Cablegate: Helmand: Developments in the Informal Justice Sector

DE RUEHBUL #4023/01 3500518
R 160518Z DEC 09




E.O. 12958: N/A



1. (SBU) Summary: The absence of any formal Afghan government
(GIRoA) justice infrastructure in many districts of Helmand province
has created a legal vacuum that enables "insurgent justice" to hold
sway. In order to help the Afghan government (GIRoA) compete with
the Taliban's shadow justice system, the UK-led Provisional
Reconstruction Team (PRT) in Helmand has initiated a program to
develop informal, local justice systems that draw on local Afghan
traditions. As part of this effort, the UK-led PRT based in Lashkar
Gah has facilitated the establishment of Community Councils (CC),
Prisoner Review Shuras (PRS), and Justice Sub-Committees (JSC) to
take up minor criminal and civil cases at the district level. This
cable outlines activities relating to the informal justice system
that are being spear-headed by the UK as part of its PRT activities
in Helmand.

2. (SBU) Formal sector capacity building efforts have not been as
robust, but the PRT is working with the Provincial Prosecutor to get
GIRoA prosecutors to some key districts on a rotating basis. An
increase in formal GIRoA prosecutors and judges should help lessen
the need to rely upon the informal mechanisms, which in some cases
are not consistent with GIRoA legal requirements. To combat police
corruption, the PRT is mentoring an outreach campaign to deter
abuses and highlight prosecutions of corrupt police. The PRT has
ambitious plans to facilitate more intelligence-led policing to
improve investigations and minimize forced confessions. To
"criminalize the insurgency," the PRT also is working with National
Directorate of Security (NDS) officials to enhance their ability to
coordinate efforts with the military in kinetic environments. End

Informal Judicial Mechanisms Introduced in Districts

3. (SBU) As part of the Afghan Social Outreach Program (ASOP), the
UK-led PRT in Helmand Province, in coordination with the Provincial
Governor's office, has established Community Councils, Prison Review
Shuras and Justice Sub-Committees (JSCs are subsets of the CCs) in
several districts to perform some judicial functions where there is
not a court and prosecutor. (Note: Garmsir and Nad-Ali districts
have both PRSs and JSCs in place; there is a JSC in Gereshk district
and a PRS in Sangin district.) The components of these mechanisms
are all local - CC members are selected by a locally-chosen
electorate of community elders, and the PRSs are chaired by the
District Governor (DG) and composed of the local heads of the Afghan
National Police (ANP), Afghan National Army (ANA), National Security
Directorate (NDS), and one member of the CC. It should be noted,
however, that these traditional, informal justice mechanisms are not
designed to deal with major crimes. The draft GIRoA policy
concerning traditional justice considers only petty crime where no
prison time is contemplated to be appropriate for referral to the
local, traditional bodies. The decisions of these bodies will
then be deemed valid if not in contravention of Afghan law and
international human rights standards.

4. (SBU) In districts where there is no prosecutor, the following
procedures are in place: Persons arrested and detained by the
security forces in a given district are brought before the PRS
within 72 hours of arrest, where a determination by a majority of
the members is made on whether there is evidence of a crime. If
there is no evidence of a crime, the detainee must be released. If
evidence exists, the PRS determines whether the case constitutes a
serious or minor offense, and in serious cases, it is then
transferred to the formal court system in the provincial capital,
Lashkar Gah. If the offense is minor, the case is transferred to the
JSC for resolution.

5. (SBU) According to an agreed framework, international mentors
(typically DST officers) must be informed about, and permitted to
attend PRSs, but no similar provision exists for international
oversight of the determinations of the JSC. JSCs have no authority
to order imprisonment and its decisions are to be based on
restorative justice and conflict prevention principles. Decisions
do not require authorization from an outside authority prior to
implementation. The PRT was recently given access to books
containing recorded prior decisions. Although there is a right to
take matters to the formal sector, the manner or extent to which
this occurs once a case has entered the informal sector is not fully
known. The system was set up to construct an alternative to
insurgent justice systems in districts where there is not a fully
functioning formal system. It is difficult, however, if not
impossible, to be aware of or monitor all of its functions or the
disposition of detainees arrested by security forces.

