In countries undergoing societal transformation following periods of conflict, initiatives to promote the rule of law often concentrate on restoring courts and law enforcement institutions, while disregarding the importance of creating a strong public defender system. This oversight leads to a critical shortage of qualified attorneys available to represent people with limited financial resources, despite the fact that many of these countries are signatories to the International Covenant on Civil and Political Rights and have constitutional provisions or laws that ensure the right to legal counsel. Denied access to competent legal representation, accused individuals from underprivileged backgrounds remain subject to abuses of justice such as arbitrary incarceration, wrongful conviction, and confession under duress.
Non-governmental organization the International Legal Foundation (ILF) seeks to address this situation by establishing independent public defender offices exclusively in post-conflict countries and territories, including Afghanistan, Nepal, the West Bank, and Tunisia. Committed to the principle that fair administration of justice requires all accused individuals to have access to a defense lawyer, the ILF provides free, effective criminal defense services to those unable to otherwise afford representation. The ILF also works to guarantee the implementation of right-to-counsel laws in a manner that takes into account each country’s specific historical, cultural, and practical circumstances.
Formation of the ILF in Afghanistan
The ILF began in 2001 with efforts to build the foundation for a public defender system in Afghanistan. At that time, there were extremely few defense lawyers in the country, and no operating legal aid department. Most people accused of an offense could not afford to hire an attorney. After conducting a review of Afghanistan’s traditional laws and developing connections among Afghan legal professionals in exile in Pakistan, ILF worked with the auspices of the Ministry of Justice and Judicial Commission to found ILF-Afghanistan.
In 2003, ILF-Afghanistan opened an office in Kabul with just two lawyers, creating the country’s first independent public defender agency. The ILF then began recruiting and training additional defense attorneys. Initially, the organization’s lawyers regularly encountered resistance when trying to meet with jailed clients and obtain permission to argue a defense in court, but ILF-Afghanistan persisted in advocating for the accused’s right to counsel and a fair trial. By 2012, ILF-Afghanistan had expanded to 13 offices throughout the country and a team of 73 attorneys. ILF-Afghanistan has represented more than 25,000 clients to date and remains the only non-governmental organization in the country providing criminal defense services for Afghans who are poor, regardless of their ethnic background, political beliefs, age, or gender.
Training Local Lawyers to Lead ILF-Afghanistan
To support local ownership and lasting development of the program, the ILF recruits lawyers and staff from within the developing countries in which it operates. Volunteer criminal defense attorneys from around the world, known as International Fellows, provide daily training to local lawyers for the first three to five years after the ILF establishes a program. In the case of ILF-Afghanistan, International Fellows mentored ILF-Afghanistan’s staff lawyers through each of their cases between 2003 and 2007. Besides teaching analytical and advocacy skills, International Fellows helped ILF-Afghanistan’s lawyers move away from a preconceived notion of their role as that of passive actors in the legal process to a new orientation as assertive defenders of their clients’ rights.
The ILF withdraws its International Fellows when local lawyers have attained effective criminal defense capabilities. The local attorneys then assume responsibility for training junior lawyers, while local administrative staff takes over management duties, and a national board directs the future progression of the program. Since concluding the International Fellows program for Afghanistan in 2007, the ILF has continued to aid the transition of ILF-Afghanistan into a completely independent, Afghan-operated institution.
Combating Arbitrary Detention
Notwithstanding the ratification in 2004 of a new national constitution that includes a clause prohibiting arbitrary imprisonment, the Afghan legal system often fails to secure due process of law. Accordingly, ILF-Afghanistan has given priority in its work to representing the large number of Afghans who are detained arbitrarily and confined for protracted lengths of time before trial. Over the years, ILF-Afghanistan secured the release of clients from pre-trial detention in an increasing percentage of its cases, from 13 percent in 2007 to 23 percent in 2009.
A successful tactic against illegal detention previously employed by ILF-Afghanistan lawyers involved issuing motions for release when the prosecution failed to meet the 30-day limit for filing an indictment as mandated by the Interim Criminal Procedure Code for Courts. Until courts acknowledged these arguments and released detained clients, ILF-Afghanistan lawyers carried on filing motions unabated. Along with winning detainee releases from the courts, the motions led to improved compliance of prosecutors with proper legal processes.
Teaching Criminal Defense through Legal Clinics
Complementing its criminal defense services for the underserved, ILF-Afghanistan facilitates clinics for legal students. It established Afghanistan’s first legal clinic in Herat in 2007 through collaboration with the Open Society Justice Initiative and the University of Herat Faculties of Law and Sharia. Since then, it has expanded, launching additional clinics in Kabul, Mazar-e-Sharif, and Jalalabad.
Every semester, the clinics each accept 20 third- and fourth-year law students for a three-month internship. Students work under the diligent supervision of ILF-Afghanistan lawyers to provide counsel for real clients, thereby gaining practical experience in the essential facets of criminal defense. Most clinic participants go on to practice criminal defense, and all interns come to the legal profession equipped with a thorough understanding of the important role defense attorneys play in maintaining a fair and balanced justice system.