Afghanistan: Building a State to Keep the Peace

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Afghanistan: Building a State to Keep the Peace

in Max Planck Yearbook of United Nations Law Online


1 The period prior to the American intervention is well described in A. Rashid, Taliban: Islam, Oil, and the New Great Game in Central Asia, 2000, Chapter 1. 2 The authorization for an expansion of the ISAF mandate to allow a de- ployment of ISAF troops outside of Kabul was accorded through S/RES/1510 (2003) of 13 October 2003. Until February 2005 a total of five Provincial Reconstruction Teams (PRTs) had been deployed to cities in the North. An expansion to the West is planned, but until now wide parts of the country are still insecure.

3 J.L. Gaddis, "International Relations Theory and the End of the Cold War", International Security 19 (1992/93), 5 et seq. fn. 142. 4 "Mehr als 20 Jahre Burgerkrieg haben in Afghanistan nicht nur die Infra- struktur des Landes, sondern auch samtliche offentlichen und sozialen In- stitutionen zerstort," M. Klinger, Bericht Gutachter Einsatz Afghanistan, GTZ, 2002, 1.

5 M. Toscano-Rivalta/ A. Drury, Securing Afghanistan's Future - Considera- tions on Criteria and Actions for Strengthening the Justice System - Pro- posal for a Long-term Strategic Framework, UNAMA, 2004, 4, emphasis added. 6 A Council of Ministers in accordance with article 100 of the 1990 Afghan Constitution (, led by the former President Burhunuddin Rabbani, was internationally recognized as the sole representative of the Afghan State. For details see R. Wolfrum/ C. Philipp, "The Status of the Taliban: Their Obligations and Rights under International Law", Max Planck UNYB 6 (2002), 559 et seq. (567, 576, 577). The wisdom of the decision of the majority of the interna- tional community to withhold recognition from the de facto Taliban gov- ernment, which referred to itself as the Islamic Emirate of Afghanistan and which held 90 per cent of the territory, has been much debated, especially given the fact that Rabbani did not even control the remaining ten per cent

fully. It must be noted, however, that the failure of a new government of a state - in this case the Taliban - to secure recognition from other subjects of international law does not destroy the international personality of that state, nor does it absolve the respective state from observing treaty obliga- tions entered into previously; see Sir R. Jennings/ Sir A. Watts (eds), Op- penheim's International Law, VoL I, Peace, Introduction and Part 1, 9th edition, 1992, § 44. See also preambular para. 7 Bonn Agreement. 7 M. Weber, The Theory of Social and Economic Organisation, 1947, 154; see also F. Fukuyama, State-Building: Governance and World Order in the 21st Century, 2004, 6; D. Chagnollaud, Droit constitutionnel contemporain, 1999, 6. 8 On the link between statehood and the state's ability to use violence to en- force its decisions see also D. Held, Political Theory and the Modern State: Essays on State, Power and Democracy, 1989; A. Giddens, The Nation State and Violence, 1985. 9 Both terms have been used so indiscriminately that they have come to symbolize the vacuity of much UN terminology. While such technical terms describing a highly complex reality can make sense as abbreviations in an informed discourse among those who are aware of the complexities involved, they can quickly become meaningless placebos if they adorn pro- ject documents as substitutes for real action.

10 E. Orywal (ed.), Die ethnischen Gruppen Afghanistans: Fallstudien zu Gruppenidentitilten und Intergruppenbeziehungen, 1986; P. Snoy, "Die ethnischen Gruppen", in: P. Bucherer-Dietschi/ C. Jentsch (eds), Afghani- stan Lilndermonografie, 1986, 121 et seq. 11 There are small Buddhist, Hindu and Sikh minorities. The small erstwhile Jewish minority has left the country in its entirety and there are no signifi- cant numbers of Christians, the only church in the country being the one attached to the Italian embassy. 12 On the Shi'ite minority see inter alia K. Ferdinand, "Preliminary Notes on Hazara Culture - The Danish Scientific Mission to Afghanistan 1953-55", Historisk filosofiske Meddelelser Udgivet af det Kongelige Danske Viden- skabernes Selskab 37 (1959); H. Emadi, "The Hazaras and their Role in the Process of Political Transformation of Afghanistan", Central Asian Survey 16 (1997), 363 et seq.; S.A. Mousavi, The Hazaras of Afghanistan -An His- torical, Cultural, Economic and Political Study, 1998. 13 C. Johnson, et al., Afghanistan's Political and Constitutional Development, Overseas Development Institute, 2003, .

14 A.D. Smith, The Ethnic Origins of Nations, 1986; R. Hardin, One for All: The Logic of Group Conflict, 1995. 15 C. Schetter, "Ethnizitit als Ressource der Kriegsfiihrung", in: C. Schetter/ A. Wieland-Karimi (eds), Afghanistan in Geschichte und Gegenwart, 1999, 91 et seq. 16 C. Schetter, Ethnizitat und ethnische Konflikte in Afghanistan, 2003. 17 C. Schetter, "Der Afghanistankrieg - Die Ethnisierung eines Konflikts", Internationales Asienforum 33 (2002), 15 et seq.; A. Wimmer, "Territoriale Schlief3ung und die Politisierung des Ethnischen", in: C. Honegger (ed.), Grenzenlose Gesellschaft? - Verhandlungen des 29. Kongresses der Deut- schen Gesellschaft fair Soziologie, 16. Kongresses der Osterreichischen Ge- sellschaft fiir Soziologie und des 11. Kongresses der Schweizerischen Gesell- schaft fiir Soziologie, 1999, 1200 et seq. UNDP, Afghanistan National Hu- man Development Report 2004, Security with a Human Face: Challenges and Responsibilities, 2004, 100-102. 18 The term "anarchy" is used here as a technical term as defined in interna- tional relations theory. For a classical realist use of the term see K.A. Oye, "Explaining Cooperation Under Anarchy: Hypotheses and Strategies", World Politics 38 (1985); for a critical discussion see B. Buzan, et al., The Logic of Anarchy: Neorealism to Structural Realism, 1993; for a revisionist account see A. Wendt, "Anarchy is What States Make of It: The Social Construction of Power Politics", International Organization 46 (1992), 391 et seq.

19 E. Melander, Anarchy Within: The Security Dilemma between Ethnic Groups in Emerging Anarchy, Department of Peace and Conflict Research Uppsala University, 1999. 20 S.J. Kaufman, "An 'International' Theory of Inter-Ethnic War", Review of International Studies 22 (1996), 22 et seq. 21 S.J. Kaufman, "Spiraling to Ethnic War: Elites, Masses, and Moscow in Moldova's Civil War", International Security 21 (1996), 108 et seq. 22 Schetter, see note 17, z3 United Nations Office on Drugs and Crime (UNODC), The Opium Economy in Afghanistan: An International Problem, 2003. While interna- tional involvement has been an important contributing factor to the con- flict, we must be circumspect about some of the more outlandish claims emanating from the NGO community, this holds particularly true with re- gard to alleged Western interests in Central Asian hydrocarbon production. For an insightful discussion of the topic see Rashid, see note 1, although his conclusions about the inherent importance of Afghan access routes remain questionable. For a highly accusatory and ill-informed discussion of the same issue see G. Long/ D. Westcott, The United States's Oil Interests and the Reconstruction of Afghanistan, 2003, . 24 For an account of the conflict see Rashid, see note 1; B.R. Rubin, The Frag- mentation of Afghanistan, 1995.

25 R.J.PJ. de Figueiredo/ B.R. Weingast, "The Rationality of Fear: Political Opportunism and Ethnic Conflict", in: J. Snyder/ R. Jervis (eds), Civil War and the Security Dilemma, 1997. 26 B.R. Rubin, "The Political Economy of War and Peace in Afghanistan", World Development 28 (2000), 1789 et seq.; J. Goodhand, "From War Economy to Peace Economy? Reconstruction and State Building in Af- ghanistan", Journal of International Affairs 58 (2004), 155 et seq.; UNDP Human Development Report 2004, see note 17, 103-106. 27 For a theoretical treatment of the role of economic incentives in sustaining and prolonging conflict see J. Hirshleifer, The Dark Side of the Force: Eco- nomic Foundations of Conflict Theory, 2001.Olson's theory of collective action is likewise useful in this respect to account for the paradoxical fact that the "multitudes with an interest in peace" cannot prevail because "they have no lobby to match those of the 'special interests' that may on occasion have an interest in war." M. Olson, The Logic of Collective Action: Public Goods and the Theory of Groups, 1971, 165. 28 A. Guistozzi, Respectable Warlords? The Transition from War of All against All to Peace Competition in Afghanistan, London School of Economics, Crisis States Research Seminar, 2003, who categorizes the various "career paths" and personal goals of some prominent commanders; quoted in Goodhand, see note 26, fn. 18.

z9 Such as UN operations in Namibia, El Salvador and Cambodia. For a cur- sory description and characterization of some of the UN post-conflict re- construction operations since the 1990s, see J.S. Kreilkamp, "U.N. Post- conflict Reconstruction", N. Y. U. J. Int'l L. & Pol. 35 (2002 - 2003), 619 and seq. 30 Doc. S/2001/1154, . 31 S. Chesterman, Justice Under International Administration: Kosovo, East Timor and Afghanistan, International Peace Academy, 2002, ; T.

