Kabul limping back to normality

A WHOLE week in Kabul — Thursday-to-Thursday per one weekly PIA flight Islamabad-Kabul-Islamabad — is at once a thrilling and daunting experience. Thrilling, to find the city coming back into its own after years of war and civil war; and daunting for all the destruction one sees in and around it.

Foreign embassies in the city, in particular the US and, to a lesser extent, the Iranian and the Turkish embassies, are sprawling, high-walled structures fortified end-to-end by tangled coils of concertina wire and huge doors of tempered steel.

No guards are to have been seen outside, only sand-filled concrete drums protecting the boundary walls. The modest structure of the Pakistan embassy, is distinguished by the number of the Afghan visa applicants outside — the largest anywhere — every working day of the week.

The city offers one dull brown, drab and dusty landscape, rarely varied by a touch of green provided by a string of odd autumn-stricken trees. The only loud element in the still life is the chaotic traffic — right-hand British style vehicles driven left-hand American style to send shudders down the spine of the stranger. Yellow taxi cabs, green-painted diplomat corps four-wheelers, with their brightly red-painted CD plates and silvery embossed lettering, and varicoloured private vehicles break the monochromatic sameness of the urban landscape.

Standing out in the medley of road traffic and sparsely-scattered natural green are portraits of Ahmad Shah Masud (Shaheed), the Lion of Panjshir, plastered all over, in every nick and corner of the town.

There isn’t another one to vie with Masud’s in sheer esteem and reverence and admiration he is held by the Panjshiri- dominated Kabul regime of the day. In his martyrdom at the hands of a Taliban (Pathan) assassin, he has emerged as a living national icon. Not too favourably disposed towards Pakistan, with his Panjshiri colleagues and co-ethnic Tajiks (viz cabinet ministers Abdullah Abdullah, Qasim Fahim, Yonous Qanooni and others), Masud’s high-profile projection, in words and in visuals, brings little comfort to a Pakistani visitor. What adds to one’s surprise is the conspicuous absence of a single portrait of the head of state and government, the Popalzai Pakhtoon Hamid Karzai from Kandahar.

Equally and as conspicuously missing is a portrait of the ex- king Zahir Shah, even while in residence in the capital. While I had been in the city in the last week of September, the king had left for Paris for medical check-up. One could at least guess, with a reasonable degree of certainty, that the low, almost no- profile royal projection must have been at the behest of the ex- king himself. As an experienced octogenarian, getting on 90, and a seasoned statesman matured by adversity, he would (and does) scrupulously avoid anything liable to be misinterpreted as an active role in the affairs of the state. Indeed, there would be hardly anything to lend itself to high-risk misinterpretation as easily as high-profile public projection. The Shah, a blue- blooded Durrani Pathan, must rise above all ethnic pride and prejudice to be unreservedly accepted as an Afghan first and last.

He knew and painfully realized how his dear city had been overrun by foreign legions and torn by its own fiercely tribal and mutually warring factions. At the crossroads of Central/South Asia, the Middle East and Europe (via Russia) it remains the epicentre and crazy chessboard of intricate geopolitical power play. Since Sardar Daud’s anti-royalist coup d’etat (July 1973) it had been through an endless rush of internal upheavals and foreign invasion.

However, in spite of fierce bloodletting and bloody internal strife, Afghanistan and its capital, Kabul stayed free from foreign military presence, in any shape or form, under the Taliban. Unfortunately, however, the traumatic global change in the wake of the 9/11 episode and the end of the Taliban rule drew Afghanistan unstoppably into yet another era of foreign civil and military domination.

Today’s Kabul is policed by the International Security Assistance Force (ISAF) and the rest of the country is militarily under the hold, if not quite under the control, of the US-led coalition forces. Based at the Bagram military air base some 50 miles north of Kabul, the coalition forces are variously (and variably) estimated between 12 and 14 thousand. These forces are under the command of Lt-Gen Dan McNeill who reports directly to Gen Tommy Franks, commander-in-chief of the US Central Command (Centcom), responsible for the Gulf and the Middle East, including Pakistan. They operate on their own and according to their own operational planning for the attainment of their tactical and strategic objective quite outside the UN control.

