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Debunking conventional narratives of Afghanistan as a perennial war zone and the rule of law as a secular-liberal monopoly, Faiz Ahmed presents a vibrant account of the first Muslim-majority country to gain independence, codify its own laws, and ratify a constitution after the fall of the Ottoman Empire. Afghanistan Rising illustrates how turn-of-the-twentieth-century Kabul--far from being a landlocked wilderness or remote frontier--became a magnet for itinerant scholars and statesmen shuttling between Ottoman and British imperial domains. Tracing the country's longstanding but often ignored scholarly and educational ties to Baghdad, Damascus, and Istanbul as well as greater Delhi and Lahore, Ahmed explains how the court of Kabul attracted thinkers eager to craft a modern state within the interpretive traditions of Islamic law and ethics, or shariʿa, and international norms of legality. From Turkish lawyers and Arab officers to Pashtun clerics and Indian bureaucrats, this rich narrative focuses on encounters between divergent streams of modern Muslim thought and politics, beginning with the Sublime Porte's first mission to Afghanistan in 1877 and concluding with the collapse of Ottoman rule after World War I. By unearthing a lost history behind Afghanistan's founding national charter, Ahmed shows how debates today on Islam, governance, and the rule of law have deep roots in a beleaguered land. Based on archival research in six countries and as many languages, Afghanistan Rising rediscovers a time when Kabul stood proudly as a center of constitutional politics, Muslim cosmopolitanism, and contested visions of reform in the greater Islamicate world.
How, despite the enormous investment of blood and treasure, has the West's ten-year intervention left Afghanistan so lawless and insecure? The answer is more insidious than any conspiracy, for it begins with a profound lack of understanding of the rule of law, the very thing that most dramatically separates Western societies from the benighted ones in which they increasingly intervene. This volume of essays argues that the rule of law is not a set of institutions that can be exported lock, stock and barrel to lawless lands, but a state of affairs under which ordinary people and officials of the state itself feel it makes sense to act within the law. Where such a state of affairs is absent, as in Afghanistan today, brute force, not law, will continue to rule.
In the context of a review of U.S. strategy in Afghanistan during September-November 2009, the performance and legitimacy of the Afghan government figured prominently. In his December 1, 2009, speech announcing a way forward in Afghanistan, President Obama stated that the Afghan government would be judged on performance, and "The days of providing a blank check are over." The policy statement was based, in part, on an assessment of the security situation furnished by the top commander in Afghanistan, General Stanley McChrystal, which warned of potential mission failure unless a fully resourced classic counterinsurgency strategy is employed. That counterinsurgency effort is deemed to require a legitimate Afghan partner. The Afghan government's limited writ and widespread official corruption are believed by U.S. officials to be helping sustain a Taliban insurgency and complicating international efforts to stabilize Afghanistan. At the same time, President Hamid Karzai has, through compromise with faction leaders, been able to confine ethnic disputes to political competition, enabling his government to focus on trying to win over those members of the ethnic Pashtun community that support Taliban and other insurgents.
Since the "surge" in Iraq in 2006, counterinsurgency effectively became America's dominant approach for fighting wars. Yet many of the major controversies and debates surrounding counterinsurgency have turned not on military questions but on legal ones: Who can the military attack with drones? Is the occupation of Iraq legitimate? What tradeoffs should the military make between self-protection and civilian casualties? What is the right framework for negotiating with the Taliban? How can we build the rule of law in Afghanistan? The Counterinsurgent's Constitution tackles this wide range of legal issues from the vantage point of counterinsurgency strategy. Ganesh Sitaraman explains why law matters in counterinsurgency: how it operates on the ground and how law and counterinsurgency strategy can be better integrated. Counterinsurgency, Sitaraman notes, focuses on winning over the population, providing essential services, building political and legal institutions, and fostering economic development. So, unlike in conventional war, where law places humanitarian restraints on combat, law and counterinsurgency are well aligned and reinforce one another. Indeed, following the law and building the rule of law is not just the right thing to do, it is strategically beneficial. Moreover, reconciliation with enemies can both help to end the conflict and preserve the possibility of justice for war crimes. Following the rule of law is an important element of success. The first book on law and counterinsurgency strategy, The Counterinsurgent's Constitution seamlessly integrates law and military strategy to illuminate some of the most pressing issues in warfare and the transition from war to peace. Its lessons also apply to conflicts in Libya and other hot-spots in the Middle East.
