The management of legal pluralism and human rights in decentralized AfghanistanDanny Singh

Teesside University, School of Social Sciences, Humanities and Law, Department of

Humanities and Social Sciences, Clarendon Building, Office: CL 2.23, Middlesbrough, TS1

3BA, United Kingdom.

Email: D.Singh@tees.ac.uk

Legal pluralism concerns the often complex interactions between various legal orders. This includes

the various domains of state law, human rights and tribal customary and religious laws. In recent

decades, international developers have attempted to impart universalism within socially, culturally and

legally diverse contexts such as decentralized locations that practice local and indigenous modes of

justice. International donors in Afghanistan have attempted to spread the rule of law and basic human

rights from judicial reform and the 2004 constitution into the countryside, whilst referring to Islamic

family and criminal law. The Afghan government and state legalisms are largely centralized within a

mountainous country. Most citizens, spread across 34 provinces, rely on the judgements of trusted

elders, or even the Taliban in southern regions, in community-based dispute resolutions. Using

interviews conducted with Afghan judicial and rule of law experts, this article assesses the

management of legal pluralism in Afghanistan. It is argued that, with varying results, legal pluralism

has been managed by “project law” to promote “better world visions” and donors’ notions of (social)

justice to introduce western laws and human rights to local customary settings. This is followed by

concluding remarks and some recommendations. When implementing projects, international

developers could work towards incorporating all actors and their legal institutions, including local

mediators. Improving case tracking at the provincial and district levels is needed to promote

consistency and improve observance of basic human rights standards. Furthermore, continuing to raise

awareness of women’s rights in rural areas with the use of local organizations and civil society could

impart human rights locally. This can be achieved by training ulema, mullahs and other local justice

authorities of basic human rights in highly funded community development councils and other

national solidarity programme projects.

Keywords: Afghan constitution; legal pluralism; Shari’a law; project law; ba’ad; women’s rights

Introduction

Legal pluralism typically concerns the complex interactions in governance processes of co-

existing forms of law. This can include state law or non-state forms of law like indigenous or

religious law. Using the case of Afghanistan, I will argue that justice sector reform has been

driven by international donor and United Nations (UN) agencies to provide vast financial and

technical resources for developing state law, human rights1 and Western criminal codes.

Afghanistan has various forms of law, ranging from national law (contained in the 2004

constitution and supports human rights), Shari’a law2 and forms of community-based dispute

resolution.3 Community-based dispute resolution commences in a traditional tribal assembly

(Jirga) or a religious council (Shura), where elders provide settlements based on tribal codes.

This system promotes traditional forms of redress.

Legal pluralism theories are not specifically focused on post-conflict situations, nor are

they limited to Afghanistan. However, legal pluralism is a useful lens to analyse forms of law

and social relationships involved during dispute settlements. This article is about the human

rights of women in community-based dispute resolutions in the context of the Afghan state

legal order. It draws on semi-structured interviews with ministerial staff in the justice sector,

rule of law and human rights-based organizations and international development reformers

from 2010 to 2016. One focus is ba’ad. Ba’ad, a form of reparation during a case of a serious

nature, is utilized to avert a blood feud between two families. Ba’ad is the practice of a

perpetrator’s family surrendering one or more of their daughters for unconsented marriage to

the victim’s family (United Nations Assistance Mission in Afghanistan (UNAMA) 2010, 6;

9). This customary practice functions as tribal customary law4 for reconciliation purposes.

The pitfalls of the Afghan justice system are subsequently covered. High perceived levels

of corruption in the judiciary and lack of courthouses in the countryside have resulted in most

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Afghans seeking informal modes of redress. A debate on blame culture from international

reformers and villagers on the multiple legal orders is presented. Advocates of the state

judiciary and human rights – international donors and attached human rights organizations –

blame community-based dispute resolutions for human rights abuses, particularly against

women, in the countryside. On the other hand, villagers blame international donors and the

Afghan government for the slow, corrupt, expensive and incompetent state justice system.