Deploying Prosecutors to Districts

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6. (SBU) The PRT recently began working with the Chief Provincial
Prosecutor (CPP) to facilitate the deployment of prosecutors to more
districts, on a 30-day rotating basis. This approach was designed
to minimize the time spent by prosecutors away from their homes and
mitigate potential corruption from working in one area too long. In
Gereshk district, a prosecutor replaced an ineffective predecessor
in October, along with an investigative police officer from Lashkar
Gah. These moves, coupled with greater support from police mentors,
have resulted in the prosecutor functioning effectively.
Additionally, in Sangin district, the recent arrival of a prosecutor
ended a long vacancy. Although the District Governor has intervened
to influence some cases, the prosecutor has been reasonably
effective. (Note: The District Governor had previously served as
the chairman of the PRS, and is clearly unwilling to relinquish that
influence. End Note) Sustained attention by police advisors,
frequent communication with the CPP, and coordination with other PRT
thematic strands to identify political remedies to the problems of
third party influence should help to ensure the continued
effectiveness of these prosecutors.

Developing an Anti-corruption Campaign

7. (SBU) Police corruption is perhaps the greatest impediment to the
implementation of rule of law in Helmand. The PRT, in conjunction
with the Marine Expeditionary Brigade (MEB), has developed an
anti-corruption campaign with input from the Major Crimes Task Force
in Kabul. If approved by GIRoA, the campaign will focus on
messaging to the general public about the illegality of police
corruption and its damaging effects. The program will be Afghan led
and internationally mentored, and will target areas known for a
prevalence of corruption. Prior to implementation, the plan must be
approved by the Anti-Corruption Task Force, as well as the
Afghanistan Ministry of the Interior General who leads the Major
Crimes Task Force. The anti-corruption campaign will also be
coordinated with the Attorney General's Office (AGO). Any
successful corruption prosecutions will be highlighted in hopes of
deterring such activity.

Developing Intelligence-led Policing

8. (SBU) Intelligence-led policing is critical for effective
investigations. Increasing the ANSF's ability to collect objective
probative evidence will also be a critical step towards eliminating
coerced confessions. The UK-led PRT's Rule of Law cell has
ambitious plans in this regard, and recently has identified criminal
investigators who are able to deploy to districts on short notice to
address complex or politically sensitive cases, and respond to
surges in criminal activity. These special task forces will be
trained in interview techniques, evidence collection, and case
preparation, with similar training regiments planned for
prosecutors. The PRT is also focusing on building NDS capacity to
function effectively in a manner consistent with the rule of law.
In this vein, the UK PRT's Security Sector Reform cell is training a
small group of NDS personnel to be more effective as a task force to
deploy to more kinetic areas to coordinate with the military to
"criminalize the insurgency." The UK is also funding construction
of an NDS detention facility.


9. (SBU) Over the medium term, informal justice mechanisms in
Helmand will continue to play a vital role in resolving minor
criminal disputes. If, by virtue of District Governor and CC
participation, PRSs and JSCs are seen by Afghans as GIRoA processes
(as we believe they are), these informal mechanisms can be viable
alternatives to insurgent justice, and will allow GIRoA to compete
directly with the Taliban in the justice sector. We must be
careful, however, not to support the development of the informal
justice sector in ways that contravene Afghan law or undermine the
formal sector; to this end, we should continue our efforts to
facilitate the placement of prosecutors at the district level and
build up formal mechanisms with an aim to transitioning from
informal to formal processes when possible. While corruption,
insecurity, and underdeveloped law enforcement remain impediments to
the advancement of the rule of law, targeted use of informal
mechanisms can begin to erode the Taliban grip on justice delivery
in Helmand's districts. With proper mentoring and facilitation,
facilitation of GIRoA prosecutors at the district level in Helmand
shows considerable promise in providing an alternative to Taliban


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