Volume 13, Number 3 - January/February 2004

On bringing law to damaged lands
The road ahead in Afghanistan and Iraq
By Kimberly Bayley

Not all governments are created equal. Some are more stable and more powerful than others. Bad rulers not only damage the welfare of their citizens, but often send their countries into economic depression. Renegade rulers pose a threat to the rest of the world because they oppress their citizens and often have ambitions that are less than peaceful.

Once a change occurs in government, either by actions of the people or through outside intervention, and the country needs help to get back on its feet, one question remains: How do you rebuild a country that has endured famine and oppressive rule for many years?

Western countries largely ignored the plight of Afghanistan when the fundamentalist Islamic Taliban took control in 1996. However, the terrorist attacks of Sept. 11 focused international attention on terrorist cells and countries that harbored them. Because the repressive Taliban leadership in Afghanistan had harbored Al Qaida, in the Fall of 2001, the United States led an international coalition in routing out Al Qaida. As a result, the Taliban regime collapsed.

Shortly thereafter, the international community arrived in Afghanistan to help the country’s citizens rebuild their homeland, which had been devastated by nearly a quarter century of civil war. Working with other groups, the ABA — through its Asia Law Initiative — has been helping out.

One of the association’s goals is to support the rule of law in the world. Toward this goal, "the American Bar Association has for more than a decade implemented a multitude of technical assistance projects in support of legal and judicial reforms in countries around the world," said A. P. Carlton, last year’s president, who is taking part in the reconstruction effort. The ABA formed the Central European and Eurasian Law Initiative (CEELI) in 1990 as a public service project. It aims to advance the rule of law by supporting the law reform process in Central and Eastern Europe, as well as the former Soviet Union.

More recently, the ABA established similar initiatives for Africa, Latin America and Asia. Over the years, lawyers, judges and other legal professionals have donated more than $180 million in pro bono assistance to ABA international technical legal assistance projects and activities. These international projects are funded largely from outside sources, including the U.S. Agency for International Development and U.S. State Department. ABA volunteers and staff working on these projects provide training, technical advice and information in support of locally initiated reforms to judicial systems, legal systems and legislation, as well as modernization of legal education systems.

"We want to give stability to society … a feeling of fairness and equality," ABA-CEELI chair and former ABA President William Ide said. "Ridding these countries of corruption is a huge challenge." In some countries, students cannot even get into law school without bribing the dean, Ide said. Bribery is often the standard where police officers and other public officials receive money under the table to supplement sparse or nonexistent salaries. Government officials are poorly paid or may not receive regular paychecks at all.

Another need is a feeling of equality. Those who violate the law, no matter how high their position, must be prosecuted. "If you start to put values there, you have to show that you stand behind them," Ide said.

The Asia Law Initiative — ABA-Asia — has worked in Afghanistan since shortly following the end of the military conflict and the signing of the Bonn Agreement, which established the country’s interim government and legal system. Under Bonn, Afghanistan is governed by the 1964 Constitution. At the time it was enacted, the 1964 Constitution was regarded as one of the most progressive in the Islamic world.

"We were part of the first group that went in and did an assessment of the legal and judicial systems," said Roberta Ramo, chair of ABA-Asia.

Under the Taliban, a strict version of Shari’a, or Islamic law, governed. Mullahs (religious leaders) replaced judges and punishments were swift and harsh. Women were not allowed to hold jobs or attend school.

When Lisa Dickieson, ABA-Asia’s director, traveled to Afghanistan in early 2002, one of the biggest problems she identified was the lack of physical copies of governing law. In its zeal to establish a fundamentalist Islamic state, the Taliban had burned all the law books, including those at the law facility in Kabul and the Ministry of Justice, as well as copies of the Official Gazette, the record of enacted laws. In meetings with Afghan justice sector officials, Dickieson asked what law they were applying. She explained that in some cases, officials didn’t know; in other cases, they would "pull out a dog-eared copy of a law from the 1960s or 1970s."

