ABOUT THE SPEAKER
Kimberley Motley - International litigator
American lawyer Kimberley Motley is the only Western litigator in Afghanistan's courts; as her practice expands to other countries, she thinks deeply about how to build the capacity of rule of law globally.

Why you should listen

Kimberley Motley possesses a rare kind of grit—the kind necessary to hang a shingle in Kabul, represent the under-represented, weather a kaleidoscope of threats, and win the respect of the Afghan legal establishment (and of tribal leaders). At present she practices in the U.S., Afghanistan, Dubai, and the International Criminal Courts; as her practice expands to other countries, she thinks deeply about how to engage the legal community to build the capacity of rule of law globally.

After spending five years as a public defender in her native Milwaukee, Motley headed to Afghanistan to join a legal education program run by the U.S. State Department. She noticed Westerners stranded in Afghan prisons without representation, and started defending them. Today, she’s the only Western litigator in Kabul, and one of the most effective defense attorneys in Afghanistan. Her practice, which reports a 90 percent success rate, often represents non-Afghan defendants as well as pro-bono human rights cases.

More profile about the speaker
Kimberley Motley | Speaker | TED.com
TEDGlobal 2014

Kimberley Motley: How I defend the rule of law

Filmed:
1,114,349 views

Every human deserves protection under their country’s laws — even when that law is forgotten or ignored. Sharing three cases from her international legal practice, Kimberley Motley, an American litigator practicing in Afghanistan and elsewhere, shows how a country’s own laws can bring both justice and “justness”: using the law for its intended purpose, to protect.
- International litigator
American lawyer Kimberley Motley is the only Western litigator in Afghanistan's courts; as her practice expands to other countries, she thinks deeply about how to build the capacity of rule of law globally. Full bio

Double-click the English transcript below to play the video.

