1 Rubin, Barnett, ‘Crafting a constitution for Afghanistan’, in Journal of Democracy, Vol. 15, No. 3, July 2004, p. 6CrossRefGoogle Scholar.

2 Two other groupings, ‘Peshawar’ and ‘Cyprus’, so named after meetings in these locations, also took part. A small number of civil society activists met in a parallel gathering but were not directly involved in the Bonn negotiations.

3 B. Rubin, above note 1, p. 7.

4 ‘Scores of UN officials have first-hand knowledge of the discouraging frequency with which negotiated settlements re-erupt into armed conflict, and it has been widely observed that countries return to violent conflict within five years of the successful negotiation of a peace settlement nearly 50% of the time’. Biersteker, Thomas J., ‘Prospects for the UN Peacebuilding Commission’, in Disarmament Forum, 2007, No. 2, p. 37Google Scholar.

5 Ibid.

6 A positive example is that of Nelson Mandela, who was conscious of the need to challenge stereotypes and convince adversaries that post-apartheid South Africa could live well as the ‘Rainbow Nation’.

7 Barbara Crossette, ‘Lakhdar Brahimi: Afghanistan's future’, in The Nation, New York, 23 March 2009, available at: http://www.thenation.com/article/lakhdar-brahimi-afghanistans-future (last visited 29 October 2010).

8 Centre for Economic, Social and Cultural Rights, Human Rights and Reconstruction in Afghanistan, New York, May 2002, p. 1.

9 The Human Rights Research and Advocacy Consortium, Speaking Out: Afghan Opinions on Rights and Responsibilities, Kabul, November 2003, p. 8.

10 Ibid., p. 16.

11 Ibid., p. 30.

12 Afghanistan Independent Human Rights Commission (AIHRC), A Call for Justice: A National Consultation on Past Human Rights Violations in Afghanistan, Kabul, January 2005, p. 13.

13 Ibid., p. 17.

14 Oxfam, The Cost of War: Afghan Experiences of Conflict, 1978–2009, Kabul, 2009, p. 26.

15 Lakhdar Brahimi, ‘State building in crisis and post-conflict countries’, contribution to the 7th Global Forum on Reinventing Government: Building Trust in Government, Vienna, Austria, 26–29 June 2007, p. 13.

16 Norah Niland, ‘Justice postponed: the marginalization of human rights in Afghanistan’, in Antonio Donini, Norah Niland, and Karen Wermester (eds), Nation-Building Unraveled? Aid, Peace and Justice in Afghanistan, Kumarian Press, West Hartford, CT, 2004, p. 75.

17 Report of the Secretary-General, The Situation in Afghanistan and its Implications for International Peace and Security, 6 December 2001, UN Doc. A/56/681-S/2001/1157. In mid-2001 the UN Coordinator's Office decided to recruit dedicated protection staff, who began to arrive at the end of 2001. However, these staff were subsequently absorbed into the UN Assistance Mission to Afghanistan (UNAMA), which did not prioritize issues relating to the protection of civilians and incorporated human rights officers into the political team.

18 Report of the Secretary-General, The Situation in Afghanistan and its Implications for International Peace and Security, 18 March 2002, UN Doc. A/56/875-S/2002/278. Well-documented reports had been produced by aid agencies concerned about targeted attacks on Pashtuns, the arming and abuse of internally displaced persons (IDPs), and inter-factional fighting; these reports also dealt with the role of General Dostum, regional power-broker, who returned to Mazar in late 2001. Karzai sent a ministerial team to investigate; this team subsequently asked senior UNAMA personnel, including the Deputy Special Representative of the Secretary-General, to speak out on human rights violations and to warn that warlordism and impunity would not be tolerated. However, UNAMA was of the view that these were Afghan issues that Afghans had to solve. See N. Niland, above note 16, p. 75.

19 In 2000, the UN Secretary-General, Kofi Annan, launched a review of UN peace operations to produce recommendations for improved peace initiatives. This panel was chaired by Ambassador Lakhdar Brahimi and led to The Report of the Panel on UN Peace Operations (commonly known as the ‘Brahimi Report’), 21 August 2000, UN Doc. A/55/305-S/2000/809.

20 Alex Costy, ‘The dilemma of humanitarianism’, in A. Donini, N. Niland, and K. Wermester, above note 16, p. 148.

21 Human Rights Watch called on UNAMA to increase human rights monitors and go public about human rights problems, noting that warlords were to blame for many of the problems that thwarted effective implementation of the Bonn Agreement, but that the international community was also at fault for not helping those Afghans ‘who are trying to make the agreement a success’. Human Rights Watch, Afghanistan's Bonn Agreement One Year Later, New York, 2002.