Pippard, East Timor and the Challenge of UN Transitional Administration, United Nations Association for Great Britain and Northern Ireland, which has a good discus- sion of the impact the 2000 Brahimi Report has had on the approach taken in Afghanistan; S. Chesterman, "Walking Softly in Afghanistan: The Future of UN State-Building", Survival 44 (2002), 37 et seq.; L. Brahimi, Peace- keeping: Five Years after the Report, Statement delivered on 1 March 2005 at the Institute of European Affairs, Dublin, . 32 C. Bell, "Why an Expanded NATO must Include Russia", in: T.G. Car- penter (ed.), The Future of NATO, 1995, 39.

33 K. Deutsch et al., Political Community and the North Atlantic Area, 1957, 5, emphasis added. 34 B.R. Rubin, Afghanistan's New Constitution, 2004, 2. 35 Luttwark makes this point in his controversial essay when he cautions against international interventions into ongoing domestic conflicts, arguing that sometimes the underlying conflict either needs to be resolved militar- ily, or that the parties must "grow tired" of war. Otherwise any interna- tional intervention just provides breathing space in which to recuperate and rearm, and thus prolongs the conflict. See E.N. Luttwak, "Give War a Chance", Foreign Aff. 4 (1999), 36 et seq.

36 B.R. Rubin, "Transitional justice and human rights in Afghanistan - First Anthony Hyman Memorial Lecture at the School of Oriental and African Studies London", International Affairs 79 (2003), 567 et seq. (570). 3� Rubin, see note 34, 4. 3g Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Doc. S/2004/616 of 23 August 2004, para. 4. 39 For example, see the case studies on Sierra Leone, East Timor and Bosnia- Herzegovina in this Volume.

40 ICG, Asia Report No. 45, Afghanistan: Judicial Reform and Transitional Justice of 28 January 2003, 17. al L. Brahimi, "Briefing to the Security Council, Transcript from 13 No- vember 2001 ", , emphasis in the original. 42 Karzai's reluctant removal of some local commanders, most publicized that of Esmail Khan from his fiefdom in Herat, has been criticized as endanger-

ing the Bonn process. While this removal was motivated primarily by eco- nomic considerations (transferal of customs duties to the central govern- ment), the dangers outlined apply mutatis mutandis for such action moti- vated by considerations of transitional justice. See C. Schetter, "Auswei- tung der Kampfzone", Financial Times Deutschland of 17 September 2004, 38. 43 A. Ozerdem, "DDR of former combatants in Afghanistan", Third World Quarterly 23 (2002), 961 and seq.; E. Gotab, Challenges of Peace Opera- tions: Into the 21st Century: Concluding Report 1997-2002, 2002. 44 G. Wood, "Disarmament, Demobilisation and Reintegration: A Marriage of D's and R's?", The Networker, March 2005, . 45 Report of the Secretary-General, Prevention of Armed Conflict, Doc. A/55/985-S/2001/574 of 7 June 2001, para. 23; Report of the Secretary- General, The Role of United Nations Peacekeeping in Disarmament, De- mobilization and Reintegration, Doc. S-2000/101 of 11 February 2000, para. 1; United Nations, Report of the Panel on United Nations Peace Op- erations, Doc. A/55/305-S/2000/809 of 21 August 2000, paras 7, 54.

ab Section V (1) of the Bonn Agreement. a� ICG, Asia Briefing No. 35, Afghanistan: Getting Disarmament Back on ?'rack of 23 February 2005, 2. 48 The others are Japan, Iran, Thailand, Ethiopia, Mongolia, Nepal, Bhutan and China; some include Liberia. 49 This is most clearly reflected in the unusual shape of the country, in par- ticular the north-eastern "finger" of the Wakhan Corridor.

50 For a short overview see G. Moltmann, "Die Verfassungsentwicklung Af- ghanistans von 1901 bis 1986", Jahrbuch des Offentlichen Rechts 35 (1986), 509 et seq. (516-519). For a more extensive treatment refer to O. Caroe, The Pathans, 1962; L. Dupree, Afghanistan, 1973; M. Klimburg, Afghan- stan, 1966, Chapters I-III; K. Jackel, "5000 Jahre Geschichte", in: W Kraus (ed.), Afghanistan, 1975; G. Macmunn, Afghanistan - From Darius to Amanullah, 1929. 51 Rubin, see note 24, 19, which provides a very succinct and insightful his- torical placement. 52 The Pashtu term Loya Jirga (grand/great assembly/council) refers to a cen- tury-old forum, in which tribal elders came together to consult and decide on conflicts, social reforms, or other important issues. 53 R. Bachardoust, Afghanistan - Droit constitutionnel, histoire, regimes poli- tiques et relations diplomatiques depuis 1747, 2003, 18 et seq. 54 For more details see S.Q. Reshtia, "La Loya Jerga", Central Asian Survey VII (1988), 6 et seq.

55 "Die Paschtunen sind die eigentlichen Afghanen." Moltmann, see note 50. Likewise, Bachardoust, see note 53, 23: "Le mot Afghan etait a 1'epoque synonyme de Pashtoun." See also C. Schetter, "Die Territorialisierung na- tionaler und ethnischer Vorstellungen in Afghanistan", Orient 44 (2003), 75 et seq. 56 Moltmann, see note 50, 515. 57 This tradition was not lost on the Taliban who not only changed the name of the country to the Islamic Emirate of Afghanistan, but also chose the ti- tle of amir al-mu'minin (Commander of the Faithful), a historic title refer- ring to the caliph, when an assembly of 1,200 ulema met in Qandahar from 20 March to 4 April 1996 to elect Mullah Muhammad Omad as the new head of state. 58 Bachardoust, see note 53, 19. 59 The use of such quintessentially modern terms in the context of a pre- modern society is problematic. A society dominated by an ancient tribal customary law such as the Pashtunwali is obviously not easily inclined to- wards the concept of making new laws. Still the jirgas could impose new binding rules, which is the essence of the legislative power. 60 Moltmann, see note 50, 515.

61 Schwager for instance compares it to the constitution of the Germanic tribes, see J. Schwager, Entwicklung Afghanistans als Staat, 1932, 22 et seq. 62 Moltmann, see note 50, 520. 63 See the references in note 50; Rubin, see note 24, 45 et seq. provides an ex- cellent account of the process of state formation. 64 The uti possidetis decision of the Pan-African Congress of Addis-Ababa of 26 May 1963 accepted the impossibility of replacing the artificial bounda- ries drawn at the Berlin Conference of 1885, instead charging the African states with the task of fostering national communities beyond ethnic lines. 65 Rubin, see note 24, 19.

66 Schetter, see note 16. 67 Rubin, see note 24, 22. 68 Bachardoust, see note 53, 21; see also the discussion of the Nietzschean concept of "brauchbare Vergangenheit" in the article by R. Utz, in this Vol- ume. 69 B.R. Rubin, Statement to Implementation Group, 2002, .

70 S.P. Huntington, Political Order in Changing Societies, 1968, 12. �I Schetter, see note 55; C. Noelle, State and Tribe in Nineteenth Century Af ghanistan: The Reign of Amir Dost Muhammad Khan (1826-1863), 1997; C. Noelle, "Es ist ein weiter Weg nach Bukhara. Raum-Zeit Koordinaten in der Sichtweise afghanischer Chroniken", in: R. Haag-Higuchi/ C. Szyska (eds.), Erzdhlter Raum in Literaturen der islamischen Welt, 2001, 131 et seq. (76). 72 Reshtia, see note 54. �3 Schetter, see note 55, 80. �4 Ibid.

