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Developments in the Police and Justice
Sectors in Kunduz Province, Afghanistan,
2010–2018:
A Literature Review
Authors: Niels Terpstra and Toon Dirkx
At the request of IOB
2019
2
Executive Summary
In this report, we examine the main developments in the police and justice sectors in
Kunduz province, Afghanistan between 2010 and 2018. The report is based on an
extensive literature review and synthesis. The sources studied include academic
publications, research reports of Afghan and international organizations, NGO reports,
government publications, journalistic accounts, and statistical datasets. The literature
search generated a comprehensive overview of the available sources, but it has to be
borne in mind that the number of existing studies with an explicit focus on the details
of the police and justice sectors in Kunduz province are limited. As a consequence, the
report presents the major developments, but some details remain unaddressed due to a
lack of independent studies and/or available information. The key findings are
summarized below.
Police Sector
• Although the capability of the Afghan Uniformed Police (AUP) to carry out its tasks
improved in some respects during the investigated time frame, overall it was worse
in 2018 than in 2010. An important explanatory factor for this negative trend is the
intensification of the Taliban insurgency in Kunduz province. The worsening
security situation severely affected the AUP’s de facto reach in the province,
especially after foreign troops withdrew from the Provincial Reconstruction Team
(PRT) in Kunduz by late 2013. This in turn negatively affected many aspects of the
AUP’s daily work. By 2018, the AUP had very limited effective presence or
authority outside of Kunduz city and a part of the Aliabad district.
• However, the overall negative developments within the AUP were not only a
reflection of exogenous factors. In areas that were secure enough to carry out
civilian policing, the AUP’s capability to prevent and fight crime remained limited.
The AUP was strongly influenced by local power brokers, and it allowed a range of
pro-government militias to operate with impunity throughout the investigated time
frame. Moreover, the AUP was engaged in crimes it was supposed to fight and
prevent. A wide range of sources report corruption, bribery, beatings, and torture
by AUP officers in Kunduz province. Based on the surveyed literature, these
practices persisted throughout the time frame studied without an identifiable trend
of improvement or deterioration. Several studies indicate that the AUP’s
misconduct and the limited sanctioning of pro-government militias directly
contributed to the resurgence of the Taliban.
• Management and oversight procedures that could have mitigated some of the police
misconduct were structurally weak. Although some modest improvements were
made with regard to community policing, accountability problems persisted.
Corruption remained a structural issue in both the higher and lower ranks of the
AUP.
• The number of women in the AUP modestly increased between 2010 and 2013, but
compared to the total AUP force in Kunduz province they were severely
3
underrepresented. No reliable data could be obtained for the number of women in
the AUP between 2013 and 2018. Sociocultural barriers for women to join the
police and sexual assault and harassment within the AUP persisted between 2010
and 2018.
• AUP staff in Kunduz province reported that the professional skills necessary to
carry out their tasks had improved by 2013 due to the training provided by foreign-
sponsored police-training missions. Putting these skills into practice has been
challenging, however, due to the intensified Taliban insurgency, corruption and
misconduct within the AUP, weak accountability, and the entanglement of police
chiefs with local power brokers. Consequently, the intended longer-term goals of
police-training missions, such as the Dutch Integrated Police Training Mission
(IPM) in Kunduz province, were mostly not achieved.
Justice Sector
• In the formal justice sector of Kunduz province some improvements were made,
while a number of structural problems persisted during the time frame studied.
Office buildings were built and training programs were provided that enhanced the
capacity of the courts and the Department of Justice (DoJ). The number of attorneys
registered with the Afghanistan Independent Bar Association (AIBA) increased,
including an increased number of female attorneys. The positions of judge and
prosecutor however, continued to be fully male-dominated. Corruption and political
interference in the justice sector persisted throughout the time frame studied, but in
the perception of some justice sector stakeholders, the acceptance of bribes in the
judiciary diminished somewhat towards the end of the time frame. The situation in
the prison and detention centers was dire throughout the time frame studied,
particularly for female detainees. The geographical reach of the formal system
throughout the province fluctuated over time but remained fairly limited.
• Most of the achievements in the formal justice sector were constrained by the
intensification of the Taliban insurgency. Over the years, district offices were
attacked by the Taliban, and as a consequence, judges, prosecutors, and huqooq
employees had to relocate to Kunduz city. By 2018, the core of the formal justice
system continued to function only in Kunduz city and in the district center of Imam
Sahib.
• Throughout the studied time frame, a majority of the cases were addressed by
informal justice mechanisms in the form of shuras and jirgas of elders, religious
scholars, or influential individuals. Generally, the informal justice mechanisms
provide a process of dispute resolution that is faster and has a relatively higher level
of social acceptance among the local population. However, alongside the Taliban’s
advancements in territorial control, the Taliban’s influence over these informal
practices increased.
• The Taliban’s judiciary existed in Kunduz province throughout the time frame
studied. In the earlier years, the reach of the Taliban judiciary was limited to a few
4
districts, but the judiciary expanded its reach alongside the Taliban’s increase in
territorial control. By 2018 it was observed that a Taliban provincial court existed
and Taliban courts were present in each of the districts. Some observers note that
the Taliban essentially “out-governs” the Afghan administration not because the
Taliban is perfectly organized but rather because the state justice system mainly
operates remotely from Kunduz city.
• Overall, access to justice throughout Kunduz province, in particular for women, did
not improve during the time frame studied. In terms of access to justice,
sociocultural barriers for women remained significant, and security-related barriers
increased with the intensification of the Taliban insurgency.
• The dire security situation, the targeting of justice personnel, the structural issue of
corruption, and the limited acceptance of formal justice institutions by the general
public largely constrained longer-term improvements in the capacity of the formal
justice sector. Moreover, the expansion of the Taliban judiciary diametrically
opposed what was intended in the mandates of foreign-sponsored missions and
programs.
5
Acronyms and Abbreviations
AACP Afghan Anti-Crime Police
ABP Afghan Border Police
AIBA Afghanistan Independent Bar Association
ALP Afghan Local Police
ANA Afghan National Army
ANCOP Afghan National Civil Order Police
ANP Afghan National Police
ANSF Afghan National Security Forces
ASFF Afghanistan Security Forces Fund
AUP Afghan Uniformed Police
CBDR Community Based Dispute Resolution
CIP Critical Infrastructure Police
CID Criminal Investigation Department
CMD Comprehensive Mission Design
CPAU Cooperation for Peace and Unity
CSTC-A Combined Security Transition Command – Afghanistan
DoJ Department of Justice
EUPOL European Union Police Mission to Afghanistan
GIZ Deutsche Gesellschaft für Internationale Zusammenarbeit (German
Development Cooperation)
GPPT German Police Project Team
IDLO International Development Law Organization
IOB Directie Internationaal Onderzoek en Beleidsevaluatie (Policy and
Operations Evaluation Department)
IPM Integrated Police Training Mission
ISAF International Security Assistance Force
IWA Integrity Watch Afghanistan
JSSP Justice Sector Support Program
JTTP Justice Training Transition Program
LOTFA Law and Order Trust Fund for Afghanistan
NATO North Atlantic Treaty Organization
NDS National Directorate of Security
NTM-A NATO Training Mission in Afghanistan
NUG National Unity Government
PAE Pacific Architects and Engineers
PRIME Police Reform Indicators and Measurement Evaluation
PRT Provincial Reconstruction Team
RTC Regional Training Center
SIGAR Special Inspector General for Afghanistan Reconstruction
TAF The Asia Foundation
TLO The Liaison Office
UNAMA United Nations Assistance Mission in Afghanistan
6
UNDP United Nations Development Programme
UNODC United Nations Office on Drugs and Crime
Dari, Pashto, and Arabic Terms
Arbaki – in theory, a tribal community police force that protects their community from
outside threats and implements the decision of the local Jirga (village council) (Jones
& Muñoz, 2010, p. 27). In practice however, the behavior of arbaki and the way they
are perceived by local populations differ greatly among localities.
Huqooq – literally the rights of an individual under the law; it is commonly used to
refer to the district-level civil law offices under the Department of Justice.
Jirga – the term jirga is understood here as the institution that has historically resolved
political, social, economic, cultural, judicial, and religious conflicts by making
authoritative decisions. Jirga, is “the product of Pashtun tribal society and operates
according to the dictates of the Pashtunwali, an inclusive code of conduct guiding all
aspects of Pashtun behavior and often superseding the dictates of both Islam and the
central government” (Carter & Connor, 1989, p. 7).
1
Mujahedeen – persons performing jihad. In the context of Afghanistan it is generally
used in reference to the guerrilla-type Islamist armed groups fighting during the Soviet–
Afghan war.
2
Mullah – a Muslim learned in Islamic theology and sacred law.
Pashtunwali – an inclusive code of conduct guiding all aspects of Pashtun behavior and
often superseding the dictates of both Islam and the central government (Carter &
Connor, 1989, p. 7).
Sharia – in a jurisprudential context it means Islamic law. It is also used to “refer to
legislation, legitimacy, and legality in modern Arabic literature” (Wardak, 2003b, p. 5).
Shura – a “group of individuals that meets only in response to a specific need in order
to decide how to meet the need. In most cases, this need is to resolve a conflict between
individuals, families, groups of families, or whole tribes” (Carter & Connor, 1989, p.
9).
3
Tashkil – organizational plan of the Afghan police that details the organizational
structure, personnel numbers, command relationships, and descriptions of unit
functions.
1
For the origins of the term, see Wardak (2003a).
2
For a more elaborate discussion on the meaning of mujahedeen, see Bhatia (2007) and Ruttig (2006).
3
For elaboration on this term, see Coburn (2013).
8
Table of Contents
EXECUTIVE SUMMARY ............................................................................................................. 2
ACRONYMS AND ABBREVIATIONS ........................................................................................... 5
DARI, PASHTO, AND ARABIC TERMS ....................................................................................... 6
MAP OF KUNDUZ PROVINCE .................................................................................................... 7
1 INTRODUCTION ........................................................................................................... 10
2 METHODOLOGY .......................................................................................................... 11
2.1 LITERATURE REVIEW ................................................................................................... 11
2.2 INDICATORS ................................................................................................................... 12
2.3 CHALLENGES AND LIMITATIONS OF THE STUDY ........................................................ 12
3 BACKGROUND AND HISTORY OF KUNDUZ PROVINCE .................................. 14
3.1 INTRODUCTION .............................................................................................................. 14
3.2 THE ETHNIC COMPOSITION ......................................................................................... 14
3.3 THE STRATEGIC IMPORTANCE ..................................................................................... 14
3.4 A BRIEF POLITICAL HISTORY OF KUNDUZ PROVINCE (1992–2010) ......................... 15
3.4.1 CIVIL WAR AND THE RISE OF THE TALIBAN ................................................................ 15
3.4.2 US-LED INVASION AND THE NORTHERN ALLIANCE ................................................... 15
3.5 KEY DEVELOPMENTS IN KUNDUZ PROVINCE (2010–2018) ........................................ 16
3.5.1 TIMELINE OF KEY EVENTS ........................................................................................... 16
3.5.2 THE MOBILIZATION OF ANTI-TALIBAN MILITIAS ....................................................... 17
3.5.3 THE DRAWDOWN OF FOREIGN TROOPS ....................................................................... 17
3.5.4 THE FALL OF KUNDUZ ................................................................................................. 18
3.5.5 THE CONSOLIDATION OF THE TALIBAN’S RESURGENCE ............................................. 18
3.6 MAIN INTERNATIONAL MISSIONS IN KUNDUZ ............................................................ 20
4 POLICE SECTOR ........................................................................................................... 22
4.1 INTRODUCTION .............................................................................................................. 22
4.2 THE AFGHAN NATIONAL POLICE ................................................................................. 22
4.3 PERFORMANCE EFFECTIVENESS .................................................................................. 23
4.3.1 PERSONNEL .................................................................................................................. 23
4.3.2 TRAINING AND EQUIPMENT ......................................................................................... 27
4.3.3 AUTHORITY AND REACH ............................................................................................. 28
4.3.4 CRIME........................................................................................................................... 29
4.3.5 POLICE–PROSECUTOR COOPERATION ......................................................................... 30
4.4 MANAGEMENT AND OVERSIGHT .................................................................................. 32
4.4.1 MISSION AND PROCEDURES ......................................................................................... 32
4.4.2 BUDGET AND COMPENSATION ..................................................................................... 34
4.4.3 CORRUPTION AND POLITICAL INFLUENCE ................................................................... 35
4.4.4 ACCOUNTABILITY ........................................................................................................ 37
4.5 COMMUNITY POLICING ................................................................................................ 37
4.5.1 HUMAN RIGHTS ........................................................................................................... 37
4.5.2 PUBLIC INVOLVEMENT ................................................................................................ 39
4.5.3 PUBLIC ACCEPTANCE................................................................................................... 40
4.6 EXPLANATIONS OF THE DEVELOPMENTS .................................................................... 41
9
5 JUSTICE SECTOR ......................................................................................................... 43
5.1 INTRODUCTION .............................................................................................................. 43
5.2 JUSTICE PROVISION IN AFGHANISTAN ........................................................................ 43
5.3 THE FORMAL JUSTICE SECTOR ................................................................................... 43
5.3.1 43
5.3.2 COURTS ........................................................................................................................ 44
5.3.3 DEPARTMENT OF JUSTICE/HUQOOQS .......................................................................... 46
5.3.4 DEFENSE ATTORNEYS AND THE LEGAL COMMUNITY IN KUNDUZ (AIBA) ................ 47
5.3.5 LEGAL EDUCATION ...................................................................................................... 49
5.3.6 PRISON AND DETENTION CENTERS .............................................................................. 50
5.3.7 CORRUPTION ................................................................................................................ 50
5.4 INFORMAL JUSTICE MECHANISMS .............................................................................. 51
5.4.1 SHURAS AND JIRGAS .................................................................................................... 51
5.4.2 THE TALIBAN JUDICIARY............................................................................................. 53
5.5 LEGAL AWARENESS AMONGST THE POPULATION ..................................................... 55
5.6 TRUST IN THE JUDICIARY ............................................................................................. 55
5.7 ACCESS TO JUSTICE ...................................................................................................... 56
5.7.1 DEVELOPMENTS FROM 2010 TO 2018 .......................................................................... 56
5.7.2 IMPACT OF TERRITORIAL CONTROL ON ACCESS TO JUSTICE ...................................... 58
5.7.3 IMPACT OF CORRUPTION AND FORMAL PROCEDURES ON ACCESS TO JUSTICE .......... 58
5.7.4 BARRIERS FOR WOMEN TO ACCESS JUSTICE INSTITUTIONS ....................................... 59
5.7.5 IMPACT OF THE FALL OF KUNDUZ CITY ON WOMEN IN A LEGAL PROFESSION .......... 61
6 CONCLUSION ................................................................................................................ 62
6.1 THE POLICE SECTOR .................................................................................................... 62
6.2 THE JUSTICE SECTOR ................................................................................................... 63
BIBLIOGRAPHY .................................................................................................................. 65
ACKNOWLEDGEMENTS ................................................................................................... 73
ANNEX 1 – OBJECTIVES OF THE IPM .......................................................................... 74
OBJECTIVES OF THE IPM IN THE POLICE SECTOR .............................................................. 74
OBJECTIVES OF THE IPM IN THE JUSTICE SECTOR ............................................................. 75
ANNEX 2 – PROVINCIAL POLICE CHIEFS, KUNDUZ PROVINCE, 2010–2018 ..... 76
10
1 Introduction
In this report, we examine the main developments in the police and justice sectors in
Kunduz province, Afghanistan between 2010 and 2018. The findings are based on a
literature review of academic sources, research reports of Afghan and international
organizations, NGO reports, government publications, journalistic accounts, and
statistical datasets. The report is written at the request of IOB
4
and is one of several
contributions that inform the overall post-mission evaluation of the Dutch Integrated
Police Training Mission (IPM) that took place in Kunduz province, Afghanistan, from
2011 until 2013.
The report first discusses the methodology that was followed during the literature
review. Second, it provides a background and brief history of the political and security
situation in Kunduz province. Third, it assesses the developments in the police sector,
including the relations to prosecutors. Fourth is the assessment of the justice sector and
the rule of law more generally. Fifth, we present the main conclusions.
4
Directie Internationaal Onderzoek en Beleidsevaluatie (IOB), Ministerie van Buitenlandse Zaken. English
translation: Policy and Operations Evaluation Department, Ministry of Foreign Affairs of the Kingdom of the
Netherlands.
11
2 Methodology
The evaluation of police-training missions in conflict-affected settings is a daunting
task (Bajkarati et al., 2006; Bayley & Perito, 2010; Den Heyer, 2010). Due to the
complexity of the security and justice sectors and a lack of available and reliable data,
it is often impossible to measure the specific outputs, outcomes, and long-term effects
of police-training missions and security and justice reform programs more broadly
(Rynn & Hiscock, 2009). This is often further compounded by contextual factors, such
as an uncertain security situation, which restrict access for outside observers. Moreover,
it is difficult to untangle causes and results and to attribute changes in the police and
justice sectors to particular programs and missions (Rynn & Hiscock, 2009). The
objective of this report, however, is not to fulfill the more methodologically
encompassing task of directly attributing changes in the police and justice sectors to the
Dutch IPM. Rather, it seeks to describe developments in the civilian police, police–
prosecutor collaboration, and the justice sector in Kunduz province from 2010 until
2018. Based on this analysis, the report indicates to what extent the initial long-term
goals of the Dutch IPM were accomplished by 2018. However, the report is not able to
directly attribute the developments towards or away from these goals to actions taken
by the Dutch IPM between 2011 and 2013.
2.1 Literature Review
The report is based on an extensive literature search, a review, and a synthesis. Multiple
sources have been compiled on the police and justice sectors in Kunduz province. These
include academic sources, research reports by Afghan and international research
organizations, NGO reports, government reports, journalistic accounts, and statistical
data collections. Some of these sources were already in the possession of the authors of
this report because of past research projects on the security and justice sectors in
Kunduz province (Dirkx, 2017b; Frerks & Terpstra, 2018; Terpstra, 2019; Terpstra &
Dirkx, 2016). These sources were complemented by a literature search using online
academic search engines and sources provided by IOB and thematic experts.
