 125

 125.      In the past two years some European media outlets have begun to refine their
coverage of international involvement in Afghanistan. For example, in 2005 the BBC
published an article, noting “it is four years since the fall of the Taleban regime. The United
States has spent billions of dollars on its operations in Afghanistan - but what does it have to
show for it?.” North, supra note 37. In October 2006, the BBC published a report citing that
Afghanistan was at a “tipping point” and warned that up to 70% of the country’s citizens
could “switch sides” and “may start supporting the Taliban unless their lives improve in the
next six months.” Afghans ‘could switch allegiance’, BBC NEWS, Oct. 8, 2006,
Spring 2007]                 Afghanistan’s Reconstruction                                313

     The second half of this paper evaluated potential routes to improve the
distorted reconstruction process in Afghanistan, by focusing on two critical
sociocultural aspects of Afghan society. To start with, the Afghan
government and international development agencies must conduct a closer
study of what people on the ground actually desire and need, and in what
priority they rank those needs. If the Kabul-based government and myriad
international aid agencies carry on with their own insular notions of what is
important for Afghanistan’s reconstruction without consulting its
heterogeneous peoples, rebuilding the country will be an impossible
project—hindered and distorted by self-serving notions of progress, out of
touch with the practical needs and desires of people on the ground, and
constantly battling a stubborn insurgency that is growing in boldness and
strength with every wrong move the dominant reconstruction actors make.
     As a corollary point, the Afghan government and reconstruction
agencies must reassess their practice of marginalizing local religious and
tribal leaders in development programs. In particular, the role of Afghan
Islamic legal scholars (the “‘ulama”) is crucial to any sociolegal
development programs in post-Taliban Afghanistan. Due to the widespread
influence ‘ulama carry on the ground in Afghan society, as well as the
unifying role Islamic culture can play in the now severely fragmented
society of Afghanistan, a sound implementation of accountability-related
goals demands the incorporation of this influential group in the process to a
far greater degree than has been done so far. Not only can non-
governmental ‘ulama serve as an independent constraint on government
excesses, but they are indispensable liaisons, conciliators and, as
Muhammad Qasim Zaman has eloquently argued, “custodians of change” at
a time when there is so little communication between the rather insular
international development community and an Afghan public that is growing
increasingly frustrated, and for justifiable reasons. Whether speaking of the
Soviet-inspired communist parties of the late 1970s and 1980s, the Taliban
in the 1990s, or now the internationally-supported transitional government,
Afghans have been let down by the empty promises of centralizing
governments and their parochial visions of progress for too long.
     After the dreadful attacks of September 11, 2001, the United States in
particular and international community at large recognized a horrendous
blunder in abandoning Afghanistan after exploiting its courageous people to
secure an extremely costly victory over the Soviet Union during the
1980s. 126 Five years later, daunting lessons remain. As we enter 2007 and

 126.     By “costly”, I am of course referring to the over one million Afghans killed in the
U.S. proxy war with the U.S.S.R. in Afghanistan, in addition to 2.5 million Afghans maimed,
over five million made refugees, as well as the lasting psychological, social and economic
consequences of decades of internationally-sponsored war in the country.          Mahmood
Mamdani, Good Muslim, Bad Muslim: A Political Perspective on Culture and Terrorism, 104
314                    Gonzaga Journal of International Law                    [Vol. 10:3

mark the latest anniversary of a post-Taliban Islamic Republic in
Afghanistan, bearing all the complexities and ambiguities such titles reflect,
it has become increasingly obvious that international actors have far more to
learn about law, politics and social organization in Afghan society than
previously assumed. While various foreign investors scramble to rebuild
the country and face ambiguous progress at best, international observers are
beginning to recognize that political accountability and a rule of law in
Afghanistan do not automatically follow the spectacular, fleeting moments
of constitutional ratifications and national elections. Rather, for a
sustainable peace to take root in Afghanistan again, reconstruction agencies
must, as a start, substantially increase their knowledge and understanding of
the diverse legal cultures and systems of law that operate, de facto, on the
ground in Afghanistan. Meanwhile there is an urgent need for outside
forces to respect local law that resonates with the lives of its people,
however unfamiliar to the foreign eye. Beyond this, the same international
forces now controlling reconstruction must relinquish notions of creating
Afghanistan in a Western secular-liberal society’s self-image. A related
prerequisite to the above is entrusting local sociolegal actors on the ground
with the responsibility of building stable and self-supporting civil
institutions on the foundation of their own unique local histories and modes
of conflict resolution, a substantial portion of which is rooted in Islamic law.
Ultimately, the latter is a complex, heterogeneous and dynamic legal
tradition—albeit widely stigmatized and misunderstood outside Muslim
countries—that international actors are now only beginning to realize is far
more sophisticated than ever imagined before the present era of
reconstruction began. 127 Afghanistan’s history would teach us, however,
that this is not the first time foreign powers underestimated the resilience of
indigenous people in this war-torn country. The question remains as to
whether future U.S. administrations, global development agencies, and other
international actors will heed such lessons in time to prevent a repeat of the
past’s catastrophic chain of events.

  127.    For example, an increasing number of American and European legal scholars
involved with Afghanistan’s post-2001 reconstruction efforts have arrived at similar
conclusions regarding the paucity of knowledge surrounding law in Afghan society. See
Afghan Legal History Project, supra note 110. See also Palwasha Kakar, Tribal Law of
Pashtunwali and Women's Legislative Authority, Afghan Legal History Project Paper,
available at; Sarah Lister,
Caught in Confusion: Local Governance Structures in Afghanistan, AREU Briefing Paper 6-7
(Mar. 2005), available at

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