In the absence of a national army, the US-led force is the only combat outfit in Afghanistan. Its operational area covers the entire country. From Torah Bora and Kandahar in the south, its operational focus has now moved up to southeast under intensive combat air petrol (CAP) and prompt and unhesitant bombings of suspected Al Qaeda strongholds at the slightest danger signal given. Warplanes are scrambled only to return to the base after hitting wrong targets, costing civilian lives and properties.

UN sources, contacted in Kabul, sounded quite a bit concerned about the ‘happy hunting’ missions of the US forces with little or no concern for local security and sensitivities or world opinion. The question about the role of the US forces, whether as an occupation army or a salvation force, brought evasive ‘yes’ and ‘no’ answers either way.

While it is not looked as an occupation force in the same way as the Soviet invading legions, it is a foreign force all right. It enjoys and insists on maintaining and enforcing its military hold all over Afghanistan. Unlike the Soviets who waged a total air- land war on the Mujahideen, the Americans would rather control the air space and use the land base (bases) only for logistical support and such minimal land operations as may be necessary against the sabotage and subversive activities of the ‘terrorists’.

As for the 5,000-strong, at present under Turkish command, it too is an international (as opposed to the Blue-Beret) UN force although raised under US Resolutions 1401 and 1413. It is a 20- nation composite force comprising Albania, Austria, Bulgaria, Czech Republic, Denmark, Germany, the Netherlands, Greece, France, Spain, Sweden, Finland, Norway, Macedonia, New Zealand, Italy, Turkey, the UK and Ireland. Its main task is to provide ‘additional security to local forces’. What local forces, if any? remains a question as there appear to be hardly any except for the traffic police or security guards (mainly Panjshiri) posted outside the various public and government establishments.

A Tajik guard on duty outside the Indira Gandhi Hospital would not let out CD-plated vehicle inside. He would rudely refuse even to look at the valid drivers ID and other papers telling to produce a special permit. Now what kind of a special permit one must have to visit a public utility establishment like a hospital made no sense except as ‘terms of non-endearment’ for the Pakistanis.

In a predominantly ‘deweaponized’ city like Kabul, the ISAF personnel happen to be only ones armed to the teeth. They patrol the city on their heavy combat-coated four-wheelers. Steel- helmeted and fully armed with their guns at the ready, they are mainly concerned with the eradication of crimes like robberies and murders.

As to the reaction of the local Afghans to the presence of a foreign force on wheels, my Turkish interlocutor’s response was evasive.

However, on the basis of my own causal interaction with the locals at my hotel, at the embassy and elsewhere, it could be said that there are few things as irritating as the presence of a foreign armed force, police or military, for an Afghan.

The writer is a retired brigadier.

Classical Islamic law

IN contrast with the Hudood Ordinances of 1979, classical Islamic criminal law is an academic discourse of legal scholars, who offer many interpretations of the revealed texts. There are four Sunni schools of jurisprudence — the Maliki, the Hanafi, the Shafi’i and the Hanbali schools. The one prevailing in Pakistan is the Hanafi school of jurisprudence.

Criminal law in Sharia falls under three separate headings: — Quranic offences and their fixed punishments (Hudud) — the law of homicide and hurt (Qisas and Diyat) — Other crimes punishable at the discretion of the judge (Tazir).

The Quranic offences (or Hudud) embody those which most engage non-Muslim attention. This domain, which has a certain symbolic function to present-day advocates of the (re-) introduction of Sharia, consists of crimes mentioned in the Quran, for which fixed penalties (Hudud, sing. Hadd) are provided in the Sharia. These are:

— Unlawful sexual intercourse (between persons who are not married), Zina — Theft, Sariqa — Drinking of alcohol, Shurb al-khamr — False accusation of unlawful sexual intercourse, Qadhf.

The fixed punishment for Zina is stoning to death for persons who are married or have been married. For those who have never contracted a marriage, the punishment is one hundred lashes. Theft, or Sariqa, is to be punished by amputation of the right hand. Robbery, or Hirabah, is punished by death if life has been taken, by amputation of both the right hand and the left foot if only property has been taken, and by banishment if there was only a ‘hold-up’ without further aggravation. Qadhf and drinking alcohol, or Shurb al-khamr, are both punishable with eighty lashes. An essential element with regard to the Quranic offences is that, if they are formally proven, the judge has no latitude in the choice of the punishment.

