Canada’s Legal Community Can Help Afghanistan

The Afghan detainee issue, while important, has hijacked Parliamentary attention. Parties are not taking clear positions on Canada’s future in Afghanistan for fear others may exploit defined positions for political gain and because of internal divisions.

The focus should be objectives that all can support. For one, Canada can help more with development of legal systems. Social, economic, political, public administration, education and commercial progress require a functional legal system that rejects arbitrary power, is based on the rule of law and that effectively and fairly balances diverse interests. Afghans must decide what they want and what they adopt must suit their conditions, but we can help them make good decisions based on our experiences. 

Security efforts must continue because Afghans want our help and because all development depends on them. We should continue with legal and other development because it is in our interest and because Afghan authorities and citizens want us to help. It is in our interest because we have invested blood and treasure there and because all states are impacted by problems that emanate from failed states including terrorism, public health and environmental threats, refugee flows, political instability (in a nuclear region), demands for aid and economic drag.

Afghan authorities want us to help so we can’t validly be accused of unlawful intervention, but the intervention issue must be addressed to confront those that accuse us of wrongful intervention. It must be argued that we have the right and responsibility to act.

Liberal leader Michael Ignatieff, one of the authors of the UN approved Responsibility to Protect Doctrine and an authority on state intervention and international humanitarian law, believes, unless he has changed, that others can’t stand by while governments kill or threaten the security, safety and survival of their own citizens. Sovereignty, according to RTP doctrine, is earned and if states do not protect or if they directly harm their own citizens then they surrender sovereign powers while the international community is vested with the right to intervene and protect people. Mr. Ignatieff and the government could do more to articulate and support these principles.

Arguments that sovereignty and state power are absolute always confront threshold issues. Power must have limits. The issue is where the thresholds are. World War II, Cambodia, the Balkans and Rwanda are examples that help us define extremes. We know we must act differently in the future in the face of such extremes. We must refine our judgments. We must also act when failing to act in advance can make it much more likely that we will face the extremes. We can’t wait until swords are drawn and thrust toward innocents. 

If we don’t act to cure failed states and to promote legal and other development then we are not living up to ideals we say we have. We can’t view human rights as something Canadians and a few other privileged souls have by the beneficence of history and the sacrifices of their forefathers. We must ensure those sacrifices benefit all persons and that means failed stated can’t stand. Beyond core rights issues, the war on poverty – that we support - requires that failed states be transformed and that governments and legal systems be able to build affluent and fair societies.

Canada must therefore not only help train Afghan soldiers, but also tens of thousands of lawyers, judges, business persons, paralegals and public administrators. We have the knowledge base and the firms, institutions, functioning systems and people that can help. It is time for innovative action and collaboration in Canada and Afghanistan. Nearby India and Pakistan, countries with legal systems like our own, can help. 

Canada’s legal system is far from perfect, continues to evolve and faces challenges, but we must share our experiences, views, beliefs, principles, values, knowledge, skills, goals, objectives and functioning systems to help Afghans understand, appreciate and build a system based on fundamental and civil rights and the rule of law. We can do that while humbly admitting that we have not always lived up to our ideals and not yet achieved all of our objectives. 

Sharia law should be respected, but it must adapt to modern realities. Radical interpretations must be cast aside just as we cast aside traditions over time when they did not fit with evolving values and needs.

The federal government must do more to support or initiate private and public programs involving Canada’s lawyers, judges, Law Societies, legal associations, law schools, public and private educational institutions and public administrators. They want to help. Leadership must come from the public and private sector, but because government to government contacts are crucial it is our federal government that has the greater onus, constitutional mandate and capacity to get things moving. 

John Boon is a practising Vancouver lawyer and a member of the Canada Afghanistan Solidarity Committee.