22 Others also ‘attended, in violation of the loya jirga procedures, including the governor of Kandahar, Gul Agha Sherzai, the governor of Nangahar, Haji Abdul Qadir, and Ismail Khan. Zalmay Khalilzad, the U.S. special envoy to Afghanistan, and Lakhdar Brahimi, the special representative of U.N. Secretary-General Kofi Annan, pressured the Afghan loya jirga commission to allow regional governors and military commanders to attend’. Human Rights Watch, World Report 2003, p. 192, available at: http://www.hrw.org/wr2k3/asia1.html (last visited 21 December 2010).

23 Ibid.

24 Lyse Doucet, interview with Hamid Karzai, BBC HardTalk programme, Kabul, 14 June 2002.

25 ‘Transcript of the press conference by the Special Representative of the Secretary-General for Afghanistan, Lakhdar Brahimi’, Kabul, 27 August 2002, available at: http://www.un.org/apps/news/infocusnews.asp?NewsID=212&sID=1 (last visited 29 October 2010).

26 Rama Mani, Ending Impunity and Building Justice in Afghanistan, Afghanistan Research and Evaluation Unit (AREU), Kabul, December 2003, p. 14.

27 Ibid.

28 Author's own records. See also Patricia Gossman, ‘The past as present: war crimes, impunity and the rule of law’, paper delivered at the ‘State Reconstruction and International Engagement in Afghanistan’ symposium, 30 May–1 June 2003, London School of Economics and Political Science and University of Bonn, p. 1.

29 L. Brahimi, above note 15, p. 15.

30 AIHRC, above note 12, p. 17.

31 Author's personal records.

32 Ibid. See also Jonathon Burch, ‘U.N. calls for repeal of Afghan amnesty law’, in Reuters, 25 March 2010.

33 The term ‘structural violence’ refers to the underlying causes of conflict or fault lines in a society that ‘normalize’ harm such as discrimination or exclusion. It has been defined as ‘entrenched socioeconomic conditions that cause poverty, exclusion and inequality’: Paul Farmer, Pathologies of Power: Health, Human Rights, and the New War on the Poor, University of California Press, Berkeley, 2003, p. 40.

34 A survey conducted by the AIHRC found that ‘Afghans believe justice to be a general medium through which to improve specific aspects of their life. Justice for many also meant upholding of basic human rights, including the freedom of expression, the freedom to participate in elections and the elimination of discrimination on the basis of race, language and gender. Many also associated justice with the promotion of economic equality’. AIHRC, above note 12, p. 14.

35 B. Crossette, above note 7.

36 Manipulating, manufacturing, or aggravating tribal differences has been very destructive and deadly on occasion. According to the study by General Stanley McChrystal, former Commander of ISAF and US troops in Afghanistan, which formed the bedrock of his counter-insurgency doctrine, the Taliban ‘consistently support weaker, disenfranchised, or threatened tribes or groups’. COMISAF Initial Assessment (Unclassified), 30 August 2009, pp. 2–7, available at: http://media.washingtonpost.com/wp-srv/politics/documents/Assessment_Redacted_092109.pdf?sid=ST2009092003140 (last visited 29 October 2010).

37 A survey conducted by the United Nations Development Programme (UNDP) in 2005 found that ‘76% of people interviewed’ considered the judiciary ‘the most corrupt institution in the country’. UNDP, Afghanistan Human Development Report 2007: Bridging Modernity and Tradition: Rule of Law and the Search for Justice, Kabul, 2007, p. 61. The Oxfam Cost of War study (above note 14) noted that almost 30% of respondents ‘reported one or more family members imprisoned at some point since 1979’ (p. 16). The Integrity Watch Afghanistan (July 2010) report found that Afghans were of the view that the judiciary and the police are the two most corrupt institutions in the country. Integrity Watch Afghanistan, Afghan Perceptions and Experiences of Corruption: A National Survey 2010, Kabul, p. 11.

38 With reference to Transparency International's annual Corruption Perceptions Index (CPI) (November 2009), Al Jazeera noted that government corruption ‘along with the exploding opium trade – which is also linked to corruption – contributes to the downward trend in the country's CPI score’. Al Jazeera, ‘Afghanistan corruption “worsening”: Transparency International ranks country second-worst for public sector corruption’, 17 November 2009. See also Transparency International's annual Corruption Perceptions Index (November 2009), available at: http://www.transparency.org/policy_research/surveys_indices/cpi/2009/cpi_2009_table (last visited 29 November 2010).

