–Another Fraud and Then Five More Years of Karzai?
–The United States, NATO and the UN have several options, as
does Abdullah
–Advantages of the U.N. Taking Over the Elections
–Final Thoughts
–ANNEX–Elements of a Draft Security Council Resolution Authorizing
Immediate UN Control of the Electoral Process in Afghanistan

Another Fraud and Then Five More Years of Karzai?

With Afghan President Hamid Karzai refusing to replace members of the Independent Electoral Commission which certified the fraud in the first-round elections on August 20, prospects for a fair runoff election appear greatly diminished. Moreover, recent attacks on UN facilities in Kabul on October 28 and deteriorating security conditions elsewhere will now make it even more difficult for U.N. electoral officials and foreign observers to monitor the voting process. Seeing the U.S., NATO countries, and even the U.N. failing to take vigorous action to stop preparations for another fraud, some voters may conclude there is not much point in voting since the outcome is already clear. Against this background, it is quite possible that Abdullah will boycott the elections.

In any event, a second round election run by the same people who openly sanctioned the massive fraud in the first round cannot, and will not, produce credible results. A Karzai regime that is the product of fraudulent elections will not restore legitimacy to the government of Afghanistan.

But without a government seen as legitimate and offering real hope for meaningful change in the way the government operates, the advances of the Taliban are not likely to be halted.

What can be done, at this late hour?

The United States, NATO and the UN have several options, as does Abdullah

1) The U.S., NATO and the U.N. can proceed in supporting a runoff election which appears to be headed again for massive fraud, and which will have no credibility. Karzai may indeed emerge as the most powerful warlord in Afghanistan, with the most powerful allies (the U.S., NATO, and the U.N.).

Western countries may well believe that the “legitimacy” questions will fade away, or can be overcome by building up a stronger government under Karzai’s direction and control. Detailed knowledge of the last five years of experience with Karzai and how numerous similar hopeful expectations have been dashed might temper such a view, but curiously resurgent optimism–or willful forgetfulness–obscures these facts from public debate.

On the other hand, maybe Karzai will build a new kind of government with the capabilities the U.S. and NATO view as so essential. All one can say, as Afghanistan slips increasingly under the sway of the Taliban, is that the evidence supporting this proposition is slim.

2) Abdullah withdraws, with assurances brokered by the Americans that he will have an important role in the next (Karzai) administration

Abdullah could withdraw from the second round, with assurances brokered by the Americans that he will be brought into the Karzai government with important posts. The key fact here is that Karzai will be calling the shots, for the next five years, and if he finds reason to revise any such understandings, there is nothing the Americans, NATO or the U.N. will be able to do about it. He will remain in control. They will remain dependent on him.

3) Abdullah withdraws or boycotts the runoff on the ground that the election is already tainted by fraud, because officials responsible for the fraud in the first round have not been replaced.

Abdullah would have strong arguments to support such a withdrawal, as the Independent Electoral Commission members who certified the first round fraud have not been replaced, and indeed appear to be preparing another massive fraud (e.g., by increasing the number of polling stations in the South). Under this scenario, a period of prolonged political uncertainty would be likely to ensue, further weakening the authority of the government in Kabul.

4) The United Nations could assume immediate control over the elections in Afghanistan, and postpone the second round if necessary.

A fourth option would be for the United Nations to intervene, acting under the authority of a Security Council resolution adopted under Chapter VII of the Charter. Such resolutions have binding effect. This option would depend on gaining the affirmative vote or abstention of the five permanent members of the Security Council. They have worked in harmony on issues relating to Afghanistan in the past.

Given the utter disarray following the attacks on the U.N. guest houses in Kabul on October 28, and the practical impossibility of putting adequate security measures into place before November 7 that would allow U.N. personnel and European observers to actively deploy to assist in and observe the elections, the U.N. could well decide to postpone the second round until the spring.

Such an option would reassert the authority of the U.N. precisely at the moment when many expect it to withdraw or greatly curtail its activities in Afghanistan. In 2003, when the U.N. headquarters in Bagdad were blown up, killing a potential future Secretary General, Sérgio Vieira de Mello, the world organization withdrew from the country. Assertion of a more vigorous U.N. role now would serve to counter that unfortunate precedent.

