Legal transplants as tools for the reform of Afghanistan’s criminal law framework. An evaluation of the Interim Criminal Procedure Code 2004 and the Counter Narcotics Law 2005

摘要

The criminal law frameworks of countries that have been the subject of internationaludpeacekeeping operations and military interventions often reveal an urgent requirementudfor reform. Destabilised by conflict, existing frameworks may be discriminatory andudinconsistent with international human rights and due process standards. New law mayudbe imperative to promote the development of fair and effective justice systems, rule ofudlaw and transitions from conflict to peace. While the transplantation of readily-availableudlaw can be an appealing solution a fundamental concern for legislators is whether itudrepresents a reasonable and effective mechanism for developing vital post-interventionudcriminal law reform. This thesis addresses this issue by examining the Interim CriminaludProcedure Code 2004 and the Counter Narcotics Law 2005, two laws developed byudlegal transplantation in Afghanistan, the most recent example of a country where theudinternational community is engaged in post-intervention criminal law reform. It does thisudby firstly developing a new evaluative test developed from an examination of theoreticaludperspectives on transplant feasibility. It then applies this test using quantitative dataudsupported by original qualitative research from interviews with senior Afghan andudinternational legal personnel. It finds that neither law has been successful. Theirudtransplanted content and the processes of transplantation have reduced the extent toudwhich they have been accepted and achieved their objectives and have increased theirudpotential to be ‘lethal’ transplants capable of promoting injustices, generatinguddestabilising discontent and moderating rule of law promotion. This study questions theudassumption that it should always be reasonable to develop post-intervention criminaludlaw by means of legal transplantation. The reasonableness of relying on legaludtransplantation will depend on the sensitivity with which it is employed, requiringudknowledge of legal transplant feasibility, local history and legal traditions and the priorudapplication of the proposed evaluative test to assess potential receptivity