ABA-Asia was able to unearth copies of some key governing codes, and with funding from the U.S. State Department and help from Afghan-American legal scholars, it had 1,000 copies of the codes printed and distributed to justice sector officials in Afghanistan. It took about six to eight weeks to assemble the codes, many of which were available only in typewritten form, on onionskin paper.

During her visit, Dickieson also experienced the hardships resulting from Afghanistan’s devastated physical infrastructure. There was limited electricity and heat, and a lack of telephones made scheduling meetings a challenge. The only link to the outside world was by satellite phone. Like all offices, the Ministry of Justice had no substantial furniture — only a few chairs and a table. One of the other organizations assisting in Afghanistan bought a computer for the minister because there was none.

On completion of the code-distribution project, ABA-Asia started a project to help develop a set of basic commercial laws. "We identified various areas of commercial law based on our knowledge of what was needed to jump start their economy," Dickieson said.

Many consider that the key to Afghanistan’s survival is to create an investment-friendly economy. By encouraging privatization and foreign investment, the nation stands a better chance of becoming a stable and flourishing member of the international community. These investments will benefit the citizens by providing jobs and commercial development as well as goods and services needed by the people. All of this economic progress hinges on a commercial code that will give assurance to foreign and domestic investors.

ABA-Asia has helped by working through the sections — including the Section of Business Law — to assemble teams of ABA members to provide advice on key commercial areas, ranging from antitrust to contract law to corporation law. To ensure that the laws drafted are compatible with the beliefs and culture of the people, experts in Islamic law are also involved.

"Of course it’s great if we can get the laws written on paper, but the real question is, can they be enforced?" Dickieson said. Given that the Afghan courts are still able to function only at a minimal level, the commercial law project includes a focus on establishing an official alternative dispute resolution mechanism, so that disputes can be promptly and fairly resolved. The completed commercial law code, known as the "Transitional Code of Commerce," will eventually be presented to President Hamid Karzai and the Council of Ministers for their approval.

Today, two years after the fall of the Taliban, Afghanistan is in many respects a different place. Women who were a part of professional society pre-Taliban are starting to return to the workforce. Freed from their burqas, they are attending school and are working to support their families. There is even a new women’s bar association.

In December 2003, a national assembly considered a new constitution, and a judicial commission is working to develop a functioning legal framework consistent with Afghanistan’s legal traditions, international standards and the rule of law. It is expected that elections for a new government will take place in 2004.

That is not to say that enormous challenges still do not remain. Much of the country remains under the control of warlords, and the central government effectively rules only the city-state of Kabul. Infrastructure continues to be lacking (however, unlike the Afghanistan of 2002, e-mail communication is now available in Kabul — though it is limited by electricity outages).

Citing his leadership in advancing the rule of law in Afghanistan, in September 2003 ABA-Asia awarded its first Rule of Law Award to Afghanistan’s President, Hamid Karzai. ABA President Dennis W. Archer presented the award at a dinner in New York, where Karzai was attending a meeting of the United Nations. The award recognizes Karzai’s work since 2001 as head of the Interim Administration, as well as his efforts since 2002 as head of the Afghan Transitional Administration.

In accepting the award, Karzai referred to rule-of-law efforts under way in his country and the challenges ahead: "The lack of law during the 23 years of war has inflicted much damage," he said. "We believe that the developments and advances of the last two years will move our country into a peaceful, prosperous future."

ABA-Asia’s work in Afghanistan continues, but the association’s newest challenge is supporting Iraqis seeking to rebuild their justice system following Saddam Hussein’s ouster and capture. "Everything has been tainted by Saddam Hussein," Dickieson said. She noted that among other things, the Iraqis face the huge challenge of creating an independent bar and an independent judicial system.

"One of the most profound differences (between the situations in Iraq and Afghanistan) is that the Taliban burned all the books. There was literally no law left. In Iraq, we are still in the earliest stages, but there they obviously have laws and some sort of infrastructure," Roberta Ramo said.

On Law Day, May 1, 2003, then-ABA President Carlton announced the creation of an ABA Post-Conflict Action Team for Iraq, later renamed the ABA Iraq Initiative.

