Regenerating law or hastening war? Evaluating the impact of police reform on the rule of law in Afghanistan during the ISAF deployment

Abstract

Abstract This thesis develops a new framework for evaluating United Nations (UN) and international efforts to promote the rule of law through police reform in post conflict situations. The thesis examines the scholarly and policy literature on the rule of law along with deliberately focused case studies, with a view to developing a rule of law approach that is specific to the current needs of Afghanistan in a post-conflict policing context. This framework aims to be pragmatic, useable and realistic in ensuring that the rule of law can be restored through proper consultation with customary and statutory law.

This thesis explores the history of policing and its associated components in the legal system in Afghanistan. It then seeks to provide a rule of law blueprint for the policing and law reform elements of a (future) UN-led intervention, noting the following five significant developments in Afghanistan:

1. The withdrawal of the majority of coalition forces in 2014 2. The signing of a peace deal between the US and the Taliban in March 2020 3. The final and total withdrawal of all coalition troops in September 2021 4. The takeover of the Afghanistan government by the Taliban; and 5. The subsequent establishment of the Islamic Emirate of Afghanistan by the Taliban.

Afghanistan's rule of law problems have been exacerbated by its past experiences, in that international interventions to date have failed to create any lasting and meaningful effect for the rule of law, peace, security and stability in Afghanistan. This thesis argues the ISAF approach to post conflict policing served to weaken rather than strengthen the rule of law in Afghanistan and therefore advances a new theoretical model of the rule of law designed to increase the capacity of future post conflict policing interventions to promote the rule of law, both in Afghanistan and elsewhere.

The policing intervention component of ISAF post-2001 was disorganised, wayward and disconnected. The thesis critically examines international efforts to promote the rule of law of Afghanistan with a view to providing suggested revisions not only to the criminal law but to the way in which it is enforced and the interim assistance that Afghanistan may require to achieve this.

The thesis is set out in eight chapters. Chapter 1 examines the research question, the focus of this analysis and the literature gap that the thesis seeks to fill. Chapter 2 examines the rule of law elements as it applies to policing and conducts a literature review of the existing scholarly material on rule of law models in post conflict situations, and describes the methodology adopted. As part of establishing the methodology, Chapter 3 road tests two post-conflict situations in Timor Leste and Iraq with a view to assessing the rule of law approach proposed, and lessons that could be gained from these past occasions. Chapter 4 explores the history of policing in Afghanistan through the lens of a turbulent recent history 'The Great Game' with a view to gaining insight into the structure of policing and how police enforce the law. Chapter 5 explores the history of policing in Afghanistan in the Soviet era and the emergence of the Taliban. Chapter 6 examines the effectiveness of policing endeavours of the International Security Assistance Force and its partners in Afghanistan. Chapter 7 examines the findings distilled from Chapters 2, 3 ,4, 5 and 6 and analyses the legal architecture for a more effective policing mission. Chapter 8 provides conclusions and recommendations to resolve the criminal justice and legal issues identified in the thesis. The thesis provides an appendix of recommendations for any future international police mission deployed to Afghanistan, with a view to assisting the population in an overhaul of the criminal justice system and the application of a new rule of law mandate.