The literature search was focused on thematic areas that are relevant to the IPM, namely
policing, judiciary, police–prosecutor collaboration, access to justice, and trust in police
and judicial institutions. The geographical focus is Kunduz province, but the context
has been extended to northern Afghanistan or the whole of Afghanistan in instances
when a search of Kunduz province alone yielded insufficient results. Altogether, the
literature search generated a comprehensive overview of the available academic and
non-academic sources, but it has to be noted that studies with an explicit focus on the
details of the police and/or justice sector in Kunduz are scarce. Consequently, the report
is able to describe the major developments in the police and justice sectors, but several
details remain unaddressed due to a lack of independent studies and/or available
information. As a measure of quality control, feedback was provided on earlier drafts
of this report by anonymous reviewers, thematic experts, and IOB.
12
2.2 Indicators
The indicators used to assess developments in the police and justice sectors in Kunduz
province are partly based on the Police Reform Indicators and Measurement Evaluation
(PRIME) framework by Bajraktari et al. (2006) and partly based on the Access to
Justice framework by Bedner and Vel (2010). These frameworks are used more widely
to assess the effectiveness, legitimacy, and sustainability of police forces in conflict-
affected environments (Den Heyer, 2010) and access to justice in areas where the state
does not possess a monopoly on the legitimate use of force (Bedner & Vel, 2010;
Helbling, Kälin & Nobirabo, 2015).
5
With the main focus of the IPM on reinforcing the capability of the Afghan Uniformed
Police (AUP), we made a comprehensive assessment of the AUP on the basis of the
applicable and most relevant indicators of the PRIME framework. Since the rule of law
component of the mission addressed a sector rather than one specific actor, the
assessment of the justice system has focused on a larger number of actors in the formal
and informal justice sectors. Given the scope of this study, we limited the assessment
of these actors to the most rudimentary abilities of justice provision. Chapter 4 on the
police is therefore in-depth and more narrowly focused on the AUP, whereas Chapter
5 on the justice sector has a broader character and includes courts, the Department of
Justice (DoJ)/huqooqs, attorneys, detention centers, shuras/jirgas, and the Taliban
judiciary.
For the different themes and indicators we collected as much relevant information as
possible for the time frame between January 1, 2010 and December 31, 2018. It was
not possible to find comparable information for every specific part of the time frame.
To give an example, for some themes and indicators data was available for January
2011, September 2014, and January 2017, whereas for other themes and indicators,
pieces of information were available for August 2012 and January 2016. As a
consequence, there are several gaps remaining throughout the reported time frame.
Some of those gaps, however, could possibly be filled by evidence presented in the
other reports that are part of the evaluation of the Dutch IPM carried out by IOB.
2.3 Challenges and Limitations of the Study
Given the nature of conducting a literature review, this report highlights findings that
are based on data collections carried out by other researchers. Though we assess the
quality of each of these sources, we lack the specific insights into how that data was
collected and analyzed. As the authors of this report, we therefore have limited insight
into the specific data collection techniques and the methodological rigor of the
referenced studies. This has to be borne in mind while reading this report.
Attention has been paid to qualitative and quantitative sources. Both types have their
respective advantages and weaknesses. The weaknesses of the available material cannot
5
The frameworks chosen are generally well-suited to be used in conflict-affected environments, but some
adjustments were necessary in light of the objective of this assignment (e.g., the addition of the themes police–
prosecutor cooperation and community policing). For the general readability of the report we merged and re-ordered
some of themes of the original PRIME framework.
13
be underestimated. The security situation in Kunduz has been dire at several instances
between 2010 and 2018, which has made it extremely difficult for researchers to collect
data purposefully and systematically. Common data collection challenges include the
following:
• threats to the personal security of researchers and respondents,
• scarcity of data,
• lack of monitoring of field surveyors,
• high staff turnover within research organizations,
• unsteady access to certain districts at certain points in time,
• incorrect expectations of researchers and respondents about data collection,
• multiple layers of interpretation in the data collection process,
• blind spots about if and how research is conducted, and
• social desirability in the answers of respondents.
In light of these challenges, the data that is presented in this report has to be treated
with caution. The quantitative data especially is questionable because of the difficulty
in establishing a representative sample. The Survey of the Afghan People carried out
by The Asia Foundation (TAF), for example, has mainly been conducted outside of
“inaccessible districts” (TAF, 2018, p. 226). In 2018, only 7% of the surveys were
conducted among respondents who were coming from “inaccessible districts” or
“insecure areas” (TAF, 2018, p. 226). Given the fact that large parts of Kunduz province
came under Taliban control between 2014 and 2018, it is therefore likely that there is a
strong overrepresentation of respondents from government-controlled territory in this
sample. Wherever quantitative data is presented it has to be kept in mind that it gives a
reasonable indication at best but could be wholly inaccurate at worst. These challenges
have partly been mitigated by the triangulation of sources wherever possible but should
not be underestimated.
14
3 Background and History of Kunduz Province
3.1 Introduction
This chapter provides background information and an overview of historical
developments in the realms of politics, security, and justice in Kunduz province to the
extent that it is relevant for an understanding of continuities and changes within the
AUP and the justice sector between 2010 and 2018. It starts with a description of the
ethnic composition of the province, after which the strategic importance of Kunduz is
explained. This is followed by a brief history of Kunduz province during the period of
1992–2010. The chapter then highlights key events and developments in Kunduz
between 2010 and 2018 in terms of politics, security, and justice. It concludes with an
overview of the main international missions that aimed to improve the quality of the
police and the formal justice sector.
3.2 The Ethnic Composition
Kunduz province is located in northeast Afghanistan. It borders Tajikistan to the North,
Takhar province to the East, Baghlan to the South, and Balkh to the West. Until 2015,
it consisted of seven districts: Imam Sahib, Dasht-e Archi (also known as Archi),
Khanabad, Aliabad, Chahar Dara, Qal-e-Zal, and Kunduz city. In late 2015, President
Ghani announced the creation of three additional districts within the geography of the
already existing seven districts: Aqtash, Gultapa, and Gulbad (Karimi & Hamdard,
2015). The total population is estimated to be around one million, consisting of various
ethnic groups. Approximately 34% is Pashtun, 27% Uzbek, 20% Tajik, 9% Turkmen,
5% Arab, 3% Hazara, and a few small groups of Baluch, Pashai, and Nuristani
(Wörmer, 2012, p. 8).
6
The current ethnic heterogeneity of the population is the result of several waves of
forced and voluntary migration since the 1850s. The most significant group moving to
Kunduz since then are Pashtun communities from southeast Afghanistan (Wörmer,
2012, pp. 7–9). The alterations in the ethnic makeup of the province have induced
various conflicts about land and resources as well as political representation throughout
the 19th and 20th centuries. As will become clear, ethnicity has also been a major factor
for the current armed conflict.
3.3 The Strategic Importance
In addition to ethnicity, Kunduz province’s strategic location has been an important
source of conflict. With the completion of the Salang tunnel in 1964, Kunduz came to
lie at the intersection of the roads connecting Mazar-e Sharif with northeastern
provinces and Kabul through the Hindu Kush Mountains to Tajikistan. It contributed
to the development of the province as a significant drug trafficking hub, and military
control of the province became a precious asset during times of war. Especially during
the civil war of the 1990s, Kunduz became a major battleground. The ethnic diversity
6
These figures should be considered a reasonable estimation. There are no official uncontested statistics on ethnicity.
15
and strategic location of the province provided all major mujahedeen factions with
support bases and stakes in Kunduz (Dirkx, 2017b; Münch, 2013; Wörmer, 2012).
During the post-2001 US-led invasion of Afghanistan, the strategic relevance of the
province also featured strongly. Together with Kandahar, Kunduz was the last Taliban
stronghold to fall to the Northern Alliance (Wörmer, 2012). Moreover, for the
International Security Assistance Force (ISAF), the North was considered of increased
strategic importance when the Taliban severely and effectively targeted NATO convoys
from Pakistan by 2008–2009. It made the northern supply route through Kunduz gain
importance as a gateway to Kabul (Noetzel, 2011; Terpstra, forthcoming).
3.4 A Brief Political History of Kunduz Province (1992–2010)
The current armed conflict in Kunduz province has extensive historical roots. Prior to
and during the Soviet war of the 1980s, various armed groups of mujahedeen fighters
emerged. Supported by various external actors (especially the United States, Saudi
Arabia, Iran, and Pakistan), they fought the Soviets and the Najibullah regime (Hussain,
2012, p. 252; Malejacq, 2016, p. 100). After the fall of the Najibullah regime in 1992,
the various factions fought each other in a bloody civil war.
7
3.4.1 Civil War and the Rise of the Taliban
During the Afghan civil war of the 1990s, foreign support for the mujahedeen decreased
drastically (Malejacq, 2016). Several factions fought over Kunduz province, creating a
high number of casualties and shifting frontlines (Wörmer, 2012, pp. 13–20).
8
The
provincial capital switched hands five times, after which it was controlled by the
Taliban from June 1997 until November 2001 (Münch, 2013, pp. 10–11; Wörmer,
2012). The Taliban received support from Pakistan and successfully bribed several
commanders of opposing factions, which by that time had loosely united in the
Northern Alliance. Most defections to the Taliban followed ethnic lines, however.
Wörmer (2012, p. 43) points out that the Taliban’s control of Kunduz was characterized
by a “Pashtun domination of the provincial administration.”
When by October 2001 the US Air Force started to target Taliban positions by airstrikes,
and US Special Operations Forces supported Northern Alliance factions on the ground,
the balance of power was about to change once again. Talibs in the North retreated to
defend their stronghold in Kunduz, but after a bloody battle and series of negotiations,
the province fell into the hands of the Northern Alliance by late November 2001
(Malejacq, 2020; Wörmer, 2012). Kunduz retained a strong potential support base for
the Taliban, however, partly due to its large Pashtun community.
3.4.2 US-Led Invasion and the Northern Alliance
When the Northern Alliance and the US coalition forces took over Kunduz province in
2001, the commanders and governors who came to rule the province were mostly non-
Pashtun. In the wake of the ousting of the Taliban regime, ethnic Pashtuns throughout
7
For an elaborate overview of the various factions at the national level, see Ruttig (2006).
8
In Kunduz province, the most important mujahedeen factions included Jamiat-e Islami, Jombesh-e Melli, Hezb-e
Islami, and Ittehad-e Islami. For an excellent overview of the mujahedeen factions in Kunduz province, see Wörmer
(2012).
16
the North faced widespread abuse (Bouckaert, 2002, pp. 43–44). The abuse included
beatings, extortion, stealing, murder, and sexual violence. The ethnic Pashtuns were
specifically targeted as they were seen as closely related to the Taliban, whose
leadership consisted mostly of Pashtuns from southern Afghanistan (Bouckaert, 2002,
p. 1). In some instances, those who were affiliated with the new post-2001 ruling elites
captured the land of Pashtuns (Münch, 2013, p. 15). The Pashtun community mainly
lost land in districts where they constituted a clear minority, such as Qal-e-Zal and
Imam Sahib, but some Pashtun also lost their land in Dasht-e Archi and Chahar Dara,
where they had a stronger representation (Münch, 2013, p. 15). Particularly from the
segments in the population that were excluded from the new ruling networks, the
Taliban would gain support in the following decade (Münch, 2013, p. 1; Terpstra
forthcoming).
The Taliban insurgency made its first incursions back into the Pashtun areas of Kunduz
province in 2006 (Giustozzi & Reuter, 2011, p. 7). It gradually started to invest more
resources in northern Afghanistan by setting up local cells from 2007 onwards and
increased military operations. Simultaneously, international forces in the South
increased military pressure on the Taliban, which forced the insurgents to move a larger
part of their assets north (Giustozzi & Reuter, 2011, p. 7).
3.5 Key Developments in Kunduz Province (2010–2018)
The trend of a resurging Taliban continued in the time frame under investigation in this
report. Between 2010 and 2018, control of the province shifted further in favor of the
Taliban, which has severely constrained the ability of the AUP and the formal justice
sector in Kunduz to carry out their tasks. While there were some increases in
government control during this time frame, overall the Afghan government controlled
less territory in 2018 than it did in 2010. This has had far-reaching negative
consequences for the effectivity, legitimacy, and sustainability of the formal police and
justice sectors in Kunduz.
3.5.1 Timeline of Key Events
The timeline below briefly lays out the most important events that took place in the
investigated time frame. The remaining part of this paragraph explains the process that
connects these events and fleshes out the implications for the AUP and the formal
justice sector in Kunduz.
2009-2011:
Mobilization
of anti-
Taliban
militias
2011:
Start of the
Dutch IPM
2011-2013:
Smaller
Taliban
presence
2013:
End of the
Dutch IPM
2015:
Fall of
Kunduz
city
2018: Majority
of the province
still under
Taliban control
2014:
Intensification
and extension of
Taliban control
17
3.5.2 The Mobilization of Anti-Taliban Militias
In early 2010, the Afghan government possessed territorial control throughout most
parts of Kunduz province, but the Taliban and other groups also controlled significant
parts (TLO, 2010, pp. 59–65). The Afghan government controlled Kunduz city,
Khanabad, Qal-e-Zal, Imam Sahib, and approximately half of Aliabad. The majority of
Chahar Dara district however, was under control of the Taliban, and in Dasht-e Archi
there was a belt of insurgency that controlled Pashtun villages. The Taliban also
controlled the half of Aliabad where the government had no control (TLO, 2010, pp.
59–65).
The limited control of the government in parts of the province was of major concern to
the provincial administration. Already in 2009, the provincial governor engineer
Mohammad Omar had asked for additional police and military forces, but when the
Kabul government did not grant his request and the German-led ISAF forces were
unwilling to fight the Taliban, the governor started to equip local jihadi commanders.
Many of these commanders, including himself, had fought against the Taliban in 2001
alongside US forces (Goodhand & Hakimi, 2014, p. 33; Münch, 2013, p. 36; Wörmer,
2012, p. 40).
The mobilization of anti-Taliban militias contributed to ousting the Taliban from most
parts of Kunduz province by early 2011. Provincial governor engineer Mohammad
Omar was assassinated by the Taliban in October 2010, but the provincial chief of
police, Abdul Rahman Sayedkhaili, continued to fund militias to fight the Taliban with
money provided by the interior minister, Besmillah Khan. He simultaneously bribed a
number of Taliban commanders to switch sides. The efforts of Sayedkhaili were further
advanced by the deployment of US Special Operations Forces whose task was to kill
and capture insurgents. By January 2011, the provincial chief of police declared
Kunduz be cleared of Taliban activity (Bell et al., 2011, p. 6; Dirkx, 2017b, p. 384;
Goodhand & Hakimi, 2014, p. 34). While many of the Taliban commanders were killed,
arrested, or ordered to return to Pakistan, clandestine operators and local shadow
organizations remained largely intact (Giustozzi & Reuter, 2011, p. 14). Overall, the
net result was that the territorial control of the government increased, but the Taliban
was far from defeated. In March 2011, the Taliban struck back when it killed Police
Chief Sayedkhaili (Münch, 2013, p. 41).
3.5.3 The Drawdown of Foreign Troops
Throughout 2012, the Afghan government remained in control of most parts of the
province, but this changed when German and American forces were drawing down
from Kunduz in 2013. From then on, the Taliban increasingly challenged the Afghan
National Security Forces (ANSF) and the various pro-government militias.
9
By the end
of September 2014, the Taliban had taken back control of Dasht-e Archi and Chahar
9
Alongside the Taliban insurgency, a number of other armed opposition groups have been operating in Kunduz
province, including the Islamic Movement of Uzbekistan (IMU) and Jundullah, who at times pledged allegiance to
Islamic State Khorasan (Ali, 2016). Though the Taliban is the largest and main opposition group in the province,
the IMU and Jundullah have had their influence as well.
18
Dara (though with the exception of the district centers) and some parts of Khanabad.
10
The United Nations Assistance Mission in Afghanistan (UNAMA) reported that these
districts were practically inaccessible for the police without special high security
measures (UNAMA, 2014, p. 4).
3.5.4 The Fall of Kunduz
During 2015, the Taliban nationwide were “switching full gear to civil war mode…to
contest government control” (Giustozzi, 2017, p. 24). In Kunduz, it continued to launch
offensives, and it conquered various parts of the province. By late September 2015, it
even took control of Kunduz city (Ali, 2016a). It caused “shock waves” among the
Afghan political and security elite as well as foreign donors (Giustozzi, 2017, p. 28; see
also Felbab-Brown, 2017, p. 23). For the first time since 2001, the Taliban managed to
temporarily take over one of the major cities of Afghanistan (Cooke & Urwin, 2015).
Although the ANSF with the support of the US Air Force managed to retake the
provincial capital, the Taliban retained its presence outside the city. Integrity Watch
Afghanistan (IWA) found that in 2015 “the Taliban were present in most areas in
Aliabad, Chahar Dara, Dasht-e Archi, and significant areas of Qal-e-Zal and Khanabad
districts” (2018, p. 6).
3.5.5 The Consolidation of the Taliban’s Resurgence
In October 2016, the Taliban again challenged the ANSF for control of the provincial
capital, a clear sign that the vulnerability of Kunduz city had persisted. According to
one observer, several videos on social media showed how Afghan National Police
(ANP) officers surrendered to the Taliban without a fight (Ali, 2016a). In response to
the Taliban’s advances, Afghan and American forces conducted various
counteroffensives. A combination of night raids, airstrikes, and targeted killings
resulted in the deaths of several key Taliban commanders, including the Taliban’s
provincial shadow governor, Mullah Salam (Ali, 2017; SIGAR, 2017, p. 83). In spite
of this, the Taliban managed to remain in control of most rural areas and even expanded
its control over the summer of 2017 through a series of attacks against the ANSF in
Kunduz (Ali, 2017).
By 2018, the Taliban still controlled most of Kunduz province, particularly outside the
provincial capital. Moreover, in recent years, Kunduz has consistently ranked among
the provinces with the largest percentage of insurgent control or influence (SIGAR,
2017; 2018a; 2019).
11
Based on information obtained from NATO’s Resolute Support
mission, SIGAR (2018b) provides a nationwide assessment of territorial control with
the district level as its unit of analysis. In 2018, it found that insurgents in Kunduz
province influenced five out of the original seven districts (Chahar Dara, Dasht-e Archi,
10
RMO – GIZ-Risk Management Office – Analysis. Security update Afghanistan 28 September 2014.
11
Two other provinces with high percentages of insurgent influence and control are Helmand and Uruzgan (SIGAR,
2017; 2018; 2019). The Resolute Support mission distinguishes five categories to determine the stability of a district:
1) insurgent control, 2) insurgent influence, 3) contested, 4) government influence, and 5) government control
(SIGAR, 2018b).