75 In the Anglo-Saxon legal tradition this is most often identified with Aus- tin's "command theory" which states that real law needs an enforcing sov- ereign, and that, therefore, international law cannot be regarded as law at all, but merely as non-binding morality, J. Austin, The Province of Juris- prudence Determined, 1832 (208). Hart in his restatement of legal positiv- ism reaffirms essentially the same position in slightly more accommodating terms by defining a full legal system as consisting of "primary" and "sec- ondary" rules, the latter being those that determine how the former are created, see H.L.A. Hart, The Concept of Law, 1994 [1961]. 76 Rubin, see note 24, preface page x (sic).

77 M. Ottaway/ T. Carothers (eds), Funding Virtue: Civil Society Aid and Democrary Promotion, 2000. 78 G. Wylie, Dysfunctional Societies are not Civil Societies ... Or are They?, Conference of Civil Society, University of Belfast, 2004, 2. �9 See inter alia J. Keane, Civil Society: Old Images, New Visions, 1998; R. Hefner (ed.), Democratic Civility: The History and Cross-Cultural Possibil- ity of a Modern Political Ideal, 1998; J. Cohen/ A. Arato, Civil Society and Political Theory,1992; Z. Pelczynski, The State and Civil Society: Studies in Hegel's Political Philosophy, 1984. 80 A. Arato, "Civil Society versus the State", Telos 47 (1981), 23 et seq.; M. Bernhard, "Civil Society and Democratic Transition in East Central Europe", Political Science Quarterly 108 (1993), 307 et seq. 81 M. Kaldor/ I. Vejvoda, Democratisation in Central and East European Countries, 1997; J.J. Linz/ A. Stepan, Problems of Democratic Transition and Consolidation: Southern Europe, South America, and Post-Communist Europe, 1996.

82 A. Gramsci, Selections from the Prison Notebooks, 1971, 352. Important in this respect is his concept of cultural or intellectual hegemony as a vital complement to material coercive power. Any system of power is based on the existence of coercive power. Much more effective, however, is exercis- ing power through the consent of the ruled, which is achieved through cul- tural hegemony that effectively precludes the very conceptualizing of alter- native power structures, thereby producing legitimacy and deference: "To the extent that this prevailing consciousness is internalised by the popula- tion it becomes part what is generally called "common sense'' so that the philosophy, culture and morality of the ruling elite comes to appear as the natural order of things," B. Burke, "Antonio Gramsci and informal educa- tion", The Encyclopaedia of Informal Education, 2004, . The dual dynamic of coercion and con- sent implicit in all power relations is reflected in Gramsci's division be- tween political society which represents the coercive institutions such as army, police, judiciary, bureaucracy, etc. and civil society which comprises non-coercive public institutions such as churches, schools, trade unions, political parties, cultural associations, etc. In this rather subtle theory of power the task of civil society is to further the dominant normative vision that supports the status quo distribution of material power.

83 Goodhand, see note 26, 168, 167. 84 For a preliminary discussion see, inter alia, R.I. Rotberg (ed.), When States Fail Causes and Consequences, 2004; R.I. Rotberg (ed.), State Failure and State Weakness in a Time of Terror, 2003; W I. Zartman (ed.), Collapsed States: The Disintegration and Restoration of Legitimate Authority, 1995. 85 S/RES/462 (1980) of 9 January 1980, calling on the General Assembly to examine certain questions contained in Doc. S/Agenda/2185. 86 Doc. ES-6/2 of 14 January 1980, General Assembly - Sixth Emergency Special Session "The situation in Afghanistan and its implications for inter- national peace and security.". The following resolutions carry the same ti- tle. A complete list of the annual resolutions can be found at .

87 The newly appointed Special Rapporteur on Human Rights in Afghanistan delivered his first annual report in 1985. The Austrian jurist Felix Ermacora was Special Rapporteur from 1984 to 1995. 88 A/RES/40/137 of 13 December 1985 entitled "Questions of human rights and fundamental freedoms in Afghanistan". 89 UNICEF, UNDP, UNHCR, and WFP. 90 Responsibility for the Operation passed in 1991 to Benon Sevan the Per- sonal Representative of the Secretary-General. 91 Agreements on the Settlement of the Situation Relating to Afghanistan, concluded at Geneva on 14 April 1988 under UN auspices, commonly re- ferred to as the "Geneva Agreements". The format that was agreed upon by the Personal Representative of the Secretary-General, Diego Cordovez with Kabul and Islamabad during talks in April and May 1985 was a series of bilateral agreements on non-interference and non-intervention, a decla- ration on international guarantees by the USSR and the US, a bilateral agreement on the voluntary return of refugees, an agreement between the USSR and Afghanistan on the withdrawal of troops, and an instrument that would set out the relationship between these bilateral agreements. For a contemporary discussion see R. Klass, "Afghanistan: The Accords", For- eign Aff. 66 (1988), 25 et seq. 92 S/RES/622 (1988) of 31 October 1988. 93 The diplomatic history, the legal basis and the mandate for UNGOMAP is well presented in United Nations, Repertory of Practice of United Nations Organs, Supplement No. 7, 1989, article 98, paras 364-372. 94 Further information can be found on the website of the Finnish Defence Forces (in Finnish): .

95 Report of the Secretary-General, The Situation in Afghanistan and its Im- plications for International Peace and Security, Doc. A/45/635-S/21879 of 17 October 1990, para. 21. 9s Rubin, see note 24, 269. For an overview of various prior UN initiatives see M.K. Ma'aroof, United Nations and Afghanistan Crisis, 1990. 97 Najibullah sought refuge in the UN compound where he remained until 1996. Despite repeated pleas by the Secretary-General he was not assured safe passage. After the Taliban took control of Kabul, they abducted Na- jibullah and his brother on 26 September 1996 and subsequently executed them. The action was strongly condemned by the General-Assembly in Resolution 51/108, para. 10 of 12 December 1996, and the Security Council Statement Doc. S/PRST/1996/40. 98 For a discussion of the legal and constitutional implications of the Pesha- war Accord see Bachardoust, see note 53, 235 et seq.

99 A/RES/47/119 of 18 December 1992, preambular para. 1. loo Ibid., preambular para. 5. , 101 Ibid., preambular para. 7. 102 The so called Islamabad Accords were signed with the support of Pakistan, Saudi Arabia and Iran. The UN was not involved in the process. For de- tails, see Rubin, note 24, 271-274.

l03 A/RES/48/208 of 21 December 1993, para. 4. 104 "Invited the Secretary-General to continue to monitor the overall situation in Afghanistan and make available his good offices as required, and to report to the General Assembly", para. 5, emphasis added. 105 M. Duffield, et al., Review of the Strategic Framework, AREU, 2001, 31; likewise: B.R. Rubin, et al., Afghanistan: Reconstruction and Peacebuilding in a Regional Framework, Centre for Peacebuilding, Swiss Peace Founda- tion, 2001; M. Fielden/ J. Goodhand, Peace-Making in the New World Dis- order. A Study of the Afghan Conflict and Attempts to Resolve it, IDPM Manchester/INTRAC Oxford, 2001, lob "Deploring the fact that despite repeated pleas by the Security Council, the General Assembly and the Secretary-General to halt foreign interference in Afghanistan, including the involvement of foreign military personnel and the supply of arms and ammunition to all parties in the conflict, such inter- ference continues unabated", S/RES/1193 (1998) of 28 August 1998, pre- ambular para. 7. 10� "Calls upon all States neighbouring Afghanistan and other States with in- fluence in the country to intensify their efforts under the aegis of the

