Statement By Enrico de Maio, Italy’s Special Envoy for Afghanistan Conference on Rebuilding the Justice System in Afghanistan

Chair Person, Excellences, Colleagues, Ladies and Gentlemen,

The Legal and Judicial System in Afghanistan must be restored because the Rule of Law is a precondition for the return to normality, the return to a condition that the Afghans want above all else: security and peace.

After the Judicial Reform Commission was setup last month, Italy as lead country decided to call this Conference to launch the process. And indeed the time is right to share all the information at our disposal so that that the International Community can gain a full awareness of what is at stake and what it can do to assist the Afghan Government. As you can see from the Agenda, all the most important actors of the Provisional Executive are here today and will present the situation as seen from their respective fields of competence. After the Minister of Justice and the Chief Justice, many of the speakers are members of the new Judicial Commission, which is the main interlocutor for the International Community for the reconstruction of the judicial and legal system in Afghanistan.

We shall be listening to what they have to say and we shall take careful note of all their requests to start to rebuild structure, which has been ravaged, at times intentionally, by war. Madame Chair Person.

This is the first time the main actors of the Afghan justice system have met together in the same room, starting with the Afghan Government and its Institutions, and of course the United Nations System and all the countries which have shown a real interesting Afghanistan. This is an opportunity that must not be missed, bearing in mind, naturally, that after this Conference the meetings should be taking place in Kabul. So for instance the Committee, which met thereon 11 December, will go on meeting regularly to take the process forward; that will be the main forum though which, with the assistance of then, the Afghan Government’s requests will be brought to the attention of the Donors, coordinated by Italy to avoid any duplication and waste of money. We already have a small team in place in Kabul, which is going to be strengthened next month, so that Italy will be in a position to perform its task properly, given that the Judicial Commission and the UNAMA Law Advisor are now operating there.

Madame Chair Person,
during this meeting, we will be trying to gain a better knowledge and understanding of the present situation of the administration of justice in Afghanistan and, more in general, of the legal system. A description will be presented by the speakers I’ve mentioned beforehand. The session will be introduced by the report from the IDLO Seminar, which took place last Monday and Tuesday and was attended by Afghan authorities and many outstanding experts in Islamic Law. This report will give us a better idea of the rule of law in Afghanistan, from the law-making power of the State to the compatibility of Islamic and international law .There port will also present recommendations for judicial reform in Afghanistan. Legal codes, Shari’s Law, Customary Law, Pashtunwali, Tribal tribunals, Jirga’s and Shiras: all of these will become more familiar to us and to some of the decision-makers who are not necessarily expert in this field.

After these presentations and others, which will be taking place this afternoon, we shall hopefully have a much clearer picture of the situation as it stands today. We will therefore have concrete conceptual base from which we will be better placed to move on to the second part of this Conference: the action that needs to be taken.

Madame Chair Person,
The main reference point for our work should be the summary of the “Rule of Law” chapter in the National Development Budget: “The Government of Afghanistan must have ability to rebuild the domestic justice system, as envisaged in the Bonn Agreement, to ensure independence of judiciary; to reform the existing legislation and regulations; and to strengthen law enforcement to meet the principles and the provisions contained in the 1964 Constitution considering the state structure recognized in the Bonn Agreement and the Loyal Jirga 2002, to ensure international legal obligations to which Afghanistan is a party”.

The guidelines are those set up by the Afghan Government: I shall sum them up by taking a sentence from the Afghan National Development Framework: “The judicial system will be revived through a program that provides training, makes laws and precedents available to all parts of the system, and rehabilitates the physical infrastructure and equipment of the judicial sector.” Madame Chairperson,

This is the sentence placed at the beginning of our Document to restate what is in effect the obvious: the Afghan ownership of the issue, which is of course true in general terms but even more so in the delicate and highly sensitive matter we are discussing here today.
Italy has sent two missions to Afghanistan to examine the sector and carry out need assessments; other reports on the situation of the justice sector have also been drawn up. These documents are at your disposal; they are not exhaustive, not least because it has not yet been possible to carry out a survey both detailed and covering all the territory. However they provide a good basis for our work.

I shall rapidly sum up the Italian Document, which, if I may remind you, has been reviewed and agreed by the Afghan Government and the UNAMA. I hope that it will help the International community to respond to the needs of Afghanistan. Bearing in mind that an in-depth and extensive survey is needed of the present state of the judicial system, the laws and the extra judicial resolution of disputes, our action should start as soon as possible in the following sectors: a review of the present corpus juris, the training of judges, prosecutors, lawyers, etc.; the rehabilitation of premises; legal education and universities; access to justice; and legal awareness. We have sent you an operational scenario with programmers for each of the sectors I have just mentioned.

The mechanism for the funding of this project can be bilateral or multilateral; funds can go directly to the Afghan budget or pass through the United Nations, some organizations of which, such as UNDP, UNODC-CICP and others, have already presented detailed programmers (in the your folder you will find a copy of the documents we have already sent you). Trust Funds have been identified. To be mentioned also the IDLO fund, which could inter alia be useful in making an adequate pool of expertise available to the Judicial Commission.

To conclude this point, we believe that the information and the documentation at our disposal will enable the speakers to take concrete decisions. If pledges are formulated this will send out a clear and precise signal of the will of the international community to assist the Afghan Government in this sector as in others.

Madame Chairperson,
And to conclude this short presentation, I would like to remind youth at we need to send out a very precise message to the Afghan people, who have been sorely tried by 23 years of war, during which they had been the victims of the most terrible forms of abuse. If the Afghan people unlawful conduct is promptly and justly punished; if they feel protected by the forces of law and order who ensure that criminals are dealt with by the justice system; if each individual is able to see his or her rights upheld through tribal or state tribunals; if, in short, the rule of law, and the system of law and order, begin to be re-established, the people will begin to enjoy those peace dividends that until now have been in very short supply. They will begin to have trust in their Government, and, as a result, to encourage and strengthen it in its actions.

I believe that this is the result to which this Conference and the actions that will follow on from it should lead. In this respect the lead country limits itself to expressing a hope and setting out some pointers: to present a strategy, having insufficient knowledge of the situation prevailing throughout Afghanistan, would be presumptuous; but it would be also politically dangerous. We are convinced that there is only one country that can present a true visioning this respect: Afghanistan itself.