Pyrrhic victory

Achieving rule of law is not the same as achieving justice.  As demonstrated by the story in a previous post, signs of rule of law are evident Kunar province.  Of course, the facts of that particular case are quite favorable to an acceptable resolution.  Sure, the defendant killed a man (likely without any immediate provocation), but the victim in that case had previously killed the father and three uncles of the accused.  His six year sentence, while certainly not excessive in comparison to the crime, was even deemed too harsh by some.  Despite this, justice was viewed as achieved in that case by locals as well as many that read the story in my post.  The acceptance of the verdict and trial procedure by the local population demonstrated the existence, even if somewhat fragile, of both rule of law and justice within Kunar province.  But, rule of law and justice are not always fellow travelers; sometimes one can be had without the other.

It seems that Maria, a young girl (approximately 16 or 17) from Asadabad, the capital city of Kunar province, was smitten with a local boy, Sulaiman.  Although she was apparently already betrothed to another through an arranged marriage, she took to meeting with her boyfriend whenever possible.  Stolen glances at school, a slight touch of the hand as they passed through the local market, and occasionally, a meeting late at night was all they really had.  One evening, they were able to arrange a meeting within her family’s compound.  Given Afghanistan’s history of warfare, the enclosure of a home by high walls, thus constructing a defensible compound, is endemic to the culture.  Only, in this case, the walls served not to protect from conquering marauders, but to shield the young couple from prying eyes.

As chance would have it, on this very evening the Maria’s cousin was visiting the compound.  As a member of the family, he most certainly knew of her engagement.  On seeing Maria alone, in bed, with a young man not her fiancé, he became enraged.  This was an insult to the girl’s chastity, her honor, and, most importantly, the family’s honor.  He retrieved a gun and shot both of them dead in the compound; a twisted, horrific, Afghan version of forbidden love in the vein of Romeo and Juliet.

At trial, the defense invoked Article 398 of the Afghan Penal Code as partial justification: “A person, defending his honor, who sees his spouse, or another of his close relations, in the act of committing adultery or being in the same bed with another and immediately kills or injures one or both of them shall be exempted from punishment for laceration and murder but shall be imprisoned for a period not exceeding two years, as a “Tazeeri” punishment.”  This is sometime referred to as the “provocation provision” and it seems that the cousin/defendant was actually raised by Maria’s mother for some time and this qualified him as a “close relation” under the Code section. 

Maria’s father acknowledged that Article 398 applied because he had told his wife to raise the defendant as a young child.  As to the actual crime, he stated: “Unfortunately, Sulaiman, son of Zaheer, didn’t care about Islam and the law of Afghanistan. He entered a house because of his sexual feelings so he disobeyed Pashtun culture, honesty, and respect, and he entered my home and did something illegal with my daughter.”  Although seeking some form of punishment, even the prosecutor felt that the crime had some measure of justification: “As Jan Dad, son of Sayed Nabi [i.e. the defendant/cousin], saw the illegal action, so his Pashtun and Islamic emotion rose up and he lost control over his body and he killed both of them.”  Islamic and Afghan statutory law aside, Pashtun law/culture would not only permit such an act to restore honor, but indeed might, some would argue, oblige the killings.  In an attempt to “set a practical example for the future,” the prosecutor asked for a sentence of three months incarceration.  In the end, the court sentenced the defendant to five months for the double homicide.

Evidence of rule of law in this case is clear.  A trial was had, written law was followed, and the local population accepted the verdict.  But justice was not done here.  You’ll likely hear no objections from the international community.  Justice has been sacrificed on the altar of superficial notions of legalistic mechanisms.  A functioning court is all that is needed to argue success in rule of law transition; justice is a luxury “success” just cannot afford.

Cruisin' Kabul

Danger in Afghanistan, or at least the perception of it, is relative.  When I left for Kunar province awhile back, a few folks expressed concern for my safety because Kunar is kinetic (i.e. some people there are trying to kill Americans).  I didn’t feel in any danger, but a platoon from the Massachusetts Army National Guard certainly did as they were in a 16 hours firefight not far from where I was that night. 

People who rarely leave the Embassy compound, or stay within Kabul when they do, are more inclined to over-think danger.  They have nothing to compare it to, so it’s only natural.  As an example: I sat next to a lady who spoke derisively of those that never “go outside the wire” (as if they really had a choice in the matter).  Her venomous tone peaked my curiosity so I asked what she did.  Apparently, she is embedded in one of the ministries of the Afghan government.  “I work about two hundred yards from where an IED killed a couple of Americans,” she bragged.  “When did that happen,” I asked.  “Two years ago,” she answered.  I thought briefly of setting her straight with a story of my drive to Parwan, the Customs Depot I went to with no military backup, or even the stroll in downtown Asadabad (where the Army commander said we showed the Taliban “who fuckin’ owns these streets”), but decided to let her have her sense of danger.  After all, there are a great number of folks here that would rightly scoff at the suggestion that I’ve done anything dangerous.