United Nations to bring the parties to a negotiated settlement;" ibid., para. 4. tos "Deploring the fact that despite the readiness of the United Front of Af- ghanistan [the Northern Alliance] to conclude a durable ceasefire and to enter into a political dialogue with the Taliban, fighting continues on both sides, [...]", S/RES/1214 (1998) of 8 December 1998 preambular para. 3; "Reiterates its very strong support and appreciation for the continuing ef- forts of the Special Envoy of the Secretary-General to secure the full im- plementation of its resolutions and demands that all parties, in particular the Taliban, cooperate in good faith with these efforts;" ibid., The Taliban failed to respond either to the requests to take actions against preparatory activities by terrorists (S/RES/1214 (1998) of 8 December 1998; S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 Decem- ber 2000; S/RES/1378 (2001) of 14 November 2001), or to the requests to turn over Osama bin Laden (S/RES/1267 (1999) of 15 October 1999; S/RES/1333 (2000) of 19 December 2000). 109 S/RES/1214 (1998) of 8 December 1998, para. 10; S/RES/1193 (1998) of 28 August 1998, preambular para. 7, para. 3; S/RES/1076 of 22 October 1996, paras. 3, 4. 110 It is interesting to note that on 20 August 1998 US President Bill Clinton ordered "Operation Infinite Reach", i.e. retaliatory cruise missile strikes against alleged terrorist bases in Afghanistan, as well as a pharmaceutical plant in Sudan alleged to have been involved in the manufacture of chemi- cal weapons. The latter allegations could not be substantiated by later on- site investigations. Usama bin Laden and Muhammad Atef were indicted for their involvement in the embassy bombings on 4 November 1998 in Manhattan Federal Court. The indictment included the alleged claim that there had been cooperation between al-Qaeda and the government of Iraq. See - in_U.S -Federal_Court_for African Bombings.html>.

ttt S/RES/1189 (1998) of 13 August 1998, para. 3. tt2 S/RES/1267 (1999) of 15 October 1999. 113 S/RES/1333 (2000) of 19 December 2000 which reiterated the demand to cooperate with the political process led by the SRSG, to hand over bin Laden, and in a thinly veiled reference to Pakistan and Saudi Arabia, to withhold military support and to scale back diplomatic contacts. The tone was further sharpened through S/RES/1363 (2001) of 30 July 2001 which established the so-called Monitoring Group and the Sanctions Enforcement Support Team to implement the sanctions imposed through S/RES/1267 (1999) of 15 October 1999 and S/RES/1333 (2000) of 19 December 2000. 114 "[M]y Special Envoy and I have reached the conclusion that given the lack of progress achieved so far, his activities should be "frozen" until such time as circumstances change to justify his renewed intervention." Annual Re- port of the Secretary-General on Afghanistan, Doc. A/54/536-S/1999/1145, Sec. VIII of 16 November 1999. 115 Duffield, et al., see note 105, 31.

116 A/RES/51/195 of 17 December 1996. 117 Doc. A/54/536-S/1999/1145, Sec. VIII, emphasis added. lis A/RES/54/189 A of 17 December 1999. 119 Doc. A/54/706-S/2000/20 of 14 January 2000. 120 Report of the Panel on United Nations Peace Operations, Doc. A/55/305- S/2000/809, commonly referred to as "Brahimi Report", .

iz1 Ibid., Executive Summary. i2z Brahimi, see note 41.

123 A/RES/56/1 of 12 September 2001. 124 S/RES/1368 (2001) of 12 September 2001. 125 The short and curt statement made on 19 September 2001 by the President of the Security Council, Jean-David Levitte (France) is highly indicative in this regard: "Today there is one, and only one, message the Security Coun- cil has for the Taliban: implement United Nations Security Council resolu- tions, in particular resolution 1333, immediately and unconditionally." . 126 Address to a joint session of Congress on 20 September 2001, . 127 On the question of its legality only exemplary: R. Wolfrum, "The Attack of September 11, 2001, the Wars Against the Taliban and Iraq: Is There a Need to Reconsider International Law on the Recourse to Force and the Rules in Armed Conflict?" Max Planck UNYB 7 (2003), 1 et seq.; M. Reisman, "In Defense of World Public Order", AJIL 95 (2001), 833 et seq.; T. Franck, "Terrorism and the Right to Self Defense", AJIL 95 (2001), 840 et seq.; C. Tomuschat, "Der 11. September 2001 und seine rechtlichen Fol- gen", EuGRZ 28 (2001), 535 et seq.; E.P.J. Myjer / N.D. White, "The Twin Towers Attack: An Unlimited Right to Self-Defence?", Journal of Conflict and Security Law 7 (2002), 5 et seq.; T. Bruha, "Gewaltverbot und humani- tares Volkerrecht nach dem 11. September 2001", Archiv des V61kerrechts 40 (2002), 383 et seq.; S.D. Murphy, "Terrorism and the Concept of "Armed Attack" in Article 51 of the U.N. Charter", Harv. Int'l L. J. 43 (2002), 41 et seq.; D. Abramowitz, "The President, the Congress, and the

Use of Force: Legal and Political Considerations in Authorizing Use of Force Against Terrorism", Harv. Int'l L. J. 43 (2002), 71 et seq.; M. Kra- jewski, "Selbstverteidigung gegen bewaffnete Angriffe nicht-staatlicher Organisationen - Der 11. September 2001 und seine Folgen", AVR 40 (2002), 183 et seq. 128 Declaration on the Situation in Afghanistan by the Foreign Ministers and other senior representatives of the "Six plus Two" on 12 November 2001, . 129 Brahimi, see note 41.

130 For an insightful, succinct, and sympathetic account of UN administrations in East Timor, post-Dayton Bosnia-Herzegovina, Eastern Slavonia, and Kosovo, see R. Caplan, A New Trusteeship? The International Administra- tion of War-torn Territories, 2002.

�3� Brahimi, see note 41. t3z S/RES/1378 (2001) of 14 November 2001. �33 Ibid., para. 1.

13a Ibid., paras 4 and 5. 135 The hotel was booked for a dentist convention after 5 December, leading to many of the key decisions, such as the selection of the ministers of the in- terim administration, being negotiated in the final night. See Rubin, see note 36, 570. 136 For a succinct description of the different groups see Rubin, see note 34. 137 The Northern Alliance was led in Bonn by Yunus Qanooni, and reported to Burhanuddin Rabbani, who was formally still the president of the Is- lamic State of Afghanistan. 138 The Cyprus group was led by Homayun Jareer, the son-in-law of Gulbud- din Hekmatyar, whose opposition had brought the first post-Communist government to fall. i39 A provisional list can be found at .

140 President Karzai went on record to say that peace is a necessity and justice a luxury that Afghanistan cannot afford right now. See interview of 10 May 2002 with Lyse Doucet at . 141 See Rubin, see note 36, 572; for a good contemporary overview of the rele- vant actors and their motivations see also P. Bora, "Interim Afghan Gov- ernment : First Step to Stability", . 142 Due to a miscalculation of his, Qanooni later refused the post of interior minister planning to become prime minister under a system similar to the French presidential system. Once it became apparent that the presidential system adopted would resemble the American one without the post of a prime minister, Qanooni had to backtrack and settle for the relatively un- important post of minister of education.

143 It is interesting to note in this respect that the former king Zaher Shah ini- tially opposed Karzai's nomination, favoring instead the ethnic Uzbek Ab- dul Sattar Seerat, a former minister of justice under the king. 144 Governor of the eastern Pashtun province of Nangahar, who walked out of the Bonn negotiations on 1 December complaining about the alleged lack of representation of the Pashtun community. 145 Head of the Pakistan-based Pashunkhwa Milli Awami Party (PMAP), the Pashtun nationalist party. 146 Former governor of Kandahar, whose troops were besieging the Taliban forces in the city at the time of the Bonn negotiations. While he initially objected to the insufficient representation of the Pashtuns he later collabo- rated with the Karzai government and received the post of governor. He was dismissed and assumed a post in Kabul in August 2003.

147 "Agreement on Provisional Arrangements in Afghanistan Pending the Re- establishment of Permanent Government Institutions", see note 30. 148 Section I (1) Bonn Agreement. 149 Consisting of an Interim Administration (i.e. Cabinet) presided over by a Chairman (Karzai), a Special Independent Commission for the Convention of the Emergency Loya Jirga, and a Supreme Court as well as lower courts. Section I (2) Bonn Agreement. 150 "Noting that these interim arrangements are intended as a first step toward the establishment of a broad-based, gender-sensitive, multi-ethnic and fully representative government, and are not intended to remain in place beyond the specific period of time," preambular para. 7 Bonn Agreement; Section I (4) Bonn Agreement. 151 Section I (4), (5) Bonn Agreement. 152 Section I (4) Bonn Agreement. 153 Section I (6) Bonn Agreement. 154 Section II (1) Bonn Agreement: "i) The Constitution of 1964, a/ to the ex- tent that its provisions are not inconsistent with those contained in this agreement, and b/ with the exception of those provisions relating to the monarchy and to the executive and legislative bodies provided in the Con- stitution ; and ii) existing laws and regulations, to the extent that they are not inconsistent with this agreement or with international legal obligations to which Afghanistan is a party, or with those applicable provisions con-