"The American Bar Association will marshal the American legal community, which will offer its expertise to develop law that will foster a free market economy in Iraq; which can sponsor workshops to assist Iraqis through fair-trial, free-press issues; which can participate in an exchange of ideas to help foster a vibrant and independent judiciary in Iraq. And we offer all this recognizing that the end product will be of, by and for the Iraqi people," Carlton said in a speech at the National Press Club in Washington.

Former ABA President Carlton brought ABA-CEELI, ABA-Asia, and the Section of International Law and Practice together to spearhead the ABA’s support for the rebuilding of Iraq’s legal system. Instead of having several groups go forward, we needed to have one, said Stephen Zack, director of the Iraq Initiative and chair of the Latin American Council. "We needed a model for regime change," Carlton said. "Talbot ‘Sandy’ D’Alemberte produced a template for what we have in Iraq."

D’Alemberte recognized the opportunity the fall of the Berlin Wall represented and co-founded CEELI in 1990, Carlton said. He also chaired the ABA Post-Conflict Regime Change Strategic Planning Initiative, which produced the Iraq Initiative idea.

Efforts in Iraq are still in the earliest stages — outlining what is needed in the country and how to accomplish it — and progress has been slowed by continuing violence in the country. As Dickieson explained, "We hope to ultimately place representatives in the country, but that’s simply not possible right now because of security concerns. However, we’ve let key decision makers know we are ready to help." Also, special efforts have been made through the ABA Web site and outreach to other bar associations to find lawyers with fluency in Arabic to participate in activities undertaken by ABA-Iraq.

Similar to the Afghanistan experience, the first activity undertaken by ABA Iraq was an in-country legal assessment of the legal and judicial system. In August, the ABA — through Los Angeles Superior Court Judge Judith Chirlin — participated in a multinational legal assessment conducted by the International Legal Assistance Consortium. This assessment identified specific technical legal assistance needs, some of which will be fulfilled by the ABA, including training of 100-200 Iraqi jurists at the CEELI Institute in Prague and sponsorship of an international judicial study tour for leaders of the Iraqi Judicial Training Center.

In light of the security and safety concerns, the ABA has not yet engaged in other activities within Iraq. Instead, it has focused on providing training and technical assistance in other venues. In September, in Bahrain, the ABA conducted a three-day training program, entitled "Principles of Iraqi Constitutionalism: Putting Theory into Practice." Thirty-eight Iraqi legal professionals participated, primarily Shia from the southern part of the country, including the newly appointed minister of justice, a member of the Governing Council, and the new president of the Iraqi Bar Association. The goal of the program was to prepare the Iraqi participants to discuss constitutional issues in their communities in preparation for Iraqi constitutional reform. Plans are underway to replicate this program in early 2004.

The long-term goal is to have a cadre of trained Iraqis who can conduct public education programs and campaigns in their communities to help pave the way for meaningful acceptance of a constitution. Also, in November, the ABA hosted in Washington a delegation of 17 Iraqi women, including two members of the Iraqi Governing Council and several private lawyers. Through workshops and meetings with high government officials, capped by a private meeting with President Bush and his National Security Advisor Condoleezza Rice, the program promoted greater involvement of Iraqi women in the legal reconstruction of Iraq. That will remain one of several themes of ABA Iraq in its programming.

While it’s an issue wherever the ABA works abroad, Iraq particularly raises the specter that the ABA will be seen as trying to make the world submit to the American way of democracy. Dickieson admits that the role of Americans there is a difficult one. Carlton explained that the ABA always works in response to local needs, and in partnership with local organizations. It does not advocate for the adoption of the American legal system; rather, it presents a variety of options, from which local reformers can choose.

"The plans are not based on the American model — they are based on the needs, history and societies … the legal traditions of the particular country," Carlton said. "Also, we only go if we’re asked."

It will take decades, maybe more, for countries such as Afghanistan and Iraq to stabilize. However, Ide believes it is only a matter of time. "There’s hope in all these places," he said, "There are people looking for a new day."

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