Advantages of the U.N. Taking Over the Elections

A number of advantages would flow from pursuing the fourth option.

First, the decision on U.S. strategy and the deployment of some 40,000-45,000 additional U.S. troops could be decoupled from the second round election results. Deployments could begin as quickly as feasible, without the delay that review of alleged fraud and decisions on complaints might entail. In the first round, this process took two months, and the ECC’s decision was accepted by Karzai only under extraordinary pressures from the U.S., NATO and the U.N.

Second, Karzai would be given a chance to demonstrate that he actually could strengthen his government, and both attack corruption and end any complicity in the drug trade. He might be persuaded to bring Abdullah into a “transitional ” national unity government. His own legal mandate, which expired in August, could be extended until the final results of the second round were in and a new government, based on those results, was formed.

Third, Abdullah would have an opportunity to make his case to the Afghan people that he should be elected President in a free and fair election. He would have time to do this, as would Karzai, in a more stable atmosphere and under electoral arrangements established by the U.N. that are transparent and fair. Indeed, elections run by the U.N. for president n 2004 and for the National Assembly in 2005 were widely viewed as fair.

Fourth, the United Nations could recover from the terrible attacks that cost the lives of five U.N. staff on October 28, and have time to fully develop and deploy the appropriate security arrangements in light of the fact U.N. staff are now being targeted by the Taliban. Many move about in unarmored vehicles and are soft and easy targets. The U.N. would have time to protect its staff more effectively, and avoid asking idealistic young workers–who did not volunteer to be soldiers–to risk their lives to carry out their tasks during the next few weeks.

Fifth, the U.S. and NATO could proceed with plans to increase the number of troops deployed to Afghanistan, not only to avoid the collapse of major cities to the Taliban but also to protect the Afghan population going to the polls in the runoff election, as well as the international observers that need to be deployed throughout the country to ensure that a fair vote is held.

Sixth, while there would be many challenges in pursuing such an option, the payoff would be big–a government viewed by the population as the product of a fair electoral process, and therefore a government that represents them.

Final Thoughts

Many officials and observers assume that Afghanistan’s future will inevitably be like its past, with power controlled by warlords and tribes on a local basis. However, the world has changed and is changing, and the rate of change is accelerating. 44.5% of the population of Afghanistan is 14 years old or younger. They hold the key to the country’s future.

The future of younger Afghans, with cell phones and internet access, will not be like that of the past. The number of internet users in the country, 500,000 in 2008, is growing rapidly, as is that of cell phones. In 2008, there were 460,000 main line telephones and 8.45 million cell phones, in a country of 28.4 million inhabitants. The number of television satellite dishes is growing. Afghanistan is getting connected, and Afghans are becoming increasingly aware of what is going on in the world. Surely they observed the three million people who clogged Tehran’s streets following the June 12 elections in Iran, which were also characterized by massive fraud. Afghans and Iranians speak the same language, and share the same cultural heritage. Educated Pashtuns speak Dari as a second language, and Dari is the first language of 50% of the country. Dari is a dialect of Farsi, and educated speakers understand each other easily. Afghans know what is going on in Iran, and vice versa.

We should not be so condescending or naive as to believe that international human rights have no appeal to the people of Afghanistan, including the leading elites. The United States insists on absolute fidelity to democratic forms in Honduras, fosters the new democracies of West Africa, supports the democratic government of Pakistan, and proclaims its democratic ideals in President Obama’s speech to the Arab and Islamic world in Cairo. Still, American decision makers should never forget that people in the region and around the world are not only listening to what they say, but also watching what they do.

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Elements of a Draft Security Council Resolution Authorizing
Immediate UN Control of the Electoral Process in Afghanistan

The United Nations Security Council, acting under Chapter VII of the U.N. Charter, should adopt at the earliest opportunity a binding resolution which provides, inter alia, the following:

1. The United Nations, acting through the Security Council, shall immediately assume direction and control of the timing and conduct of the second round in the Presidential elections in Afghanistan, which are currently scheduled for November 7, 2009.

