Il va sans dire que cet argument s’applique aux hommes d’État et leaders politiques. D’une part, la création de tribunaux spéciaux en ex-Yougoslavie (TPIY) et au Rwanda (TPIR) et les emprisonnements qui ont suivi ont contribué à miner la culture d’impunité qui régnait jadis chez certains hommes politiques assoiffés de pouvoir. D’autre part, comme l’ont démontré les succès électoraux de Vojislav Koštunica en Serbie et de Stjepan Mesic en Croatie lors des années 1990, il n’est désormais plus rentable sur les plans politique et économique d’être associé aux anciens leaders accusés ou condamnés pour crimes commis en temps de guerre[3]. En effet, malgré la pression de certaines franges endoctrinées souhaitant la réhabilitation d’anciens « héros » ultranationalistes, la crainte d’être isolé à l’échelle internationale suffit souvent à convaincre les leaders politiques de quitter les marges et de reconnaître la compétence des institutions judiciaires internationales telles que le TPIY et, plus récemment, la Cour pénale internationale (CPI).

Or, Akhavan ne limite pas son argument aux leaders politiques. Il prétend que même les seigneurs de guerre somaliens ou afghans ne peuvent plus être indifférents envers le lien entre l’acceptation internationale et leur survie[4]. Pourtant, l’isolation internationale et les représailles telles que la « guerre contre le terrorisme » ne semblent pas empêcher plusieurs seigneurs de guerre afghans d’agir en parfaite violation des principes les plus élémentaires du droit international. Au contraire, l’absence de justice pénale et les opérations militaires exécutées par l’OTAN semblent plutôt avoir pour effet d’exacerber les tensions et de motiver davantage les groupes terroristes et seigneurs de guerre dans leurs actions contre l’hégémonie occidentale.

Dans le même ordre d’idées, il semble également que le caractère « dissuasif » de la responsabilité criminelle individuelle soit inexorablement lié au degré de contrôle de l’État central. En effet, l’arrestation et la comparution des criminels de guerre se font beaucoup plus difficilement dans les pays où le contrôle de l’État central est affaibli, comme en Afghanistan, ou carrément inexistant, comme en Somalie. Dans ces pays, et dans plusieurs autres, de nombreux criminels de guerre pavoisent en toute impunité, à l’abri de la justice tant nationale qu’internationale. Pourtant, l’un des objectifs fixés par le Statut de Rome établissant la CPI est de suppléer les cours nationales lorsque celles-ci n’ont pas la volonté ou les ressources nécessaires pour poursuivre et juger les crimes les plus graves (art. 17)[5]. Il va donc sans dire que l’aspect « dissuasif » de la justice pénale internationale est beaucoup plus limité dans ces pays où la justice nationale est restreinte et où la justice internationale – qu’il s’agisse de tribunaux spéciaux ou de la CPI – est absente.

Finalement, une autre limite à l’argument de la « dissuasion » pourrait être soulevée : de nombreux pays refusent toujours de ratifier le Statut de Rome et d’ainsi reconnaître la compétence de la CPI. Parmi ceux-ci se trouvent des puissances internationales telles que les États-Unis, la Chine, la Russie et Israël. Malgré leur statut politico-économique, il devient plus difficile pour ces pays de se servir d’institutions judiciaires internationales pour inciter certains acteurs internationaux à respecter le droit international lorsqu’eux-mêmes refusent d’être soumis à la compétence de la plus importante cour de justice pénale internationale.

[2] Ibid., p. 12.

[3] Ibid., p. 14.

[4] Ibid., p. 12.

[5] Art. 17, Statut de Rome.

Edney worked from 2004 to 2011 on Omar Khadr’s defence against charges stemming from the July 2002 firefight death of a US soldier. Khadr, who is Canadian, was 15 at the time. American forces interrogated him for three months in the US-operated Bagram Theatre Detention Facility in Afghanistan, before transferring him to Guantanamo Bay, where he remains. In 2005, Khadr’s chief interrogator from Bagram, US Sergeant Joshua Claus, was found guilty of offences relating to the routine torture and homicide of Bagram prisoners. Claus received a five-month prison sentence. He testified at Khadr’s military trial in 2010.