19
Imam Sahib, Khanabad, and Qal-e-Zal).
12
Within these districts, the AUP and the
formal justice sector have had no or very limited effective authority to carry out their
tasks (IWA, 2018, p. 7). In the other two districts (Kunduz and Aliabad), control was
contested between the government and insurgents (SIGAR, 2018b, p. 12).
13
In 2018,
NATO’s Resolute Support mission estimated that 62% of the population in Kunduz
province was under the control or influence of insurgents (SIGAR, 2018a, p. 70).
Although the assessments provided by SIGAR (2018b; 2019) give an indication of the
relative strength of the Afghan government and the Taliban, it is important to point out
that the competition for controlling territory in Kunduz province does not neatly follow
district boundaries. Moreover, when looking more closely at dynamics within the
districts it becomes clear that control varies between localities. For example, Ali (2019)
points out that
Dasht-e Archi is a district in which the government forces’ presence is mainly symbolic,
protecting as people put it “a few billboards within the district centre” (the forces are only
able to protect the district governor office, district police chief’s compound and limited
areas around the district centre).
He furthermore mentions that within the district the Taliban controlled almost 80% of
the territory and set up “a parallel shadow government in the district to deal with daily
affairs” (Ali, 2019).
The effects of the Taliban governing the daily lives of people in Kunduz province is
confirmed and documented in several recent research reports and journalistic accounts
(Ali, 2019; Bjelica & Clark, 2018; Jackson, 2018; Mashal & Rahim 2017; Sediqi 2018).
To illustrate, the Taliban are reported to have banned the government-owned telecom
provider Salam, and they collect taxes on harvests, teachers’ salaries, marriage
ceremonies, and fuel and vegetable trucks passing their checkpoints (Jackson, 2018;
Mashal & Rahim, 2017). They have also been notorious for collecting electricity bills
from thousands of homes (Bjelica & Clark, 2018). In addition to these sources of
funding, the Taliban has taken over the cross-border smuggling trade that was
previously controlled by government officials and local power brokers (Jackson, 2018,
p. 22). The revenue of the Taliban in Kunduz is reported to be $10 million per month,
but it is uncertain how reliable this figure is (Jackson, 2018, p. 21).
12
According to Resolute Support’s methodology, districts are assessed as under “insurgent influence” when there is
no district governor present, limited governance provided by the Afghan government, and the insurgents are active
and well-supported. The activities of the Afghan police and army in these areas are limited, and the collapse of the
district is expected. In terms of infrastructure, the insurgents control most of it, but there is also some control by the
government. With regard to the local economy, insurgent taxation is dominant, while there is still some effective
taxation by the government, and wages are paid in some places. Finally, in terms of communication, insurgent
messaging is dominant, but messaging by the government is also reaching people in the district (SIGAR, 2018b, p.
5).
13
According to Resolute Support’s methodology, districts are assessed as “contested” when there is no district
governor present, limited governance provided by the Afghan government, and the Afghan security forces and
insurgents are both present, while neither is able to dominate the area. The control of key infrastructure routinely
passes between the government and the insurgents in these areas. Wages by the Afghan government are paid, and
there is effective taxation, but there is also an effective shadow system of insurgent taxation. In terms of
communication, neither the government nor the insurgents are able to dominate messaging (SIGAR, 2018b, p. 5).
20
In sum, the Afghan government controlled less territory in Kunduz in 2018 than it did
in 2010, which has seriously limited the reach of the AUP and the formal justice sector.
The impact of the assassination of both a governor and a police chief, the constant
encroachment by the insurgents, the vulnerability of the provincial capital, and
ineffective responses from provincial and national government officials should also be
highlighted.
14
Between 2010 and 2013, the Afghan government managed to increase
its control through an anti-Taliban coalition consisting of the Afghan National Army
(ANA), the Afghan National Police (ANP), the Afghan Local Police (ALP), local
power brokers, various pro-government militias, and US Special Operations Forces.
Yet as foreign forces withdrew from Kunduz, the Taliban made gains, and by 2018,
most of the province was under the control or influence of the Taliban. Unsurprisingly,
the consolidation of the Taliban’s resurgence has had negative consequences for the
overall capabilities of the AUP and the formal justice sector, as will be discussed further
in the next chapters.
3.6 Main International Missions in Kunduz
During and prior to the investigated time frame of 2010 until 2018, there were various
international missions and programs in Kunduz that sought to improve the quality of
the ANP and the formal justice sector. The guiding logic behind these missions was to
contribute to the official goal of the ISAF mission and the NATO alliance in
Afghanistan, which was “to help create a liberal state that would exercise a monopoly
on violence in its territory” (Münch & Veit, 2018, p. 275). The German, American, and
Dutch governments undertook bilateral missions, and NATO, the EU, and the UN
sponsored multilateral missions. It is important to point out however, that the vaguely
formulated goals of the overall ISAF mission were interpreted differently by member
states and that political aims, such as strengthening the NATO alliance and getting
visibility on the international stage, have played a part in deciding to partake in
international missions in Afghanistan (De Graaf et al., 2015; Münch, 2013; Münch &
Veit, 2018; Terpstra & Dirkx, 2016; Westerterp, 2015). The most important missions
in Kunduz and their relation to each other are discussed in brief.
From 2003 until 2013, Germany was the lead nation controlling the Provincial
Reconstruction Team (PRT) in Kunduz. Their German Police Project Team (GPPT)
focused on training Afghan police officers and on creating training capacities in the
form of training infrastructure and training for Afghan instructors (FFO & FMI, 2014,
p. 9). The German government also sponsored several Rule of Law programs, which
were implemented by GIZ and partner organizations. From 2007 onwards, the EU
became engaged in police training through its EU Police Mission for Afghanistan
(EUPOL) (Dirkx, 2017a; ECA, 2015; Larivé, 2012). Based at the PRT in Kunduz, it
focused on training higher-ranking ANP officers, including the provincial chief of
police. EUPOL also facilitated a training aimed at improving the cooperation between
the police and prosecutors.
15
From 2011 until 2013, the Dutch IPM operated from the
14
The authors thank one of the peer reviewers for pointing this out.
15
Eindevaluatie Geïntegreerde Politietrainingsmissie, pp. 24–26.
21
PRT in Kunduz and focused on training the AUP for civilian tasks (Frerks & Terpstra,
2018). In addition, it supported already existing missions and programs, such as the
EUPOL mission, the NATO Training Mission – Afghanistan (NTM-A), and the Rule
of Law programs of GIZ.
16
The US was also involved in police training and justice reform in Kunduz. In 2004, the
private contractor DynCorp set up a Regional Training Center (RTC) next to the PRT,
where it trained Afghan police officers (SIGAR, 2017, p. 31). Coordination with the
German-led efforts seemed problematic, however. Wilder (2007, p. 28) pointed out that
during a visit to Kunduz in November 2006, “DynCorp personnel at the Regional
Training Centre were largely unaware of what the German police advisors were doing
in the adjacent German PRT, and vice versa.” The Americans were also involved in
training police officers in Kunduz through the Combined Security Transition Command
– Afghanistan (CSTC-A), which from 2009 onwards was brought under the command
of the NTM-A. This was the largest police-training program in Afghanistan in terms of
trained recruits and funding. In a review of US efforts to reform the ANP, SIGAR
(2017, p. 93) concluded that “the United States supported the increased militarization
of the ANP, arming local police with AK-47s, light machine guns, and military standard
light combat vehicles.”
17
Overall, the Afghanistan-wide transatlantic tension between
the militarized American approach and the European focus on civilian policing also
surfaced in Kunduz province (Dirkx, 2017b; Frerks & Terpstra, 2018; Friesendorf,
2011).
The “security transition” purported by ISAF in 2010 emphasized the importance to
“help set the conditions for the irreversible transition to full Afghan security
responsibility and leadership” (ISAF, 2010). By 2013, it was questionable whether this
ambition was achieved (Münch, 2014; Sedra, 2014), but foreign troops drew down from
Afghanistan nevertheless, including Kunduz province. As a result, efforts to strengthen
the ANP and the formal justice sector in Kunduz declined in scope. Under NATO’s
Resolute Support mission, which started in 2015, the bulk of international support for
police training has been conducted from regional commands instead of provincial
commands. Kunduz province falls under NATO’s regional Train, Advise, and Assist
Command – North (TAAC-N), which is led by Germany from Mazar-e Sharif in the
adjacent Balkh province (SIGAR, 2017, pp. 109–110).
16
Eindevaluatie Geïntegreerde Politietrainingsmissie, pp. 24–26.
17
New York Times journalist James Dao, who accompanied a US infantry battalion in Kunduz during the summer
of 2010, confirmed this image. He asserted that the American soldiers did “not only try to hone the combat skills of
the local police — a ragtag group of illiterate young men and aging fighters — but also accompany them into the
most contested hamlets in the region” (Dao, 2010).
22
4 Police Sector
4.1 Introduction
This chapter describes developments in the AUP in Kunduz province during the time
frame of 2010 until 2018. The chapter begins with a short overview of the role of the
AUP within the ANP and the objectives that guided the Dutch IPM. Against this
background, the chapter describes the main developments in the capability of the AUP
in Kunduz province. It details these developments both in quality and quantity. Specific
attention is paid to human rights, the treatment of women, the treatment of ethnic
minorities, and community policing initiatives since these were important elements of
the mission’s aims.
18
The chapter concludes with an explanation of the observed
developments in the AUP’s capabilities in Kunduz by taking into account both
endogenous factors, such as the AUP’s human resources and equipment, as well as
exogenous factors, such as the drawdown of foreign military troops and the rising
Taliban insurgency. The chapter concludes that the capability of the AUP to carry out
its tasks improved in some respects within parts of the investigated time frame, but
overall it was worse in 2018 than at both the beginning and the end of the IPM.
4.2 The Afghan National Police
The ANP consists of four pillars: the Afghan Uniformed Police (AUP), the Afghan
National Civil Order Police (ANCOP), the Afghan Border Police (ABP), and the
Afghan Anti-Crime Police (AACP) (US DoD, 2017, p. 91). According to the Afghan
Ministry of Interior (MoI), the responsibility of the ANP is to
enforce the rule of law; maintain public order and security; detect and fight crimes; control
borders; protect the rights, assets and freedoms of both Afghans and foreigners in Afghanistan
according to national laws; and operate without ethnic, gender, language or religious
discrimination (Ministry of Interior, 2013).
Reinforcing the capability of the AUP in Kunduz was one of the main focus areas of
the IPM;
19
therefore, we focus on the AUP specifically. As indicated in Chapter 3, the
AUP in Kunduz has been supported through various bilateral and multilateral police-
training missions, including the IPM. The long-term objective of the mission with
regard to police capability was to improve the quality of the civilian police in Kunduz
province. Prior to the deployment, the formal objectives of the Dutch IPM with regard
to the AUP’s capability were outlined in the Comprehensive Mission Design (CMD).
20
Eight themes were identified for which narrower objectives were formulated. These
themes included recruitment and selection, AUP training and operational level,
community policing, management and specialist training and operational level, literacy,
18
Comprehensive Mission Design (CMD) for Integrated Police training Mission in Afghanistan (HoA-approved
CMD extract 07-07-2011).
19
Comprehensive Mission Design (CMD) for Integrated Police training Mission in Afghanistan (HoA-approved
CMD extract 07-07-2011).
20
Comprehensive Mission Design (CMD) for Integrated Police training Mission in Afghanistan (HoA-approved
CMD extract 07-07-2011).
23
tracking and tracing/retention, training curricula, and equipment. Annex 1 provides an
overview of the specific objectives for each of these themes as identified in the CMD.
The mission’s objectives with regard to police capability provide insight into the
intended outcomes of the Dutch police training. In order to evaluate the police
capability of the AUP we adopted indicators from the PRIME framework, which was
developed by Bajraktari et al. (2006) to assess the effects of police reform efforts in
(post-)conflict settings. The assessment is primarily based on qualitative evidence, but
it is complemented by quantitative evidence where possible. The objective of this
chapter is to describe developments in the police sector in Kunduz province from 2010
until 2018 but without trying to assess to what extent these developments can be directly
attributed to the Dutch IPM.
4.3 Performance Effectiveness
Under performance effectiveness, we assess the AUP’s personnel, its training and
equipment, its authority and reach, its ability to fight and prevent crime, and the
cooperation with prosecutors. Based on this assessment we conclude that the
performance effectiveness of the AUP in Kunduz province decreased in the
investigated time frame. While there are some positive developments within parts of
the investigated time frame, the overall capacity of the AUP, its reach, its ability to deal
with crime, and the coordination with the wider justice sector have diminished between
2010 and 2018.
4.3.1 Personnel
Number of AUP Personnel
Estimates of the number of AUP personnel in Kunduz vary significantly between
sources and should be treated with extreme caution. Furthermore, the number of AUP
that are mentioned in the tashkil may differ from the actual numbers on the ground
(Peavy & Witte, 2012). A further complicating factor is that most reports mention the
number of ANP personnel in Kunduz province without specifying how many of those
are part of the AUP. Based on the available evidence, it seems that the number of AUP
personnel declined in the investigated time frame, especially in the outlying districts.
In an assessment for the German Embassy in Kabul, The Liaison Office (TLO) found
that the number of ANP personnel was reduced significantly at the beginning of 2009
under the assumption that the province was stable.
21
In May 2010, an estimated number
of over 424 ANP were deployed in Kunduz (TLO, 2010, p. 118). It is not specified how
many of those were part of the AUP. TLO (2010, p. 118–120) estimated that each
district had none, one, or two ANP police bases in May 2010, as presented in the table
below.
21
The TLO report states, “[a]t a time when Kunduz was considered relative safe, nearly half of his Afghan National
Police contingent was reassigned to more volatile parts in the country, creating a vacuum the insurgency could
exploit” (TLO, 2010, p. 9).
24
Table 1 – ANP police bases and check posts in Kunduz in May 2010 (TLO, 2010, p.
118–120).
District
Bases
Check posts
Kunduz city
two ANP bases
nine check posts
Aliabad
no ANP base
five check posts
Chahar Dara
one ANP base
at least five check posts
Dasht-e Archi
one ANP base
no check posts
Imam Sahib
two ANP bases
no information available
Khanabad
one ANP base
four ANP check posts
Qal-e-Zal
one ANP base
four ANP check posts
By 2011, the number of ANP personnel rose in a belated response to the resurging
Taliban insurgency. The Max Planck Institute notes, based on data provided by EUPOL,
that the ANP tashkil of Kunduz province of February 2011 comprised 1,810 staff, of
which 180 were officers, 486 sergeants, and 990 policemen (MPIL, 2013, p. 25; see
also Goodhand & Hakimi, 2014, p. 32; Münch, 2013, p. 40). The Max Planck Institute
furthermore indicates how many ANP were part of the district commands that report to
the ANP chief of police in Kunduz. It reported that Imam Sahib, Khanabad, and Dasht-
e-Archi each had 90 ANP, whereas Qal-e-Zal, Chahar Dara, and Aliabad each had 53
ANP. At the time, reinforcements from Kabul were sent to Kunduz, which included
370 ANCOP personnel along the Shir Khan Bandar–Kunduz city highway and a
reserved unit of 40 men in the Imam Sahib district (MPIL, 2013, p. 25).
Based on data provided by the Embassy of the Netherlands in Kabul, Peavy and Witte
(2012, p. 19) reported that the Afghan MoI’s target for the AUP tashkil in 2011 was
1,557. It was estimated that approximately 1,524 AUP personnel were active in Kunduz
by January 2012.
There is even less available information about the number of AUP in Kunduz province
in more recent years. Based on documents from the Afghan MoI, Oxfam (2013, p. 27)
reports that by February 2013 the total ANP force in Kunduz province consisted of
3,716 personnel. A dataset provided to the authors by IOB states that the assigned
number of ANP personnel in Kunduz by February 2013 was 2,287 and is thus much
lower than the numbers mentioned by Oxfam.
22
Baczko and Dorronsoro (2016, p. 7) conducted fieldwork in Kunduz in 2014 and found
that
[a]t the provincial level, the balance of power between the army and police on the one hand,
and the militias on the other,…clearly favours the latter. Policemen number no more than 200
in Khanabad, 200–300 in Dasht-e Archi and 300 in Chahar Dara.
22
Dataset provided to the authors by IOB.
25
None of the surveyed literature contained specific information on the number of AUP
personnel in Kunduz from 2015 until 2018, although there is a consensus that it likely
declined because of the advances of the Taliban in the province (Ali, 2016; 2017; 2018;
Fisher & Mercado, 2016; Frerks & Terpstra, 2018, pp. 264–265).
Ethnicity
Police-training missions, such as the IPM in Kunduz, envisioned that the AUP would
consist of an ethnic and tribally balanced force with sufficient opportunities for
women.
23
The formal policy of the Afghan MoI is also to recruit according to police
quotas based on the ethnic composition of Afghanistan (CPAU, 2016, p. 75). It is
important to point out, however, that there may be different views on what a “tribally
balanced force” and “sufficient opportunities for women” means in practice. Surveying
the literature, it becomes clear that the AUP in Kunduz province has been male-
dominated, and rather than merit-based, the recruitment of AUP officers is related to
an applicant’s connections to former jihadi commanders and local strongmen (APPRO,
2015; CPAU 2016; Münch & Veit, 2018; TLO, 2010). TLO noted in 2010 that “future
policemen usually are first and foremost loyal to the commanders or strongmen who
introduced them to the ANSF, rather than their assigned superior” (TLO, 2010, p. 121).
Tajiks seem to have been overrepresented in the AUP in Kunduz province, while all
other ethnic groups appear underrepresented. CPAU (2016, p. 75) presents the
following table related to ethnic targets and the actual composition of the AUP in
Kunduz province in January 2014. It is unclear, however, what this data is based on and
whether the presented percentages are a good approximation of the actual ethnic
composition of the AUP.
Table 2 – Ethnic targets and composition of the AUP in Kunduz province in January
2014
Ethnicity
Rank
Pashtu
Tajik
Hazara
Uzbek
Others
Officer
13%
15%
16%
7%
12%
NCO
26%
39%
36%
23%
27%
Patrolmen
61%
46%
48%
70%
61%
Total % of
Force
41%
43%
5%
6%
5%
Ethnic Target
44%
25%
10%
8%
13%
The CPAU study furthermore indicates that many Pashtuns “have a strong sense of
disenfranchisement and exclusion from state institutions (including the Afghan
National Security Forces - ANSF), Arbakai and ALP and this has been an important
mobilisation tool for the Taliban in Kunduz” (2016, p. 23, 75). CPAU concludes that
23
Comprehensive Mission Design (CMD) for Integrated Police training Mission in Afghanistan (HoA-approved
CMD extract 07-07-2011).