39 An Integrity Watch study on Afghanistan found that the average value of bribes paid in 2009 was $156. The study showed that almost a third of civil servants indicated that they had been forced to pay a bribe to obtain a public service, while 13% of households said that they had paid bribes to secure their own sources of income. Integrity Watch Afghanistan, above note 37, pp. 10 and 12.

40 Filkins, Dexter, ‘Inside Corrupt-istan: a loss of faith in leaders’, in New York Times, 4 September 2010Google Scholar.

41 ‘The fact that candidates with problematic backgrounds and a record of abuse were allowed to run helped undermine the democratic process and the idea of democracy itself; this study on local perceptions found that positive UN commentary on the elections, despite widespread fraud “seems to have created a sense of disillusionment with the political process as a whole and the independence of the UN”’. Marika Theros and Iavor Rangelow, ‘Field notes from Afghanistan: perceptions of insecurity and conflict dynamics’, Working paper 01/2010, London School of Economics, April 2010, p. 5.

42 Ellick, Adam B., ‘Karzai family political ties shielded bank in Afghanistan’, in New York Times, 7 September 2010Google Scholar. The same article notes that ‘General Fahim is also suspected of involvement in serious human rights violations during the 1990s, according to several advocacy groups. In particular, he was a key commander during the Ashfar massacre in 1992 in Kabul when an estimated 800 ethnic Hazaras were killed and raped’.

43 Office of the United Nations High Commissioner for Human Rights (OHCHR) and UNAMA, Silence is Violence: End the Abuse of Women in Afghanistan, Kabul, 8 July 2009, p. 23. The report records a long litany of pain and recounts the efforts of Afghan non-governmental organizations and others to challenge deeply engrained discrimination against women and girls.

44 An investigation undertaken by the US House Subcommittee for National Security concluded that the major players involved are ‘warlords, strongmen, commanders and militia leaders who compete with the Afghan central government for power and authority’. Dexter Filkins, ‘US said to fund Afghan warlords to protect convoys’, in New York Times, 21 June, 2010. See also ‘WARLORD, INC. extortion and corruption along the U.S. supply chain in Afghanistan’, Report of the Majority Staff, Rep. John F. Tierney (Chair), Subcommittee on National Security and Foreign Affairs, US House of Representatives, June 2010, pp. 1–2.

45 D. Filkins, above note 44.

46 Associated Press, ‘Karzai: shutter private security companies’, Kabul, 7 August 2010.

47 OHCHR, Human Rights Dimension of Poverty in Afghanistan, Kabul, March 2010, p. 20.

48 Andrew Wilder and Stuart Gordon, ‘Money can't buy America love’, in Foreign Policy, 1 December 2009.

49 COMISAF Initial Assessment, above note 36.

50 Carl Frosberg, Politics and Power in Kandahar, Institute for the Study of War, Washington, DC, April 2010, p. 51.

51 Sarah Ladbury and Centre for Peace and Unity (CPAU), Testing Hypotheses on Radicalization in Afghanistan: Why Do Men Join the Taliban and Hisb-i-Islami?, independent report for the Department for International Development (DFID), Kabul, 14 August 2009, p. 7.

52 A NATO team working on alternative options to combat corruption concluded that US-led efforts to date ‘have done little to erase the nickel-and-dime bribes Afghans have to pay to drive down a highway, or see a government doctor – the daily shakedowns that drive the people into the arms of the insurgents, who provide similar services without the graft’. This team concluded that militants are seen to provide ‘cleaner’ government in areas they control. See Kimberly Dozier, ‘US strategists seek Afghan fixes outside the box’, in Associated Press, 25 September 2010.

53 The reality of the Taliban rise to power is more complex than their founding myth of banding together to end pervasive rape and predation; their repressive rule and massive human rights violations are well known. However, as violence has taken hold, many welcome the Taliban resurgence. Speaking to a disgruntled resident of Kabul in 2006, Kate Clark, then with the BBC, was told that ‘from the point of view of security, the Taliban were good’, whereas in the current regime bribery was noted to be terrible and ‘as for security, you can't reach home if you have money on you’. Speaking to an elderly respondent, Clark was told: ‘These days, the officials suck your blood. Even governors take bribes just for doing something legal. The Taliban beat women and there were restrictions, but at least there was no bribery’. Stephen Carter and Kate Clark, No Shortcut to Stability: Justice, Politics and Insurgency in Afghanistan, Chatham House, London, December 2010, p. 20.