In April 2009, the Federal Court ruled that Canada was complicit in the US’s torture of Khadr and ordered Ottawa to seek his repatriation. The Federal Court of Appeal concurred, but the Supreme Court ruled 9-0 that though Canada was violating Khadr’s human rights, it was not obliged to seek his repatriation.

In October 2010, after insisting on his innocence for years, Khadr pled guilty in a military trial to terrorism-related offences, in exchange for a promise from Canada to repatriate him by October 2011 to serve the rest of his prison sentence in Canada. On September 20, the Conservatives tabled the controversial omnibus Bill C-10, which adds “additional criteria” to decisions about “whether or not to allow the transfer of a Canadian offender back to Canada to serve their sentence.”

Shortly after the trial, Edney declared that Khadr “would have confessed to anything, including the killing of John F. Kennedy, just to get out of this hellhole” and that if he had refused, Khadr would have been faced with “an unfair [military] trial based on evidence that would be inadmissible in a real court.” On Thursday, Edney said the detainees are entitled “to all kinds of international protections, but our governments are not asking for them. And by not asking, we become complicit.” There are nearly 800 prisoners in Guantanamo, but only 4 have been charged and given a trial. Detainees cannot see the evidence held against them.

In his lecture, Edney denounced the Canadian government for perpetuating a culture of fear in defending the camps. Edney stated that “since there has always historically been terrorism, and since there will always be terrorist threats, this war on terror – if allowed to be one – is unlike any other, because it is never-ending.” Thus, last decade has been marred by “habeas corpus being abandoned, secret courts being created to hear secret evidence, guilt inferred by association, torture and rendition nakedly justified.”

“I went into Guantanamo Bay as a lawyer and I came out as a broken father,” said Edney. “I never thought that in my lifetime I would go to such an evil place and see such evil being done.” Of the infamous cages, Edney said that “people go into those cages thinking they’re having a holiday in there.” He drew attention to Camps 5, 6, and 7. The first two are “designed for enhanced interrogation tactics: torture.” He said about Camp 7 that “We are not allowed to talk about it. We have prisoners in there who came from Europe, about a year and a half ago, and they’re going to be there forever, because there’s no one there to help.”

Edney discussed the 9/11 witch hunt, in which “the US government detained hundreds, if not thousands, of people of colour on the suspicion of terrorist activity, some of them up to a year, all without charges.” He continued that “almost none of those individuals were found to have been in any way connected with terrorism. Yet many continue to be held without being formally charged with any crime or immigration violation.” In this way Guantanamo “provides powerful evidence of how America and the West are making war on terror synonymous with the war on Islam. No white Anglo-Saxon goes to Guantanamo Bay. Any American picked up for terrorism offences gets due process in a federal court system in New York.”

One audience member suggested that the camp must serve some purpose, because otherwise US President Barrack Obama would have followed through on his promise to shut it down. Edney responded that the camp primarily functions as “an important propaganda tool.” He argued the Obama administration has in fact “systematised” the culture of torture normalised under George W. Bush, for instance by disallowing victims of extraordinary rendition from suing Washington for torture suffered overseas.

Edney was also critical of “lazy” media and academics who have persisted in “slotting events into a sort of juicy clash of civilisations story,” as exemplified by mainstream media coverage of Anders Behring Breivik’s terrorist attack in Oslo. He killed 69 people in July, avowedly to protect Europe from Muslims. Edney said, “as soon as the bomb went off, media organisations began reporting on jihadist organisations.” This, he said, “fit perfectly the story we have all been telling each other since 9/11 that who else, who else could be so hateful, so crazy, so disrespectful of life but Muslims.” He pointed out that though Breivik is a white Norwegian Christian, “we don’t hold Christians or conservatives or liberals responsible for Brievek’s despicable acts.”