26
“patronage networks are firmly rooted within the ANP and influence recruitment,
career advancement and posting assignments” (CPAU, 2016, p. 23). This image of the
Pashtun marginalization from government institutions is confirmed in several other
studies (Dirkx, 2017b; Fisher & Mercado, 2015; Goodhand & Hakimi, 2014;
International Crisis Group, 2015; Münch, 2013; Terpstra, 2018; forthcoming).
Women
The number of women in the AUP in Kunduz province increased between 2010 and
2013 (Oxfam, 2013; Peavy & Witte, 2012). Yet despite this increase, the number of
women involved in the AUP remained extremely low compared to the overall size of
the AUP in Kunduz province (MPIL, 2013; Peavy & Witte, 2012). There were only 23
female staff in 2011, most of whom were based in Kunduz city. Four out of seven
districts did not have a single female police officer (Peavy & Witte, 2012, p. 19).
24
Yet
another source states that by January 2012 only two districts did not have female police
officers.
25
Based on documents from the Afghan MoI, Oxfam (2013, p. 13) reported
that by February 2013 there were 33 female police in Kunduz Province. On a different
page in the same report, it is stated that there were 42 women (Oxfam, 2013, p. 27), yet
it is unclear on what source these numbers are based.
It is unclear whether the number of women in the AUP in Kunduz province further
increased or decreased between 2013 and 2018. Afghanistan-wide data suggests that
the number of women within the ANP has been consistently lower than the set goals of
the Afghan MoI and international donors (SIGAR, 2017; 2018). By early 2018, there
were 3,040 women employed within the ANP in Afghanistan, which by then consisted
of a total of 129,156 staff (SIGAR, 2018a, pp. 110–114).
Throughout the time frame studied, women in the AUP in Kunduz province faced
significant gender-specific constraints to carry out their tasks, including social and
cultural barriers as well as sexual assault and harassment (APPRO, 2015; Oxfam, 2013;
Rubin, 2015; SIGAR, 2017). A study conducted by Oxfam (2013, p. 28) explains this
as follows:
There is significant opposition to women working outside the home across most of Afghanistan.
Female police are regarded as having particularly low status, for a number of reasons, including
mixing with men in the workplace, having to spend nights away from home, and sharing living
and eating quarters with men. Allegations of prostitution within the ANP – as well as
widespread rumours of abuse and harassment – contribute to this perception and make it harder
to attract educated women into the police force.
The report also mentioned an example of a policewoman in Kunduz province having
to move house several times because her neighbors found out about her work (Oxfam,
2013, p. 28). Based on the literature, it is not possible to see to what extent these
obstacles for women in the AUP in Kunduz diminished, increased, or stayed the same
during the time frame studied.
24
This confirms the nationwide pattern of severe female underrepresentation within the AUP (SIGAR, 2017, pp.
149–151).
25
Dataset provided to the authors by IOB.
27
4.3.2 Training and Equipment
Between 2010 and 2018, the AUP in Kunduz received training to enhance its capacity
through various foreign-sponsored missions and programs. Some of these missions,
such as the Dutch IPM, were set up during the 2011–2013 time frame, while others
were already established prior to the arrival of Dutch police trainers. As indicated in
Chapter 3, the Afghanistan-wide transatlantic tension between the militarized
American approach and the European focus on civilian policing also surfaced in
Kunduz province (Friesendorf, 2011; Goodhand & Hakimi, 2014). It is likely that these
different approaches to police training in Kunduz led to variegated outcomes, but it is
difficult to assess this in detail.
While there are multiple sources that report on the different foreign police-training
programs that took place in Kunduz, there is limited information on differences in the
comparative quality of these programs (Friesendorf, 2011). In addition, only a handful
of studies provide information on how the training was experienced by AUP officers
(CPAU 2013; 2014; Frerks & Terpstra, 2018; Peavey & Witte, 2012). With regard to
the Dutch IPM, these studies show that the AUP officers in Kunduz highly appreciated
their training and judged it as useful in executing their work. The newly acquired and
improved skills included things such as a better understanding of the basics of the
Afghan constitution, fundamental human rights, women’s rights, and principles of good
governance. In addition, they were taught about practical policing skills, the importance
of professional policing conduct, and how to implement community policing (Frerks &
Terpstra, 2018, pp. 248–254). The study of Frerks and Terpstra (2018) shows that in
general AUP officers were content with the training they received through the Dutch
IPM. It is important to point out, however, that if and how they put their training into
practice is a wholly different question that will be discussed in subsequent paragraphs.
In addition to police training, foreign donors also provided infrastructure and equipment
to the AUP to carry out its tasks. The literature reviewed gives limited specific
information on this matter. With regard to infrastructure, SIGAR conducted two
reviews of ANP facilities in Kunduz. They found that in the construction process of the
ANP provincial headquarters in Kunduz city there were delays and a five-million-dollar
cost increase (SIGAR, 2013b). In addition, they emphasized problems with the
facility’s design that raised concerns about the facility’s usability and sustainability.
SIGAR (2013a) also found that the construction of the ANP Main Road Security
Company in Kunduz was behind schedule and “may not be sustainable” because of a
lack of backup electrical power, and no plan for operation and maintenance after the
site would be handed over to the Afghan government.
With regard to equipment, the authors did not obtain specific information from
independent studies in relation to the AUP in Kunduz province. A dataset provided by
IOB indicates that in 2012 AUP officers in Kunduz province were generally equipped
with a 9mm pistol, an AK-47 assault rifle, and handcuffs.
26
Reports on Afghanistan as
26
Dataset provided to the authors by IOB.
28
a whole highlight that the ANP often lacks part of the necessary equipment to carry out
its tasks (CPAU, 2016; SIGAR, 2017).
From 2013 onwards, Dutch, German, EU, and NATO police-training programs in
Kunduz province were handed over to the Afghan government as foreign forces were
drawing down from the province (Frerks & Terpstra, 2018; SIGAR, 2017).
27
According
to a periodical of the Royal Netherlands Marechaussee, eight Afghan police trainers
completed the necessary training to continue the police training after the withdrawal of
the Dutch forces. The article also mentions that the Dutch trainers compiled a mentor
syllabus for the Afghan trainers, which they could use as educational material to support
the training of AUP officers (Van Waardenberg, 2013, p. 6–11).
For the period after this handover of responsibility for police training, there are limited
independent written sources. A journalistic account reports that six months after the
German troops left Kunduz province, there was a sense of disillusionment and
abandonment among the Afghan army and police. To illustrate, the Kunduz deputy
police chief allegedly dismissively said, “They simply ran away. It was too soon”
(quoted in Abé, 2014). CPAU (2016, p. 40) found that “the training centre established
by the IPM and the (Dutch-trained) Afghan trainers have continued to work with the
AUP” but that the satisfaction of AUP staff with the received training in 2014 was lower
than in 2011 and 2012. In interviews conducted with nine AUP management staff in
Kunduz in 2014, it was mentioned that the training was in need of a greater emphasis
on education relating to the law, human rights, and religious matters (CPAU, 2016, pp.
40–41). In addition to the interviews, CPAU conducted a survey with 182 AUP staff in
Kunduz in 2014. The respondents identified the management of checkpoints, patrolling,
identification of suspects, and education as elements that should be improved in their
training. They also mentioned that training is necessary to depoliticize and enhance the
AUP leadership (CPAU, 2016, p. 41).
In the literature reviewed by the authors for this report no information was found on the
specifics of police training between 2015 and 2018. The US Department of Defense
(2015, pp. 66–67) signaled that throughout Afghanistan “significant gaps remain in
training and operational readiness rates across all ANP forces. Over the last six months,
the lack of an operational readiness cycle has degraded ANP effectiveness.”
4.3.3 Authority and Reach
The main laws that govern the conduct of the ANP (including the AUP in Kunduz) are
the Interim Criminal Procedure Code (ICPC) of 2004 and the Afghanistan Police Law
of 2005 (Wilder, 2007, p. 4).
28
In addition to these laws, the United States has
unilaterally set up several police programs without the Afghan government’s consent.
In Kunduz, for example, it set up the Critical Infrastructure Police (CIP) in the spring
of 2011, but President Karzai disbanded it in December 2011 when he found out about
its existence (Dirkx, 2017b; Münch, 2013). President Karzai did authorize the
establishment of the ALP through a presidential decree in August 2010 (Goodhand &
27
Eindevaluatie Geïntegreerde Politietrainingsmissie, p. 24.
28
Islamic Republic of Afghanistan, Ministry of Justice, Police Law, Official Gazette, no. 862, Kabul, 22 Sept. 2005.
29
Hakimi, 2014, pp. 12–13). As of June 2015, the ALP officially falls under the command
and control of the AUP, but its authorized strength is separate from the AUP (DoD,
2015, p. 27).
The establishment of the ALP alongside the AUP has had ambiguous consequences for
the de facto territorial control of the Afghan government in Kunduz province and the
ability of the AUP to carry out its tasks. The ALP was meant to provide security, fight
the Taliban, and support the AUP in outlying districts, but in Kunduz province, the
Tajik and Uzbek dominated ALP units soon became known for their predatory behavior
towards the local population, especially Pashtuns (Dirkx, 2017b; Felbab-Brown, 2016;
Goodhand & Hakimi, 2014; HRW, 2011). While the US-sponsored ALP program was
important in expanding the Afghan government’s territorial control in Kunduz province
between 2010 and 2013 (see also Chapter 3), in the mid to long term their predatory
behavior alienated many Pashtuns and the civilian population more generally.
Moreover, the ANP are found to be complicit in a number of ALP offenses, which
further eroded the public’s trust in the provincial authorities (Cecchinel, 2014c; Fisher
& Mercado, 2015). Cecchinel (2014c), for example, reports that provincial Police Chief
Andarabi used ALP units, other militias, and “some of the most notorious criminals of
the province” in a raid that was meant to oust the Taliban from parts of the Dasht-e
Archi district but which “became more of a looting rampage.” Local residents told the
Afghanistan Analysts Network that these armed men “looted houses, stole motorbikes,
jewelry and money from both men and women, as well as taking wheat and sheep.” By
preying upon the local population rather than protecting them, these kinds of operations
led to increased support for the Taliban. They indirectly contributed to the resurgence
of the Taliban from 2013 onwards. Some sources report that, arguably, many Pashtuns
in Kunduz have been better off with the Taliban than the US-backed ALP (Cooke &
Urwin, 2015; International Crisis Group, 2015).
4.3.4 Crime
Arguably, one of the most fundamental tasks of the AUP in Kunduz is to prevent and
fight crime (Ministry of Interior, 2013). Within the context of Kunduz province, where
various armed groups have been engaged in open hostilities for years, it is insufficient
to merely look at fluctuations in crime rates. Indeed, as Bajraktari et al. (2006, p. 22)
remind us, to assess the crime-fighting effectiveness of a police force in such contexts
of general lawlessness, it is important to evaluate “how extensively they collect crime
statistics and how they apply those statistics to set and achieve crime-fighting and crime
prevention goals.”
It is unclear if and how the AUP in Kunduz has recorded crime statistics and used these
in its daily operations to fight and prevent crime and how this has changed between
2010 and 2018. It seems likely there have been exchanges of information between
foreign forces, the National Directorate of Security (NDS), and the AUP in Kunduz
related to crime statistics and intelligence, but there is no explicit evidence in the
surveyed literature that confirms this. The US Department of Defense (2015, p. 68)
does mention that “implementing intelligence-led policing throughout all ANP pillars
30
remains a challenge” nationwide. “Moreover, ANP forces in rural areas often lack the
capacity and basic knowledge to conduct intelligence-led operations effectively” (US
Department of Defense, 2015, p. 68).
One aspect that did feature strongly in the available literature is that the AUP has been
unable and, in some cases, unwilling to make arrests. A wide variety of sources suggest
that the AUP in Kunduz province between 2010 and 2018 systematically refrained from
making certain arrests under the instructions of local power brokers or influential
government members (Cecchinel, 2014c; Dirkx, 2017b; Fisher & Mercado, 2015;
Frerks & Terpstra, 2018; Goodhand & Hakimi, 2014; HRW, 2011; Münch, 2013;
UNAMA, 2015). These cases include, among others, armed robberies, extortion, drug
trafficking, abuse, rape, and murder. Based on the surveyed literature, there is no
quantifiable increase, decrease, or stability in this regard throughout the studied time
frame.
Although the AUP seems to have been able to fight crime to some extent during the
investigated time frame, its ability to do so has been constrained repeatedly by
influential power brokers and government officials. In addition, the AUP was engaged
in crimes it was supposed to fight and prevent, as explained above. It is important to
highlight that these crimes by the AUP in Kunduz were committed both during and
after international police-training programs ended. Based on the literature we surveyed,
it is not possible to state whether this increased, decreased, or remained the same
throughout the time frame studied.
4.3.5 Police–Prosecutor Cooperation
The cooperation and coordination between the Afghan civilian police and the wider
justice sector in Kunduz received special attention in the IPM. Specific objectives were
formulated in the CMD, which aimed to improve the awareness, coordination, and
cooperation in the justice chain.
29
Annex 1 details the specific objectives of the IPM in
this regard.
The actors within the police and justice sectors that in theory should cooperate in
criminal investigations are the Criminal Investigation Department (CID) of the ANP
and the prosecutor’s office. However, the relation between the two bodies has been
complicated throughout Afghanistan due to a variety of reasons. Authors point to
problems for prosecutors related to hiring sufficient as well as educated staff, low
salaries, the timely handling of cases, and the general lack of technical equipment
necessary to carry out investigations (ICG, 2010; IWA, 2018; MPIL, 2011; Singh,
2014). Complaints are common about both the police and prosecutors being corrupt
and about their low professional competence (IWA, 2018; Singh, 2014). As Singh
(2014, p. 625) put it, in Afghanistan “there is a sense that prosecution and justice are
commodities for sale.”
29
Comprehensive Mission Design (CMD) for Integrated Police training Mission in Afghanistan (HoA-approved
CMD extract 07-07-2011).
31
These nationwide problems also featured in the 2011 assessment of Kunduz province
by the Max Planck Institute. It concluded that “cooperation between the CID and
prosecutor is generally seen as a problem” due to a lack of, for example, “the expertise
and technical equipment which would be necessary for professional crime scene
investigations that produce sufficient evidence for criminal prosecution” (MPIL, 2011,
p. 15). The report mentioned that apart from the CID, the prosecutors also receive
evidence from the NDS in important cases. Importantly, in 2010 there were no regular
meetings between the ANP and the prosecutor’s office (MPIL, 2011, p. 15). The report
explicitly recommended investing in a more “effective police-prosecutor cooperation”
(MPIL, 2011, p. 28). At the time of writing the MPIL report, there were 51 prosecutors
in Kunduz “with three prosecutors working in each of the six districts and all others in
the provincial capital” (MPIL, 2011, p. 23–24).
In Kunduz province, several foreign-sponsored efforts have attempted to improve the
capacity of prosecutors and their cooperation with the ANP. The Dutch IPM
contributed to this goal by supporting the EUPOL mission and projects undertaken by
GIZ.
30
The US State Department also funded police–prosecutor programs. The US firm
Pacific Architects and Engineers (PAE) carried out the Justice Sector Support Program
(JSSP) between 2005 and 2013. The International Development Law Organization
(IDLO) from 2013 onwards implemented its successor, the Justice Training Transition
Program (JTTP) (SIGAR, 2014, p. 1). There were also coordinated efforts. In 2012, for
example, the USAID’s Rule of Law Stabilization Program and JSSP offered criminal
law and procedure training in Kunduz called the National Initiative for Justice
Advancement Training. It aimed to provide basic legal education on criminal laws and
procedures for judges, defense attorneys, prosecutors, and the police (SIGAR, 2014, p.
11–12).
Information on how the different police–prosecutor programs were experienced is
limited. In assessments of the Cooperation for Peace and Unity (CPAU) during the
lifespan of the Dutch IPM, cooperation, according to AUP officials and prosecutors,
was generally seen to have improved, although several problems remained. Corruption
and the timely handling of cases stood out as key issues hindering the effective
cooperation between the ANP and prosecutors in the province (CPAU, 2013; 2014;
Peavey, 2011).
31
Once the Taliban started to gain territory, beginning in late 2013, the reach of
prosecutors in rural areas naturally diminished. Additionally, in September 2014
UNAMA reported that government-friendly militias seemed to control parts of districts
like Khanabad and Qal-e-Zal, “enjoying impunity and having crimes in these parts
remaining non investigated by state police and prosecution” (UNAMA, 2014, p. 2). On
October 27, 2014, the Taliban attacked the prosecutor’s office in Kunduz city, which
30
Eindevaluatie Geïntegreerde Politietrainingsmissie, pp. 24–26.
31
In addition to training, international donors also provided infrastructure for prosecutors in Kunduz. In 2009, the
construction of a new provincial prosecutor’s office was completed with funding provided by the United Nations
Office on Drugs and Crime (UNODC) and the Italian government. In addition, GIZ built prosecutors’ offices in the
six rural districts of Kunduz (MPIL, 2011).
32
resulted in the deaths of six prosecutors, while at least nine others were injured (IWA,
2018, p. 9; CPAU, 2016, pp. 61-62). Moreover, the five-year-old office was destroyed,
and prosecutors were relocated to the ANP’s facilities where in 2016 an office was
created within the police’s compound (IWA, 2018, p. 9).
Over the course of 2015, when the Taliban further expanded its control of the province,
several district judges and prosecutors relocated to Kunduz city. In Imam Sahib, for
example, the prosecutor’s office and other government buildings were damaged as part
of the offensive leading to the Taliban takeover of Kunduz city (IWA, 2018, p. 29). A
former IDLO legal advisor reported that during the 2015 Taliban takeover of the
provincial capital, “IDLO’s office was looted and all the boxes that contained
investigation tools for the prosecutors and criminal investigation division’s police were
stolen” (quoted in IWA, 2018, p. 11).
This diminished reach of prosecutors continued in the following years, which in turn
negatively affected the cooperation between prosecutors and the AUP. IWA (2018, p.