That said, there is always a possibility of something happening so precautions are taken.  This is particularly the case in Kabul where those making the rules have most likely never really been in a dangerous place.  For example, when driving out in town, one must have an armed partner.  I was asked to accompany a driver just the other day.  Body armor and a weapon are mandatory, even though we use up-armored Toyota Landcruisers.   I usually accept any opportunity to leave the embassy (because this place sucks), so I agreed.  It was to be a short drive to a place just near the airport.  I’ve made this drive many times and it’s usually uneventful.  This was the case on the way to our destination, but the return trip provided some humor in an otherwise dreary drive.

As we exit the building to retrieve our vehicles, I notice that they’ve been washed.  “Great,” I think, “just what we need a clean vehicle to set us apart from the locals – as if the giant, white Landcruiser isn’t sufficient to do that.”  Unhooking my M-4 from the sling attached to my armor, I insert a magazine and chamber a round.  I then align the rifle along the inside portion of the floorboard for easy access.  I put my helmet on the center console before climbing in.  This is necessary because getting in with the helmet on is a bit more cumbersome and often involves unique body contortions and a few expletives.  Stepping on the running board and grabbing the handle just inside the top of the passenger window, I go in headfirst.  Going in rear first, as most folks would, causes you to hit your head on the top of the doorframe because the armor doesn’t allow you to bend your neck all the way.  Once inside, major adjustment is needed to center yourself on the seat and get your armor situated so that you can actually have a bit of freedom of movement.  Only then do you put your helmet on.  It has occurred to me that if I ever have to get out of this thing quickly, I’m simply going to open the door and fall out onto the ground.

The guy with me turns on our jammer (interferes with electronically controlled IEDs) and gets in using the same method.  We then turn on our blue force tracker (GPS device that our operations center uses to track our movements) and we’re set to go.  Once we leave the compound, you do have to maintain a sense of vigilance.  IEDs aren’t really an issue in Kabul, but magnet bombs are a potential threat.  As I’ve mentioned in previous posts, it is common for people here to walk in and out of traffic.  Magnetically affixing a bomb to the side of an SUV while walking by would be quite easy.  Of course, there is also the fact that our route takes us right by the scene of a recent car-jacking (done AK-47 style, ‘cause that’s how they roll in Afghanistan) in which several folks were killed. 

Now if you’ve ever seen a movie about Iraq that shows American military tooling down the road yelling at folks to get out of the way, throwing water bottled at cars to help them along, and generally being a’holes (Hurt Locker comes to mind), this isn’t Iraq.  For one thing, crap like that pisses people off and makes them want to hurt you.  I generally like to avoid creating such feeling in people I meet.  Also, if the goal is to get the locals to support your efforts, crap like that seems a bit counter-productive, right? 

We adhere to traffic flow and obey traffic laws (to the extent they exist here) in every respect but one.  Police check points are ubiquitous here and, except for the international community, no one here uses armored SUVs except criminals.  This means that the police at these checkpoints want to stop us and conduct an inspection as a big bust could lead to a promotion or the collection of a bribe.  However, we have these fantastic things called diplomatic plates (or dip plates if you’re savvy to the lingo).  We flash that plate (assuming they don’t recognize the fact that we’re American military from the uniform, armor, and weapons) and we sail right through (note to self: get dip plates for commuting to work in the States).  Stopping isn’t an option.  Constant movement decreases the chances that you’ll become a target of opportunity.

That being said, stopping due to the mass of traffic is sometimes unavoidable.  Rolling down one of the main streets here, we approach Massoud circle and hang a right.  We instantly come to a full stop as traffic is backed up like the connector in Atlanta during Freaknik (basically a parking lot for the uninitiated).  As this was the area of the car-jacking, my partner and I began looking out for anything.  Up ahead, a policeman was lifting a metal arm to allow a truck to enter a compound.  The Afghan National Police in the Toyota Hilux guntruck in front of us were climbing out to investigate.  The guy in the corolla beside us was fiddling with his radio.  The fourteen or so people crammed into the minivan two lanes over were watching us intently, one of them unabashedly picking his nose.  Three kids just ahead were trying to get money by cleaning windshields and a number of people were sitting along the road on both sides. 