He said that “since September 11 2001, race, ethnicity, and religion have become proxies for suspected terrorist activity, which in turn has become a pretext for the application of Canadian immigration laws in an unequal manner towards Arabs, South Asians, Muslims and so on.” In an apparent nod to Bill C-4, the anti-refugee bill that the Conservatives tabled on Tuesday despite widespread condemnation, he noted that “we just have to listen to media descriptions coming out of Ottawa when we talk about refugees today. We call them queue jumpers and potential terrorists.”

Edney also expressed anger at the public’s willingness to be lulled into complicity. He described the transfer of the prisoners to Guantanamo “in rows in aircraft, hooded and shackled for transportation across the Atlantic” as similar to eighteenth century slave ships. He maintained that for “the watching world, no knowledge of international humanitarian conventions is needed to understand that what was being witnessed was simply unlawful.” He blamed public apathy for “allowing anti-Muslim sentiment to become part of our mainstream conversations.” He said, “I say to you we cannot tackle manifestations of intolerance, unless we learn and understand how the constant use of fear pervades our everyday life, and how that fear is being used to influence how you and I think and how you and I act. It’s that same manipulation of fear that has allowed military escapades into countries beyond those who bombed the twin towers. It is that same message that has been exploited by participating countries to reduce civil liberties and infringe upon human rights by allowing such places as Guantanamo Bay to exist.”

The need for action had been a prevailing theme throughout the lecture. Edney returned to it at his lecture’s close: “Not only does it [Guantanamo] continue to exist, they continue building it. Guantanamo is going to be there for a long, long time, unless you do something. Unless you really do something about it.” He concluded that “the only crime equal to willful inhumanity is the crime of indifference, the crime of silence, the crime of forgetting.”

In that vein, we cannot afford to forget that Guantanamo Bay’s precedents in the West include Canada’s own internment camps, built in BC expressly to detain Japanese-Canadians during WWII. Similarly, Bill C-4’s predecessors include the head-tax policy on immigrants from China.

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 that we are borrowing from warring traditions.[1] [emphasis added]

Singer’s comments provide an enlightening (albeit contestable) suggestion that in the seeking of a solution to a legal dilemma, the use of “multiple normative strategies”, – strategies that may even create inconsistencies from problem to problem – can provide meaningful solutions.

A country’s constitution (whether written or unwritten) can open the door to a spectrum of normative interpretations. The role of any given constitution is to assert broadly defined values which extend over a diverse people within a region. These constitutional principles are normally consistent with a broad notion of human rights; thus, they encapsulate what can be viewed as the “fundamental rights” of the individuals which they extend over. However, contrary to conventional conceptions of constitutionality, a constitution does not necessarily entail that these principles are reached in one particular way.[2] For purpose of this discussion, it suffices to focus on chthonic law and state law, since elements of these two systems are often viewed as being at odds and since the Shari’a overlaps with both sets of laws.[3]

An examination of the 2004 Constitution of Afghanistan reveals how the country seeks to confer certain broadly defined fundamental rights on all its citizens.[4] The Constitution specifically includes the right to liberty, the presumption of innocence, the right to form social organization, the right to legal defense if accused of an offense under the law, and freedom of expression. The attainment of these fundamental rights can be consistent with a pluralistic conception of the law. Fundamental rights can be attained not only through state legal mechanisms but also through chthonic legal mechanisms. It is certainly arguable that the jirga/shura institution, which implements chthonic law, is just as able as state courts to implement justice in a manner that fulfills the ultimate attainment of justice to the individual. This approach to the fulfillment of constitutional principles through chthonic laws raises other questions. In the attainment of fundamental rights, how should a choice of law rule be implemented when substantive chthonic and state laws come into conflict? In what instances should courts be reviewing decisions of the jirga/shura institution, and what should be the standard of review? Finally, in what instances can one derogate from fundamental rights and to what extent?