00:13
Let me tell you a story
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about a little girl named Naghma.
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Naghma lived in a refugee camp
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with her parents and her eight brothers and sisters.
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Every morning, her father would wake up
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in the hopes he'd be picked for construction work,
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and on a good month he would earn 50 dollars.
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The winter was very harsh,
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and unfortunately, Naghma's brother died
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and her mother became very ill.
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In desperation, her father went to a neighbor
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to borrow 2,500 dollars.
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After several months of waiting,
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the neighbor became very impatient,
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and he demanded that he be paid back.
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Unfortunately, Naghma's
father didn't have the money,
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and so the two men agreed to a jirga.
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So simply put, a jirga is a form of mediation
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that's used in Afghanistan's
informal justice system.
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It's usually presided over by religious leaders
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and village elders,
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and jirgas are often used in
rural countries like Afghanistan,
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where there's deep-seated resentment
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against the formal system.
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At the jirga, the men sat together
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and they decided that the
best way to satisfy the debt
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would be if Naghma married
the neighbor's 21-year-old son.
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She was six.
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Now, stories like Naghma's unfortunately
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are all too common,
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and from the comforts of our home,
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we may look at these stories as another
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crushing blow to women's rights.
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And if you watched Afghanistan on the news,
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you may have this view that it's a failed state.
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However, Afghanistan does have a legal system,
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and while jirgas are built on
long-standing tribal customs,
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even in jirgas, laws are supposed to be followed,
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and it goes without saying
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that giving a child to satisfy a debt
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is not only grossly immoral, it's illegal.
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In 2008, I went to Afghanistan
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for a justice funded program,
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and I went there originally
on this nine-month program
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to train Afghan lawyers.
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In that nine months, I went around the country
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and I talked to hundreds of
people that were locked up,
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and I talked to many businesses
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that were also operating in Afghanistan.
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And within these conversations,
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I started hearing the connections
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between the businesses and the people,
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and how laws that were meant to protect them
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were being underused,
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while gross and illegal punitive
measures were overused.
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And so this put me on a quest for justness,
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and what justness means to me
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is using laws for their intended purpose,
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which is to protect.
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The role of laws is to protect.
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So as a result, I decided to
open up a private practice,
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and I became the first foreigner to litigate
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in Afghan courts.
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Throughout this time, I also studied many laws,
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I talked to many people,
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I read up on many cases,
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and I found that the lack of justness
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is not just a problem in Afghanistan,
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but it's a global problem.
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And while I originally shied away from
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representing human rights cases
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because I was really concerned about how it would
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affect me both professionally and personally,
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I decided that the need for justness was so great
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that I couldn't continue to ignore it.
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And so I started representing people like Naghma
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pro bono also.
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Now, since I've been in Afghanistan
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and since I've been an attorney for over 10 years,
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I've represented from CEOs
of Fortune 500 companies
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to ambassadors to little girls like Naghma,
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and with much success.
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And the reason for my success is very simple:
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I work the system from the inside out
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and use the laws in the ways
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that they're intended to be used.
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I find that
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achieving justness in places like Afghanistan
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is difficult, and there's three reasons.
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The first reason is that simply put,
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people are very uneducated as
to what their legal rights were,
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and I find that this is a global problem.
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The second issue
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is that even with laws on the books,
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it's often superseded or ignored
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by tribal customs, like in the first jirga
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that sold Naghma off.
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And the third problem with achieving justness
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is that even with good, existing laws on the books,
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there aren't people or lawyers
that are willing to fight
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for those laws.
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And that's what I do: I use existing laws,
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often unused laws,
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and I work those to the benefits of my clients.
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We all need to create a global culture
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of human rights
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and be investors in a global
human rights economy,
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and by working in this mindset,
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we can significantly improve justice globally.
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Now let's get back to Naghma.
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Several people heard about this story,
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and so they contacted me because they wanted
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to pay the $2,500 debt.
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And it's not just that simple;
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you can't just throw money at this problem
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and think that it's going to disappear.
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That's not how it works in Afghanistan.
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So I told them I'd get involved,
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but in order to get involved,
what needed to happen
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is a second jirga needed to be called,
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a jirga of appeals.
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And so in order for that to happen,
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we needed to get the village elders together,