tained in the Constitution of 1964, provided that the Interim Authority shall have the power to repeal or amend those laws and regulations." 155 Only exemplary: "Die Armut bleibt, der Terror schwillt an'' Frankfurter Rundschau of 2 June 2005; HRW, Afghanistan: Violence Surges of 23 May 2005, . 156 Annex I (1) Bonn Agreement. 157 See S/RES/1386 (2001) of 20 December 2001. For the mandate see S/RES/1386 (2001) of 20 December 2001, S/RES/1413 (2002) of 23 May 2002, S/RES/1444 (2002) of 27 November 2002, S/RES/1510 (2003) of 13 October 2003, S/RES/1563 (2004) of 17 September 2004, for twelve months. 158 Report of the Secretary-General, The situation in Afghanistan and its im- plications for international peace and security, Doc. A/57/850-S/2003/754 of 23 July 2003, para. 37. 159 The nations leading ISAF before NATO took over the command were: United Kingdom, Turkey, Germany and the Netherlands. See Reports of the Secretary-General, The situation in Afghanistan and its implications for international peace and security, Doc. A/56/875-S/2002/278 of 18 March 2002, para. 55; Doc. A/56/1000-S/2002/737 of 11 July 2002, para. 26; Doc. A/57/762-S/2003/333 of 18 March 2003, para. 36. 160 Report of the Secretary-General, The situation in Afghanistan and its im- plications for international peace and security, Doc. A/59/581-S/2004/925 of 26 November 2004, para. 37. See also note 2.

t6t Sovereignty was transferred to the Afghan Interim Authority on 22 De- cember 2003. 162 Section I (3) Bonn Agreement. 163 See note 6. 164 Two examples where the UN exercised authority are the reconstruction processes of Kosovo and East Timor, which are both described in this Vol- ume by J. Friedrich and M. Benzing. 165 See Annex II (5) Bonn Agreement.

166 Annex II (6) Bonn Agreement. 167 Report of the Secretary-General, The situation in Afghanistan and its im- plications for international peace and security, Doc. A/56/875-S/2002/278 of 18 March 2002, para. 98. 168 Doc. A/56/875-S/2002/278 of 18 March 2002. 169 The UN's role during the interim period had been determined by Annexes II and III to the Bonn Agreement, whose language is closely mirrored in the S/RES/1401 (2002) of 28 March 2002 and the report by the Secretary- General Doc. A/56/875-S/2002/278 of 18 March 2002. 170 S/RES/1401 (2002) of 28 March 2002, which defined its mandate for an ini- tial period of twelve months, renewed since for subsequent twelve month periods in S/RES/1471 (2003) of 28 March 2003, S/RES/1536 (2004) of 26 March 2004, S/RES/1589 (2005) of 24 March 2005. l Doc. A/56/875-S/2002/278 of 18 March 2002. 172 Ibid., paras 97 and 98. 173 Ibid., para. 97.

va Report of the Panel on United Nations Peace Operations, Doc. A/55/305- S/2000/809. 175 Doc. A/56/875-S/2002/278 of 18 March 2002, para. 98 (a) and (e). 176 Ibid., para. 98 (b). 177 Ibid., para. 98 (c). 178 Ibid, para. 98 (d). 179 Ibid., para. 98 (i).

180 J.S. Kreilkamp, "U.N. Postconflict Reconstruction", N.Y.U. J. Int'l L. & Pol. 35 (2002/2003), 619 et seq. (667). 181 P. Marsden, "Afghanistan: the reconstruction process", Int'l Aff 79 (2003), 91 and seq. (95). 182 Ibid. 183 Report of the Secretary-General of 18 March 2002, Doc. A/56/875- S/2002/278, para. 15. 184 Marsden, see note 181, 94, 95. 185 Ibid., 95. 186 Report of the Secretary-General, Doc. A/59/581-S/2004/925 of 26 No- vember 2004, para. 47.

1g� SRSG Brahimi's term ended on 31 December 2003, he was succeeded by Jean Arnault as SRSG, endorsed by S/RES/1536 of 26 March 2004. 1g8 Goodhand, see note 26, 169. 189 This is due in no small part to the inherent nature of providing external ex- pertise to particular sections of the administration engaged in low- specificity, high-transaction-volume activities. See F. Fukuyama, "Why there is no Science of Public Administration", Journal of International Af fairs 58 (2004), 189 et seq. Whether the criticism leveled by Afghans such as Bachardoust and others, namely that the expertise supplied is sub-standard yet overpaid needs to be assessed in this light as well, throwing up ques- tions about the wisdom of providing certain kind of expatriate expertise. Compare "Geldmaschine Afghanistan", Der Spiegel of 26 March 2005, 116 et seq.

190 Reflecting the disagreement over the role of the king in the process, Section III (2) mentions that the chairmanship over the Interim Administration had been offered to the former king but that he had declined the offer. The honorific title "Father of the Nation" bestowed by the Emergency Loya Jirga on the former king largely served the same purpose of bridging the differences between those who had advocated a return to the monarchy, and those in favor of a republican set-up. Article 158 of the new Afghan Constitution confirms the grant of this title for the lifetime of former king Mohammad Zahir Shah. 191 Section III Bonn Agreement. Its preliminary composition has been laid down in Annex IV to the Bonn Agreement. Its main features are a very large cabinet-style composition containing 30 members, including a Chairman, 5 Vice-Chairpersons who simultaneously preside over individ- ual Departments, as well as 24 Heads of Department, corresponding to the envisaged structure of ministries. The large number of portfolios as well as vice-chairpersonships stems from the desire to include as many political and military actors as possible within the formal process, thus reducing the incentive for potential spoilers to disrupt the peace process by giving them a personal stake in it. Five departments were not filled in Bonn, thus allow- ing for a certain flexibility to include others who were not present or repre- sented during the negotiations. 192 Section I (4) Bonn Agreement. 193 Section I (4) and Section IV (5) Bonn Agreement. i9a C. Johnson et al., Afghanistan's political and constitutional development, Report of the Overseas Development Institute, January 2003, 12, 13, .

195 B.R. Rubin et al., Building a New Afghanistan: The Value of Success, the Cost of Failure, Center for International Cooperation, NY University, 2004, 22 et seq. 196 Section IV Bonn Agreement. 197 Section IV (3) Bonn Agreement had stipulated that the Commission would publish and disseminate the rules and procedures of the convening of the Emergency Loya Jirga at least ten weeks before its commencement. 198 C. Johnson et al., see note 194, 15. 199 Ibid. 200 J. Vergau, "Manifest der Hoffnung: Umber die neue Verfassung Afghani- stans", VR U 37 (2004), 465 et seq. (469). 201 Ibid.., 469, 470. The final number of female delegates was 160. 202 For details see Human Rights Watch Briefing Paper, Afghanistan: Return of the Warlords, June 2002, 10, .

203 Annex I. 4. Bonn Agreement. 204 Especially a large number of troops loyal to defense "minister" Fahim con- tinues to remain in the city until today. 205 A. Saikal, "Afghanistan after the Loya Jirga", Survival 44 (2002), 47 et seq. (48). 206 Examples are General Dostum (deputy defense minister in the Interim Au- thority and a regional leader of the north of Afghanistan), Gul Agha Sher- zai (the governor of Kandahar), Haji Abdul Qadir (the governor of Nan- gahar), and Ismail Khan (the governor of Herat). 207 The name was later changed to Transitional Islamic State of Afghanistan. 208 Saikal, see note 205, 48. 209 HRW Report, see note 202, 10. 210 Ibid. 211 Johnson et al., see note 194, 1.

z1z Ibid., 13, also fn 34. 213 Ibid., 12, 13. 214 Section I (6) Bonn Agreement. 215 Johnson et al., see note 194, 15. 216 For a comprehensive overview of the constitutional process including the relevant documents and drafts, refer to the comprehensive website of the Constitutional Commission, .