Scenario – Murder case before a Jirga/Shura

Consider the scenario where a jirga/shura dealing with a murder case may lead to a decision to reconcile the parties through the practice of bad, which entails the swapping of brides. In such instances, though community justice may be fulfilled, the ruling may be abhorrent to fundamental justice as provided by the Constitution and understood under state law. The practice of bride swapping infringes on the well-being of some Afghan citizens, namely the females being implicated, and thus the state has an interest in protecting its citizens according to its notion of justice.[5] Legal pluralism will inevitably result in such legal quagmires where the rule of law based on one set of normative laws will directly be in conflict with the rule of law based on another set of normative laws.[6]

The approach of Singer may provide some instruction in dealing with such situations. A fixed set of a priori rules will not be able to deal with such a normative clash. Rather the judge or party weighing the interests of various normative laws must use “multiple normative strategies”. He must judge between apples and oranges  – he must analyze the extent to which a decision is consistent with one set of legal norms, as opposed to the extent to which the decision is abhorrent to an alternate set of legal norms. As well, he must take into consideration other factors, such as considering other legal norms that may claim authority – for example the Shari’a and international human rights norms – all of which he must factor into his final ruling. The judge must undertake his analysis on a case-by-case basis since much will revolve around the facts. In addition, the judge must be well versed in multiple sources of law, or minimally be ready to embark upon exploration of various normative legal norms, in trying to balance between the norms. Indeed, in case which involves two or more constitutional principles, a judge may be required to weigh fundamental rights against one another.

This scenario raises another important issue in the overall administration of justice: how should it be decided that a jirga/shura decision be reviewed by a state court? The jirga/shura institution and state courts already exhibit a level dynamic interplay between the two legal orders – a mixture of cooperation and tension. On the one hand, state courts already refer cases (including criminal murder cases)[7] back to the community level, limiting its own authority in favour of that of chthonic system. In this manner, the state system indirectly gains esteem in the eyes of rural Afghans through its cooperation with the chthonic system. On the other hand, in certain cases, the state system may seek to assert this strengthened authority by bringing in select cases of jirga/shura decisions before the court.

There need not exist a blanket policy concerning specific categories of cases that should always come before the state courts.[8] Rather, the state can proceed by identifying certain broad categories of cases that it feels “may” lead to a potential clash of normative legal orders – areas such as women’s rights cases and criminal cases – and monitor the activities of jirga/shura decisions in these areas.[9] A state actor would only raise a concern if it felt that a fundamental right (according to the state’s conception of justice) embodied by the Constitution was not being adhered to, causing a clash of normative values (in the manner analogous to scenario two, mentioned above).

Establishing a functional/functioning legal system in Afghanistan will take many years. Doing justice to this slow process requires that all conceptual postulates be brought to the table – with full knowledge that many will only be considered, studied, and retired.

[The entry draws extensively from a research paper entitled Re-conceptualizing Legal Pluralism in Afghanistan, written under the guidance of Professor Megret]

[2] C Himonga and R Manjoo” What’s in a Name?” in Manfred O. Hinz, ed., The Shade of New Leaves – Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 329.

[3] Looking at these legal systems without focusing on the Shari’a facilitates a simplified discussion at this juncture. However, it certainly may be desirable to keep all three legal systems separate if one were to undertake a fully exhaustive exploration of the various interactions between the three systems.

[4] Constitution of Afghanistan 2004, trans. by Yahya Wardak (Kabul, Afghanistan: Shah M Book Co, 2004). Chapter 2 of the Constitution deals with fundamental rights.

[5] An even more complicated example would arise the female did not contest (or even tacitly approved) begin “bride swapped”.

[6] Gordon R. Woodman, “Legal Pluralism and the Search for Justice” (1996) 40 J. African L. 152 at 160.

[7] USAID, “Afghanistan Rule of Law Project” A publication for the United States Agency for International Development (2005) at 11.

[8] This suggest is contrary to the opinion of various organizations that work in Afghanistan, such as the USIP and the Norwegian Refugee Council, who both assert that all serious criminal cases, such as murder, must be dealt with at the state level, without exception.