This paper is structured as follows. In the next section the methodology of the study will

be explained. After this, the paper discusses the main debates on legal pluralism in post-

conflict environments. The following sections cover the historical context of Afghan criminal

law and Islamic law, tribal codes, and the critical analysis of the rule of law5 and justice in

Afghanistan. It will be argued that donors’ notions of law, order and justice, expressed in their

project law,6 drive their agendas of security and justice reforms. As community-based dispute

resolution was under scrutiny from Western nations and organizations, this resulted in less

investment in the informal justice sector. The introduction of western governance standards is

based on the conviction that informal Afghan dispute resolutions hinder human rights.

Afghans, however, prefer community-based dispute resolutions due to corruption in the state

legal order. Low wages, kickbacks, delays, bribery in the state order and inaccessibility (for

many rural civilians) are reasons why the state justice system is avoided. The next section

covers the efforts of the National Solidarity Programme (NSP)7 to fund community councils

to promote internal notions of social justice and enhance projects that matter most to

communities. Solutions are then provided in the penultimate section. These suggestions

include increasing dialogue on human rights with local mediators, organizations and

Community Development Councils (CDCs)8 as a strategy to reduce human rights violations.

The conclusion argues that Afghan judicial reform9 can better spread the rule of law and basic

human rights by developing and empowering CDCs, raising awareness and educating local

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justice authorities. Local modes of crime control and community empowerment are part of

postcolonial criminology.10

Research methodology

The author draws on 29 semi-structured interviews held during three visits to Kabul: May-

June 2010, May-June 2012 and April 2016. These interviews were conducted with

international staff which included the Department for International Development (DFID),11

the World Bank and the United States Institute of Peace (USIP).12 In addition, local non-

governmental organizations (NGOs), legal researchers, human rights organizations,

ministerial workers including members of the Afghan judiciary, gender empowerment bodies

and civil society groups were interviewed. The interviews were approximately 60–90 minutes

each in duration. Questions were based on broad opinions of the current Afghan justice sector,

rule of law, human rights and the role of community-based dispute resolution, and specifically

focused on the positive and negative outcomes of judicial reform and human rights reforms in

Afghanistan. The questions dealt with issues like the role of international intervention for

justice reforms, accountability measures for persons involved in corruption, human rights

abuses and criminal law violations, oversight mechanisms for justice providers, planning and

implementation of good governance13 in the justice sector and the Afghan government, access

to justice and opinions on informal networks to mitigate disputes in the countryside.

This interview sample has its limitations. The sample does not include any tribal elders,

mullahs, perpetrators’ families or victims’ families, due to security, access and language

barriers in the field. Existing literature has been used to support some of the assertions made

by interviewees.

The following section covers legal pluralism in brief terms and its application to

conflict affected societies. Specific reference is provided to the tribal custom of ba’ad and the

efforts of international developers to avert it.

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Legal pluralism in post-conflict situations

Legal pluralism is a legal, social and political phenomenon found in normative orderings

around the globe. It is often linked with forms of political, economic, social, cultural and legal

fragmentation in society. Griffiths (1986, 38) extensively discusses the concept of legal

pluralism, the existence of more than one legal order in society. The term can be used to

analyse normative orderings in specific societies and also comparatively between them. Such

analysis provides a useful way to disclose and understand conflicts of power, influence and

control in society. It can identify, amongst others, quality, scale and impact of legal

fragmentation and contradictions in society.

In post-conflict settings, there have been attempts to utilize international, national and local

legalities. Yet, the governance of this approach has been politicized, which discriminates

against certain groups. The work of Zips and Weilenmann (2011, 7) has shown some

remarkable parallels between discourse universes of "legal pluralism" and "governance".

