Better Evidence Will Lead To More Justice In Afghanistan

Rule of law is the lynchpin to long-term stability in Afghanistan. Yet the military's tradition of steering clear of law enforcement activities, especially evidence-gathering responsibilities, is weakening Afghanistan's already imperiled justice system.

A recommendation in Gen. Stanley McChrystal's Afghanistan assessment may finally cast that tradition aside. It suggests that international forces be trained to "better collect...evidence for prosecution" in Afghan courts. If done correctly, this could dramatically improve Afghan security and strengthen the country's rule of law.

When international forces capture somebody -- during a battle, a house search, while on patrol -- they interrogate the detainee, gather biographical information, snap some photos, take finger prints, and write a brief report. The detainee, along with the information, is then handed over to Afghan authorities for criminal investigation and prosecution (unless the person is released -- or kept at the U.S.-controlled Bagram detention facility).

Afghanistan's central Pul-e Charkhi prison facility holds over 5,000 detainees

The big three detaining powers in Afghanistan are the United States, United Kingdom, and Canada -- in that order. Some countries do better than others at gathering information. For instance, Canada sometimes conducts gunpowder resin tests. But military operations need to include more people who are trained in essential evidence gathering techniques, such as maintaining a chain of custody. The International Security Assistance Force (ISAF) should establish uniform guidance on how to collect information. And international forces should also take into account what Afghan judges and prosecutors regard as strong evidence.

Because these practices aren't in place, Afghan officials are handed a variety of different types of documents and evidence often ill-suited for Afghan courts. The Afghanistan Working Group on Conflict-Related Detentions, a group of Afghan human rights and legal aid organizations working on detention issues, has pointed out that the "information that ISAF states currently gather on detainees at the point of capture is often insufficient for Afghan prosecutors to use for prosecutions."

As a result, people who may in fact have been guilty have been set free due to lack of evidence.

One Afghan law enforcement official confided in me that the information the United States provides "is not proof or evidence... The U.S. needs to prepare the evidence in accordance with Afghan law. The U.S. doesn't have the same law or the same crimes. U.S. troops need to know our Constitution and laws. They should learn what kind of evidence is best for Afghan law. Seven to eight years has passed and by now they should know the system." He also suggested the United States provide better witness lists.

Another problem is the rampant corruption within the justice system that allows criminals to bribe their way free. But the official pointed out that with stronger evidence, it would be harder to hide this corruption.

In late 2007, the United States began transferring Bagram detainees to a wing of the Pul-i Charkhi prison known as "Block D." More than 600 have been transferred so far. The concept of handing detention powers over to the Afghans was commendable, but the destructive power of poor evidence in an already weak justice system quickly became apparent.

At Block D, witnesses rarely appear, defense lawyers are notified of trials at the last minute, physical evidence is rarely produced, and judges rely too heavily on weak U.S. evidence. An Afghan judge told me frankly, if naively: "The evidence is based on information we get from [United States] and we are sure that people who were arrested are arrested for something they did wrong and we are sure that the U.S. is not lying." None of this strengthens Afghanistan's rule of law.

ISAF detention policy is also deficient. The media and human rights groups rarely know what happens at the trials of ISAF detainees once handed over the Afghan custody. The guilty can often pay their way to freedom while pre-trail detention and unfair trials condemn others to years in prison. Canada, Denmark, the Netherlands, Norway, the United Kingdom, and the United States have signed agreements that allow them to monitor the treatment of the people they transfer. But even so, several detainees have alleged that they were tortured in Afghan custody after transfer.

One solution to the lack of sufficient evidence to convict -- a bad solution -- would be for Afghanistan to create its own indefinite detention regime. Initially the United States proposed exactly this to the Afghanistan government, and recommended that it establish review boards similar to those at Guantanamo Bay. This program would have legalized a detention system with no adequate oversight in a country with rampant corruption -- a disastrous equation for rule of law. President Karzai rightly refused after his Attorney General insisted that the plan would be unconstitutional.

Rooting out corruption and strengthening a justice system isn't easy. The United States and European Council are currently reassessing ways to improve on eight years of lackluster results. Part of this effort must include international forces improving and standardizing their information gathering techniques and taking into account the needs of Afghan courts.

Honest Afghan prosecutors could then build stronger cases; and strong evidence makes it harder for corrupt judges and prosecutors to take bribes, tamper with evidence, and send innocent people to jail. ISAF, which is stuck knowing that corruption allows their transferred detainees to bribe their way back to planting road side bombs, could use the evidence as leverage to confront the government when this happens.

 

 

Comments

[outnow]

A friend of mine went to Japan to assist in setting up a criminal justice system. Afghanistan needs the rule of local law with due process and equal protection. What passes for evidence in the post 9-11 world is itself criminal in many regards. Heresay is not always trustworthy, for example.

Keep up the good work. Only by instituting justice can any society work. You have the right approach.