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we needed to get the tribal leaders together,
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the religious leaders.
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Naghma's father needed to agree,
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the neighbor needed to agree,
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and also his son needed to agree.
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And I thought, if I'm going to
get involved in this thing,
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then they also need to agree
that I preside over it.
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So, after hours of talking
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and tracking them down,
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and about 30 cups of tea,
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they finally agreed that we could sit down
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for a second jirga, and we did.
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And what was different about the second jirga
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is this time, we put the law at the center of it,
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and it was very important for me
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that they all understood that Naghma
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had a right to be protected.
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And at the end of this jirga,
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it was ordered by the judge
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that the first decision was erased,
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and that the $2,500 debt was satisfied,
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and we all signed a written order
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where all the men acknowledged
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that what they did was illegal,
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and if they did it again, that
they would go to prison.
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Most —
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(Applause)
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Thanks.
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And most importantly,
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the engagement was terminated
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and Naghma was free.
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Protecting Naghma and her right to be free
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protects us.
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Now, with my job, there's above-average
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amount of risks that are involved.
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I've been temporarily detained.
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I've been accused of running a brothel,
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accused of being a spy.
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I've had a grenade thrown at my office.
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It didn't go off, though.
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But I find that with my job,
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that the rewards far outweigh the risks,
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and as many risks as I take,
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my clients take far greater risks,
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because they have a lot more to lose
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if their cases go unheard,
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or worse, if they're penalized
for having me as their lawyer.
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With every case that I take,
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I realize that as much as
I'm standing behind my clients,
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that they're also standing behind me,
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and that's what keeps me going.
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Law as a point of leverage
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is crucial in protecting all of us.
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Journalists are very vital in making sure
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that that information is given to the public.
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Too often, we receive information from journalists
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but we forget how that information was given.
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This picture is a picture of the
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British press corps in Afghanistan.
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It was taken a couple of years
ago by my friend David Gill.
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According to the Committee to Protect Journalists,
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since 2010, there have been
thousands of journalists
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who have been threatened, injured,
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killed, detained.
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Too often, when we get this information,
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we forget who it affects
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or how that information is given to us.
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What many journalists do,
both foreign and domestic,
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is very remarkable, especially
in places like Afghanistan,
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and it's important that we never forget that,
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because what they're protecting
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is not only our right to receive that information
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but also the freedom of the press, which is vital
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to a democratic society.
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Matt Rosenberg is a journalist in Afghanistan.
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He works for The New York Times,
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and unfortunately, a few months ago
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he wrote an article that displeased
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people in the government.
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As a result, he was temporarily detained
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and he was illegally exiled out of the country.
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I represent Matt,
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and after dealing with the government,
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I was able to get legal acknowledgment
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that in fact he was illegally exiled,
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and that freedom of the
press does exist in Afghanistan,
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and there's consequences if that's not followed.
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And I'm happy to say that
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as of a few days ago,
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the Afghan government
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formally invited him back into the country
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and they reversed their exile order of him.
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(Applause)
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If you censor one journalist,
then it intimidates others,
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and soon nations are silenced.
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It's important that we protect our journalists
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and freedom of the press,
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because that makes governments
more accountable to us
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and more transparent.
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Protecting journalists and our right
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to receive information protects us.
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Our world is changing. We live
in a different world now,
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and what were once individual problems
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are really now global problems for all of us.
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Two weeks ago, Afghanistan had its first
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democratic transfer of power
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and elected president Ashraf Ghani, which is huge,
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and I'm very optimistic about him,
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and I'm hopeful that he'll give Afghanistan
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the changes that it needs,
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especially within the legal sector.
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We live in a different world.
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We live in a world where my
eight-year-old daughter
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only knows a black president.
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There's a great possibility that our next president
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will be a woman,
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and as she gets older, she may question,
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can a white guy be president?
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(Laughter)
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(Applause)
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Our world is changing, and
we need to change with it,
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and what were once individual problems
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are problems for all of us.
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10:13
According to UNICEF,