[9] Wardak provides more some pragmatic suggestions on how such monitoring could be set up. See Ali Wardak, “Building a Post-War Justice System in Afghanistan” (2004) 41 Crime, L. & Social Change 319.

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 assertion of enforcement jurisdiction (Hape, para. 85).[1] I believe that this assertion is incorrect and has lead to the mistaken assumption that aside from fundamental human rights exceptions, the extraterritorial application of the Charter is only possible with the foreign state’s consent.

In his commentary on this case, Professor Forcese suggests that the Court in Hape causes confusion by positing that the extraterritorial application of the Charter overseas must necessarily engage extraterritorial enforcement jurisdiction. In Hape, LeBel J. correctly asserts that applying the Charter entails both prescriptive and enforcement jurisdiction. But from this premise, he incorrectly moves to conclude that to apply the Charter overseas, we must always enforce it extra-territorially. As I stated in my last post,

While enforcement is most definitely required, I see no reason why it cannot occur entirely within Canada. Doing so might not be as effective as extraterritorial enforcement, but it would still deter Canadian authorities and agents operating overseas from acting in a manner that is inconsistent with the Charter (especially those who plan to return to Canada).

Thus, I submit that there are instances where the extraterritorial application of the Charter is possible without having to send Canadian agents overseas to enforce it.

The factual circumstances in Amnesty International demonstrate that applying the Charter overseas does not necessarily entail an extraterritorial assertion of enforcement jurisdiction. Firstly, the actions to be limited by the Charter were the formal arrangements entered into by Canada and Afghanistan regarding the transfer of detainees, and the decisions of the Canadian Forces to transfer detainees. Applying the Charter in this situation would not involve sending Canadian agents overseas to enforce the Charter. It would primarily require the Chief of the Defence Staff to negotiate a detainee transfer agreement that contains the appropriate safeguards against torture; and require the Canadian Forces to refuse to transfer a detainee where there is evidence of a risk of torture. As Forcese argues, “Canada would not be applying its norms to foreign actors, just asking its own nationals to abstain from overseas behaviour inconsistent with the Charter.”

Secondly, it is always possible to enforce the Charter by arresting or summoning those who violate the Charter overseas once they return to Canada. The threat of sanctions or the loss of the ability to return to Canada would deter most state actors from violating the Charter. Moreover, in this case, Canada could easily have arrested or summoned the primary defendants because they were senior state actors (the Chief of the Defence Staff, the Minister of National Defence, and the Attorney General of Canada) who spent a lot of their time in Canada. Thus, contrary to what many may think after reading Hape, it is possible to apply the Charter to overseas action without asserting extraterritorial enforcement jurisdiction.

I disagree with Mactavish J.’s conclusion that applying the Charter to the actions of the Canadian Forces in Afghanistan would result in an “impermissible encroachment” on the sovereignty of Afghanistan (para. 212). Instead of determining whether applying the Charter overseas would have actually interfered with Afghanistan’s sovereignty and then looking for consent, she jumped straight to establishing whether Afghanistan had consented to the application of the Charter (para. 145). She did so after accepting Hape’s assertion that the extraterritorial application of the Charter necessarily entails asserting extraterritorial enforcement jurisdiction (para. 121). This assumption lead her to conclude that if Afghanistan did not consent to the application of the Charter, there would be interference with its sovereignty (para 127). Thus, her reliance on Hape meant that she never actually examined the nature of the assertion of jurisdiction required to apply the Charter overseas and determined whether it interfered with Afghanistan’s sovereignty. Having already obtained consent from Afghanistan to detain individuals on Afghan soil and signed an agreement with Afghanistan governing the transfer of detainees, Canada would not have interfered with Afghanistan’s sovereignty if it refrained from transferring detainees until the adequate safeguards were being followed.