2) reported that in 2017, “the majority of prosecutors are…working from the provincial
capital. Only prosecutors for Aliabad, Khanabad and Imam Sahib continue to have a
presence in the districts.” Consequently, prosecutors increasingly rely on telephone
communication to collect evidence for cases that occur in the districts. In late 2018, a
resident of Dasht-e Archi confirmed that to register a case one has to go to the provincial
capital to find the prosecutors of a district, who are unavailable most of the time (Ali,
2019). IWA (2018, p. 19) concludes that because the “prosecutor’s office, and police
CID mainly work in Kunduz city…citizens mostly do not use the state justice
institutions because it is not accessible to them.” Moreover, GIZ (2018, p. 6) concluded
in an evaluation of its Rule of Law program that “the example of Kunduz province
highlights the fact that it is extremely difficult to follow up on results in districts in
which state control has disappeared completely.” Based on the available evidence, it is
unknown how many prosecutors worked in Kunduz in 2018, but it is clear that their
reach is limited to the provincial capital. It is also clear that many of the problems
mentioned at the beginning of the time frame have persisted (IWA, 2018; UNAMA,
2015, pp. 66–67), yet it is unclear to what extent this improved, deteriorated, or stayed
the same.
4.4 Management and Oversight
In this section on management and oversight, we assess the AUP in terms of its mission
and procedures, budget and compensation, corruptibility and political influence, and
accountability.
4.4.1 Mission and Procedures
The Afghan MoI oversees the ANP, of which the AUP forms an integral part. Kunduz
province is part of the ANP regional zone 808, which covers the Northeast, and is
managed by a regional police commander (DoD, 2015, p. 63; SIGAR, 2017). Within
Kunduz province, the provincial chief of police is the highest police officer in the chain
33
of command. Under his authority, there are six district chiefs of police. Within the
police force there are several ranks ranging from a patrol officer to a police general.
32
Although there is a formal management structure in place, in practice the operations of
the AUP in Kunduz are highly influenced by regional power brokers, militia
commanders, and political networks that predate the establishment of the ANP (Dirkx,
2017b; Münch, 2013; Wörmer 2012). Between 2010 and 2014, under the Karzai
government, ethnic Tajiks and Jamiat-affiliated politicians and power brokers
significantly influenced operations of the AUP in Kunduz, thereby creating an informal
chain of command (Goodhand & Hakimi, 2014; HRW, 2015; Münch, 2013).
33
Münch
and Veit (2018, p. 286) point out that ISAF forces in Kunduz were aware of the illicit
behavior and corruption of their Afghan counterparts within the police. As the intensity
of the Taliban insurgency increased, they seemed “more willing to tolerate the
undesired behaviour of intermediaries who promised to be effective allies for
counterinsurgency” (Münch & Veit, 2018, p. 286). They conclude that “international
intervention forces almost unavoidably empowered local elites and thereby
unintentionally undermined the official goal of strengthening the central government”
(Münch & Veit, 2018, p. 286).
At the national level, factionalism in the formal chain of command increased from 2014
onwards. After the 2014 presidential elections, a power-sharing agreement emerged
between the newly elected president, Dr. Ashraf Ghani, and CEO Dr. Abdullah
Abdullah. Part of the agreement that resulted in the National Unity Government (NUG)
was that Abdullah’s team would appoint senior officials in the MoI and therefore have
influence on the ANP. President Ghani’s team was allowed to appoint senior officials
in the Ministry of Defense and the NDS (International Crisis Group, 2017, p. 13–14).
This factionalism within the NUG was directly relevant for the operations and chain of
command at the provincial level in Kunduz because different elements of the ANSF
reported to different commanders (Malejacq, 2017; Terpstra, forthcoming). This
jeopardized the responsiveness of the Afghan police and army in Kunduz during the
Taliban’s upsurge in 2015 (Cooke & Urwin, 2015, p. 2; Fisher & Mercado, 2016;
Terpstra, 2018; forthcoming). As Malejacq (2017) points out, political differences
between ministries under President Ghani and ministries under CEO Abdullah created
coordination problems between the ANP, the ANA, and the NDS in responding to the
insurgency in Kunduz. It can hence be concluded that informality in the chain of
command persisted throughout the time frame from 2010 until 2018, but that under the
NUG from 2014 onwards factionalism within the national level formal chain of
command increased.
With regard to following procedures and a code of conduct, several sources report these
have been frequently disregarded (CPAU, 2016; MPIL, 2011; Peavey, 2011; UNAMA,
2011; 2013; 2015; 2017). For example, although the AUP is constitutionally required
32
Dataset provided to the authors by IOB.
33
For more detailed information see Annex 2 – Provincial Police Chiefs, Kunduz province, 2010–2018.
34
to hold suspects no longer than 72 hours in custody before handing the case over to a
prosecutor, in practice this rule was often not followed (MPIL, 2011, p. 16; UNAMA,
2011). Rather, the ANP in Kunduz province was found to regularly detain suspects for
illegally long periods of time, ranging from five days to three months (CPAU, 2011).
In addition to the illegally long periods of detention in police prisons, ANP officers
have also been found to mistreat detainees, including cases of torture (UNAMA; 2011;
2013; 2015; 2017).
4.4.2 Budget and Compensation
Within the surveyed literature, there is no specific information on the budget for the
AUP in Kunduz between 2010 and 2018. There are several sources, however, that
report on the budget for the ANP at the national level. The funding for the ANP’s budget
has been largely dependent on foreign donors, particularly the United States
(Friesendorf, 2015, p. 39; Planty & Perito, 2013; SIGAR, 2017; 2019; Suhrke, 2013, p.
280).
In 2005, the Afghanistan Security Forces Fund (ASFF) was established and has since
been the most important means of US financial support for training, equipping, and
staffing the ANSF (including the ANP). Between 2010 and 2016, there was a
downward trend in US funding for the ANP. Whereas in 2010 the ANP received $3.6
billion through the ASFF, in 2016 this contribution was $780 million (SIGAR, 2017, p.
66–67). There seems to have been a slight increase since then. In 2018, the ASFF
contribution to the ANP was $860 million (SIGAR, 2019, p. 53).
34
Since 2011, the ASFF contributions to the ANP have gone directly to the Afghan MoI.
Although the goal was to develop ministerial capacity and capability with regard to
budget development and execution, in practice this “removed US oversight and
accountability mechanisms” (SIGAR, 2017, p. 66). The widespread corruption within
the MoI and the ANP has, according to SIGAR (2017, p. 131), contributed to “the
significant waste of U.S. funds and resources.” The report also notes that police
development has been treated as “a secondary mission for the US government”
compared to its engagement with the ANA, which led to “gross underfunding, under-
resourcing, and less mentoring of police units, as compared to army units” (SIGAR,
2017, p. 169).
A second important source of funding for the AUP has been the Law and Order Trust
Fund for Afghanistan (LOTFA), which was established by UNDP in 2002. The
multilateral fund is primarily used for the payment of salaries to the ANP through the
Afghan MoI (Murray, 2007, p. 110; SIGAR, 2017, p. 29; Wilder, 2007). The
contributions to LOTFA fluctuated between 2010 and 2015. To illustrate, in 2011,
LOTFA funding was $668 million, in 2013 it was $348 million, and in 2015 it was
$545 million (SIGAR, 2017, p. 29). Since then, annual contributions have decreased.
The LOTFA budget was halved from $565 million in 2016 to $263 million in 2018.
The 2018 annual budget for LOTFA was the lowest since 2008 (SIGAR, 2019, p. 63).
34
This includes $59.8 million for ALP salaries, which, prior to 2015, were listed in a separate budget from the ANP.
35
Similar to the ASFF, LOTFA has suffered from limited oversight and accountability
mechanisms, which resulted in “an environment where corruption became ingrained in
LOTFA” and “the lack of conditionality placed on the funds allowed corrupt officials
to operate with impunity” (SIGAR, 2017, p. 30). The 2017 report on the reconstruction
of the ANSF by SIGAR (2017, p. 29) furthermore asserted that
[t]he instability of funding has likely been a contributing factor to the Afghan government’s
inability to provide consistent salaries to police officers operating on the front lines against a
growing insurgent threat, which, in turn, has affected retention and quality of life for these
officers and their families.
Salaries of AUP officers have been low throughout the investigated time frame (SIGAR,
2017, p. 124; TLO, 2010, p. 120). Data from ISAF suggests that AUP salaries in 2011
ranged from $165 per month for AUP patrolmen to $1,095 per month for a police
general. This generally remained the same in the years that followed (SIGAR, 2017, p.
124).
In addition to problems related to corruption, fluctuations in international funding, and
low salaries, there are also concerns over the sustainability of funding for the ANP
(SIGAR, 2017; Suhrke, 2013). As pointed out by SIGAR (2017, p. 123), “the financial
obligations for the current ANP force size are unsustainable for the Afghan government”
due to “severe shortfalls in domestic revenue targets.”
4.4.3 Corruption and Political Influence
Corruption within the AUP has been pervasive throughout Afghanistan. The sources
reviewed show that Kunduz province is no exception in this regard (Frerks & Terpstra,
2018; MPIL, 2011; 2013; Münch 2013; TLO, 2010). In 2010, TLO (2010, p. 120)
estimated that corruption was widespread within the AUP at several levels, including
higher-level corruption and lower-level corruption. In 2018 IWA (2018) reported that
corruption continued to be a widely perceived problem within the ANP of Kunduz
province. Although the powerful actors in the Kabul government that influence the
AUP’s operations in Kunduz changed to some extent between 2010 and 2018, the
practice of outside political interference has persisted throughout the studied time frame.
On the severity of corruption, the authors were not able to identify a clear improvement
or deterioration on the basis of the literature in the studied time frame. The issue of
corruption seems most fairly assessed as a structural issue within the AUP in Kunduz
province.
The AUP in Kunduz has been anything but politically independent during the
investigated time frame.
35
Between 2010 and 2014, especially Jamiat-affiliated
politicians and government officials (mostly ethnic Tajiks) influenced appointments of
high AUP officials in Kunduz (Cecchinel, 2014c; Goodhand & Hakimi, 2014; Münch,
35
Annex 2 lists the provincial chiefs of police in Kunduz between 2010 and 2018 and indicates the ethnicity and
political affiliation as well as details related to the appointment as police chief. As Gardizi, Hussmann, and Torabi
explain, “[e]x-jihadi commanders sometimes claim to have a legitimate right to a state position on the basis of their
high positions during the Soviet-Afghan war or their military power in a particular district or province” (2010, p.
18). Higher positions within the AUP are hence often seen as goods for sale that are filled with former mujahedeen
commanders.
36
2015; Münch & Veit, 2018, p. 278–279).
36
After foreign forces withdrew from Kunduz
province by late 2013 and with the arrival of the National Unity Government (NUG) of
President Ghani and CEO Abdullah in 2014 the patronage networks and appointments
of government officials seems to have shifted somewhat (Malejacq, 2017; Matta 2015).
However, since the appointments of police chiefs falls under the MoI controlled by Dr.
Abdullah Abdullah, the political influence of Jamiat seems to have persisted within the
AUP in Kunduz. Higher-level corruption also involved decisions to arrest or not arrest
certain individuals suspected of having committed a crime. Baczko and Dorronsoro
(2016, p. 8) found that in the wake of the Kanam massacre of 2012, no arrests were
made by the AUP because the people were killed by militiamen under the influence of
the regional Jamiat-affiliated power broker Mir Alam.
37
Furthermore, there is an economy behind the appointments of police chiefs. In order to
become a police chief, one generally pays multiple government officials to secure the
position. Once the person becomes a chief of police, these considerable “fees” need to
be recovered as soon as possible by the appointed individual because the tenure of such
a position can be short (TLO, 2010, p. 12; see also Gardizi, Hussmann & Torabi, 2010;
MPIL, 2013). Münch points out that such positions “grant access to large amounts of
foreign money as well as the means of generating other forms of licit and illicit income”
(2013, p. 9).
Corruption in higher ranks also affects the lower-level AUP officers. In 2010 TLO
noted that “the upper ranks of the ANP try to increase their salary by spending less
money on food for the officers or by selling much needed equipment. This has had a
negative effect on the moral of the troops as well as on their integrity and own behaviour”
(2010, p. 120). The lower ranks already received very low salaries, which makes it not
uncommon for AUP officers in Kunduz to complement their salary with bribes in
various forms. A regular practice was requiring travelers at police checkpoints to pay a
“fee,” which allows them to continue their journey without any additional checks or
measures (TLO, 2010, p. 120).
Several studies indicate that ISAF forces present in Kunduz province until late 2013
were aware of the political interference and corruption within the AUP (Dirkx, 2017b;
Goodhand & Hakimi, 2014; HRW, 2011; Münch, 2013; Münch & Veit, 2018). Münch
and Veit emphasize that the reason that the German-led ISAF troops did not forcefully
punish this behavior is “the crucial importance placed on casualty avoidance” by the
German government, which in turn made PRT commanders depend heavily on local
Afghan actors who could more easily accept harm caused to their own forces if
necessary (2018, p. 276). The restricted mandate of the Germans limited their actions
to working with those in formal state positions, such as the ANA, the ANP, and the
provincial government.
38
Consequently, “by seeking a middle way between acceptable
‘corruption’ and effectiveness, the Germans (along with other ISAF forces in the
region) eventually adapted to the local power structure” (Münch & Veit, 2018, p. 279).
36
See also Annex 2 for the list of the provincial chiefs of police in Kunduz province.
37
See also Hewad (2012).
38
Similar caveats applied to the Dutch IPM in Kunduz province (Frerks & Terpstra, 2018).
37
In the attempt to keep the Taliban at bay in the province, conditions arose in which the
Afghan actors in Kunduz province that fitted the ISAF profile of acceptable
intermediaries were, among others, police chiefs that straddled their “formal postings
with informal networks” (Münch & Veit, 2018, p. 279). For example, police
commander Daud Daud and provincial police chief Sayedkhaili were perceived both as
“a little corrupt” and as effective forces against the Taliban (Münch & Veit, 2018, p.
279).
4.4.4 Accountability
Surveying the literature, it is not possible to observe a clear quantifiable change in the
presence and strength of oversight mechanisms within the AUP in Kunduz province. It
is clear, however, that external oversight and accountability has been weak throughout
the entire investigated time frame (Cecchinel, 2014; CPAU, 2016; HRW, 2015; Münch,
2013; UNAMA, 2011; 2013; 2015; 2017). UNAMA (2011, pp. 40–41) found that
[a]ccountability of both NDS and ANP officials for torture and abuse of detainees is weak, not
public and rarely enforced. Limited independent, judicial or external oversight exists of both
NDS and ANP as institutions and of alleged crimes committed by NDS and ANP officials
including torture and abuse. As a matter of practice, most claims of criminal conduct, abusive
or unprofessional behaviour are dealt with internally and they rarely (in the case of NDS) or
inconsistently (in the case of ANP) result in cases being handed over to prosecutors for
independent criminal investigation. When cases warrant criminal investigation, the process of
referring cases to an external criminal agency is unclear and infrequently used.
With regard to civil oversight of the police, CPAU (2016, pp. 74–75) reported that some
respondents in the AUP’s management in Kunduz mentioned that a series of complaint
boxes had been introduced in district locations, such as village mosques. They believed,
however, that civilians would most likely not use these complaint boxes and instead go
to a village elder or a police station if they had a complaint. The report also mentions
that in 2014, the police did “not have any current initiatives to make the AUP more
accountable to the population” because they perceive that police accountability and
feedback systems do not need any improvement (CPAU, 2016, p. 75). In a similar vein,
UNAMA (2017, p. 9) found that throughout Afghanistan, “the internal oversight
mechanisms to address complaints of torture and ill-treatment within ANP remained
under-developed,” and Human Rights Watch (2015, p. 4) observed “rampant impunity”
within the Afghan state, including the ANP.
4.5 Community Policing
In this section on community policing we assess the human rights record of the AUP in
Kunduz province, the involvement of the public with policing, and the level of public
acceptance of the AUP.
4.5.1 Human Rights
The AUP in Kunduz has a dismal record when it comes to respecting and protecting
basic human rights. Frerks and Terpstra (2018, p. 249) found that AUP officers in
Kunduz seemed to have “a certain level of awareness about human rights and human
rights issues” in 2013, but they point out that whether they put this in practice is a
different question. Multiple reports indicate the AUP has been engaged in human rights
38
abuse throughout the investigated time frame (Baczko & Dorronsoro, 2016; Cecchinel,
2014c; HRW, 2015; UNAMA, 2011; 2013; 2015; 2017). Illustrative is the already
mentioned “looting rampage” of militias and ALP units under the command of Police
Chief Andarabi in Dasht-e Archi in September 2013 (Cecchinel, 2014c). In addition,
various provincial police chiefs had strong links to Mir Alam, who himself was the
provincial chief of police in Baghlan province from 2005 until 2007 and subsequently
became Kunduz province’s most notorious power broker. Militias under the command
of Mir Alam and ALP units under his influence committed a wide range of human rights
abuses under the watch of the ANP with impunity (Hewad, 2012; HRW, 2015). In one
infamous case, a former Taliban commander named Ishaq Nizami switched sides and
became a commander of five ALP units. He and his men were involved in the rape of
a Kuchi (Pashtun nomad) woman. When Nizami became a suspect in the case by June
2012, “the provincial police chief, Samiullah Qatrah, tried to protect Nizami from
prosecution” (Goodhand & Hakimi, 2014, p. 36). Only after a large public outcry and
the direct intervention of President Karzai himself were Nizami and his men put on trial
and convicted to sixteen years in prison (Goodhand & Hakimi, 2014, p. 36). UNAMA
(2011; 2013; 2015; 2017) reported extensively on the torture of detainees by ANP
personnel, and according to CPAU (2016), bribery, police violence, and human rights
violations continued to be a problem within the AUP in Kunduz province. UNAMA
(2011, p. 37) reported that in April 2011,
[d]uring a series of interrogations, ANP officials in Kunduz provincial headquarters beat a
detainee on the soles of his feet with cables, slapped the detainee and beat him repeatedly on
the back with a metal rod. ANP officials demanded he either confess to killing a local
commander or pay a large bribe.
Moreover, in 2012 and 2013, UNAMA (2013, p. 46) found “sufficiently credible and
reliable incidents of torture…at the ANP provincial headquarter” in Kunduz city.
According to UNAMA, the following testimony of a detainee from Kunduz is
illustrative of this dynamic:
I was taken to ANP HQ in Kunduz. Twelve ANP at Kunduz ANP HQ beat me with kicks on
my back. I denied the allegation that I had detonated the IED. The head of the counter-terrorism
unit (XXX) of ANP Kunduz ordered an ANP officer to bring him a pipe. The pipe was about
one meter long and 10-15 inches thick. My hands and legs were tied and I was told to lie down.
