REPRISE (from March 26, 2010): Afghanistan U.N. SRSG de Mistura Describes U.N. Electoral Role; What Are Allied Forces Fighting For?

Originally Published March 26, 2010

In his first press conference, Staffan de Mistura, the new Special Representative of the Secretary General (SRSG), described what he and the United Nations are doing to facilitate “credible and inclusive” National Assembly elections to be held on September 18, 2010.

“Let’s be frank. We are not in Switzerland, we are in Afghanistan, so the elections are still likely to be imperfect, not perfect, but they need to be credible and inclusive for the sake of Afghans’ feelings that they are really part of it,” de Mistura told reporters.

Translation: We are going to try to make the National Assembly elections appear “credible”, although Hamid Karzai will control the outcome through his majority of three appointed Afghan members on the Electoral Complaints Commission. We are not going to raise a stink over his blatant rewriting of the electoral law in violation of the Constitution.

Before Karzai’s electoral coup, that law provided for a majority of three “internationals” on the ECC, in order to guarantee elections that were free and fair by internatiional standards. Such elections were in fact held in 2004 and 2005.

The idea behind this provision was that there would be at least a majority of international members who would be free from the influence and intimidation that Aghan members were likely to be subjected to.

The Afghan parliament approved this law. Karzai, in a sleight of hand, overrode the law with a decree issued in February while the National Assembly was in recess, which with twisted legal logic he now maintains cannot be overturned by the Assembly due to another constitutional provision that states the electoral law cannot be changed within a year before elections.

In other words, Karzai can change the law by decree but the National Assembly cannot overturn his decree-law by their own law because the Constitution forbids changes to the electoral law within a year prior to elections.

That defies constitutional logic.

A critical question is whether the goal of “credible” elections, as ultimately determined by an Electoral Complaints Commission appointed by Karzai, is good enough.

Is it good enough for the men and women from U.S. and allied forces, as well as Afghans, who have given their lives in the battle for a democratic state governed by law in Afghanistan? Is it good enough for those who fight today, including the Afghan army and police?

Such a state would protect the rights of women, among other things. The idea of negotiating a withdrawal in which the country is handed back to the control of the warlords is, after eight years of war, appalling.

What is going on here is that the United Nations and its representatives are speaking as if their task were simply to assist in the development of Afghan electoral institutions, without regard to the corruption of those institutions by Afghan officials at the very top of the power structure. They view their task as a technical one. The questions of fraud and the validity of the results are for the Afghans to decide.

Meanwhile, Allied soldiers fight and die, if not for a democratic future for the people of Afghanistan, then for what? To return the country, and the women of Afghanistan, to the power of the warlords throughout the country? To men like Gulbuddin Hekmatyar?

If free elections have been critical to the success to date in Iraq, why are they not critical in Afghanistan?

These are some of the questions the Observer can not get out of his head.

What do you think?

The Trenchant Observer

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The Observer
"The Trenchant Observer" is edited and published by The Observer, an 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. He is a former staff attorney at the Inter-American Commission on Human Rights of the Organization of American States (IACHR), 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, The Observer 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. The Observer 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.), 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, The Observer 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 the best articles that have appeared in the blog.