54 Frazier Hirst, Support to the Informal Justice Sector in Helmand, DFID Internal Report, April 2009.

55 Ledwidge, Frank, ‘Justice and counter-insurgency in Afghanistan: a missing link’, in Royal United Services Institute Journal, Vol. 154, No. 1, February 2009, pp. 6–9Google Scholar.

56 COMISAF Initial Assessment (Unclassified), above note 36.

57 The ‘government-in-a-box’ formula that was part of the counter-insurgency campaign to re-take Marjah in Helmand is illustrative; new government officials were appointed but have largely proved ineffective in strengthening the legitimacy of the Kabul administration.

58 Siddique, Abubakar, ‘Weak judiciary pushes some Afghans to Taliban’, in Radio Free Europe/Radio Liberty, Kabul, 13 December 2009Google Scholar.

59 ICRC/IPSOS, Our World: Views from the Field: Afghanistan, opinion survey and in-depth research, Geneva, 2009, pp. 11–12.

60 There were between 1,067 and 1,201 civilian deaths, as a result of the bombing campaign, in the five-month period from 7 October 2001 to 28 February 2002, according to Zucchino, David, ‘Afghanistan: US airstrikes were highly accurate but hundreds of villagers still died. Now some survivors want compensation’, in Los Angeles Times, 2 June 2002Google Scholar.

61 Afghanistan is ‘the only complex emergency where the political UN is fully aligned with one set of belligerents and does not act as a [sic] honest broker in “talking peace” to the other side’, says Antonio Donini, who also noted that the ‘UN Secretary General and his Special Representative for Afghanistan (SRSG) have publicly and repeatedly welcomed the military surge and the prosecution of the war’. Antonio Donini, Afghanistan: Humanitarianism Unraveled?, Feinstein International Centre, Tufts University, Medford, March 2010, pp. 3–4.

62 UNAMA, Annual Report on Protection of Civilians in Armed Conflict, 2008, Kabul, January 2009, p. ii.

63 UNAMA, The Protection of Civilians in Armed Conflict, Afghanistan, 2009, Kabul, 13 January 2010, p. i.

64 UNAMA, Afghanistan: Mid Year Report 2010: Protection of Civilians in Armed Conflict, Kabul, 10 August 2010, pp. i and ii.

65 The Taliban proposed the formation of a joint commission to investigate civilian casualties after the UN mid-2010 report on casualties came out; they have frequently rejected the conclusions of such reports, as did ISAF in 2008. On this occasion, it appears that the Taliban may be concerned about their association with the growing number of casualties attributed to the armed opposition, but it is not the first time that they have called for a similar body.

66 UNAMA, above note 64, p. ii. It is worth noting in this regard that a survey commissioned by the US army in Kandahar found that 58% of respondents said the ‘biggest threat to their security while travelling were the ANA [Afghan National Army] and ANP [Afghan National Police] checkpoints on the road and 56% said ANA/ANP vehicles were the biggest threat’. See ‘Ninety-four percent of Kandaharis want peace talks, not war’, in Inter Press Service, 19 April 2010.

67 UNAMA, above note 64, p. 6.

68 Inter Press Service, above note 66.

69 David Nakamura (quoting Erica Gaston of the Open Society Institute), ‘Afghans blame civilian deaths on US despite spike from insurgent violence’, in The Washington Post, 14 August 2010.

70 Ibid.

71 UNAMA, above note 63, p. 20.

72 General David Petraeus, who succeeded General McChrystal as the Commander of ISAF and US Forces Afghanistan in mid-2010, explained in August that SOF units, in a ninety-day period from May through July, had captured 365 ‘insurgent leaders’ and 1,355 Taliban ‘rank and file’ fighters and had killed 1,031. Commenting on these figures, Gareth Porter noted that there is a direct correlation ‘between the stepped-up night raids in Kandahar province and a sharp fall-off in the proportion of improvised explosive devices (IEDs) being turned in by the local population’, which tends to indicate that the effects of night raids go beyond capture or kill statistics. Note that both acts – i.e. being killed in night raids or being captured and detained somewhere – are of concern to Afghans. Porter, Gareth, ‘New light shed on US's night raids’, in Asia Times, 16 September 2010Google Scholar.

73 Porter, Gareth and Fazly, Ahmad Walid, ‘McChrystal probe of SOF killings excluded key eyewitnesses’, in Inter Press Service, 6 July 2010Google Scholar.

74 UNAMA, above note 64, p. 18.

75 Professor Philip Alston, Special Rapporteur of the UN Human Rights Council on extrajudicial, summary, or arbitrary executions, Press Statement, Kabul, 15 May 2008.