It is most disappointing that the SCC did not hear this case and clarify under what circumstances the extraterritorial application of Charter actually demands extraterritorial enforcement. Without such clarification, it seems like judges will assume that enforcement jurisdiction is always necessary when applying the Charter overseas, and thereby, conclude that Canada must obtain the foreign state’s consent to avoid violating its sovereignty. As I argued in my last entry, the consent of the foreign state should not be the determinative factor for establishing whether the charter applies outside of Canada. The analysis should first determine whether the extraterritorial application of the Charter to the specific circumstances raised by the given case, would actually interfere with the sovereignty of the foreign state. Only if it does so, should the court move to establish whether the foreign state has consented to the Charter’s application.

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, Lindsey Cameron suggests that two incidents – to which I shall add a third – have driven the discourse.[8] First, the death of four employees from Blackwater Worldwide, a private security company now known as Xe Services, and the ensuing attack on Fallujah in 2004. The use of “overwhelming force”[9] suggests the contractors were carrying out an undeniably military function, and should be treated as combatants under IHL. The second and third incidents involved allegations of torture by CACI International of Abu Ghraib detainees and the 2007 shooting of 17 Iraqi civilians by Blackwater employees.

In effect, PMSCs are able to act outside of the law. Contractors performing military functions in armed conflicts are inter alia vulnerable to being captured and denied protection, just as they are capable of committing de facto war crimes. It is unacceptable that crimes could be committed under international law and neither an individual nor a government could be held accountable.

In dealing with PMSCs, international humanitarian law’s binary categories and status determinations (“civilian” or “combatant”) are problematic; every individual must be either a civilian or a combatant. Though clear-cut rules and mutually exclusive categories facilitate effective and coherent implementation of IHL, they also create gaps that leave the law paralyzed when it is confronted with anomalous entities that do not fit cleanly into one of the categories.

The question remains: are PMSCs combatants? Their status determination is critical because it affects whether or not an individual can (a) be targeted, (b) participate in hostilities, and (c) be prosecuted for breaches of the laws of war (as they are enshrined in the Geneva Conventions and their Additional Protocols).

Cameron argues that the status of PMSC employees hinges on either their integration into a state’s armed forces under Art. 4A(1) of the Third Geneva Convention (GCIII) or Art. 43 of Protocol I, or their qualification as “militia” under Art. 4A(2) GCIII. Meeting the first requirement depends on the internal laws of the state, while the second requires that conditions (a)-(d) of Art. 4A(2) GCIII be meet by “the group as a whole.”[10] It is challenging however, to determine the status of private contracting firms in which some members perform peaceful functions (such as feeding, housing and clothing the troops) while other members take direct part in hostilities.

The outsourcing of military functions is a modern day reality. “It is a fact that currently private contractors are the equivalent of an American Express card … the U.S. military literally can’t go to war without them,”[11] notes David Isenberg, an adjunct scholar at the Cato Institute.

“The problem is less one of the fact that outsourcing is occurring … but the issue is how it is managed,”[12] suggests Stanger. Private contractors when performing combatant functions should be held to the same humanitarian law standards as parties to the conflict. Responsibility should furthermore fall on the contracting government to manage the dissemination of IHL to ensure that any individual likely to be engaged in combat is aware of the existing legal framework that should guide his actions. We cannot continue to let private military and security contractors fall through the cracks in IHL.

[2] Based on data from the U.S. Congressional Research Service. Thomas Friedman, “The Best Allies Money Can Buy” The New York Times (3 November 2009), online: < http://www.nytimes.com/2009/11/04/opinion/04friedman.html>.

[3] Friedman, supra note 2 at 1.

[4] James Glanz, “Contractors Outnumber U.S. Troops in Afghanistan” The New York Times (1 September 2009), online: < http://www.nytimes.com/2009/09/02/world/asia/02contractors.html?_r=3&scp=1&sq=Contractors%20Outnumber%20U.S.%20Troops%20in%20Afghanistan&st=cse >

[5] Friedman, supra note 2 at 1.

[6] Ibid.

[7] James Risen and Mark Mazzetti, “C.I.A. Said to Use Outsiders to Put Bombs on Drones” The New York Times (20 August 2009), online: < http://www.nytimes.com/2009/08/21/us/21intel.html >.