I was beaten with that pipe. XXX was telling me to confess. I refused. Then XXX burned both
my thighs and legs with a hot chained/coiled electric boiler. [UNAMA observed fresh marks
consistent with burns on the thighs and legs of the detainee]. My hands were raised and then
tied. I was beaten on my testicles twice with a sandal. I had to confess to make the torture stop.
If I had not confessed, they would have carried on beating me. They made a video of my
confession…and then the torture stopped (2013, pp. 47–48).
Torture of detainees by the ANP continued in the years that followed (UNAMA, 2015;
2017). Between February 1, 2013 and December 31, 2014, UNAMA found ten
sufficiently credible incidents of ill-treatment and/or torture in Kunduz province,
including an incident involving the torture of a child (UNAMA, 2015; pp. 55–62). In
2016, UNAMA again documented several cases of ill-treatment and torture of detainees
by the ANP in Kunduz.
39
Although the Afghan government voiced its commitment to end the torture of detainees,
UNAMA (2017) concluded the practice had persisted within the AUP, including in
Kunduz province. It remains unclear on the basis of these sources, however, on what
scale torture has taken place. Moreover, the available literature suggests that human
rights abuses by the AUP occurred throughout the time frame studied, but it remains
unclear to what extent these practices increased, decreased, or stayed the same.
4.5.2 Public Involvement
Various foreign sponsored programs attempted to involve the local population in
policing Kunduz province. The German, Dutch, and EUPOL missions as well as GIZ
projects focused on community policing (also known as Police-e-Mardumi in the Dari
language). In spite of these programs, during the investigated time frame, the
involvement of the public with the AUP decreased in Kunduz province as a whole
because of the diminished presence of the AUP outside the provincial capital (Frerks
& Terpstra, 2018; Stoker & Westerman, 2018, p. 974). As described in Chapter 3, the
most important explanation for this development is the resurgence of the Taliban.
CPAU (2016, p. 68) explains that
[d]espite the rollout of community policing projects by GIZ and EUPOL in Kunduz, the
imperative of fighting a violent insurgency takes precedence over the ‘softer side’ of policing
work, which involves strengthening trust with communities and civil oversight of policing.
Although there is an overall negative trend with regard to community policing in
Kunduz province between 2010 and 2018, there were a few positive developments
before the intensified resurgence of the Taliban. Between 2010 and 2014, the AUP in
Kunduz participated in various activities with the local population, including, for
example, a run through Kunduz city with youngsters and workshops about the work of
the police at secondary schools (Secretariat of Police-e Mardume – Ministry of Interior,
2013; 2014). In September 2014, with support of the German and Dutch governments,
a new office and library facilities were inaugurated at the Department of Police-e-
Mardumi within the Provincial Headquarters of the AUP in Kunduz city (German
Cooperation with Afghanistan, 2014). According to GIZ (2018, p. 5), ten consultation
meetings between the police and local population were held in Kunduz province
between 2014 and 2017. They also mention however, that “in Kunduz province, the
worsening security situation has…had a negative impact on participation by women. In
the more remote districts in particular, participation is decreasing considerably. In
contrast, participation remains relatively stable in the more accessible districts” (GIZ,
2018, p. 5). Based on the surveyed literature, this trend seems to have continued in 2017
and 2018. The German government reported that on May 24, 2017 a Police-e-Mardumi
conference was held at the police headquarters in Kunduz city. It was reported that
high-level government officials, the police, and 280 citizens of Kunduz province
attended the event (German Cooperation with Afghanistan, 2017). In districts with no
or limited government control, however, which by 2018 constituted most of the
province, community policing initiatives by the AUP seem to have disappeared
completely (GIZ, 2018).
40
4.5.3 Public Acceptance
The acceptance of the AUP as the legitimate source of internal security is difficult to
measure. Since not all areas of the province have been controlled consistently by the
government during the investigated time frame, it is likely that views on the police
diverge greatly (see for example: Kalyvas, 2006). Moreover, even when asked directly,
people may give socially acceptable answers (Peavy & Witte, 2012). To be precise,
“one must keep in mind that community members may tend to avoid expressing
negative views about the police” (CPAU, 2016, p. 69).
Nevertheless, the TAF annual survey provides data on the public trust in the ANP. The
TAF data suggests a relatively constant level of trust over time in Kunduz province
with a decrease in 2015, but it is questionable, however, how representative this data is,
for reasons explained further below. It suggests fairly high levels of trust, while
multiple sources report police misconduct vis-à-vis segments of the population (see for
example section 4.5.1). The results from the TAF survey are shown in the graph below.
Figure 1 – Responses to the statement: “The ANP is honest and fair with the Afghan population" – Sample Kunduz
province and Afghanistan wide - Data collected by The Asia Foundation - Graph created by Dirkx and Terpstra.
Several important caveats apply to these results. Though the sample on the national
level is usually around the n=10,000, the Kunduz province sample has been relatively
small, which means that these results are certainly not representative and are without
statistical validity for the general population in Kunduz province. For Kunduz province
it fluctuated over the years between n=27 (2014) at its lowest and n=227 (2011) at its
highest.
The second problem is that it is not entirely clear under which actors’ territorial control
these surveys were conducted. Based on the methodological explanations that TAF
provides, it is likely that a large majority of the conducted surveys stem from
government-controlled territories. If that is the case, the figures would give a distorted
0
20
40
60
80
100
120
2010 2011 2012 2013 2014 2015 2016 2017 2018
Male (strongly agree /
agree somewhat) - Kunduz
province (%)
Female (strongly agree /
agree somewhat) - Kunduz
province (%)
Male (strongly agree /
agree somewhat) -
Afghanistan (%)
Female (strongly agree /
agree somewhat) -
Afghanistan (%)
41
picture of the situation in the province since it is likely that people in Taliban-controlled
territory will give different answers about state institutions.
39
Possibly as a result of these methodological problems, the TAF annual survey gives a
more positive picture of people’s trust in the ANP than other sources lead one to
believe. Other sources indicate that in terms of public perceptions, the psychological
impact of the fall of Kunduz should not be underestimated (Cooke & Urwin, 2015;
IWA, 2018, pp. 10–12). The fact that the Afghan security forces could be overrun in
the provincial capital damaged the trust of the population in the ability of the Afghan
state to provide security and justice for its citizens (IWA, 2018, p. 10). As Cooke and
Urwin (2015) pointed out with regard to the fall of Kunduz, “the combination of an
unresponsive, factionalized government and a large number of abusive militias
contributed to popular distrust of the Afghan state” (2015, p. 2).
4.6 Explanations of the Developments
During the time frame of 2010 to 2018, the capability of the AUP to carry out its tasks
decreased. An important explanatory factor for this negative trend is the resurgence of
the Taliban in Kunduz province. The worsening security situation severely affected the
AUP’s de facto reach in the province, especially from 2013 onwards. This in turn
affected many aspects of the AUP’s daily work.
The overall negative developments within the AUP in Kunduz province were not
merely a reflection of exogenous factors, however. Within areas in Kunduz that were
secure enough for the AUP to carry out civilian policing, it did not live up to the
expectations set out in the mandates of the various foreign police-training missions.
The AUP’s capability to prevent and fight crime has been strongly influenced by local
power brokers. Moreover, the AUP itself has been an integral part of crimes it was
supposed to fight and prevent. Multiple sources report corruption, bribery, beatings,
and torture by AUP officers in Kunduz throughout the investigated time frame. Women
remained severely underrepresented in the AUP.
Management and oversight procedures that could have mitigated some of the police
misconduct have been structurally weak. Throughout the entire period from 2010 until
2018, there have been indications of severe accountability problems towards both
Afghan government institutions and the wider public. Corruption remained pervasive
in both the higher and lower ranks of the AUP. Moreover, ALP forces and other pro-
government militias were able to act with relative impunity under the auspices of the
AUP.
ISAF troops in Kunduz were largely aware of the undesirable behavior of the AUP, but
they did not sanction it forcefully. As the intensity of the Taliban insurgency increased,
39
As explained earlier in Chapter 2, the Survey of the Afghan People has mainly been conducted outside of
“inaccessible districts” (see TAF, 2018, p. 226). In 2018, only 7% of the surveys were conducted amongst
respondents that were coming out of “inaccessible districts” or “insecure areas” (TAF, 2018, p. 226). Given the fact
that large parts of Kunduz province came under Taliban control or influence between 2014 and 2018, it is therefore
likely that there is a strong overrepresentation of respondents from government-controlled territory in this sample.
42
they seemed more willing to tolerate a degree of corruption and misconduct as long as
Afghan police chiefs proved to be effective strategic allies.
43
5 Justice Sector
5.1 Introduction
In addition to the objective of reinforcing the capability of the AUP, the IPM aimed to
improve the quality of the Afghan judicial system and the awareness and acceptance of
the Afghan judicial system in Kunduz province.
40
The justice and rule of law
components of the IPM focused on a sector with multiple justice providers. Therefore,
this chapter has a comprehensive scope that includes multiple relevant actors in the
judicial landscape of Kunduz province.
First, the chapter briefly discusses the character of justice provision in Afghanistan.
Second, it assesses the developments during the selected time frame for the formal
justice sector: (i) the courts, (ii) the DoJ and huqooqs, (iii) defense attorneys, (iv) legal
education, (v) prison and detention centers, and (vi) corruption. Third, it assesses the
developments in the selected time frame for the informal justice sector: shuras, jirgas,
and the Taliban judiciary. Fourth, key themes that closely relate to the missions’
broader objectives are discussed: (i) legal awareness, (ii) trust in the judiciary, and (iii)
access to justice.
5.2 Justice Provision in Afghanistan
In Afghanistan, the legal system has historically consisted of three competing – yet also
overlapping – parts: (i) state legal codes, (ii) Islamic religious law, and (iii) local
customary law (Barfield, 2008, p. 351). Contrary to most nations in contemporary
history, where state power has moved contenders for legal authority to the margins or
eliminated them, in Afghanistan, the power of each has waxed and waned (Barfield,
2008, p. 351; Rubin, 1995). Like in most other parts of Afghanistan, the judicial context
of Kunduz province is therefore most accurately characterized as a place of legal
pluralism: “the existence of multiple normative and judicial orders that co-exist within
one sociopolitical space” (Benda-Beckmann, 1997, p. 1). Various actors are involved
in the justice sector wherein formal and informal practices overlap and intertwine
(ATR, 2015; Bedner & Vel, 2010; MPIL, 2011; Peavey, 2012; Terpstra, 2019). How
these three elements play out on the local level in the present time varies from one
locality to another. State legal codes generally find more resonance in urban centers,
whereas customary law usually finds more application in the periphery.
5.3 The Formal Justice Sector
Within the formal justice sector, the most relevant institutions in Kunduz province are
the courts, the DoJ and huqooqs
41
, prison and detention centers, and the Afghan
Independent Bar Association (AIBA).
5.3.1
40
Comprehensive Mission Design (CMD) for Integrated Police training Mission in Afghanistan (HoA approved
CMD-extract 07-07-2011).
41
Though the huqooq is seen as a bridge between the formal and informal system, we address it here as an institution
that is formally a part of the DoJ.
44
5.3.2 Courts
The trend during the studied time frame was a fluctuating number of judges authorized
on the tashkil and operating in practice (see the table below). The existence of courts in
the districts of Kunduz province also fluctuated, varying between a presence in all
districts and a presence in only a few districts.
The 2010–2013 time frame
In 2010, there were
approximately 50 judges
active throughout Kunduz
province (TLO, 2010, p. 111).
The established primary court
of Kunduz and the provincial
Appeals Court consisted of
seven divisions each (UNAMA, 2014, p. 1). The primary court covered criminal, civil,
public rights, public security, and traffic cases. The provincial appeals court dealt with
family and juvenile cases (MPIL, 2011, p. 15). A special anti-corruption court with
regional jurisdiction was established in early 2010 (UNAMA, 2014, p. 1). In 2010, in
each district, at least one judge was present, but that used to be two or three in previous
years (TLO, 2010, p. 111). Because of the pressing security situation in early 2010,
most of the districts had only one judge left. In some district courts, such as the one in
Dasht-e Archi, the judges were forced to temporarily relocate to Kunduz city for
security reasons (TLO, 2010, p. 111). People who wanted to use these district courts
had to travel to Kunduz city.
In early 2011, the formal court system in Kunduz consisted of 67 sitting judges, with
an authorized number of judges in the tashkil of up to 80 judges (MPIL, 2011, p. 15).
In each of the districts, one primary court operated with at least three judges as far as
the security situation allowed it (MPIL, 2011, p. 15). Physical court buildings did not
exist in each district. In Aliabad, there was no courthouse, and in Chahar Dara, the court
sessions were held in the district governor’s office (MPIL, 2011, p. 15). Most of the
buildings were not owned by the state but were rented from private parties and as a
result, much of the budget went toward paying the rent of the buildings (MPIL, 2011,
p. 15). There were no female professionals amongst the judges and prosecutors at the
time (MPIL, 2011, p. 13). In 2011, the only women working in the formal justice sector
were “two staff members of the Family Dispute Office of the Department of Justice
(…)” (MPIL 2011, p. 13).
According to the 2011 assessment of the Max Planck Institute, the court system in
Kunduz was handicapped by a variety of administrative deficiencies (2011, p. 15). The
“registration system for incoming cases” was “primitive” (MPIL, 2011, p 15). There
was “no functioning registration office” and “depending on the case, the judge who first
receive[d] a case” decided on whether and how to proceed with it. As such, there was
“no standardized procedure for processing cases – from filing proceedings to
scheduling cases for hearing and trial” (MPIL, 2011, p. 15). The institute further
Table 3 - Estimated number of judges in Kunduz province
Year
Tashkil authorized
Actual number
2010
Information missing
50
2011
80
67
2014
74
60
2017
82
Approximately 70–79
45
observed that the courts passed sentences “with little explanation” (MPIL, 2011, p. 14).
The court hearings were “frequently interrupted by visitors and (…) [were] full of other
persons not involved in case” (MPIL, 2011, p. 14). Nevertheless, the report concluded
that “minimum standards” had been established, and the focus reportedly “shifted
towards improving the performance of the judges in particular and of the [judicial]
system in general” (MPIL, 2011, p. 15). As for the cooperation with higher levels of
the judiciary, the institute estimated that the judiciary lacked “effective coordination
with the Supreme Court in Kabul due to [a] lack of transportation and communication
tools” (MPIL, 2011, p. 15).
The post-IPM time frame
By September 2014, the numbers of sitting judges had decreased somewhat to 60 sitting
judges and an authorized tashkil of 74 judges for the whole province (UNAMA, 2014,
p. 1). There were still no female professionals amongst the judges and prosecutors
(UNAMA, 2014, p. 9). In September 2014, UNAMA reported that all districts,
including those influenced by the insurgency, had active courts with usually at least
two judges and one administrator (2014, p. 2). The standard legal setting ideally
remained “three judges for each district” (UNAMA, 2014, p. 2).
In 2015, the formal justice system was severely affected by a resurgent Taliban. Most
of the infrastructure that had been developed was destroyed during the Taliban’s
campaigns in 2015 (IWA, 2018, p. 10). The district court offices that were mostly
located on the district governor compounds were severely damaged or destroyed once
the Taliban captured these places between April and June 2015 (IWA, 2018, p. 10).
IWA quoted the chief judge of the Dasht-e Archi district court in an interview: “when
the Taliban took Dasht-e Archi, they totally destroyed the court. Nothing was left. No
door or room, no desk and chair” (IWA, 2018, p. 10).
42
A similar story was recorded in
Chahar Dara district. The chief judge of Chahar Dara reportedly stated during an
interview: “Chahar Dara primary court fell to the Taliban in the spring of 1394 [2015].
Everything has been stolen from the court. All justice organizations, security
departments and civil departments collapsed. Nothing was left (…)” (IWA, 2018, p.
10).
43
During the eventual attack on Kunduz city itself, Taliban fighters and other irregular
criminals looted government offices, NGO offices, and international organizations.
They entered the city appeal court complex where they vandalized offices and looted
files and computers (IWA, 2018, p. 10). According to Jackson (2018, p. 20), the
recordkeeping of the formal system was attacked too. She noted,
Several judges spoke of the Taliban’s efforts to steal official records in order to ensure that they
had accurate accounts of land ownership or prior litigation. This was corroborated by civilians
and by interviewees on the government side. During seizures of district centers and cities, the
Taliban have systematically taken records from the prosecutor’s office, as well as marriage
42
IWA’s interview with the head of the Dasht-e Archi primary court. The interview took place in Kunduz city on
27 May 2017.
43
IWA’s interview with the chief judge of Chahar Dara. The interview took place in Kunduz city on 29 May 2017.
The spring of 1394 in the Solar Hijri calendar equals the spring/summer of 2015 in the Gregorian calendar.
46
records and land deeds. They have also coerced or bribed government officials to steal specific
records on their behalf (Jackson 2018, p. 20).
With the Taliban’s advancement in 2015, the judges from Chahar Dara, Dasht-e Archi,
and Qal-e-Zal had to relocate to Kunduz city (IWA, 2018, p. 9). Since then, they
continued their work from the Kunduz appeal court building in Kunduz city. The judges
from Khanabad relocated to Kunduz city in summer 2016 (IWA, 2018, p. 9). Only in
Aliabad and Imam Sahib the district judges remained within the districts itself (IWA,
2018, p. 9).
In total, there were 227 documented justice personnel associated with the state judiciary
in Kunduz province by October 2017 (IWA, 2018, p. 12).
44
The total number of judges
authorized on the tashkil was 82. Most of these judges were working in Kunduz city
and not in the districts anymore. Moreover, there were approximately 145 staff
members in administrative and supportive positions for the judiciary. According to the
estimation of IWA, based on an interview with a UN official, the courts were at 85–
96% of the tashkil capacity (IWA, 2018, p. 12).
45
In general, the physical security of the court buildings and its personnel has been a
challenge throughout the time frame studied (TLO, 2010; IWA, 2018, p. 13; UNAMA
2014). District judges and the provincial chief of justice are known to be concerned
about their personal safety. The assassination of the judge that headed the Internal
Security Dewan at the Kunduz appeal court in August 2013 and an attack on a judge in
May 2014 demonstrate that these concerns have been well-founded (UNAMA, 2014).