217 A link to the text of the Constitution is available at: . 218 Vergau, see note 200, 471 et seq. 219 Previous constitutions were: 1747-1923 "customary constitution"; 1923 first written constitution under Amanullah, whose reformist and secular outlook led to widespread revolt and the removal of the king; 1931 consti- tution under Nader Shah, which largely retracted the liberal advances and re-established the role of religion; the 1964 constitution, considered quite modern and liberal, drafted as the result of the "Palace Revolution" of Za- her Shah who had dismissed his prime minister (and cousin and brother-in- law) Daoud the previous year and re-asserted royal power under prime minister Dr. Yousouf; in 1973 Daoud then toppled the king and proclaimed the republic, leading in 1977 to the first republican constitution; after the Communist coup d'etat of 1978 and the Soviet invasion one year later a Constitutional Declaration was proclaimed in 1980, followed by a full con- stitution in 1987; in an effort to appease the opposition, the Najibullah government issued a Constitutional Revision in 1990; the 1992 Peshawar Accords effectively abrogated this constitution and established the Islamic State of Afghanistan, which can thus be considered a constitutional docu- ment in its own right, containing relatively detailed provisions about the structure of the government; in 1993 a draft for an Islamic Constitution was commenced under President Mujaddidi, and finalized as the Basic Principles of the Islamic State under Rabbani, but never formally adopted; the Taliban who came to power in 1996 likewise never adopted a formal constitution. For a comprehensive treatment see Bachardoust, see note 53; Moltmann, see note 50; Vergau, see note 200. 220 E. Sarcevic, "Volkerrechtlicher Vertrag als Gestaltungsinstrument der Ver- fassunggebung : Das Daytoner Verfassungsexperiment mit Prazendenzwir- kung ?", AVR 39 (2001), 297 et seq. (299 and seq.).

221 See B.R. Rubin, "Crafting a Constitution", Journal of Democracy 15 (2004), 5 et seq. (note 3 on page 19). 222 For a detailed documentation of the process see Secretariat of the Constitu- tional Commission of Afghanistan, The Constitution-Making Process in Afghanistan, Constitutional Commission of Afghanistan, 2003, . 223 See in detail Vergau, see note 200, 467 et seq. Vergau in particular laments the failure to draw upon the more progressive elements of the 1978, 1980, 1987, and 1990, instead relying almost exclusively on the 1964 constitution. z24 A list of the members of the Constitutional Review Commission can be found at: . 225 See Rubin, see note 221, 10. 226 Ibid, note 2 on page 19. 227 Some of the papers presented to the Commission are available under: . 228 See Rubin, see note 221, 10.

zz9 ICG Asia Report No 56, Afghanistan's f lawed constitutional process, 12 June 2003, 15, . 230 F, Wardak, The Management of the Constitution Making Process in Af ghanistan, Constitutional Review Commission, 1 et seq. (5), . z31 Ibid. 232 Secretariat Constitutional Review Commission, Public Consultation Strat- egy, . 233 G.R. Roashan, Afghan Constitution Building Exercise, Taking the Case to the People, 5, 6, . 234 Ibid., 5. 235 Ibid., 5, 6.

236 ICG Asia Report No. 56, see note 229, 15-20. z3� Rubin, see note 221, 10. z3e For details concerning the debated issues see Rubin, see note 221, 5 et seq. and Vergau, see note 200. 239 See the "Constitutional Loya Jirga Framework", . 240 For the details concerning the convention and procedures of the Constitu- tional Loya Jirga, see the Presidential Decree on the Convening of the Constitutional Loya Jirga of 15 July 2003, the Rules of Procedure, and the official Afghan "Draft Constitution Fact Sheet", .

241 Vergau, see note see note 200, 469. 242 Ibid. 243 The Secretariat of the Constitutional Commission, Framework, for the Constitutional Loya Jirga, see note 239. 244 See for instance the open letter by Human Rights Watch sent to President Karzai on 29 October 2003 to this effect, (NB! the spelling mistake in the URL is inten- tional). 245 Rubin, see note 34, 8. 246 Ibid. z4� The normative debate that arose in the context of the aborted electoral vic- tory of the Algerian Islamicist Front Islamique du Salut (FIS) is compara- ble to the dilemma posed here. 248 The first option was strongly advocated by the Pashtun delegates whose ethnic majority status gave them a natural monopoly over the post of president; for the same reason the other ethnic groups strongly opposed a

purely presidential system as a recipe for ethnic domination. The Northern Alliance, and in particular the Shura-yi Nazar within it, resisted the push towards presidentialism, but in the end its two leading figures, defense minister Fahim and education minister Qanooni, took different positions due to diverging personal ambitions. The former aspired to become sole vice-president under Karzai while the latter claimed the prospective pre- miership. The Americans strongly favored a strong presidency because they considered it to be a more stable form of government, thereby assur- ing them of a reliable point of contact. Most of the last minute changes to the draft prior to its publication concerned precisely this debate over presi- dentialism vs. parliamentarism. See Rubin, see note 34, 10 et seq. z49 At the time it most concerned the American-Afghan finance minister Dr. Ashraf Ghani and interior minister All Ahmad Jalali. The compromise worked out at the time of the adoption of the constitution, namely that parliament (the House of the People) can opt to approve a candidate de- spite his foreign citizenship did not help those ministers nominated by Karzai after his election in 2004 because there is as yet no parliament to ap- prove them under article 72 (1). A number of senior officials have refused to serve as ministers due to this constitutional requirement that under the present circumstances would have required them to renounce their adopted citizenship. Personal communication with senior Afghan officials, Febru- ary 2005. 250 J. Desautels-Stein, "Rites and Rights in Afghanistan: The Hazara and the 2004 Constitution", The Fletcher Forum of World Affairs 29 (2005), 157 et seq. zst Inter alia: O. Zakhilwal, "Federalism in Afghanistan: a recipe for disinte- gration", Federations, special issue on Afghanistan, Oct. 2001, 11 et seq.; D. Cameron, "Overview: A role for federalism in Afghanistan after the Tali- ban, Federations, special issue on Afghanistan", Federations, special issue on

Afghanistan, Oct. 2001, 3 et seq.; R. Chowdhari Tremblay, "A federal ar- rangement for Afghanistan", Federations, special issue on Afghanistan, Oct. 2001, 9 et seq.; H.E. Hale, The Federal Option for Afghanistan, East West Institute, Policy Brief Vol. 1, No. 7, November 2002, ; G.R. Roashan, Pros and Cons of Federalism in Afghanistan, Institute for Afghan Studies, ; Y P Ghai, An Options Paper for the Afghan Constitution Commission, Unitary or Federal: A False Choice? Decentralisation of state powers in Af ghanistan, Center on International Cooperation, ; H. Malikyar/ B.R. Rubin, Center- Periphery Relations in the Aghan State: Current Practices, Future Prospects, Center on International Cooperation, December 2002, 1 et seq., . 252 Hale, see note 251, 1, 6, 7; Cameron, see note 251, 4; Tremblay, see note 251, 10. 253 Roashan, see note 251, 6; Malikyar/ Rubin, see note 251, 44-46. zsa Marshall Qasim Fahim, Vice President and Minister of Defense, Afshraf Ghani, Minister of Finance at the Loya Jirga, Gul Agha Shirzai of Qanda- har, Hajji Din Muhammad, Governor of Nangarhar, all quoted in Malikyar/ Rubin, see note 251, 41. 255 Zakhilwal, see note 251, 12. 256 Ibid.

zs� See arts 60, 64, 65, 66, 71, 75, 79 of the Afghan Constitution. 258 Article 110, see also the whole Chapter 6, arts 110-115 of the Afghan Con- stitution. zs9 Article 111 of the Afghan Constitution. 260 Arts 1, 2, 3, 17, 18, 19, 23, 35, 45, 54, 60, 62, 81, 116, 118, 130, 131, 136, 149, 159, 161, 162 of the Afghan Constitution. 261 Article 2 II of the Afghan Constitution. z62 Article 4 of the Afghan Constitution. 263 Article 16 of the Afghan Constitution. 264 Article 22 of the Afghan Constitution. 265 Articles 22-59 of the Afghan Constitution. 266 Articles 116-135 of the Afghan Constitution.