They highlight how both concepts merge with evolving paradigmatic shifts "from (a

predominant focus on) state government and state law to pluralized modes" of governance

(Zips and Weilenmann 2011, 7). Both governance and legal pluralism refer to pluralization

and the role of non-state actors in the intersection of politics and law. The empirical study of

legal pluralism is used by Zips and Weilenmann (2011, 8) to challenge governance and

provide “pressure to employ a set or network of institutions, actors and practices different

from (state) government”. However, donor institutions drive international legal rules (under

pluralism), which lead to unequal power distributions (Zips and Weilenmann 2011, 8).

Therefore, transnational law and global governance are part of a globalized hegemonic

empire, and thus national interests dictate global governance (Zips and Weilenmann 2011, 8–

9). For instance, superpowers imposing military intervention are often illegitimate. This leads

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to increases in conflicts, enforced deregulation of markets and privatized state functions (Zips

and Weilenmann 2011, 9).

Zips and Weilenmann (2011, 12) go on to argue that a legal pluralism perspective cannot

dictate which law holds higher value than others because, as von Benda-Beckmann (2003,

280) underline, an analytical approach to law differs from religious or other legal-ideological

perspectives. More than one law is always present, which complicates legal decision-making.

Therefore, a case tracking system14 for decision records at the local level is of importance to

ensure that outcomes remain consistent. However, the concept of legal pluralism should not

be utilized by international developers to promote desired legal structures in a developing or

fragile state. In colonized societies, plural dispute resolution institutions were promoted by

both the colonial socio-political order and traditional mediation structures for indigenous

people (Brogden and Ellison 2013, 20). Thus, legal pluralism has been a major feature of

colonial experiences. Post-colonial states have seen the expansion of formalized systems, but

informal justice and policing processes have not totally disappeared.

However, in the context of Afghanistan, legal pluralism has not been managed because the

reform of centralized state legalisms is prioritized over local modes of crime control and

redress. If legal pluralism becomes part of a policy strategy, as may obviously happen in

“developing countries", it often contains a normative dimension, as it should contribute to

achieving a development goal. This goal must be outlined. Hence, development politics

heavily influences the promotion of justice in Afghanistan. The work of Weilenmann (2009a)

precisely demonstrates how such “better world visions” may impact on the promotion of

justice and the rule of law. The author argues that development agencies compete with

sovereign powers by promoting forms of justice and their version of social control within a

‘quasi’ style democracy. This is to secure ‘political leadership in rural areas’ (Weilenmann

2009a, 156). Moreover, institutions, groups and organizations involved also lobby for

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alternative modes of dispute resolution. More specifically, development agencies promote

globalized justice but also work with local organizations to empower marginalized groups, i.e.

women and victims, and bolster the society’s institutions (Weilenmann 2009b, 39). This

social balance strategy reflects the development agencies’ conception of social justice. The

politics involved are for the programmes or projects to promote the rule of law, justice, human

rights and good governance.

Development agencies also create ‘project law’. Project law both creates and reflects the

inconsistencies of transnationalization and globalization, which increase western influence but

also fragmented social and legal relationships (Weilenmann 2009b, 39). In consulting

processes it also spreads norms based on western political ideology and thought to be globally

applicable. Every project has its own legal imperatives and bodies. This can change the

conditions of how civilians utilize their rights, while law driven by developmental politics

may clash with religious, indigenous, customary or pre-existing law. Weilenmann (2009a)

demonstrates, with the case of war-torn Burundi, that donor countries and development

agencies influence law and rules in developing states to reflect development plans, donor

objectives and Euro-American behaviours, demands and political life. However, separate

projects with different ‘project laws’ lead to competing laws and contradicting agendas.

Therefore, different development programmes conflict with indigenous customary law,

national law and international law (Weilenmann 2009a, 172–173).

