Anyone who knows me knows I am a big fan of liquid hops, otherwise known as beer. India pale ale, Belgian Saison, German Weissbier, or a Colorado microbrew, I love them all. I’m a firm believer in the quote attributed to Benjamin Franklin that “beer is proof that God loves us and wants us to be happy.” Such is not the case in Afghanistan, however.
A recent report from the Institute for War and Peace Reporting, a human rights organization, indicates that alcohol consumption can result in draconian punishment in Afghanistan. To little fanfare, or notice from the international community, Hamid Karzai signed a bill in June of this year authorizing corporal punishment for alcohol consumption. In Nangarhar province (East Afghanistan, along the Pakistani border), this has resulted in punishments of up to 80 lashes. The Chief prosecutor says that lashing offenders has results in fewer cases. I have no doubt he is right; many of us have had those moments where we swore we’d never drink again, but I think I’d mean it after 80 lashes!
While the thought of state-sanctioned lashing as punishment may cause some to recoil, it doesn’t seem, on its face, to really be that big of a deal when considering rule of law in Afghanistan. Or does it? This issue is a perfect example of how and why rule of law is not easy. It clearly demonstrates the dichotomy between western notions of law and the view of law within the Islamic community (at least in Afghanistan, I can’t speak for other places).
There is currently a legal conflict within Afghanistan between those who desire adherence to a particular interpretation of Sharia law and those who want a more western approach. The government-appointed Head of Religious Affairs in Nangarhar (a former Taliban judge by the way) clearly establishes where he stands on the issue: “Westerners want to impose their democracy – which includes obscene acts, drinking alcohol and other immoral things – on Afghanistan,” he said. “These things are contrary to Islamic law. There are also individuals in the [administrative] system that grew up in the West and are loyal to it. They are not properly informed about Islamic laws.”
Fair enough one might think. Afghanistan is free, or should be free, to choose its own method of governance and law. However, this right is not unlimited. It is at this point that many westerners will point to notions of natural law, which is premised on a philosophy of individualism. These notions may or may not be reflected in Afghan cultural or religious foundations, so is it really fair to judge Afghan law by these western concepts? Maybe. Some of these notions have become customary international law and, thus, binding on all nations.
The Universal Declaration of Human Rights specifically prohibits “cruel, inhuman or degrading treatment or punishment.” Afghanistan is a signatory to this document and states, in its Constitution, that the document must be respected. The Head of the Human Rights Commission for the eastern region of Afghanistan acknowledges this provision but says this Declaration “is just an international document on ethics, not a binding document.” He continues by saying that the Declaration “allows national governments to envisage punishments for crimes in accordance with religious, national and cultural principles.” He is correct in a sense; there is a provision that allows people, either individually or as a community, to manifest his or her religious beliefs in teaching, practice, worship, and observance. Typically, however, one provision of a legal document cannot be read to obviate another provision. In other words, the assumption is that both are meant to apply so the provisions must be read in such a way as to ensure they both do. But should this be read as a cultural or religious exception?
Some rule of law folks I run into here profess a desire to bring Afghanistan into the western legal mindset. They latch onto situations like this and attempt to change the Afghan legal system. They want to make it like the one they are most familiar with regardless of whether it fits within Afghan culture or Sharia law. Is this the right approach? I have certainly been taught in the western approach to law and see it as based in natural law and rights. I view the building block of society as the individual, but other societies do not. Which is right? Can those that wish to recreate a western-style legal system here succeed? Perhaps the words of a political expert and legal advisor for the Afghan Civil Society Association can answer this question: “The government incorporated Sharia into this [anti-alcohol] legislation so as to weaken this negative perception (of undue western influence),” he added. “The government cannot apply Sharia penalties for other offences because the foreign forces are still present here. The government doesn’t dare do so as long as they are here. They have a profound influence on our judicial system.”
So for all the effort of those attempting to build western-style rule of law here, what happens after we leave? Are we being placated as long as we provide money for new courthouses, forensic evidence centers, law schools, etc.? While ten years and billions of dollars seem like a lot of time and money, is it really enough to change culture and religion? Perhaps I’ll contemplate these questions over a few pints when I get back to the US.
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