As further observed by IWA,
The court complex in Kunduz city is located next to the National Directorate of Security, which
makes it more vulnerable to attacks by armed opposition forces. The west wall of the court
compound faces a road and open fields, making it a vulnerable entry point for a complex attack.
The Supreme Court in Kabul has provided funding to enable the building of concrete barriers
to reinforce the west wall. Little other infrastructure investments have been made despite
significant damage to court offices and equipment during the Taliban offensive of 2015. IWA
researchers observed that in some offices, furniture and equipment are worn out to the point of
being unusable (2018, p. 13).
5.3.3 Department of Justice/Huqooqs
According to the Max Planck Institute, the DoJ had 53 employees in Kunduz province
in 2011. There was a legal aid department with four defense lawyers and a huqooq in
each district (MPIL, 2011, p. 17). Furthermore, the institute reported that three huqooq
staff members were working in each district of Kunduz in 2011 (MPIL, 2011, p. 17).
The huqooq offices belong to the DoJ and were intended to act as the link between
formal and informal justice mechanisms (MPIL, 2011, p. 17). According to the Max
Planck Institute, the huqooq offices were
44
IWA (2018) here refers to a tashkil document that the organization obtained from the Afghanistan Supreme Court
in October 2017. It is available in their report on page 31 in a translated English version.
45
The authors were not able to find written sources to support this, but it seems likely that there were no female
professionals amongst the judges and prosecutors at this time either.
47
(…) not competent in criminal matters. Such cases have to be referred to the police and/or
prosecutors. When a civil case is brought before a hoqooq office, the hoqooq staff refers the
case to a local shura first. On [the] district level, this can be a shura established under the
National Solidarity Program (NSP) or another shura, which seems to be capable of conflict
resolution. If the shura is not able to mediate a solution, the hoqooq staff tries to find a solution
in consent with the parties involved. Written case information from the shura is taken into
consideration. If the hoqooq staff is not able to negotiate a solution either, the case is referred
to the ordinary courts (MPIL 2011, p. 17).
According to the Dutch government, GIZ reported that the huqooqs throughout Kunduz
province were approached for approximately 374 cases in 2011, 764 cases in 2012, and
912 cases in 2013.
46
It was further reported that some of those cases were solved,
referred to a court, or remained in progress.
47
The authors were, however, not able to
find any other sources or studies to compare these numbers to.
UNAMA reported that new office buildings for the huqooqs were built and handed over
to the DoJ in 2013 (2014, p. 4). The DoJ head office in Kunduz was newly built and
opened in early 2014 (UNAMA, 2014, p. 4). In 2014, all branches of the DoJ were
moved to this office (UNAMA, 2014, p. 4). In 2014, it was further reported that the
DoJ office building and huqooqs in the various districts were at their right sizes but
were remarkably underused by the public (UNAMA, 2014, p. 3). Reportedly, this was
not because they were malfunctioning but because of the noncommunication of parts
of the population with state institutions in general (UNAMA, 2014, p. 4).
For the 2014–2017 time frame, GIZ reported on Northern Afghanistan that “huqooqs
are still regarded more highly than the state courts by the local population,” but the
“confidence in non-governmental institutions such as jirga and shura is considerably
higher and has increased in the period under review” (GIZ, 2018, p. 5).
48
GIZ further
reported that in a number of districts in the provinces of Kunduz, Baghlan, and
Badakhshan, there was “no more access or only very limited access to the huqooqs
following their takeover by the Taliban or other rebel groups” (2018, p. 5). On the
number of cases handled by the huqooqs, GIZ notes that given the security situation,
“no or only few data were available,” particularly from Kunduz province (2018, p. 5).
Field visits would be required to verify which districts still maintained a functioning
huqooq by 2018.
Finally, according to IWA, corruption is perceived to be persistent within the DoJ. In
interviews held by IWA, a number of respondents reportedly identified the DoJ
specifically when asked about corruption in justice institutions (IWA, 2018, p. 19).
5.3.4 Defense Attorneys and the Legal Community in Kunduz (AIBA)
AIBA was established in Kunduz province at the beginning of the time frame studied
(MPIL, 2013, p. 27). The general trend has been that the number of registered attorneys
46
Source: Eindevaluatie Geïntegreerde Politietrainingsmissie, pp. 24-26. The formal justice system of Kunduz
province was reported to have handled 2660 criminal cases in 2016 (TAF and MoJ 2016, p. 16).
47
Eindevaluatie Geïntegreerde Politietrainingsmissie, pp. 24-26.
48
It has to be noted that the GIZ report does not differentiate between government-controlled territories, contested
territories, and insurgency-controlled territories.
48
with AIBA increased. At the same time, the geographical reach of the attorneys
fluctuated.
In February 2011, there were 21 registered defense attorneys in Kunduz province
according to the Max Planck Institute (2011, p. 20). According to the institute, they
usually worked “as legal counsellors and provide[d] only written statements but rarely
represent[ed] defendants at trials” (MPIL, 2011, p. 20). On 18 September 2011, a
Kunduz sub-office of AIBA was opened as the first provincial office in Afghanistan
(MPIL, 2013, p. 27). On 28 November 2012, the first regional bar exam was taken by
41 applicants, including 3 female applicants.
By January 2013, according to AIBA, there were 50 registered defense attorneys in
Kunduz province—6 women and 44 men (MPIL 2013, p. 27). Of those 50 lawyers, 39
brought cases of the public in front of courts and other justice institutions (MPIL 2013,
p. 27). In a Memorandum of Understanding between AIBA and the Department of
Women’s Affairs of Kunduz Province, it was agreed that AIBA would provide “free
legal advice to cases referred to the DoWA” (MPIL, 2013, p. 31). These included cases
of domestic violence and women who ran away from home (MPIL 2013, p. 31).
By September 2014, AIBA had 70 registered lawyers, of which 10 were female
(UNAMA, 2014, p. 5). AIBA continued to provide legal advice and legal aid, but the
coverage throughout the province was modest because fewer services were available
outside of Kunduz city (UNAMA, 2014, p. 5). Only outside of the insurgent-controlled
areas could female professionals work relatively well in the law profession (UNAMA,
2014, p. 9). In February 2015, the Kunduz branch of AIBA opened a new office.
49
During the attack on Kunduz city, however, most legal professionals had to flee. This
was also the case for the attorneys.
AIBA-registered attorneys have been involved in pro bono cases. According to the
Advocates’ Law of Afghanistan, lawyers are required to defend three criminal cases
each year free of charge – pro bono.
50
This requirement is further reiterated by AIBA’s
By-Laws.
51
In Kunduz province, AIBA lawyers reportedly took up 109 pro bono cases
in 2016 (TAF & MoJ, 2017, p. 63). In Balkh, for example, the number was only 43. In
Kabul however, the number was 440 (TAF & MoJ, 2017, p. 63). Compared to
neighboring Balkh province, Kunduz had a low criminal caseload in the formal justice
system (Kunduz 2660 in 2016 – Balkh 4570 in 2016), but a relatively high number of
pro bono cases handled (TAF & MoJ, 2017, pp. 16, 63). Therefore, comparatively, it
seems that the attorneys’ capacity and willingness to defend pro bono cases was
relatively high in Kunduz province in 2016, whereas the caseload in the court system
as a whole was relatively low.
By March 2017, 101 attorneys (87 male attorneys and 14 female attorneys) were
registered with AIBA in Kunduz province (IWA, 2018, p. 16). As IWA observed at the
49
See for example: http://www.germancooperation-afghanistan.de/en/news/afghan-lawyers%E2%80%99-
association-opens-new-offices-kunduz-german-and-dutch-support
50
Advocates’ Law, Article 13(15).
51
AIBA By-Law, Article 43.
49
end of the time frame, attorneys in Kunduz “provide legal counsel and represent citizens
in cases that go to court” (IWA, 2018, p. 16). This included providing criminal defense
(IWA, 2018, p. 16). The attorneys generally “do not represent clients in the Taliban
judiciary or in CBDRs proceedings,” but “do represent national security defendants,
including suspected Taliban fighters in the state judiciary” (IWA 2018, p. 16). Despite
the evolving security situation, it seems that AIBA-registered attorneys continue to
function. There are also law graduates who operate in Kunduz without being registered
to AIBA, delivering legal aid services for humanitarian organizations and NGOs (IWA,
2018, p. 16).
5.3.5 Legal Education
Kunduz province does not have an elaborate tradition of legal education in terms of
modern law (MPIL, 2011, p. 24). The opening of a law faculty in Kunduz city, however,
created opportunities for students to study modern law in Kunduz province itself. In
2011, there also were about 57 students attending a private law school, called the Ajir
Institute. Max Planck estimated that about 120 students in total studied law at these two
schools in 2011 (MPIL, 2011, p. 24).
Similar to other parts of Afghanistan, only about 30% of the Kunduz judiciary was
reported to possess a modern law degree in 2013, and most of them had a sharia law
background (MPIL 2013, p. 22). Most of the judges, however, took part in additional
training programs and courses offered by international organizations throughout the
years (MPIL, 2013, p. 22; UNAMA, 2014, p. 2).
By 2014, over 90% of the judges had reportedly attended trainings and courses,
especially the legal education training courses offered by the Max Planck Institute
(UNAMA, 2014, p. 2). The level of education reportedly remained similar to that in
other provinces, and the majority of judges continued to have a sharia law background
(UNAMA, 2014, p. 2). In the surveyed literature, there were no independent studies
that reported on the levels of legal education in Kunduz province specifically for the
time frame after 2014.
For 2016, GIZ reported that other northern provinces, such as Balkh, Baghlan, Jowzjan,
and Takhar, hosted 89 female law students with internships in various institutions in
the judicial sector, including the courts, public prosecutor office, the police, the DoJ,
and the authority responsible for women’s affairs at the provincial level (2018, p. 4).
This, however, did not seem to have taken place in Kunduz province (GIZ, 2018, p. 4).
For Afghanistan as a whole, TAF and MoJ reported in 2017 that legal education
“remains a bifurcated system that creates inefficiencies and a divided legal landscape”
(2017, p. 157). Afghan legal professionals are generally versed only to a limited extent
in the laws, sharia, and practical skills necessary to “navigate the complex, rich and
still developing legal landscape of Afghanistan” (2017, p. 157). Much more effort is
necessary in terms of “basic skills (basic research writing and analysis), an
understanding of doctrine (law and sharia) and practical skills (legal writing, trial
advocacy, etc.) (…)” (2017, p. 157). If these skills are not improved, “students will
continue to fail to serve the needs of the justice system” (2017, p. 157).
50
5.3.6 Prison and Detention Centers
In January 2011, there were an estimated 460 inmates in the central prison of Kunduz
(MPIL, 2011, p. 19). Of that number, 16 inmates were female. The pretrial detainees
and convicted inmates were held separately (MPIL, 2011, p. 19). Furthermore, there
was a Juvenile Rehabilitation Centre where thirteen juvenile offenders were
accommodated. According to the Max Planck Institute, the prison’s capacity was only
a maximum of 150 inmates, so the prison was severely overcrowded (MPIL 2011, p.
19). Generally, the hygiene conditions were poor, and the prisons lacked enough guards
and staff to properly search visitors (2011, p. 19). With the low number of staff, it was
relatively easy to smuggle weapons inside (MPIL 2011, p. 19). Another concern was
the existence of suspected Taliban members amongst the inmates that would allegedly
be recruiting fighters (MPIL 2011, p. 19). As already described in Chapter 4, torture of
detainees has been reported by UNAMA throughout the studied time frame in reference
to NDS and ANP facilities in Kunduz province (UNAMA, 2011; 2013; 2015; 2017).
On 28 September 2015, during the fall of Kunduz city, the Taliban overran the Kunduz
city central prison (Osman, 2015, p. 2). The Taliban released hundreds of inmates from
the prison, among whom there were a substantial number of Taliban fighters (Osman
2015, p. 2). According to UNAMA, around 600 prisoners were released, and some of
them were provided with weapons to fight alongside the Taliban (UNAMA, 2015, p.
1). About 57 children and 35 women were also amongst these 600 (IWA, 2018, p. 15).
Only about 20 inmates of the original 600 returned to prison after the government forces
retook the city (IWA, 2018, p. 15).
By 2018, the prison population in the central prison of Kunduz had risen again to 319
inmates—295 male and 24 female (IWA, 2018, p. 16). Of these 319, 145 were held in
pretrial detention (IWA, 2018, p. 16). Allegedly, a majority of the women were charged
with the ‘moral crime’ of running away (IWA, 2018, p. 16). IWA (2018, p. 16) further
reported that there were limited detention facilities in the districts. Most criminal
defendants were therefore being held in the central prison. However, conducting the
trials in the district courts requires transportation of the inmates, which was difficult
given the security situation. In the Aliabad court for example, the trials were delayed
because of the transportation problem (IWA, 2018, p. 13). In the districts, female
inmates were usually held in the same detention facilities as male inmates, putting them
in a particularly vulnerable position. As IWA emphasized, “In addition to the potential
for abuse by prison guards and other inmates, female prisoners are particularly
vulnerable to abduction and abuse if the prison were to be attacked again by Taliban
forces” (IWA 2018, pp. 13-14).
5.3.7 Corruption
In 2011, it was observed that a general culture of corruption was found throughout the
whole of the formal justice system in Kunduz (MPIL, 2011, p. 16; MPIL, 2013; IWA,
2018). This was reported both amongst personnel with low incomes and personnel with
larger private resources. At various levels, personnel were known to be accepting bribes
(MPIL, 2011, p. 16). Moreover, the Max Planck Institute stated in 2011 and 2013 that
51
a main deterrent of the “capacity of the judiciary to effectively deliver justice are
interventions of politicians and local strongmen in judicial affairs” (MPIL, 2011, p. 15;
MPIL 2013, p. 23).
At the end of the time frame studied, the general culture of corruption seems to still
have existed. Nearly all respondents of the IWA study in Kunduz province perceived
the state justice system as a whole to “be the most vulnerable to corruption due to the
low salaries of personnel and a lengthy and bureaucratic process that allows for more
opportunity for rent-seeking behavior” (IWA, 2018, p. 19). A continuing problem that
was reported throughout the whole time frame studied is powerful actors interfering in
the judiciary, which undermines judicial independence. As IWA notes, “judges in any
context can face violent reprisals from armed groups, such as criminal gangs and mafias,
an insecure environment as well as a lack of personal security for judges in Kunduz
makes judicial personnel particularly vulnerable to influence and interference” (2018,
p. 20). At the same time, IWA (2018) also reported that in the perception of the
stakeholders interviewed in their study, bribe taking in the judiciary had at least
somewhat diminished. The perception was that this resulted from judges receiving
higher salaries (IWA, 2018, p. 19). This appeared to have followed from anti-corruption
measures at the national level.
52
Overall, it seems fair to assess corruption as a structural issue not only in Kunduz
province but throughout Afghanistan (see for example: Gardizi, Hussmann & Torabi,
2010; IWA, 2018; UNAMA, 2018). The authors were not able to establish a definite
improvement or deterioration based on the literature, but it appears that bribe taking in
the judiciary decreased somewhat (or at least the perception of it), while the influence
and interference by powerful figures persisted.
5.4 Informal Justice Mechanisms
As in most parts of Afghanistan, the population of Kunduz largely relies on informal
justice mechanisms, particularly for civil cases (Coburn, 2013; MPIL, 2011;
Murtazashvili, 2018; Peavey, 2012; Wimpelmann, 2013). Relevant actors outside of
the formal system include jirgas and shuras of elders and religious leaders/village
representatives (MPIL, 2011, IWA, 2018; Carter & Conner, 1989; Wardak, 2003a), and
the Taliban judiciary (Ali, 2019, IWA, 2018; Jackson, 2018). In some studies, the term
“community-based dispute resolution’ (CBDR) is used in reference to the “array of
shuras or jirgas of elders, religious scholars or influential individuals who exercise
quasi-governance authority and mediate disputes” (IWA, 2018, p. 8). The Taliban
judiciary is treated as a separate category (IWA, 2018, p. 8).
5.4.1 Shuras and Jirgas
Following Carter and Connor (1989), we define shura as a “(…) group of individuals
that meets only in response to a specific need in order to decide how to meet the need.
In most cases, this need is to resolve a conflict between individuals, families, groups of
52
The IWA report does not provide a specific time frame for this development. Hence, the authors were not able
identify at what point in time this perception seemed to have changed.
52
families, or whole tribes” (p. 9).
53
The term jirga is understood here as an institution
that has historically resolved political, social, economic, cultural, judicial and religious
conflicts by making authoritative decisions (Wardak, 2003a). Jirga is “the product of
Pashtun tribal society and operates according to the dictates of the Pashtunwali, an
inclusive code of conduct guiding all aspects of Pashtun behavior and often superseding
the dictates of both Islam and the central government” (Carter & Connor, 1989, p. 7).
Wardak defines the jirga more broadly on multiple levels of society: “[the] jirga, its
norms, techniques and processes define the indigenous ways Afghans resolve local,
tribal and national conflicts” (...) (2003a, p. 17).
In informal justice mechanisms, there is often a lack of understanding of “the Afghan
Constitution, statutory law and binding international law,” which can lead to “severe
violations of fundamental and human rights” (MPIL, 2013, p. 29). This holds true
especially for “cases involving women or children and in the settlement of criminal
cases by shuras” (MPIL, 2013, p. 29). Generally, shuras and jirgas in Kunduz have
been reported to be “discriminatory on the basis of class, gender and money” (2013, p.
30). In both shuras and jirgas, it has to be noted that strongmen and warlords are often
able to influence decisions (Wardak, 2003a, p. 5; Carter &Connor, 1989; Terpstra,
2019). Hence, the actual capacity of enforcement can be limited if the shura or jirga
decision goes against the interests of influential people involved in the dispute (IWA,
2018, p. 15; Terpstra, 2019, p. 12). In 2018, IWA reported a lack of codified procedural
rules to guarantee impartiality and independence in informal justice mechanisms (IWA,
2018, p. 15). In the time frame studied, it seems fair to state that the influence of
powerful actors on informal justice provision persisted, while the Taliban’s influence
increased (also see the next section on the Taliban judiciary).