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there are currently over 280 million
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boys and girls who are married
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under the age of 15.
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Two hundred and eighty million.
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Child marriages prolong the vicious cycle
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of poverty, poor health, lack of education.
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At the age of 12, Sahar was married.
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She was forced into this marriage
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and sold by her brother.
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When she went to her in-laws' house,
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they forced her into prostitution.
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Because she refused, she was tortured.
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She was severely beaten with metal rods.
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They burned her body.
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They tied her up in a basement and starved her.
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They used pliers to take out her fingernails.
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At one point,
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she managed to escape from this torture chamber
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to a neighbor's house,
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and when she went there, instead of protecting her,
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they dragged her back
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to her husband's house,
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and she was tortured even worse.
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When I met first Sahar, thankfully,
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Women for Afghan Women
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gave her a safe haven to go to.
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As a lawyer, I try to be very strong
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for all my clients,
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because that's very important to me,
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but seeing her,
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how broken and very weak as she was,
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was very difficult.
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It took weeks for us to really get to
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what happened to her
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when she was in that house,
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but finally she started opening up to me,
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and when she opened up,
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what I heard was
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she didn't know what her rights were,
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but she did know she had
a certain level of protection
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by her government that failed her,
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and so we were able to talk about
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1602
12:16
what her legal options were.
289
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2542
12:19
And so we decided to take this case
290
727126
2008
12:21
to the Supreme Court.
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1756
12:22
Now, this is extremely significant,
292
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1870
12:24
because this is the first time
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1913
12:26
that a victim of domestic violence in Afghanistan
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2836
12:29
was being represented by a lawyer,
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2793
12:32
a law that's been on the
books for years and years,
296
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2735
12:35
but until Sahar, had never been used.
297
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3406
12:38
In addition to this, we also decided
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2212
12:40
to sue for civil damages,
299
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1723
12:42
again using a law that's never been used,
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2947
12:45
but we used it for her case.
301
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3028
12:48
So there we were at the Supreme Court
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2262
12:50
arguing in front of 12 Afghan justices,
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3242
12:53
me as an American female lawyer,
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2636
12:56
and Sahar, a young woman
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3487
12:59
who when I met her couldn't
speak above a whisper.
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5183
13:05
She stood up,
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773163
1671
13:06
she found her voice,
308
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2286
13:09
and my girl told them that she wanted justice,
309
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2797
13:11
and she got it.
310
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2639
13:14
At the end of it all, the court unanimously agreed
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2829
13:17
that her in-laws should be
arrested for what they did to her,
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4183
13:21
her fucking brother should also be arrested
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2609
13:24
for selling her —
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1946
13:26
(Applause) —
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4420
13:30
and they agreed that she did have a right
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2003
13:32
to civil compensation.
317
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2418
13:34
What Sahar has shown us is that we can attack
318
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2779
13:37
existing bad practices by using the laws
319
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2778
13:40
in the ways that they're intended to be used,
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2938
13:43
and by protecting Sahar,
321
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2481
13:45
we are protecting ourselves.
322
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3580
13:49
After having worked in Afghanistan
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817520
1632
13:51
for over six years now,
324
819152
1998
13:53
a lot of my family and friends think
325
821150
2051
13:55
that what I do looks like this.
326
823201
2792
13:57
(Laughter)
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2506
14:00
But in all actuality, what I do looks like this.
328
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4638
14:05
Now, we can all do something.
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1873
14:07
I'm not saying we should all buy a
plane ticket and go to Afghanistan,
330
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2780
14:09
but we can all be contributors
331
837790
3022
14:12
to a global human rights economy.
332
840812
2059
14:14
We can create a culture of transparency
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842871
2268
14:17
and accountability to the laws,
334
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1324
14:18
and make governments more accountable to us,
335
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2411
14:20
as we are to them.
336
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3023
14:23
A few months ago, a South African lawyer
337
851897
1992
14:25
visited me in my office
338
853889
1755
14:27
and he said, "I wanted to meet you.
339
855644
1925
14:29
I wanted to see what a crazy person looked like."
340
857569
3994
14:33
The laws are ours,
341
861563
1979
14:35
and no matter what your ethnicity,
342
863542
2033
14:37
nationality, gender, race,
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865575
2891
14:40
they belong to us,
344
868466
2119
14:42
and fighting for justice is not an act of insanity.
345
870585
4789
14:47
Businesses also need to get with the program.
346
875374
2241
14:49
A corporate investment in human rights
347
877615
1721
14:51
is a capital gain on your businesses,
348
879336
1878
14:53
and whether you're a business, an NGO,
349
881214
2126
14:55
or a private citizen, rule
of law benefits all of us.
350
883340
4095
14:59
And by working together with a concerted mindset,
351
887435
2315
15:01
through the people, public and private sector,
352
889750
3456
15:05
we can create a global human rights economy
353
893206
2297
15:07
and all become global investors in human rights.
354
895503
3533
15:11
And by doing this,
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1784
15:12
we can achieve justness together.
356
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2660
15:15
Thank you.
357
903480
2093
15:17
(Applause)
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4000

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ABOUT THE SPEAKER
Kimberley Motley - International litigator
American lawyer Kimberley Motley is the only Western litigator in Afghanistan's courts; as her practice expands to other countries, she thinks deeply about how to build the capacity of rule of law globally.

Why you should listen

Kimberley Motley possesses a rare kind of grit—the kind necessary to hang a shingle in Kabul, represent the under-represented, weather a kaleidoscope of threats, and win the respect of the Afghan legal establishment (and of tribal leaders). At present she practices in the U.S., Afghanistan, Dubai, and the International Criminal Courts; as her practice expands to other countries, she thinks deeply about how to engage the legal community to build the capacity of rule of law globally.

After spending five years as a public defender in her native Milwaukee, Motley headed to Afghanistan to join a legal education program run by the U.S. State Department. She noticed Westerners stranded in Afghan prisons without representation, and started defending them. Today, she’s the only Western litigator in Kabul, and one of the most effective defense attorneys in Afghanistan. Her practice, which reports a 90 percent success rate, often represents non-Afghan defendants as well as pro-bono human rights cases.

More profile about the speaker
Kimberley Motley | Speaker | TED.com

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