Fast-Track Trials for Afghan Insurgents

A special court to try suspected militants is to be set up in Afghanistan, after complaints that the standard judicial process is too long-drawn-out and inefficient to keep pace with rising levels of insurgent violence.

The special courts are the brainchild of Afghanistan's intelligence service, the National Directorate for Security, NDS, which requested them in August on the grounds that hundreds of individuals detained by it have yet to face trial, and all too often walk free.

Sayed Zohur Rasuli, a legal adviser to the NDS, said the special court would be based in Kabul, because experience showed that neither prosecutors nor judges were safe from the Taleban and local warlords outside the capital. Some had even been killed for pursuing cases against suspected militants.

Rasuli said the NDS's own pre-trial detention facility was too small for the 670 suspects it had on it books, and increasing numbers of arrests over recent months had further strained the judiciary's ability to try cases.

"One important reason for setting up the special court is to put suspects on trial quickly and decide their fate, so as to reduce the numbers held in detention centres," he said.

NDS spokesman Lotfollah Mashal said that in addition to addressing the backlog of cases, another reason for getting suspected militants to trial as quickly as possible was to prevent other officials quietly securing their release.

When suspects walked free because of corruption or nepotism, Mashal said, "it lowers morale among NDS employees. They risk their own lives to arrest terrorists, but because decision-making [on cases] is delayed, criminals and terrorists have an opportunity to get released by various means."

Mashal warned that without special legal arrangements to try militants, the sense of impunity was likely to encourage further insurgent attacks.

The Afghan judiciary is supportive of the NDS's position, and Abdol Malek Kamawi of the Supreme Court said the structure of the special court had already been agreed and its judges appointed, and it only needed final approval from the presidential office to start work. The court will have a trial chamber of 12 judges and an appeals chamber with 14.

Kamawi pointed out that Afghanistan used to have a special court to handle national security crimes, but it was shut down in 2007.

He acknowledged that the mainstream criminal courts had struggled to cope with the ever-increasing number of cases since then, and also noted the risks when trials were held outside Kabul.

"The [Afghan] National Police are unable to ensure the physical security of courts in the provinces," he said. "Some time ago, when a case was being heard in court, the terrorists killed the judge that very evening."

As the Afghan government navigates a route between fighting the Taleban and finding militant leaders it can negotiate with, it has sometimes been accused of showing excessive leniency towards captured insurgents. In August, for example, President Hamed Karzai was criticised for pardoning and releasing 18 young men arrested while allegedly about to carry out an attack.

Government spokesman Siamak Herawi rejects allegations of untoward prisoner releases, saying, "No one can name a single terrorist who has been arrested and then released by the government, when all the relevant evidence and documents has been furnished."

Political analyst Ahmad Sayidi agrees that the special court could prove an effective way of holding insurgents accountable.

"Since the number of cases is too high for the other courts to deal with, and this court is only for war criminals and terrorists and only has judges specifically appointed to try such cases, it will be able to function efficiently," he said. "This court is a good thing for both the government and the people."

Faizollah Jalal, a law lecturer at Kabul University, was less convinced, arguing that the court might just be a way of deflecting criticism over recent security failures.

"Karzai faced harsh criticism after repeated killings carried out by terrorists, so he's made this move to get round these accusations and sustain his position," he said.

Based on the authorities' performance over the last ten years, Jalal said, "I do not believe this court is going to handle cases in a serious manner or do much to control terror and lawlessness, because our government's policies don't include serious punishment for terrorists. Officials don't want to create problems for themselves, or affect their future relationships with their political and military opponents."