267 Article 121 of the Afghan Constitution. zbs R, Wolfrum/ E. Afsah, Stellungnahme zum afghanischen Uerfassungsent- wurf, Max Planck Institute for Comparative Public Law and International Law of 4 November 2003. z69 Ibid. For concurring views see Vergau, see note 200; Toscano/ Drury, see note 5. 270 Article 130 stipulates that for filling lacunae of the law, the judiciary should have recourse to the jurisprudence of the Hanafi school. This has been justly hailed as a major departure from previous practice where Hanafi ju- risprudence was effectively treated as the law of the land; as it is in fact the case in many other Islamic countries which stipulate the exclusive validity of the respectively dominant school (there are altogether six orthodox schools, each completely separate, but equally valid; on the concept of mul- tiple simultaneous orthodoxies see J. Schacht, An Introduction to Islamic Law, 1964). The fact that different Muslim congregations follow different schools of law, and that there is no normative hierarchy between them is an entirely uncontroversial proposition among students of fiqh (Islamic juris- prudence). For essentially political reasons, namely a subverted version of

the Jacobin nation-state grafted upon notions of the Islamic identity of the nation, coupled with perceived necessity to prevent legal pluralism derived from the civil law tradition, many Islamic states have traditionally at- tempted to legislate the exclusive validity of any one school at the expense of all the others. Needless to say, such attempts have been extremely un- popular with followers of minority denominations, both because it was perceived to be discriminatory but also because on dogmatic grounds such measures are difficult to defend due to the hierarchical equality of all schools in classicalfiqh. Article 131 has in this context been hailed as a ma- jor breakthrough, not only in Afghan legal tradition but compared with other regional constitutions. It stipulates essentially the validity of Shiite personal status law for disputes involving members of that minority, as well as referring to Shiite jurisprudence in cases of lacunae in the law. There is some debate about the relationship between article 130 and 131, in panicu- lar the extent to which the two are self-executing, and whether article 131 applies only after recourse to Hanafi jurisprudence according to article 130 has yielded no satisfactory result, or whether in the case of a lacuna re- course should directly be had to Shiite jurisprudence. The resolution of these questions is difficult to discuss in abstracto, and needs to be seen in the light of future stance taken by the Afghan judiciary. 271 Section I Bonn Agreement. 272 Articles 159 of the Afghan Constitution.

z�3 Report of the Secretary-General, The situation in Afghanistan and its im- plications for international peace and security, Doc. A/58/868-S/2004/634 of 12 August 2004, para. 8 and Annex. 274 Section I (4) Bonn Agreement and article 116 II of the Afghan Constitu- tion. 275 For instance Rabbani's refusal to honor the Peshawar Agreement. z�b Report of the Secretary-General, The situation in Afghanistan and its im- plications for international peace and security, Doc. A/59/581-S/2004/925 of 26 November 2004, paras 5,6. 277 Presidential Decree No. 40 on the Establishment of the JEMB of 26 July 2003, amended by Presidential Decree No. 110 on Arrangements for Hold- ing Elections during the Transitional Period of 18 February 2004, . The international experts on the JEMB were appointed by the UN Special Representative of the Secretary- General for Afghanistan.

z7s Article 2 of the Presidential Decree No. 110 of 18 February 2004. The end of the transitional period is defined in article 159 Afghan Constitution as the date of inauguration of the National Assembly. 279 For example, ICG Afghanistan Briefing, The Afghan Transitional Admini- stration - Prospects and Perils, 30 July 2002, ; A. Wimmer/ C. Schetter, "Putting State- Formation First: Some Recommendations for Reconstruction and Peace- Making in Afghanistan", Journal of International Development 15 (2003), 525 et seq. (535, 536). 280 B.R. Rubin, "(Re) Building Afghanistan: The Folly of Stateless Democ- racy", Current History 103 (2004), 165 and seq. (168, 170); A. Thier/ J. Chopra, "The road ahead: political and institutional reconstruction in Af- ghanistan", Third World Quarterly 23 (2002), 893 (901). zst Final Report of the Impartial Panel of Election Experts Concerning Af- ghanistan Presidential Election 2004 of 1 November 2004. 282 See article 6 (i) Regulations for the Nomination of Candidates for the Presidential Elections, .

zs3 Article 16 (3) e) Electoral Law, , ar- ticle 62 Afghan Constitution. 284 Report of the Secretary-General, Doc. A/59/581-S/2004/925 of 26 No- vember 2004, para. 7. 285 Ibid., 13, 21, 25. zs6 BBC News, New Afghanistan cabinet sworn in, of 24 December 2004, . zs� Human Rights Watch, All Our Hopes are Crushes. Violence and Repres- sion in Western Afghanistan, Vol. 14 No. 7 (C), November 2002, .

288 R. Synovitz, Afghanistan: Kabul to Create Temporary Chamber of Parlia- ment, Radio Free Europe/Radio Liberty, 21 March 2005, . 289 Relief Web, UNDP and Afghan Civil Service Commission SEAL a deal for Parliament, UNDP of 22 February, 2005, . 290 Article 161 V Afghan Constitution and article 71 II Afghan Constitution.

291 An arguable example could be the Hisbollah in Lebanon. 292 Shin Fein in Northern Ireland springs to mind.

z93 Report of the Secretary-General, Doc. A/56/875-S/2002/278 of 18 March 2002, para. 23. and 24. 294 See UN article with annex: "Donors meet in Tokyo to Commit to Major Recovery Plan for Conflict-Ravaged Afghanistan (18 January 2002)" . 295 See the Berlin Declaration of 1 April 2004 with Annex . 296 Government of Afghanistan Ministry of Finance, Securing Afghanistan's Future: Accomplishments and the Strategic Path Forward, 2004, .

297 Rubin, see note 195, 6. 298 The following figures can serve as an indication: East Timor (1999-2001) US$ 256/60 per cent (Aid as percentage of GDP); Bosnia (1995-1997) US$ 249/40 per cent; Palestine (1994-2001) US$ 219/13 per cent; Rwanda (1994- 1996) US$ 114/61 per cent; Haiti (1995-1998) US$ 74/16 per cent; Afghani- stan (1/02-3/03, actual) US$ 67/ 25 per cent; Afghanistan (2004-2010, pro- jected) US$ 182/ 62 per cent. The figures for Afghanistan are based on a population estimate of 22 million; there is some indication that the figure might be closer to 25 million, in which case the figures states would be lower still. Sources: IMF, World Bank, J. Dobbins, et al., America's Role in Nation-Building: From Germany to Iraq, 2003, quoted in Rubin, see note 195, 15. 299 International Monetary Fund, Islamic State of Afghanistan: Rebuilding a Macroeconomic Framework for Reconstruction and Growth, 2004, 16. 300 B. Duncan, "The Nation-Building that the US Neglects", al-Jazeera, . 301 For the most up-to-date figures see the Afghanistan Donor Assistance Da- tabase (DAD) online, . Note that Pledges (political statement of intent) do not necessarily translate fully into Com- mitments (actual domestic budgeting by the donor), let alone Disburse- ments (money actually transferred to implementing organizations or the Afghan government). Out of the latter figure, funds earmarked for Recon- struction are lower still, i.e. excluding humanitarian assistance which con-

tributes little to overall development objectives. Projects Completed repre- sent an even smaller figure. 302 This is the IMF's estimate, International Monetary Fund, Islamic State of Afghanistan: Rebuilding a Macroeconomic Framework for Reconstruction and Growth, see note 299, 16. 303 About US$ 1.3-1.5 billion per year for maintaining 5,500 ISAF troops in Kabul. Source Securing Afghanistan's Future, see note 296. 304 The US component of the Coalition alone costs some US$ 12 billion per year for 11,000 US troops out of a total of 13,800. Source Rubin, see note 195, 22, referring to testimony by General John Abizaid and confirmed by the Congressional Budged Office. 305 Rubin et al., see note 195. 306 P. Collier et al., On the Duration of Civil War, 2001, .

307 Discussed in Rubin et al., see note 195, 10. 308 Goodhand, see note 26; D. Keen, The Economic Functions of Civil Wars, 1998, 309 C. Gall, "Poppy Growing Reaches Record Level, UN Says", New York Times of 19 November 2004, 3, who accuses President Karzai's brother, Ahmed Wall Karzai of complicity in the drug trade. 310 UNODC, quoted in B.R. Rubin, Road to Ruin: Afghanistan's Booming Opium Industry, Center on International Cooperation, 2004, 9.

311 B,R, Rubin, et al., Through the Fog of Peace Building: Evaluating the Re- construction of Afghanistan, Center on International Cooperation, 2003, 27 et seq. 312 Rubin, et al., see note 195, 17, the figures are based on UNODC's annual Afghanistan Opium Survey. 313 See remarks by US ambassador Zalmay Khalilzad, quoted in V. Burnett, "Crackdown on Afghanistan's Crash Crop Looms: In war on drugs, au- thorities seek to uproot poppies", Boston Globe of 27 September 2004, likewise remarks by Antonio Maria Costa, head of UNODC, quoted in Gall, see note 309. 31a Ibid. See also official UNODC figures in Afghanistan Opium Survey 2004, .

