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Building Legitimacy through Bottom-Up Rule of Law in Afghanistan

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The central concern for the future of Afghanistan, and thereby the future of our operations there, is whether the Afghan government can emerge as legitimate. Such legitimacy is critically important because the insurgents cannot be defeated by firepower alone; removing popular support is the only definitive way to ensure the death of the movement. The Obama administration pays much lip service to the administration of justice and promotion of rule of law as essential elements of legitimacy, but in Afghanistan the bark doesn't seem to have any bite.

First, the bad news: Afghanistan has never had successful centralized state authority, meaning that there is very little if any history of rule of law at the national level. In fact, attempts to centralize state authority in law and the administration of justice have historically been met with firm resistance and rebellion by traditional leaders, who represent a blend of tribal and Islamic viewpoints. These leaders are the custodians of popular legitimacy for their communities. Perhaps we thought their views were backward and therefore irrelevant, or maybe we thought them to have somehow been a part of the problems with Islam behind 9/11 (God forbid such a series of dark assumptions), but we didn't solicit their voices when we put together a new legal system for the country. As a result, popular perceptions of the state justice system deem it to be corrupt, ineffective, and foreign. This does more than just make it hard to establish a standard national legal system. I would go so far as to say that we're contributing to the insurgency's popular support base by treating rule of law as something that is imposed, not as something that begins at a very local level.

Now the good news: there's room to bridge this gap, as long as internationals encourage and facilitate genuine cooperation, as opposed to papering over decades of resentment and distrust with mere coordinating mechanisms. Just as the broader COIN strategy focuses on direct engagement with and protection of civilians, one locality at a time, building rule of law from the bottom-up means direct engagement that is community-specific: bringing together traditional leaders, local state justice officials, and progressive stakeholders such as women's rights advocates to come to a better understanding of each other's intentions, priorities, practices and values. This kind of dialogue would build consensus on an arrangement that covers all bases in the administration of justice between the courts and informal jirgas or shuras. There are cutting edge examples of such efforts being piloted with success, notably through the U.S. Institute of Peace.

Supporting a hybrid system doesn't mean abandoning the work we've already done. At the national level, we need to keep supporting the official justice system. Pulling out our assistance because we are fed up with corruption causes panic and makes further corruption more likely. Anti-corruption measures are multi-dimensional and require substantial resources, and international support is needed to turn the situation around. Once a number of local projects have been successful, the national system will have little choice but to follow their lead, that is, if they appreciate the extent to which their own legitimacy is in jeopardy.

COIN is a strategy that requires work in a number of different areas simultaneously. Rule of law is a central element of its success or failure in Afghanistan, but it is not being systematically addressed in the same way as security objectives. The above should serve as a jumping off point for integrating rule of law promotion into this strategy, which already emphasizes the role of civilians. Current COIN doctrine defines civilians as the "center of gravity" because their support of or opposition to insurgents can turn the tide of battle. In fact, their gravitational pull is much more profound, and should be recognized in a much broader way when we consider what it means to build state legitimacy.

Maren Christensen studies post-conflict justice and rule of law at the Fletcher School of Law and Diplomacy.