Without a functioning local court system, the Afghan Government has little chance of overcoming the stronger rule of law possessed by the Taliban, author David J Kilcullen told an audience in Sydney recently.
Speaking last Thursday at the 2009 Wallace Wurth Memorial Lecture at the University of NSW, the counterinsurgency and counterterrorism expert said the Government of Afghanistan was losing to the Taliban because it was being out-governed, rather than outfought.
Kilcullen pointed to the 15 Taliban Sharia law courts operating at the local level as an example of how the government is being out-governed by its rival.
"Now, when you hear the term 'Sharia court' you may think of people having their hands cut off for stealing, women being stoned for adultery, beheadings and so on," said Kilcullen. "And that does happen. But, in fact, the majority of the work of these courts is commercial or civil law rather than criminal law."
Kilcullen added that such courts would issue title deeds and resolve land disputes, settle water and grazing disputes, handle inheritances, family matters and basically offer a local dispute resolution and mediation service.
He said the Taliban was acting in stark contrast to the actual Afghan Government, which has no taxes, relies largely on corruption, has no functioning local system and lacks a presence at the local level in about two thirds of the country.
"When it does have a presence, its local representatives tend to act so corruptly or oppressively that they alienate the population," said Kilcullen. "And that's even leaving aside the significant loss of legitimacy resulting from an election that a lot of people saw as fraudulent and flawed."
In this way, said Kilcullen, with reference to similar circumstances throughout history, the Taliban are the real government over much of Afghanistan. "We can beat the Taliban in any military engagement, but we're losing in Afghanistan not because we're being outfought, but because the Afghan Government is being out-governed. "
Unless drastic steps were taken to counter corruption, prevent abusive and oppressive practices by local officials of the Afghan Government and reform local level systems and local government structures, said Kilcullen, "then there's little doubt that we are eventually going to lose".
He added that the Taliban were responding to these weaknesses in the Afghan Government and had established an ombudsman system to take advantage of the situation - offering a means for people to complain if a local Taliban commander did something abusive or wrong.
"That push for fairness and accountability is a direct challenge to the state," said Kilcullen. "It's saying, 'The Government will exploit you, abuse you, the coalition forces will bomb you, there's nothing you can do about it. But we are fair, predictable and just'."
Meanwhile, Kilcullen also noted that the Taliban had a code of conduct that reads like military justice regulations - one which provides a set of rules and guidelines for behaviour and admonitions to treat the population fairly. It's a set of rules that local people are well aware of, he said, and which, combined with the ombudsman system and the Taliban court system, offers a high degree of accountability.
Kilcullen said he believes the best action the international community can take is to ensure their counterinsurgency and counterterrorism people are communicating with the development community and the rule of law community. "These academic and policy communities have been stove-piped for far too long and the more we share insights the better we'll do in the field," he said.
- Angela Priestley