Debating the Rule of Law in Afghanistan

To the Editors (Eric Bartz and Khalid Momand write):

In "Why U.S. Efforts to Promote the Rule of Law in Afghanistan Failed," Geoffrey Swenson's inaccurate description of one project, the U.S. Agency for International Development's (USAID's) Rule of Law Stabilization—Informal Component program (RLS-I) (Swenson uses "RLS-Informal"), misrepresents an effective rule of law program while missing an opportunity for comparative learning.¹ At the core of the issue is Swenson's conflation of RLS-I with counterinsurgency projects and approaches—approaches that RLS-I deliberately avoided. Swenson's dismissal of RLS-I's stated objectives and his selective reliance on sources of varying timeliness, relevance, and accuracy results in the false assumption that the "program's more pressing goal . . . was to supplement and consolidate U.S.-led counterinsurgency efforts" (p. 127). This faulty conclusion serves as the premise for his subsequent analysis, which results in inaccurate assertions and misattributions throughout the article.

Swenson claims that RLS-I assumed the existence of and sought to fill a post-Taliban justice vacuum by propping up self-serving, marginally legitimate figures to help stave off an insurgent return. On the contrary, RLS-I's implementers understood that engaging legitimate practitioners of traditional dispute resolution was not intended to fulfill these immediate-term counterinsurgency objectives. They knew that a more realistic goal was engaging existing informal justice mechanisms by first understanding them and then mitigating their harmful, conflict-inducing practices while supporting—without distorting—their positive components. Achieving this objective would contribute to long-term stability by increasing respect for rights and the rule of law, thereby improving dispute resolution services and reducing destabilizing disputes. The program's pre-intervention research, targeted legal education, locally initiated solutions, and mutual support and accountability among justice stakeholders reflected this understanding. We were therefore dumbfounded by statements from Swenson that, for example, RLS-I "sought to capitalize on the perceived desire of many local actors to increase their social standing" (p. 128), a trait that, on the contrary, RLS-I's participant selection criteria sought to avoid.

Swenson also presumes that an understanding of the local context and how international assistance would influence communal relations "far exceeded [RLS-I's] technical capacity" (p. 128). To ensure quality contextual research, participant selection, program design, management, and evaluation, RLS-I recruited mostly Afghan national university law faculty graduates from—and very familiar with—the regions in which it worked. These expert staff were advised by expatriates trained in social science research, law, traditional justice, and development. RLS-I did not, however, rely solely on existing expertise, secondary sources, or outside templates.

RLS-I's teams designed a pre-intervention qualitative research model to supplement existing literature and, most importantly, provide nuanced understandings of the unique challenges to fair and effective justice in each area it worked. In assessing fifty program districts, the teams engaged more than 2,000 male and female respondents. Although each district assessment enabled customization of programming to local needs, the vast amount of primary data gathered and analyzed provided an in-depth understanding of broader justice patterns. This knowledge enabled design of a flexible intervention model that Afghan partners continue to implement and refine as the Afghanistan Justice Engagement Model.² Contrary to Swenson's assertions of incompetence and shortsightedness (p. 128), RLS-I's assessments and integrated mechanisms for ongoing learning demonstrate a commitment to a thorough and evolving understanding of local context and long-term strategic planning.

Through multiple cycles of research, programming, and evaluation, RLS-I understood that a majority of Afghans prefer using traditional justice mechanisms, including disputant reconciliation, accessibility, speed, and low cost. RLS-I also understood that key shortcomings of traditional dispute resolution may cause harm and exacerbate disputes. But perhaps most significantly, RLS-I understood that traditional dispute resolvers are embedded in the local culture they serve. To affect change required changing the knowledge, attitudes, and actions of the constituent components of that culture—representative leaders and the broader community. RLS-I therefore established participant selection criteria to reach a critical...