As we inched toward the three kids, one of them noticed us and came over.  He immediately jumped on the running board, hooked his arm over the side view mirror and began spreading dirt from his filthy rag on our just cleaned windshield.  He had a constant smile and asked for money in return for the obvious favor he just did for us.  While he was doing this, one of his friends moved to the side of our vehicle hear the driver-side rear door.  Now, no matter how cute and funny the kid was, we just don’t open our doors.  Even a crack can allow something to be thrown in – bad news given the difficulty in getting out quickly.  After making faces with him for a minute or so, we motioned for him to get off so we could catch up with the slow moving traffic.  He refused to get off, so we slowly moved forward with him latched onto our vehicle.  As he laughed, I thought about how kids are the same everywhere.  I know my son would jump at the chance to hang on the side of my truck if I would let him – most boys are little adrenaline junkies, I think.  After his brief ride, he took off in search of paying customers.

About this time, I noticed a guy in black pajama-looking clothes, with a small child hanging on his back moving toward us.  He has an intent look on his face, his eyes focused on us rather than the general mayhem around us.  Most folks generally ignore us, so this is different to me somehow.  I watch him closely as he approaches, instinctively putting my hand on my weapon, as the look on his face doesn’t seem right somehow.  He steps to the jersey barrier (small, triangular shaped concrete block), he swings the kids off his back and onto the barrier.  He then pulls the kid’s pants down to show us the kid’s penis.  Although I recognize what he’s doing, the rationale behind the act doesn’t register.  Since we did nothing, he slung the boy back over his back and took off.  After that, traffic cleared up and we headed back to the embassy.

I’ve often written of the surreal nature of things here because I just don’t think the danger is as prevalent for me as for some folks here.  Besides, how does one prepare for getting flashed in downtown Kabul?  

The Trial

The air was thick with humidity and stifling heat that hung with the oppression of a burka.  Although relatively large, the room was packed beyond capacity.  This was a big event for a relatively rural province and villagers had come for miles around to witness it.  Bodies crammed into every nook and cranny of the room; men sharing chairs, sitting on the ground, or standing along the wall for a simple glimpse of the actors on the judicial stage.  Today, a man stood trial for murder – accused of killing another man much hated and feared by most of those in the room.

At the front of the room was a wooden fence of sorts, used to keep the masses separate from the court actors.  To the left and right, chairs for the prosecutor and defense attorney, respectively.  Next to the defense attorney, an elevated platform, enclosed by a waist high wall, was reserved for the nervous-looking defendant.  Further from the masses, centered at the front of the room was the elevated bench for three judges – the Chief Judge’s bench slightly higher than the other two. 

Attached to the fence separating the bench from the gallery were photos of the crime scene.  More photos hung on a placard suspended from the ceiling just behind the defendant.  Included within this collage, were fairly graphic photos of the victim – not a copious amount of blood mind you, but a clearly dead body with a bandage around the neck.  The prosecutor sat confidently on the left side, periodically looking on the crowd as if to appreciate the fact that he would soon perform in front of this audience.  The defense attorney, his beard died in red henna, seemed preoccupied and simply stared into space, oblivious to the commotion as the audience sought to seat themselves.  The defendant, on the other hand, was acutely aware of everything.  His nervousness was evident from his erratic head and eye movement as he desperately attempted to soak in every movement and sound in an attempt to discern some clue that everything would be okay. 

As if on cue the commotion within the courtroom ceased and all eyes looked toward the opening door at the front-left of the room.  As the first judge crossed the threshold all stood in respect of the process of law, the act itself a victory for rule of law in this war-torn country.  Each was bearded and wore a traditional Lulngi hat (a turban-looking hat with part of the scarf hanging down below the shoulders).  The Chief Judge surveyed the room and nodded to each of the attorneys before motioning for the Court Reader to begin.

The court reader, a skinny man wearing traditional Perahan wa Tonban clothes (a white pajama-type outfit that seems to be quite appropriate for the hot weather here) stepped to the microphone and began a recitation from the Holy Quran.  The recitation had a pleasing, melodic cadence to it that seemed to calm the tense atmosphere in the courtroom.  As he finished, the judges brushed their hands over their faces as if to cleanse them.  The reader then began reading the charges and facts of the case.

The Defendant was accused of murder.  It seems that the victim and the defendant’s family had a history.  The victim had allegedly killed the defendant’s father and three uncles about 15-20 years ago and a recent land dispute gave the defendant cause to believe the victim might try to kill him as well.  One day, in downtown (a relative term) Asadabad, the victim and defendant met in the street.  The defendant, fearing for his life, fatally shot the victim in the neck.  The defendant immediately went to the police and surrendered.  As the facts were being recited, hushed murmurs could be heard from the crowd.  I got a sense that the crowd clearly favored the defendant.