[8] Cameron, supra note 1 at 574.

[9] Ibid.

[10] Cameron, supra note 1 at 583.

[11] David Isenberg, “Contractors and Cost Effectiveness” The Huffington Post (23 December 2009), online: < http://www.cato.org/pub_display.php?pub_id=11083 >.

[12] Mickey Edwards, “So who’s in charge?” The Boston Globe (25 October 2009), online: < http://www.boston.com/ae/books/articles/2009/10/25/so_whos_in_charge/ >.

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 mechanisms. Sharma & Sen show why customary mechanisms yield so much trust and confidence:

“First, it is focused on substance than on procedure. Second, it aims at compensation and reconciliation and not at punishment. Third, the concerned parties believe that justice is being done.” (p. 49)

Allowing customary law to operate within a state system is not an entirely new concept. Several other countries have legal systems where authority is shared with customary rule of law. In Bangladesh, India and Malaysia, certain indigenous communities conduct their legal affairs through customary legal mechanisms. The scope of such affairs is usually confined to civil, property, and marriage issues as well as minor criminal matters. In India, this limited legal autonomy is constitutionally entrenched. Similarly, South Africa has set up a Law Reform Commission that has been actively exploring, and facilitating (albeit cautiously), interaction between state and customary legal systems. Scholarship on legal pluralism within Africa is a rich domain, with literature spanning the better part of the last century (3).

Scholarship on Afghanistan’s legal system may not have the same depth as in other areas of world; however, a wealth of literature on the potential of legal pluralistic approaches is now available. Drawing from this literature is not only instructive in terms of the success stories, but also in terms of the dilemmas that must be addressed when state and customary legal systems clash. Two such points of conflict are worth mentioning:

1. Normally customary legal systems function “under” (or within) the state legal system. The interface of these two systems regularly challenges those engaged in the process. State law, particularly in Afghanistan which has a civil code, aspires to consistency and predictability in the laws applied. This understanding of law generally contrasts with customary law, which allows the various parties to negotiate and find a solution which best suits their needs. One approach suggested for facilitating the interaction of the two systems is to codify customary law when possible, thus adding a level of consistency. This approach has been sharply criticized, as to codify customary law would be to add rigidity, altering its very essences of fluidity and adaptability (4). Moreover, in a country where the vast majority of the population is illiterate, one must question the practicality of adding in another legal text to the growing pile of written laws already in existence. The other approach is to allow customary law to function as it does with the caveat that it is governed by the country’s constitution. Thus, the state would play a role in ensuring that the customary laws do not contravene broad constitutional principles. However, this approach may give customary mechanisms more control (and less accountability and consistency) than some may find desirable.
2. Customary legal norms must be cautiously reconciled with human rights practices. One should approach customary law with the intention of respecting diverse normative values. Nonetheless, gross violation of rights, particularly those committed against women, must also be added. Customary practices vary according to region. For example, in some regions the swapping of women between families is as accepted a practice as recompense for major crimes (i.e. murder). Practices which constitute human rights violations must be circumscribed accordingly if customary mechanisms are to be given authority.

The task of starting nearly from scratch and setting up a functional legal system in Afghanistan may appear daunting. However, co-opting the assistance of customary legal mechanisms that are already in place, while remaining cognizant of the issues which normally arise when aspiring to legal pluralism may provide a fruitful avenue for progress.

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1: Much discussion and controversy in modern scholarship surrounds the use of the term “customary” law, in part because it raises the image of an archaic social order. At times, it is alternately called informal law, chthonic law, or tribal law.

2: Amongst those who have written on this topic are: USIP, Wardak, and the Norwegian Refugee Council.

3: Some notable individuals who have contributed to the relevant scholarly discourse: Gluckman, Bennett, and Bekker.

4: T. W. Bennett and T. Vermeulen, Codification of Customary Law, Journal of African Law, 1980, Vol. 24 No. 8, p. 206