Legal Pluralism in Afghanistan Revisited: From Theory to Practice

In one of my earlier blogs focusing on Afghanistan, I spoke about the possibility of reconciling the various systems which exert authority within the country. The next question that arises is what this actually mean for Afghanistan.

Framework for Navigating Normative Variations

In moving from theory to practice, it may be most fruitful to take a step back from the various abstract and, at times, esoteric discussions of legal pluralists – a discussion based in legal anthropology – and step into the shoes of the practicing lawyer. The realities she faces day-to-day shed light on the task of navigating through competing normative realities. The writing of Professor Singer, in this regard, is particularly insightful:

Many philosophers seek theories that dissolve incommensurabilities by appealing to higher order norms or metatheories that provide rational priorities among competing values. Lawyers and judges and law makers, on the other hand, are rarely beguiled by monistic theories. We make utilitarian arguments; we talk about rights, justice, fairness; we are concerned to define the appropriate institutional role for judges in a free and democratic society; we tell the story; we resort to process to solve substantive problems. Moreover, we are skeptical about the ability of rigid priority rules to determine just outcomes in specific cases. In short, we use multiple normative strategies, unashamed that we are unable to find killer arguments that put all normative controversies to bed or…

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Does the Charter Follow the Flag? the Afghan Detainee Transfers Example

In 2007, Amnesty International Canada and the BC Civil Liberties Association brought an application for judicial review of the transfer of individuals detained by the Canadian Forces deployed in Afghanistan. This action arose from allegations that the Canadian Forces were not taking adequate precautions to ensure that individuals, whom the Canadian Forces captured in Afghanistan and transferred to the Afghan forces, were not being tortured. To support their application, the plaintiffs sought a declaration that sections 7, 10 and 12 of the Canadian Charter of Rights and Freedoms (the Charter) applied to individuals detained by Canadian Forces in Afghanistan. Both the Federal Court and the Federal Court of Appeal held that the Charter did not apply to the actions of Canadian Forces in Afghanistan.

Having previously argued that the Supreme Court of Canada (SCC) should narrow its ruling in Hape, I was disappointed to learn that it turned down an opportunity to hear this case. In my last entry, I argued that when establishing whether the Charter applies overseas, the foreign state’s consent should only be the determinative factor where Canadian authorities or agents would be enforcing the Charter in that state. With all due respect to Mactavish J.’s efforts to navigate Hape’s legal labyrinth, the Federal Court’s decision in Amnesty International reveals the confusion resulting from Hape. This confusion stems from LeBel J.’s assertion that the extraterritorial application of the Charter necessarily entails an extraterritorial…

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Sliding Through the Cracks: U.S. Private Military Contractors and International Humanitarian Law

“Some of the newest armed non-state parties operating in unstable states and conflict situations come from an unusual source: the private sector.”[1]

Expansion of U.S. involvement in Iraq and Afghanistan has made private military and security contractors (PMSCs) virtually indispensable. In her book One Nation Under Contract: The Outsourcing of American Power and the Future of Foreign Policy, Allison Stanger reveals that last year, PMSCs accounted for 48 percent of the U.S. Defense Department’s workforce in Iraq and 57 percent in Afghanistan.[2] “Without a multinational contractor force to fill the gap,” she argues, “we would need a draft to execute these twin interventions.”[3] Hired help it seems, is the only way for a thinly stretched U.S. military to sustain current operations.

“On a superficial level, the shift means that most of those representing the United States … will be wearing the scruffy cargo pants, polo shirts, baseball caps and other casual accoutrements favored by overseas contractors rather than the fatigues and flight suits of the military.”[4] A closer look reveals that today’s private contractors do everything from providing security services at U.S. embassies[5] to performing “enhanced interrogations” – a.k.a. torture[6] – at Abu Ghraib and loading bombs onto remotely piloted Predator drones that lethally target members of Al Qaeda.[7]

This growing involvement in core military operations has sparked debate over the role, status and accountability of private contractors under international humanitarian law (IHL). In her contribution to the International Review of the Red Cross,…

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Afghanistan – Reconciling State and Customary Legal Systems

Nearly 30 years of war and conflict in Afghanistan has left the country’s already weak legal system in total disarray. The question on the minds of many policy-makers, academics and politicians – both local and international – is how to structure a legal system conducive to stability and accountability. Afghanistan has never had a strong legal system. Officially, the country is a civilian jurisdiction, whose civil code is strongly influenced by Islamic law, particularly the Hanafi school of thought. The reality is that the country exhibits a complex relationship between civilian, Islamic, and – most significantly – customary Law (1). Rather than treating customary Law as an impediment to progress, it should be viewed in terms of its potential for creating greater inclusion into the overall legal system, particularly for rural Afghans.

Increasingly, recent scholarship on Afghanistan has suggested that the way forward for the country’s legal system is greater cooperation between state and customary laws (2). This assertion simply reflects the reality that most Afghans, particularly those in rural areas, have far more trust in legal mechanisms at the local level than at the state level. In a 2008 survey done by the Asian Foundation, less than half of respondents trusted state courts, versus customary mechanisms, which have the support of the overwhelming majority of respondents. As of 2007, up to 80% of legal claims were being handled by customary dispute…

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