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Last spring, I led a team of specialists that drafted a new labor and employment law for the Islamic Transitional State of Afghanistan, the government established by the United Nations after the Taliban fell in November 2001. Our experiences bear some important lessons today, as Iraq-followed, it is to be hoped, by other countries-joins the international community as a nation of laws. The initial challenge was to understand the state of the existing laws in Afghanistan, a nation decimated by 25 years of war. The judicial system and legal profession were in shambles, with courts staffed by religious clerics who made decisions based on their view of Islamic law. Only 10 lawyers were practicing in Kabul-the nation’s capital (with 2 million people). The Taliban had burned the books at the law school of the University of Kabul, but we finally located most of a set of Afghanistan’s labor and employment laws (enacted in the 1970s) and had them translated into English. The laws resembled the civil codes that Egypt and France had enacted earlier. We considered using laws of neighboring Islamic countries as models. To our surprise, Minister of Labor Noor Mohammad Qarqein was emphatic that those laws were not sufficiently progressive to serve as a template for the type of modern society and economic environment that Afghanistan wanted to create. Liberated by that instruction, the team reviewed the codes of Egypt, Jordan and Cambodia, another nation that had recently emerged from a long history of civil war and whose laws had recently been drafted with the assistance of the International Labor Organization and other representatives of the international community. I tried to educate myself from afar about the history, culture and tenets of Islam (practiced by 98% of Afghans), reasoning that the code had to reflect the citizens’ fundamental values if the laws were to be enforceable and effective. But books and experts were not enough. I recommended that the leaders of various teams visit Afghanistan to confer with our client-i.e., the government-to see the lay of the land for ourselves. During May 2003, a delegation of a dozen American attorneys spent a week meeting from sunup to sundown with cabinet-level ministers to learn what they needed and wanted in the way of a new commercial code. We also spent time wandering around Kabul and the surrounding country; we saw the devastation caused by decades of war and the Afghans’ efforts at reconstruction. The delegation came away impressed by the Afghan government’s commitment to do what was right and necessary to implement a system of laws that would foster economic development while protecting its countrymen and nation from exploitation and unjust treatment. Indeed, Qarqein was committed to having laws prohibiting discrimination based on gender and religion. Unique country, unique laws We also grew to understand that we had to resist the temptation to dictate the adoption of laws similar to those found in the United States and other “modern” societies. Afghanistan is a predominantly Islamic society, and that can complicate that task for Westerners who may view the Muslim world as a monolith. Although the people of Afghanistan share certain basic beliefs with other Muslims, Islam as practiced by them reflects the history, culture and ethnic mix of their nation and does not provide the sole source of their approach to government, business, work, family and other aspects of everyday life. The attitudes and outlooks of Afghans, Egyptians or Iraqis are no more alike than those of citizens of largely Christian nations such as the United States, France or Mexico. From this simple truth about Afghanistan, we can learn certain lessons that can be applied to other situations, including the reconstruction of Iraq. First, Americans must be prepared to provide advice that may be accepted or rejected. While the United States is a world leader with a successful economy and legal system, that does not mean that we know all of the answers without regard to context. If our advice is not accepted, Americans must avoid behaving like the proverbial spoiled child who becomes resentful and takes his ball home when he does not get his way. Second, every country is unique. For example, Iraq presents its own set of challenges and opportunities that cannot necessarily be addressed by solutions that prove effective in Afghanistan. Some of those solutions may be transferable in whole or in part, but some will not be. One lesson that will traverse borders well is the important role that private organizations, such as the American Bar Association’s Asia Law Initiative, can play in the process. Third, we must make a long-haul commitment. None of the Afghans with whom I worked manifested any anti-American sentiments or looked forward to the day that we leave their country. To the contrary, they consistently expressed only one reservation about America: that the United States, now enmeshed in Iraq, will lose focus and prematurely disengage before the reconstruction effort in Afghanistan is completed. Finally, we must ensure that well-intentioned initiatives of the United States and the international community do not work at cross-purposes. For instance, Afghans need jobs so they can support their families and build businesses. Financial resources committed to reconstruction should be used for that purpose rather than for awarding contracts to foreign companies that hire foreign nationals to do work that Afghans could perform. With that approach, a stable Afghanistan can be created that will serve as a model for emerging nations. R. Michael Smith is of counsel to the Washington office of Dechert, where he represents employers in employment and labor law matters. He can be reached at [email protected]

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