315 Only exemplary: Report of the Independent Expert of the Commission on Human Rights in Afghanistan, Doc. A/59/370 of 21 September 2004, 8,9; M.A. Drumbl, "Rights, Culture, and Crime: The Role of Rule of Law for The Women of Afghanistan", Colum. J. Transnat'l L. 42 (2004), 349 et seq. (354-359). 316 Report, see note 315, 23, 24. 317 Ibid. 318 "Decree of the Presidency of the Interim Administration of Afghanistan on the Establishment of an Afghan Independent Human Rights Commission", 06/06/2002, see Annex I, article 9. The establishment of the AIHRC is pro- vided for in article 58 of the Constitution. 319 On the question of amnesties see the account of SRSG Brahimi's interven- tion during the Bonn negotiations where he successfully argued against the inclusion of an amnesty clause by reference to his experiences during the Algerian war of liberation, in particular French torturers who later on pub- lished exonerating, even bragging accounts of their deeds under the protec- tion of a blanket amnesty of the French government. See Rubin, see note 36.

320 See in this respect article 15, Annex One of Decree of the Presidency of the Interim Administration of Afghanistan on the Establishment of an Afghan Independent Human Rights Commission, 06/06/2002. 321 Article 58 II and III Afghan Constitution. 322 HRW Report, see note 202. 323 Report, see note315, 15. 3z4 Report, ibid. 325 Afghanistan Independent Human Rights Commission, A Call for Justice, A National Consultation on past Human Rights Violations in Afghanistan, February 2005 .

3z6 Ibid., 54. 32� Ibid., 44-53. 328 Ibid., 49-51. As a possible model for the War Crimes Chamber the study refers to the War Crimes Chamber of the State Court in Bosnia. 329 Ibid., 50. 330 Ibid., 28-33, 52, 53. 331 Ibid., 51. 332 Ibid., 50, 51.

333 UNDP Human Development Report 2004, see note 17, 152. 334 AIHRC, see note 325, 11. 335 ICG, Asia Report No. 45, see note 40, 17. 336 SRSG Brahimi in his speech to the closing session of the Constitutional Loya Jirga, quoted in Rubin, et al., see note 195, 10. 33� IWPR, ARR No. 164, Seeking Redress for Past Wrongs, 09-03-05. . 338 UNDP Human Development Report 2004, see note 17, 151. 339 AIHRC, see note 325, 7. 340 AIHRC, see note 325, 44.

341 Report of the Secretary-General, An Agenda for Peace Preventive Di- plomacy, Peacemaking and Peace-keeping, Doc. A/47/277 - S/24111 of 17 June 1992. 342 For a succinct overview over the development of UN doctrine on this issue see United Nations Association of Great Britain and Northern Ireland, An Agenda for Peace Ten Years On, July 2004, . 343 Agenda, see note 341, paras 42-45, where he effectively calls for the imple- mentation of the provisions of Arts 42 and 43 UN Charter. The issue of fi- nally activating the Military Staff Committee and some form of standing UN army was actively discussed at the time. For a good overview of the debate see A. Roberts/ B. Kingsbury, United Nations, Divided World, 1993. 344 Agenda, see note 341, Section VI Post-conflict Peace-building, especially paras 55 and 58. 345 Supplement to An Agenda for Peace: Position Paper of the Secretary- General on the Occasion of the Fiftieth Anniversary of the United Nations, Doc. A/50/60 S/1995/1 of 3 January 1995; also available at: (accessed on 2 May 2005).

346 See in this respect the contributions by K. Oellers-Frahm and C. Philipp, in this Volume. 347 See note 345, para. 60. 348 Ibid paras 61-65. 349 Doc. A/55/305-S/2000/809. See also Doc. A/55/502, Report of the Secre- tary-General on the Implementation of the Report of the Panel on United Nations Peace Operations. sso Ibid., para. 42, emphasis added. 351 Ibid., paras 42-46, 47 (c). 352 Report of the Secretary-General, Prevention of Armed Conflict, Doc. A/55/985-S/2001/574 of 7 June 2001, paras 83, 93, 102, 127, Recommenda- tion No. 15. In response to which the Security Council adopted

S/RES/1366 (2001) of 30 August 2001, note particularly para. 13 regarding the illicit flow of small arms. 3s3 Doc. A/58/365 -S/2003/888. 354 For an overview of UN action in this respect see the UN website Preven- tive Action and Peacemaking, . 355 Section V (1) Bonn Agreement. 356 Ozerdem, see note 43, 967. 357 M. Sedra, New Beginning or Return to Arms? The Disarmament, Demobi- lization & Reintegration Process in Afghanistan, Bonn International Center for Conversion, 2003, 8, 3ss M. Sedra, The Cost of Complacency, Afghanistan's Faltering Peace- Building Process, Foreign Policy in Focus, March 2003, 1,

; UNDP, Af- ghanistan National Human Development Report 2004, see note 17, 52. 359 UNDP Human Development Report 2004, see note 17, 52. 360 Rubin, et al., see note 195, 10, 11; M. Sedra/ P. Middlebrook, Afghanistan's Problematic Path to Peace: Lessons in State Building in the Post.-September 11 Era, Foreign Policy in Focus, March 2004, 3, 7, ; UNDP, Afghanistan National Human De- velopment Report 2004, see note 17, 52, 53. 36t Ozerdem, see note 43, 967. 362 UNDP Human Development Report 2004, see note 17, 29-36. 363 Rubin, et al., see note 195, 14; ICG, Asia Briefing No. 35, see note 47, 8. 364 Ozerdem, see note 43, 967. 365 For information, in particular up to date data on decommissioning figures, see the official website . 366 Ibid., 11; Report of the Secretary-General, see note 160, para. 16. 367 Sedra, see note 358, BICC, 4, 5, FPIF, 2; for details see ICG, Asia Report No. 65, Disarmament and Reintegration in Afghanistan, 30 September 2003, 8 and seq.

368 ICG, Asia Briefing No. 35, see note 47, 5. 369 Report of the Secretary-General, see note 160, para. 19. 370 The illegal armed groups are thought to include between 65,000 and 80,000 armed combatants. ICG, Asia Briefing No. 35, see note 47, 11. 371 Ibid., 11. 372 Ibid., 11. 373 UNDP Human Development Report 2004, see note 17, 52. 374 Sedra, FPIF, see note 367, 2; for details, see ICG Asia Report No. 65, see note 367, 8 et seq. 375 Rubin, et al., see note 195, 12. 376 ICG, Asia Briefing No. 35, see note 47, 9. 3" Rubin, etal, see note 195, 13.

3�s ICG Asia Report No. 65, see note 367, 23. 3�9 B.R. Posen, "The Security Dilemma and Ethnic Conflict", Survival 35 (1993), 27 et seq.; Melander, see note 19. 3s� B.R. Rubin, Identifying Options and Entry Points for Disarmament, De- mobilization, and Reintegration in Afghanistan, Center on International .Cooperation, 2003, 6. 381 On ISAF's present mandate, see note 2. 382 Ozerdem, see note 43, 967. 383 Sedra, BICC, see note 367, 2. 3s4 Sedra/ Middlebrook, see note 360, 3, 7. 385 ICG, Asia Briefing No. 35, see note 47 6, 7.

386 ICG Asia Report No. 65, see note 367, 1, 7, 8. 38� ICG, Asia Report No. 45, see note 40, 15. 388 S. Barakat, "Setting the scene for Afghanistan's reconstruction: the chal- lenges and critical dilemmas", Third World Quarterly 23 (2002), 801 et seq. (802); Saikal, see note 205, 50; A.A. Jalali, "Afghanistan in 2002: The Strug- gle to Win the Peace", Asian Survey 43 (2003), 174 et seq. (183); Rubin, see note 36, 570, 571.

389 Japan is responsible for demobilization, Germany for capacity building within the Afghan police force, Italy is to help reconstruct and rehabilitate the justice sector, the US is aiding the establishment of the Afghan National Army, and the United Kingdom is dealing with the counter-narcotics tasks. 39o This fundamental problem of development assistance is ably described by Fukuyama: " The contradiction in donor policy is that outside donors want both to increase the local government's capacity to provide a particular ser- vice like irrigation, public health, or primary education, and to actually provide those services to the end user. The latter objective almost always wins out because of the incentives facing the donors themselves. While many donors believe they can work towards both goals simultaneously, in practice the direct provision of services almost always undermines the local government's capacity to provide them once the aid program terminates." Fukuyama, see note 7, 40.

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