Representatives of various agencies and military units crowded around the table – it was late in the day and folks were tired. I had just returned to the compound from the Ministry of Interior to attend a negotiation regarding the assumption of security of the Afghan Supreme Court by a US-trained unit. The meeting went extremely well and I was able to watch a US Marshal friend of mine cap off an excellent tour of duty here with a win. Of course, wins here are relative as it is always the details that end up causing problems. I’ll work with his replacement to overcome the plethora of issues and inevitable foot-dragging that will come.
But now I was in a meeting to discuss transition goals and a “win” seemed a distant desire rather than a close reality. Specifically, we were meeting to discuss proposed “minimum essential conditions” for transition. Two things immediately came to mind. First, were we taking about little “t” transition or big “T” transition? Little “t” transition refers to the transition that will occur as the military draws down while big “T” transition involves transition to complete Afghan responsibility. Two issues arise here: An over-focus on the big “T” results in little attention to the little “t” and the implication that big “T” is conditions-based.
The inattention that little “t” transition receives is best illustrated by a discussion I witnessed in Kandahar. A panel was discussing a program that offered money for small projects at the district (think county) level. A gentleman rose and asked about money for his district and was rebuffed with the comment that his district was doing well. This makes absolutely no sense whatsoever when considered in the context of little “t” transition. His district was doing well for two reasons: (1) it had been cleared of insurgent activity and (2) money poured in for assistance programs.
Basically, the Americans (through the Commanders Emergency Response Program) and Canadians (through their equivalent) had used bullets to drive out the insurgents and money to keep them out. Don’t mistake the power of money in a combat zone; it is every bit as important as kinetics (thus coining the term “Money as a Weapons System”). The problem is that as military forces move out of the district, a gap will occur. The Afghan government is not yet ready to assume full responsibility for the district and insurgents are all too willing to fill that gap. Districts such as this are walking a line between reformation and regression. As the military (and its money) moves out of such districts, there has to be a plan to bridge this gap by linking the end of the military effort with the beginning of Afghan governmental control. Ignoring a district simply because it is “doing well” ignores the obvious and dynamic nature of counterinsurgency; the enemy gets a vote. As soon as we lapse into complacency, the enemy will take advantage by setting up a shadow government and all the blood and treasure spent becomes wasted.
Back at the meeting in Kabul, however, it was big “T” transition that was the topic of discussion. This presents a slightly different problem. The problem is one of syncing time and expectations. Simply put, there is not enough time to construct an ideal rule of law system in Afghanistan. Thus, in setting minimal expected conditions for transition, we cannot set the bar so high as to guarantee failure. From a political perspective, it simply makes good sense to set the bar as low as possible so politicians can do what they do best – declare victory and use the blood and sweat of the military to increase their chances of reelection.
There are 370 districts in Afghanistan (depending on how you count them) and 34 provinces. Putting a primary court in every district and a primary and appellate court in every provincial capital results in 404 courts. Throw in national level courts and the number of courts climbs to 408, not counting all the subject matter-based courts such as juvenile and traffic. This begs two questions: (1) do we really think we can generate over 400 courts between now and 2014? Sure, we have a head start since there are many courts up and running, but very few of them are efficient in any measure of the word. (2) Is this number of courts sustainable? By some accounts, security costs alone account for nearly half of the Afghan government’s budget. What will happen as international funding begins to dry up; do we really think Afghanistan will be able to afford 400 plus courts?
Meanwhile, many continue to argue that nothing short of a functional formal system is necessary. This is nonsense. The Afghans used informal systems of justice for centuries before Americans and their ISAF allies arrived. What is needed are regional justice centers established in populated areas; we need to reach the most people, not all of them.
Afghanistan has a road that the circles the country. This is called “Ring Road” and it includes spurs heading off toward other countries. These are economic corridors and are vital to Afghan security since these roads will allow trade and development in the long term. Importantly for the Rule of Law effort, however, is that 66% of Afghanistan’s population lives within 50 kilometers of the Ring Road. Thus, establishing a formal justice system along the Ring Road, interspaced properly to account for population, will reach the majority of people. But what to do about the rest of the population? This is easy since we can rely on the informal or traditional justice system of jirgas or shuras, with which Afghan culture is already accustomed. A link can then be established between the informal and formal system by requiring informal judgments to be filed with the formal system and permitting the appeal of informal judgments through the formal system.
If this sounds a bit simplistic, it is and it is meant to be that way. Time simply will not allow for complex methodologies and grand ideas. Like it or not, when the military leaves it will take the bulk of funding and manpower with it and our desired end-state here needs to account for that fact. Sometime simple is better.
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