Once the recitation of the facts was complete, the prosecutor stood and set forth his case.  He argued that the defendant had no cause to kill the victim as the defendant had no reason to fear for his life at that time.  There seemed to be a question of whether the victim had a weapon at the time.  Once the prosecutor finished, the Chief Judge looked at the defense attorney and asked whether he or “the killer” would speak.  This shocked me and I looked at our interpreter for confirmation that the judge just referred to the defendant as “the killer.”  He did. 

The defense attorney then stood and began to argue self defense.  As part of his defense, he argued that the victim’s prior history with the defendant’s family, combined with the land dispute (a much larger issue here than in the US), gave the defendant sufficient reason to fear for his life.  The defense attorney glossed over the question of whether the victim had a weapon at the time he was killed.  As he sat down, all eyes turned to the defendant.  He would speak.

His manner clearly demonstrated his nervousness.  He shifted his weight back and forth constantly, periodically gripping the railing in front of him as if to steady himself.  Still not yet looking at the judges, he reached down and grabbed a bottled water.  Slowly he unscrewed the cap, as if stalling for time in order to collect his thoughts.  He took a drink, looked to the crowd with sad eyes, perhaps silently asking for support, took a second drink and then looked at the judges.  Softly at first, then a bit louder and more confident he said, “The Holy Quran says he who has killed shall himself be killed.”  All three judges nodded in agreement.  The defendant then began to craft his argument by weaving the self-defense argument of his attorney with his own justifiable homicide argument.  He reached into the Quran to argue that he had to protect himself and his family’s honor by killing this very bad man.  This caused louder murmurs within the courtroom and it was clear that these people were indeed supporting the defendant.  The defendant then went through the entire history of the conflict between his family and the victim.  By the time he was done, I fully understood, within the context of this man’s culture, why he took the other man’s life.

As the defendant finished and took another drink of water, a commotion started in the back of the room – nothing violent, just a lot of movement.  I looked to the interpreter and he explained that it was time for these people to testify.  As approximately 30 people exited the room to stand in the hallway to await their turn to testify, I wondered why witnesses would be permitted to observe the trial prior to their testimony (this isn’t something our system allows as it could taint testimony).  However, I needn’t have worried.  In Afghanistan, witnesses are not subject to direct or cross examination.  They merely enter the room, stand in the well, and address the judges.  Occasionally, a judge will ask a question, but for the most part the witnesses simply make a brief statement and leave.

Most of the witnesses were there to testify that the victim had indeed killed the defendant’s father and uncles.  Some of this testimony was quite solemn as village elders testified from personal experience.  Other testimony was clearly not relevant in the slightest bit.  For example, one middle-aged gentleman walked in, looked at the court, and said that everything the elders before him had said was true (mind you that he hadn’t heard their testimony).  In another case, a very young man (clearly too young to have personally witnessed the victim killed the defendant’s father as he would have been about 5 or so) said he knew it to be true that the victim murdered the defendant’s father.  When asked by a judge how he knew this, he said that he had attended the wake and received a small gift from the family as is customary here.  This drew laughter from the gallery and a smile form the judge. 

I wondered about all this clearly irrelevant testimony and questioned whether it should be allowed.  Our Rule of Law field agent for the province explained that relevance wasn’t really the issue here.  In attempting to bring rule of law to Afghanistan, it was more important for folks to feel like the system is working.  The best way to do this is to give them a voice in the proceedings if they desire.  In this judicial system, judges are provided all evidence and written statements from both sides before the trial even begins.  Thus, the trial is a show; it is for the public.  By letting the public participate, they feel a part of it and are more likely to support it as a result.

After the last witness finished, the prosecutor and defense attorney made their closing arguments.  The defense attorney, predictably, asked for acquittal.  The prosecutor, surprisingly, asked for the death penalty (a clear overreach in my opinion).  The judges then excused themselves to deliberate.  The entire trial, to this point, lasted approximately 1.5 hours.  After eight minutes (yes, I timed it), the judges returned and announced a verdict of guilty and a sentence of six years.  Efficiency is clearly a hallmark of the justice system here.  The crowd in the courtroom was clearly unhappy with this result, but accepted the court’s decision.  This, itself, is a victory for rule of law here.  Acceptance demonstrates buy in; whether one is satisfied with a verdict and sentence is really irrelevant, the question is whether one is satisfied with the process.  The people living in the very province that houses the violent Pech and Korengal Valleys and brought us the movie Restrepo had bought into the process.  While not a perfect example of rule of law in the western sense, it is a workable example and one that can now begin to take root in Kunar.  Here, you have to enjoy the light, what little there is, whenever you can find it.