The management of good governance is also an issue. Van Gastel (2001) suggests that

policies need to analyse cultural texts, narratives and the numerous meanings that empower or

disempower people. Rather than adopting a top-down approach of good governance, van

Gastel (2001) suggests that a negotiation between actors in institutions and an analysis of the

power that influences the process is needed. The power relations between the ruling elites (the

state) and the poor can be studied. This way, the ethics and ideological conceptions behind

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policy influences, which could include the governance and management of legal pluralism,

can be reached.

In any case, legal pluralism as policy form implicates a political statement which one may

endorse or object to, and therefore entails social or political implications beyond the concept

as an umbrella term for legal diversity. Von Benda-Beckmann (1989, 129–130) argues that

lawmakers aim to serve and satisfy social and economic conditions, whilst leaving the

remainder to law enforcement and policy. However, if development projects fail, then law is a

scapegoat. For instance, state law can be blamed if a previous regime had established it. Yet,

for development planners, the scape-goat is often traditional law or local law, which

apparently “hinders” development, while the solution is western law (von Benda-Beckmann

1989, 130). This can include human rights as part of western law which becomes part of state

law or a written constitution.

Legal pluralism should be analysed beyond dispute regulation mechanisms on the ground,

by focusing on how these could be harmonized to comply with international human rights

standards. The various declarations that have been released at different time periods refer to

different, distinct and changing aspects of social, cultural and political life. This corresponds

with varying and often changing interests of important (political) stakeholders in terms of

their degree of ratification, and therefore reflect an often fragmented and uncoordinated

development of their standards. This constellation underpins many contradictory statements

on the role and value of human rights. Lots of them are framed by the "rights versus culture"

issue or the "west – rest" paradigm. It must be stressed that the application of human rights

rather conflicts with other law (and not necessarily with culture). The International Council on

Human Rights Policy (2009, iii, 4) argues that plural legal orders (when a certain dispute can

be governed by multiple laws, norms or councils that co-exist within a certain jurisdiction or

state) entangle with customary and indigenous groups over the jurisdiction of natural

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resources, land and water disputes. Human rights are largely in variation to principal national

standards. For instance, in Zambia and Zimbabwe, customary law is discharged from

obligations to obey its constitutions. In contrast, South Africa’s customary law is only legally

recognizable if it conforms to principles of its national constitution. Moreover, Colombia’s

Constitutional Court settles cases based on both indigenous law and constitutional principles

(International Council on Human Rights Policy 2009, 5). When there are political or legal

choices to resolve a dispute that does not fall under serious criminal offences, political means

– such as consulting tribal elders – to mediate the conflict are preferred to a “formal” and

“state” legal remedy. The World Bank reports that Cambodia has multiple legal orders, but

poor people usually resolve land disputes via political rather than legal means (Adler et al.

2008).

Historical context of Afghan criminal law

Loose definitions of legal pluralism (in post-conflict and developing societies) and the

problems with its governance by international developers – to serve their notions of better

justice and social control – have been provided. This paves the way for a discussion of the

various legalisms in the Afghan context.

Law appears in categorical sets of rules, procedures, principles and institutions. It is

viewed as ‘concrete law’ when categorical rules that assign legal meaning are carved into

social relationships such as property rights or kinship relations (von Benda-Beckmann and

von Benda-Beckmann 2013, 19). As discussed above, law is not exclusively a state

phenomenon, but can involve plurality and thus a co-existence between various legal orders

inside the same socio-political landscape (legal pluralism) (von Benda-Beckmann and von

Benda-Beckmann 2013, 19). These legal orders both restrict and enable specific forms of

concrete law for any given socio-political space, which require careful analysis. An example

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are the relationships of Islamic law, local interpretations of Islamic jurisprudence, indigenous

customary law and state law (von Benda-Beckmann and von Benda-Beckmann 2013, 22).