2. The Security Council, acting through the Secretary General, shall replace the current Afghan members of the Independent Electoral Commission with international elections experts of outstanding and unquestionable qualifications, impartiality and integrity.

3. The reconstituted IEC shall conduct the elections under procedures established by Secretary General to ensure transparency and fairness in the conduct of the elections, the collection of the ballots, and the tabulation of votes cast for each candidate.

4. The Security Council, acting through the Secretary General, may determine that it is not feasible to hold a free and fair second round of elections on November 7, and may postpone the second round to a date by which it expects such free and fair elections can be held. Such date may be postponed until the spring of 2010 or such other date as the Secretary General may decide.

5. The mandate of the current President of Afghanistan, which under the terms of the March decision of the Afghan Supreme Court expired in August, is extended until such time as the second round elections are held, complaints are heard and decided by the Electoral Complaints Commission, and the corrected results are announced by the ECC. The decision of the ECC shall be final, immediately binding, and not subject to judicial review.

6. The Security Council may encourage both parties to participate in the transitional government until the elections are held, and the final corrected results are announced by the ECC.

7. International Security Assistance Forces (ISAF) forces and other international forces should be augmented by further contributions from the respective members states and NATO countries, in order to ensure, inter alia, that the second round in the Presidential elections are held in a transparent, free and fair manner, resulting in the transfer of power to a new government that expresses the will of the people of Afghanistan.

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About the Author

James Rowles
"The Trenchant Observer" is edited and published by James Rowles (aka "The Observer"), an author and international lawyer who has taught International Law, Human Rights, and Comparative Law at major U.S. universities, including Harvard, Brandeis, the University of Pittsburgh, and the University of Kansas. Dr. Rowles is a former staff attorney at the Inter-American Commission on Human Rights (IACHR) of the Organization of American States OAS), in Wasington, D.C., , where he was in charge of Brazil, Haiti, Mexico and the United States, and also worked on complaints from and reports on other countries including Argentina, Chile, Uruguay, El Salvador, Nicaragua, and Guatemala. As an international development expert, he has worked on Rule of Law, Human Rights, and Judicial Reform in a number of countries in Latin America, the Caribbean, Africa, the Middle East, South Asia, and the Russian Federation. In the private sector, Dr. Rowles has worked as an international attorney for a leading national law firm and major global companies, on joint ventures and other matters in a number of countries in Europe (including Russia and the Ukraine), throughout Latin America and the Caribbean, and in Australia, Indonesia, Vietnam, China and Japan. The Trenchant Observer blog provides an unfiltered international perspective for news and opinion on current events, in their historical context, drawing on a daily review of leading German, French, Spanish and English newspapers as well as the New York Times, the Wall Street Journal, the Washington Post, and other American newspapers, and on sources in other countries relevant to issues being analyzed. Dr. Rowles speaks fluent English, French, German, Portuguese and Spanish, and also knows other languages. He holds an S.J.D. or Doctor of Juridical Science in International Law from Harvard University, and a Doctor of Law (J.D.) and a Master of the Science of Law (J.S.M.=LL.M.), from Stanford University. As an undergraduate, he received a Bachelor of Arts degree, also from Stanford, where he graduated “With Great Distinction” (summa cum laude) and received the James Birdsall Weter Prize for the best Senior Honors Thesis in History. In addition to having taught as a Lecturer on Law at Harvard Law School, Dr. Rowles has been a Visiting Scholar at Harvard University's Center for International Affairs (CFIA). His fellowships include a Stanford Postdoctoral Fellowship in Law and Development, the Rómulo Gallegos Fellowship in International Human Rights awarded by the Inter-American Commission on Human Rights, and a Harvard MacArthur Fellowship in International Peace and Security. Beyond his articles in The Trenchant Observer, he is the author of two books and numerous scholarly articles on subjects of international and comparative law. Currently he is working on a manuscript drawing on some the best articles that have appeared in the blog.