Nevertheless, both at the beginning and the end of the time frame studied, the shuras
and jirgas were reported to be a widely accepted form of dispute resolution (MPIL,
2011, pp. 20-21; IWA, 2018, p. 21). As the Max Planck Institute noted in the first year
of the studied time frame, many inhabitants of Kunduz province preferred informal,
traditional systems of conflict resolution because they are viewed as more efficient and
relatively free from corruption, and their decisions are generally accepted (MPIL, 2013,
p. 29). In the realm of criminal cases, the informal sector was popular too because it
may offer “victims the possibility to receive material compensation for harm done to
them, and to restore harmony in the local community” (2013, p. 29). At the end of the
time frame studied, CBDR mechanisms such as shuras and jirgas continued to be
perceived as the most accessible and accepted form of dispute resolution (IWA, 2018,
p. 15; TAF, 2018, pp. 120-123).
The Max Planck Institute concluded that the relation between courts and informal
systems of conflict resolution in the Kunduz region generally tended to be constructive
and cooperative (2013, p. 30). According to the Max Planck Institute ordinary people
did not seem to perceive a conflict between formal and informal sectors of the judiciary
(2013, p. 29). The government sometimes takes an observer role in the process of a
53
See also: Coburn (2013).
53
jirga, or the district governor solves a case in the presence of the local elders and
disputants (ATR, 2015, p. 31). In other instances, cases are referred from a jirga to the
huqooq, or from the court to a local jirga (see for example: ATR, 2015). Based on the
investigated literature, the authors were not able to establish whether that cooperation
improved or deteriorated over time.
5.4.2 The Taliban Judiciary
In 2010, there were Taliban judges active in Kunduz province, although they were not
as extensively organized as they became by 2018. The Taliban had set up its shadow
judiciary run by mullahs, though the number of mullahs involved was not verifiable at
the time (TLO, 2010, p. 138). According to TLO, the Taliban judiciary was “rather an
ad-hoc establishment of a Taliban court or appointment of a Taliban judge” if the
Taliban’s services were requested or needed (TLO, 2010, p. 111). Reportedly, for
people who had problems in the past with accessing the formal court system, the
Taliban justice system was perceived as “accessible, free of corruption, and efficient”
(TLO, 2010, p. 138). The Taliban was usually able to enforce its decisions through
commanders operating in a particular area (TLO, 2010, p. 138). At the time, TLO
reported that most cases heard by Taliban courts were about unresolved land and/or
property disputes (2010, p. 138).
In areas that were under the control of the Taliban at the time, the enforcement of a
Taliban court ruling was generally guaranteed in contrast with a ruling given by the
state judicial system (TLO, 2010, p. 138). A judge from Kunduz province reportedly
confirmed that the local population chose to turn to the Taliban because they hoped to
have their conflicts “resolved quickly and efficiently without having to bribe court
officials” (TLO, 2010, p. 138). Further, the Max Planck Institute reported in 2011 that
the Taliban operated parallel justice structures (MPIL, 2011, p. 15):
Gortepa area of Kunduz city and Mullah Quli of Dasht-e Archi reportedly have judiciary and
conflict resolution committees to which some citizens submit cases for consideration that have
been pending in the courts for a long time. Besides, the Taliban form ad hoc courts in other
areas of the province (MPIL 2011, p. 15).
Additionally, the Max Planck Institute reported that some local shuras in the districts
of Chahar Dara and Dasht-e Archi were under the influence of the Taliban (MPIL 2011,
p. 22).
By 2018, the Taliban judiciary was one of the main mechanisms that resolved judicial
cases in Kunduz province. However, the exact figures of the cases handled are not
known (IWA, 2018, p. 14). Following the pattern of increased territorial control, the
Taliban judiciary expanded its reach throughout the years (IWA, 2018, pp. 14-15; Ali,
2019; Terpstra, forthcoming). For many people living under insurgent control, the only
available option to resolve their grievances became the Taliban court (Ali, 2019, p. 11).
According to a report on Taliban governance by Jackson in 2018, Kunduz province
“had a [Taliban] appeals court in the province and [Taliban] judges for every district”
54
(Jackson, 2018, p. 19).
54
In a recent study carried out by Afghanistan Analysts Network
in Dasht-e Archi district, all the respondents agreed that “the Taleban ‘out-govern’ the
Afghan administration, particularly in the justice sector, in addressing disputes among
local people” (Ali, 2019, p. 11). This is not because the Taliban judiciary system is
perfectly organized but because the government justice system is effectively paralyzed
and operating remotely from Kunduz city (Ali, 2019, p. 11). As reported in the first
years of the time frame studied, locals tend to take their cases to the Taliban court
because the cases are generally “adjudicated faster, without corruption and with
satisfactory outcomes” (Ali, 2019, p. 11). Ali (2019, p. 11) explains that registering
cases with the Taliban is usually the most effective way for a disputant to make sure
that the opposing party shows up for the court case.
According to IWA (2018, p. 15), the Taliban sometimes refer disputes to local shuras
and jirgas for resolution throughout Kunduz province, but this practice seems to differ
from one locality to another. As two fieldwork-based studies in Kunduz indicate, the
Taliban’s district governor, Taliban judges, and local elders play a key role in the
Taliban judiciary (Ali, 2019, p. 12; Jackson, 2018, p. 19). For example, Ali explains
about the Taliban judiciary that
Minor cases, such as family disputes, are sometimes referred to the local elders’ council. This
depends on both sides accepting the move. The elders’ council decisions are often approved by
the Taleban court and again implemented by the [Taliban] shadow district governor (2019, p.
12).
However, in other instances, the Taliban judiciary has been known to go against an
informal settlement brokered by local elders (Giustozzi et al., 2013, p. 26). In general,
customary codes of conduct (such as Pashtunwali) and the Taliban’s interpretation of
sharia agree on some issues and disagree on others (Giustozzi et al., 2013, p. 26; Leibl,
2007).
55
Moreover, one has to be aware of the harsh punishments that the Taliban continues to
mete out (Giustozzi et al., 2013; Jackson, 2018). As explained by Giustozzi et al.,
Murder is in principle punished with the firing squad, but the victim’s family can forgive if they
like, usually in exchange of blood money. Government officials, soldiers and police (all
considered to be criminals by the Taliban) are also to be punished with hanging after having
been warned to quit their job; spies are to be shot. Adulterers (married men and women) are to
be stoned and thieves to have a limb amputated; lashes are inflicted on those responsible of
other infractions, such as ‘adultery’ with an unmarried woman (120 lashes), adultery with a
widow (60 lashes) (…) (2013, p. 24).
54
According to Jackson, Kunduz province had stationary Taliban judges in all districts in 2018 with appointed courts
and jails, whereas in other provinces such as Logar, there was only one provincial judge and a few mobile Taliban
judges (2018, p. 19).
55
Giustozzi et al. (2013, p. 26) explained, “In some occurrences, the Taliban judiciary can (…) go against an
informal settlement. (…) These divergent attitudes are reflected in the approach of the [Taliban] judges towards
Pashtunwali (…). Settlements brokered by village elders in Pashtun villages will typically follow Pashtunwali.
Reconciling Pashtunwali, other community codes (which exist among Tajiks, Uzbeks, and other ethnic groups) with
Sharia is in any case not always easy. (…) the retributive Islamic law, focusing on the crime, lacks, in specific
situations, the flexibility offered by reparatory customary law, which is focused on the unity of the community”.
55
Furthermore, as Jackson (2018) explains, individuals who are suspected by the Taliban
of spying for the government are often pressured to make a confession and then
executed. These pressured confessions are also used to further instigate fear amongst
the population.
5.5 Legal Awareness Amongst the Population
In the beginning of the time frame studied, the Max Planck Institute reported that the
DoJ tried to raise legal awareness amongst the population of Kunduz, particularly
through the huqooq offices. Its method involved appointing one staff member in every
district who would distribute information to citizens about the services that state justice
institutions can offer them (MPIL, 2011, p. 23). Generally, there was not a high
awareness of state justice institutions and legal rights amongst the population. This
certainly was, and continues to be, related to the high levels of illiteracy amongst the
general population.
56
In the surveyed literature, no independent studies with a representative sample from
Kunduz province were found to identify an increase or decrease in public legal
awareness specifically. For Afghanistan as a whole, TAF and MoJ were cautiously
optimistic about increased legal awareness in 2016–2017: “Throughout Afghanistan,
public legal awareness is increasing. While, unfortunately, it may remain lowest among
those most in need of counsel” (2017, p. 4).
5.6 Trust in the Judiciary
According to the data collected in the TAF annual survey, the trust in courts in Kunduz
fluctuated, with the general trend being slightly upwards during the time frame studied.
The figure below shows the responses over time to the question, “Tell me do you
strongly agree, somewhat agree, somewhat disagree, or strongly disagree with the
following statements about state courts: state courts are fair and trusted.”
Figure 2 - Responses to the statement, “State courts are fair and trusted” – Sample Kunduz province and
Afghanistan wide – Data collected by The Asia Foundation – Graph created by Dirkx and Terpstra.
56
As noted by one of the Afghanistan experts reviewing this report.
0
10
20
30
40
50
60
70
80
90
100
2010 2011 2012 2013 2014 2015 2016 2017 2018
Male (strongly agree /
agree somewhat) -
Kunduz province (%)
Female (strongly agree /
agree somewhat) -
Kunduz province (%)
Male (strongly agree /
agree somewhat) -
Afghanistan (%)
Female (strongly agree /
agree somewhat) -
Afghanistan (%)
56
However, as explained in Chapter 4, it is necessary to emphasize that several important
caveats apply to these results.
57
As noted earlier, the size of the sample in Kunduz
province has been relatively small. This prevents the results from being representative
or having statistical validity for the general population in Kunduz province. For Kunduz
province, the sample fluctuated over the years between 27 respondents (2014) at its
lowest and 227 (2011) at its highest.
The second problem, as noted earlier, is that we do not know under which actors’
territorial control these surveys were conducted. Based on TAF’s own methodological
explanations, it seems likely that a large majority of the conducted surveys stem from
government-controlled territories. This would provide a distorted picture of the
situation in the province because it is likely that people in Taliban-controlled territory
will give different answers about state institutions.
58
Possibly as a result of these methodological problems, similar to the problems identified
in the previous chapter on the police, the TAF annual survey paints a more positive
picture of people’s trust in the justice system than other sources. Other sources indicate
that in terms of public perceptions, the psychological impact of the fall of Kunduz
should not be underestimated (Cooke & Urwin 2015; IWA 2018, pp. 10-12). As Cooke
and Urwin (2015) noted with regard to the fall of Kunduz, “the combination of an
unresponsive, factionalized government and a large number of abusive militias
contributed to popular distrust of the Afghan state” (2015, p. 2).
5.7 Access to Justice
As the discussion above indicates, access to justice in Kunduz province means
something different than access to formal institutions only. According to Bedner and
Vel (2010), access to justice exists if
People, notably poor and disadvantaged, suffering from injustices, have the ability to make their
grievances be listened to and to obtain proper treatment of their grievances by state or non-state
institutions leading to redress of those injustices on the basis of rules or principles of state law,
religious law or customary law in accordance with the rule of law (p. 7).
These stages in the process of gaining access to justice show how delicate and
comprehensive the whole process is. In most aspects, access to justice has been limited
for the population in Kunduz, particularly for women and ethnic minorities. Given the
context of legal pluralism, a state-centric conceptualization of access to justice cannot
suffice. Therefore, we include access to both state and nonstate institutions.
5.7.1 Developments from 2010 to 2018
Throughout the time frame studied, the constraints for people to get access to justice
were considerable. Amongst other barriers, shifts in territorial control narrowed
57
See also 4.5.3 of this report, in which we highlight the same caveats that apply to this source of data in the context
of Kunduz province.
58
As explained in Chapter 2, the Survey of the Afghan People has mainly been conducted outside of “inaccessible
districts” (see e.g. TAF, 2018, p. 226). In 2018, only 7% of the surveys were conducted amongst respondents that
were coming out “inaccessible districts” or “insecure areas” (TAF, 2018, p. 226). Given the fact that large parts of
Kunduz province came under Taliban control or influence between 2014 and 2018, it is likely that there is a strong
overrepresentation of respondents from government-controlled territories in this sample.
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opportunities for civilian populations to find access to justice.
In 2011, the Max Planck Institute reported that “access to the judicial institutions
remain[ed] limited for marginalized groups including women and children, returning
refugees and small ethnic minorities such as Kuchi nomads” (MPIL, 2011, p. 23).
According to the institute, the main reasons state justice services were not extensively
used were “their weak performance on the one hand, and lack of information and
confidence in them among the citizens on the other” (MPIL, 2011, p. 23).
In 2011, an estimated 80% of the cases in Kunduz province were solved by
shuras/jirgas; few cases were solved by courts or the Taliban judiciary (MPIL, 2011,
p. 17, 24). Access to these informal institutions was easier to obtain than access to
formal justice institutions. Informal mechanisms were generally more efficient and less
affected by corruption, and the decisions were considered more socially acceptable
(MPIL, 2011, p. 21). However, according to Bedner and Vel (2010), that does not
necessarily mean that the disputants obtained “proper treatment of their grievances by
state or non-state institutions leading to redress of those injustices on the basis of rules
or principles of state law, religious law or customary law in accordance with the rule of
law” (p. 7). With regard to shura mediations, the Max Planck Institute reported that
“women rarely have any influence on the choice of the persons involved in the conflict
resolution” (2011, p. 23).
According to UNAMA sources dating from September 2014—before the fall of
Kunduz city—formal justice offices (consisting of the courts, prosecution,
huqooq/Department of Justice) in a number of districts of Kunduz province were
“simply under-used,” while crimes were “either not being investigated by police, and
civil disputes [were] simply not brought to the state system” (UNAMA, 2014, p. 1). In
Dasht-e Archi, Chahar Dara, and parts of Aliabad, this underuse was a result of the
state’s lack of territorial control (UNAMA, 2014, p. 1). In parts of Khanabad the
underuse was not the direct result of a resurgent Taliban but rather of the power of pro-
government militias, who largely enjoyed impunity from the state’s judiciary
(UNAMA, 2014, p. 1).
In 2016, Kunduz province state judiciary continued to have a low caseload in the formal
justice sector compared to other provinces in Afghanistan (IWA, 2018, p. 13). TAF and
MoJ reported that Kunduz province had only 2660 active criminal cases in 2016 (TAF
& MoJ, 2017, p. 16). Compared to its neighbors Badakhshan (4043 active criminal
cases) and Balkh (4570 active criminal cases), this was relatively low (TAF & MoJ,
2017, p. 16).
At the end of the time frame studied in 2018, most cases in Kunduz province were still
handled by CBDR mechanisms, including shuras and jirgas (IWA, 2018, p. 15). As
IWA reported,
In both government controlled and Taliban controlled territory, CBDRs are the most widely
used justice mechanism. According to residents, the courts and the Taliban are also referring
disputes to local shuras and jirgas for resolution. The majority of cases handled by CBDRs
relate to land and water disputes, as well as traffic incidents, thefts and murders. CBDRs’
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handling of murder cases is common, as the state’s criminal law writ has always been limited
in Kunduz (2018, p. 15).
According to IWA “the citizens’ demand for state justice services” was still “very low
throughout Kunduz province” in 2018 (IWA, 2018, p. 2).
5.7.2 Impact of Territorial Control on Access to Justice
Given the fluctuating influence of the Afghan government, pro-government militias,
and the insurgency in the time frame studied, territorial control can be considered to be
a key determinant shaping the population’s access to the formal justice system and the
Taliban judiciary (IWA, 2018, p. 9; Terpstra, 2019, pp. 11-14). As IWA noted,
(…) the main determining factor for whether citizens are using state or Taliban justice
institutions is territorial control. In areas controlled by the government, citizens use CBDRs,
state justice institutions and the Taliban judiciary. In areas controlled by the Taliban, citizens
use the Taliban judiciary or CBDRs. Citizens mostly do not approach state justice institutions
in Taliban controlled territory for fear of retaliation from opposition forces, and because of the
limited presence of state justice institutions or low acceptance by communities of government
institutions (2018, p. 9).
The security situation further defines where judges, prosecutors, and attorneys can
locate themselves or where they can travel. Defense attorneys are less of a target than
prosecutors and judges, but they also face a significant security threat while carrying
out their duties. In some cases, the Taliban actually needed these attorneys to defend
them in court (IWA, 2018, p. 16).
IWA quoted a defense lawyer who worked in Khanabad: “The cases have totally
vanished. Most people don’t refer [cases] to us. Government controls less territory
while opposition controls much of the territory. A defense lawyer has no value for them”
(IWA, 2018, p. 16).
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Qal-e-Zal was the district with the lowest caseload (IWA, 2018,
p. 13). IWA reported that the demand for state justice services was low throughout the
province, with the exception of the Imam Sahib district (2018, p. 15).
5.7.3 Impact of Corruption and Formal Procedures on Access to Justice
While the nature of territorial control shapes which justice provider is available to the
population in a particular geographical area, the perceptions of corruption are important
for understanding the preferences that people have for one system to another (IWA,
2018, p. 3). Perceptions of corruption in state institutions and the low social acceptance
of the state judiciary are consistently cited as a major reason for civilians to refrain from
approaching state systems (IWA, 2018, p. 3). IWA argued that “inefficient and poorly
administered procedures” in formal justice in Kunduz were still one of the main reasons
the population was deterred from approaching the formal justice system (2018, p. 3).
Another reported reason for people to avoid the formal system was when they did not
possess formal documents. Because inhabitants of Kunduz often did not possess formal
documents that would be relevant in land and property disputes, the state judiciary
would not be an option for them (IWA, 2018, p. 15). However, with local leaders’
59
Interview conducted by IWA with a defense lawyer in Khanabad on 10 May 2017.
59
mediation, such disputes could be resolved in a socially acceptable way with or without
formal documents, even in government-controlled territories (IWA 2018, p. 15).
5.7.4 Barriers for Women to Access Justice Institutions
Women in Kunduz province had limited access to justice institutions during the studied
time frame. Overall, sociocultural barriers persisted throughout the time frame studied,
while security-related barriers increased. The Max Planck Institute asserted in 2011 that
the limited access was due to a couple of reasons. First, there were societal rules
according to which women are generally restricted to “their role within the families as
daughters, wives, and mothers. It [was] hardly accepted that women take positions in
public life” (2011, p. 13). A second reason was the high rate of illiteracy (2011, p. 13).
A third reason was the lack of a safe space for women in Kunduz province, where many
women “live under the control of their fathers and husbands; those who dare to leave
their homes if they have been mistreated usually have to return sooner or later” (2011,
p. 13). A fourth reason was male domination in justice institutions. As pointed out
earlier, there was not a single female judge or prosecutor