Islamic law concerns religion and its relationship with a legal order. The main body of

Islamic law is Shari’a law, which means “way” or “path”. Shari’a law is a legal structure that

binds the public and limited private elements of life for people, based on Islam. Usually, an

Islamic state has its set of laws but still complies with some Shari’a law. Shari’a functions as

a system of laws that are grounded in the Qur’an and narration from Prophet Muhammad in

the aftermath of his demise (Hadiths). In addition, Shari’a conforms to the consensus of

scholars to decide on certain cases (ijma) with comparable reasoning (qiyas). There are five

different schools of Shari’a law. The most followed school of the Sunnis (around 85 per cent

of the population of Afghanistan) is the Hanafi School. This school is grounded in rules

motivated in Islamic scriptures (fiqh) and on traditional practices of natural law deriving from

Allah (Kakar 1978, 198). The Hanafi Fiqh is thus based on rules grouped from older Islamic

social life and is continually reinterpreted to readapt in contemporary communities (Tondini

2010, 34).

Islamic law differs from statutory law because private faculties of jurists (madhab) rather

than the state decide, but the state’s authorities recognize this mode of legal decision-making

(Tondini 2010, 32). Moreover, local religious scholars (Ulema) interpret norms in fiqh for the

community, and also act as judicial authorities by settling local disputes. Ulema are the actual

Islamic lawmakers. They often resisted codified laws and statutes to retain legal authority

(Schacht 1970, 540). Therefore, Islamic law utilizes analogical reasoning, reflects on cases

and not on codified or universal laws. However, Islamic law does not decide on the precedent

status of previous cases because people and context differ.

Islamic law has existed in Afghanistan for centuries but has been intertwined with a

monarchy from the first King Ahmad Shah Durrani in 1747. Ulema received social and

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economic benefits, and legitimacy from the regimes in power (Tondini 2010, 32–33). This

varied from the Mujahidin,15 the Taliban16 and the post-2001 era, but all contained Islamic law

and Shari’a principles of criminal law. Shari’a punishes a few offences. There are two

categories of punishment: those based on the Qur’an (Hudud), and discretionary punishments

(tazir) decided by a judge. In the event of Hudud, no discretion can be applied by the judge.

Hudud covers rape, fornication, adultery, theft, drinking alcohol and highway robbery. Tazir

covers fraudulent activity, extortion, prostitution and false witnesses (Giolo 2005, 83–84).

Punishment for Hudud consists of stoning to death for adultery and amputation of hands or

feet for theft, 100 lashes for sex between unmarried parties and death for apostasy if evidence

is sufficient from usually four witnesses. Alongside these few Islamic criminal law principles,

the victim’s family receiving money or property as compensation, to forgive the perpetrator,

can solve crimes against a party and prevent retaliation (Zubaida 2005, 208).

Shari’a is coexistent with statutory law in all Islamic states, which loosely adopt a

framework of legal pluralism. An Islamic state may intertwine religious, customary, statutory

laws, universal human rights law and a national constitution. Islamic jurisprudence has

coexisted with secular law in Afghanistan since 1925, when a criminal code was formed by

the King Amanullah monarchy to overlap with customs and tribal codes (Weinbaum 1980,

39).

Therefore, Afghan state law is based on Western perceptions of criminal law whilst civil

law is more focused on pre-existing Shari’a law. The work of Coburn and Dempsey (2010)

revealed that the state legal body is inaccessible to most Afghans who reside in rural areas.

Afghan state law interferes with many local customary laws by attempting to promote basic

human rights. Basic human rights include the right to a defence lawyer, the right to an appeal

and the discouragement of unconsented marriage to settle disputes locally, where tribal codes

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influence practices and resolutions informally. The following section will cover these issues

related to customary law.

