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.
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