For the first time, the author has explored the intertwinement of written law, Islamic law, and customary law in the highly complex Afghan society, being deeply influenced by traditional cultural and religious convictions. Given these facts, the author explores how to bridge the exigencies of a human rights–driven penal law and conflicting social norms and understandings by using the rich tradition of Islamic law and its possible openness for contemporary rule of law standards. This work is based on ample field research in connection with a thorough analysis of the normative contexts. It is a landmark, since it offers broadly acceptable and thus feasible solutions for the Afghan legal practice. The book is of equal interest for scientists and practitioners interested in legal, religious, social, and political developments concerning human rights and regional traditions in the MENA region, in Afghanistan in particular.
Women's rights in Afghanistan have been supported and championed by Afghan and international advocates and organizations since 2002. Substantial progress has been made, but the women's rights movement faces an uncertain future in the wake of the 2014 international troop withdrawals. In addition to the potential for decreased financial and public support from international actors, women's rights advocates face the challenge of collaborating with a national government that has been mistrusted by the Afghan people while trying to promote norms and laws that often contradict deeply held community traditions. This report draws on numerous in-country interviews, discussions and debates to explore a way forward for women's rights in Afghanistan: promoting women's rights through an Islamic framework. Women's rights groups have increasingly been using Sharia-based arguments and working with religious leaders to give arguments for stronger women's rights protections more legitimacy. Greater understanding of how Islamic legal literacy, scholarship and dialogue might help protect women's rights in the coming difficult period is crucial.
The major peacekeeping and stability operations of the last ten years have mostly taken place in countries that have pervasive customary justice systems, which pose significant challenges and opportunities for efforts to reestablish the rule of law. These systems are the primary, if not sole, means of dispute resolution for the majority of the population, but post-conflict practitioners and policymakers often focus primarily on constructing formal justice institutions in the Western image, as opposed to engaging existing traditional mechanisms. This book offers insight into how the rule of law community might make the leap beyond rhetorical recognition of customary justice toward a practical approach that incorporates the realities of its role in justice strategies."Customary Justice and the Rule of Law in War-Torn Societies" presents seven in-depth case studies that take a broad interdisciplinary approach to the study of the justice system. Moving beyond the narrow lens of legal analysis, the cases Mozambique, Guatemala, East Timor, Afghanistan, Liberia, Iraq, Sudan examine the larger historical, political, and social factors that shape the character and role of customary justice systems and their place in the overall justice sector. Written by resident experts, the case studies provide advice to rule of law practitioners on how to engage with customary law and suggest concrete ways policymakers can bridge the divide between formal and customary systems in both the short and long terms. Instead of focusing exclusively on ideal legal forms of regulation and integration, this study suggests a holistic and flexible palette of reform options that offers realistic improvements in light of social realities and capacity limitations. The volume highlights how customary justice systems contribute to, or detract from, stability in the immediate post-conflict period and offers an analytical framework for assessing customary justice systems that can be applied in any country. "
Despite vast efforts to build the state, profound political order in rural Afghanistan is maintained by self-governing, customary organizations. Informal Order and the State in Afghanistan explores the rules governing these organizations to explain why they can provide public goods. Instead of withering during decades of conflict, customary authority adapted to become more responsive and deliberative. Drawing on hundreds of interviews and observations from dozens of villages across Afghanistan, and statistical analysis of nationally representative surveys, Jennifer Brick Murtazashvili demonstrates that such authority enhances citizen support for democracy, enabling the rule of law by providing citizens with a bulwark of defence against predatory state officials. Contrary to conventional wisdom, it shows that 'traditional' order does not impede the development of the state because even the most independent-minded communities see a need for a central government - but question its effectiveness when it attempts to rule them directly and without substantive consultation.