The second domain, that of homicide and hurt, is one characterised by private prosecution in the sense that the culprit can only be sentenced and punished if the victim or his relatives demand punishment.

If homicide or hurt is committed intentionally, the punishment is retaliation (Qisas). Thus, for homicide the culprit may be punished by death, and for hurt causing the loss of limbs or senses, by inflicting the same injury on him, at least if technically possible without endangering the convict’s life. If the death or the injury is not caused intentionally, or if the victim or his heirs are willing to forgo punishment ‘in kind’, retaliation is then replaced by the payment of the blood price (Diyat). This is a fixed amount, and does not depend on a person’s status or wealth. The blood price for the killing of a free Muslim man is (the equivalent of) one hundred camels, one thousand dinars in gold or twelve thousand dirhams in silver. For injuries, the blood price is given as a fraction of the blood price for manslaughter.

The third domain of Islamic criminal law has no clearly-defined offences. Judges have the discretionary power to punish sinful or otherwise undesirable acts. This is called Tazir. In the past rulers often issued legislation in this field in order to restrict the freedom of the judges. In modern instances of codified Islamic criminal law we see the same. Usually the previously effective penal code is incorporated in the new criminal code and the offences and punishments mentioned therein are labelled Tazir.

The application of the severe punishments for the Hadd offences is not free of obstacles. There are several reports according to which the Holy Prophet (peace be upon him) expressed his aversion of their application, and as a consequence, scholars have made the application difficult. The definitions of the Hadd crimes are very strict and exclude many related acts that are equally undesirable. Exempli gratia, the Hadd punishment of theft (amputation of the right hand) can only be applied if the stolen properties have a certain minimum value (Nisab), and were taken from a locked or guarded place (Hirz).

Embezzlement, therefore, cannot be punished by the Hadd penalty for theft. Moreover, with regard to the Hadd crimes the rules of evidence require either a confession, which may be withdrawn until the moment of the execution of the sentence, or the testimony of two or four male Muslim eye-witnesses of good reputation, who also may withdraw their testimonies until the moment of execution.

In addition, the slightest doubt (Shubha) prevents the application of the penalty. If a thief or someone who commits unlawful sexual intercourse had reasons to believe that he was entitled to take the property (e.g. a creditor with regard to the property of a debtor in arrears) or to have intercourse with the woman in question (e.g. he thought he was married to her, whereas the marriage contract was void), then the fixed punishment cannot be imposed. Historical research with regard to the Ottoman Empire and 19th century Egypt has shown that the mutilating Hadd punishments were very seldom applied, if at all. This is also true for several countries where Islamic criminal law has been introduced, such as Libya and Pakistan.

In Pakistan, the severe, mutilating penalties, prescribed in February 10, 1979, have never actually been carried out as yet. A well-known Pakistani scholar put it this way: ‘The Hadd-penalties are a deterrent, like the atomic bomb.’ The non-Muslim focus on these punishments might be based on a bit of ignorance. The West knows about the severe, mutilating punishments, but knows not of the obstacles in place and the actual non-application in Pakistan.

Within Pakistan, on the other hand, people are suffering because of (misuse of) Sharia criminal law. Despite the non-application, people wind up in jail, accused of Hadd-offences, with severe, mutilating punishments hanging over their heads.

The questions raised regarding the Zina Ordinance are plenty. The problems of rape vs. adultery have had a lot of attention in Pakistani society, and rightly so. The accused (and acquitted) live with the stigma of the accusation.

It seems that both in Nigeria and in Pakistan, the suspects of Hadd offences are in most cases the poor and the illiterate. One could argue that Pakistani society is not ready for Sharia criminal law, i.e. that Pakistani society should deal with the social injustice, the poverty and the illiteracy first.

But as a Nigerian Justice put it last year: ‘The Hudud are a ‘no-go area’. Reviews and suggestions have been put aside time after time. Both in Nigeria and Pakistan it is there, and it is there to stay. Criticising the Hudood Ordinances is regarded as criticising Islam, in a country where Islam was the raison d’etre for its formation in 1947. One has to understand though that the Hudood Ordinances are created by human beings, one codified version of a broad academic discourse by legal scholars, as part of Islam.

The author has studied law at the University of Amsterdam, The Netherlands. On behalf of the European Union he conducted a study regarding the introduction of Sharia criminal law in Northern Nigeria, before conducting a similar study in Pakistan.