Afghanistan: The Rule of Law and the Law of Rules

Fallckolm Cuenca is a Rule of Law Training Advisor at EUPOL, the European Union Police Mission, Afghanistan. He works predominantly with Criminal Investigation Department Police as well as Prosecutors. As noted in a recent USIP article on the Police Transition in Afghanistan, EUPOL is involved in “enforcing the rule of law, controlling crime, and protecting Afghan citizens.” Calling in from Kabul, Cuenca discusses his work and EUPOL’s progress in building capacity in Afghanistan.

Corruption is endemic in Afghanistan, or so is said by international observers. How is EUPOL contributing towards fighting it?

EUPOL has an Anti-Corruption Department that is part of the Rule of Law Component of the mission. It trains and advises on effective, credible, and sustainable anti-corruption detection and investigative capabilities. It works closely with the Attorney General’s Office and the Ministry of Interior. It’s important to recognize from the outset that EUPOL is strictly a SCSDP (Common Security and Defense Policy) Mission. We train, mentor, and advise. We build capacity, but we don’t have an executive mandate as has been the case of police missions in other conflict zones. It’s important to stress that EUPOL only supports an Afghan-led process. We don’t infringe on the decision-making or political processes of the country. EUPOL was recently in the lead by organizing the first National Procurement Conference which took place in Kabul on November 5, 2013, financed by the World Bank. The conference discussed the development of an efficient and transparent procurement system in the country. The idea is to get key ministries to commit to existing procurement law and help enforce the efficient and transparent expenditure of public funds. One of the principal topics at the conference was the significant percentage of state funds lost to corruption. Another was that the private sector needs to be involved in this fight. Procurement is an iffy issue. Most of the contracts in any country go to private contractors, whether we build roads, stadiums, or airports. There needs to be transparency.

Public and Private Partnerships and economic development are often cited as a necessary condition for ending violence. The European Union was in many ways designed under such an assumption. Does EUPOL indirectly address economic need by providing the rule-of-law toolkit to Afghan institutions?

The private sector is a driving force behind economic development everywhere, in Europe or Afghanistan. I also think it’s impossible to seriously talk about stability or sustainability unless you take a development approach, no matter what type of mission you’re working for. <spanclass=”pullquote”>I am at pains to find a country that has armed itself to stability and security. Having observed that, EUPOL is not a development mission, but it obviously can’t ignore, and indeed is part of, the larger context. We do contribute to building sustainable capacity and strengthening the rule of law, which in the long run should lead to economic development.

Is EUPOL seeking to replace the legal systems of the country with “European” juridical norms or does it seek to accommodate them?

Our mandate is not to impose a layer of ‘western norms’ or change the fabric of Afghan society. However, it’s inevitable that the international mentors and advisors bring practices and lessons learned from their societies and the other missions they’ve worked in. That is the beauty of EUPOL. Everyone who works here has a unique perspective on what it means to fulfill the goals of the EUPOL mission. It is ultimately beneficial to have a variety of perspectives on how to carry out our mandate. Still, Afghanistan does not exist in a bubble. It is part of the international community, and assisting the country in complying with international human rights instruments preventing trafficking, child labor, and promoting gender equality, is of course part of the EUPOL mandate.

Aren’t the traditional or tribal systems often considered ‘backwards’ and ‘medieval’?

First, I don’t agree with the term ‘backwards’ or ‘medieval’. Having said that, I think this question is highly relevant. A follow-up question is: “In Afghanistan, who is the custodian of the rule of law?” and “Who is the custodian of the law that rules?”.  These two roles don’t always overlap in Afghanistan. EUPOL trains, advises, and mentors on the legal practices as defined by the formal judicial system. That is, the law as governed by the constitution of Afghanistan. Traditional or tribal justice, which is not to be confused with Taliban justice, is often much more accessible and better understood by those who seek recourse through it. I’m absolutely not flagging for traditional justice, because we know that harmful practices persist. Yet, it is essential to understand what it proposes… that is, where the boundaries of its influence are. The traditional dispute mechanisms can be more reconciliatory and predictable for communities. You know the elder of the village, and you know that he will solve your problem.  Sometimes it’s faster, cheaper, and whether you like the outcome or not, it’s part of being in the community. They have a method for bringing people together who don’t have other means of resolving differences. Whether we as internationals agree with it, that’s a different issue. There is merit in bridging both the formal and traditional legal systems under current circumstances. This is not to say that ‘bridging’ should aim at strengthening traditional justice, but rather define its jurisdiction and integrate the trusted mechanisms into the formal justice system. EUPOL does have experts in the Rule of Law Component of the mission with ample experience working with traditional justice.

How much legal control does Kabul exercise over the rest of the country?

I would be hesitant to say that Kabul doesn’t have legal control. There are several dimensions, and if the question is does Kabul have control over its subjects and its borders, the answer is yes. Does the formal rule of law extend to everybody? That is something EUPOL is currently addressing.

After six years in Afghanistan, what is the report card for EUPOL’s efforts?

It is difficult to isolate EUPOL successes from the successes of other organizations.  We all share the successes and the challenges, of which there still exist many of the latter. Chief amongst them is how Security Sector Reform (SSR) stands in Afghanistan. I know that a lot of my colleagues disagree, but this has been a slow and gradual process. That being said, nobody enjoys or thrives in a climate of fear. Success hinges on the fact that we all want to feel secure. People here have suffered a lot, and I think that their grievances have not been dealt with in a way that lays a foundation for future transitional peace. Rule of law is about protecting people and their fundamental human rights, and EUPOL is all about achieving that goal. This might seem to be a romantic or even naïve outlook from my side, but I am willing to take on that challenge.

Feature Photo: cc/(EUPOL Afghanistan Media)