Tribal codes in Afghanistan

Tribal codes are practices that have existed for centuries in certain regions. For instance,

Pashtunwali tribal codes of conduct and tribal customary law are based on reparations and

forgiveness. This aims to prevent a blood feud and sustain community relations. Customary

law in general and Pashtunwali are part of a restorative (not a punitive) justice system. These

local laws focus on communal rights (as statutory and Islamic law do). Pashtunwali is about

keeping peace between communities and is the way of Pashtun life and tribal spirit. However,

Rzehak (2011, 2) reports that Pashtun ways of life (and Pashtunwali) are frequently construed

by Taliban interpretations of Islam. This hinders the cultural values and rules which existed

way before the Taliban started governing behaviour. Due to 30 years of war, Pashtunwali

competes with other value systems which gained influence during the wars. Although

Pashtunwali is practiced by Pashtuns, it is carried out differently by various Pashtun tribes

and also changing with time. Each village has its distinct culture, and Pashtunwali is either

practised by compensatory payment for the victim or by sacrificing a sheep as an apology

(nanawati) (Smith 2009, 1, 45). A nanawate is pursued by the relatives of the accused. This

party sends a delegation to the house of the victim that includes elders, a female possessing

the Qur’an and a Mullah who then slaughter a sheep outside the victim’s house. This form of

pardoning is accepted as a tribal code to promote reconciliation and forgiveness and must not

be rejected (Bassiouni 2010, 527). Ba’ad can also be prevalent with practices of Pashtunwali

to compensate murder, elopement and illegal sexual intercourse (Civil and Liberal Initiative

for Peace 2014, 14). The tribal Pashtunwali customary community code does not extend to

family, marital and inheritance law – unlike Islamic law – which results in the marginalization

of women and young girls, and their deprivation in issues concerning inheriting property

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(Khan 2015, 10–11). However, it is important to note that Pashtun men derive honour and

wealth from three things: gold, land and women. This already shows that women are regarded

as a ‘resource’ that can be exchanged as a form of reparation for a crime (cf ba’ad as one

example).

After the demise of the monarchy system in 1973, Article 64 of the 1977 Afghan

constitution combined Islamic principles with the constitution and republicanism. Article 99

stressed that Hanafi jurisprudence would be affirmed if a provision in the statutory laws or the

entire constitution were absent. The Communist 1980 constitution was based on the

constitution and statutory laws. However, in 1992 the Mujahidin confirmed the Hanafi School

as Afghanistan’s official creed. This cast aside all statutory laws under Article 7 of their Draft

Charter. Article 2 of this Charter stated that the entire legal order was to be based on the Holy

Qur’an. This Islamized law.

After the Taliban seized Kabul in September 1996, the regime institutionalized an Islamic

emirate. This was based on strict and radical theocratic law, under the Ministry of the

Prevention of Vice and Promotion of Virtue (Nojumi 2008, 105). Consequently, religious

police was established to uphold public morality by arresting and disbanding professional

women, women who violated dress codes, men for short beards and shopkeepers for opening

during prayer times (Human Rights Watch 2000, 167; Skaine 2002). Criminal and civil

disputes were settled in a dual system, in which the plaintiff could select the Shari’a justice

system or a Jirga. Traditional notions of a woman’s role in society, which included

segregation, were imposed from Pashtunwali codes, Hudud and retaliation crimes (Goodson

2001, 118). Yet, statutory Islamic law has been reinterpreted due to Mujahidin and Taliban

regime changes. Despite Pashtunwali retaining its traditional forms, women’s rights are

violated because they are treated as a resource to restore honour by being exchanged for a

crime.

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The politics of the rule of law and justice in Afghanistan

With regards to the current politics of rule of law and justice in Afghanistan, questions

relating to the different sources of legitimacy on which international donor interventions rely

on are particularly critical. After the ousting of the Taliban, on 5 December 2001, the

Agreement on Provisional Arrangements in Afghanistan Pending Re-establishment of

Permanent Government Institutions (hereinafter the Bonn Agreement) was signed. The Bonn

Agreement was implemented as part of the state-building process for reconstruction, the

development of electoral and constitutional processes and long-term security and judicial

planning (Thier 2010, 542). Afghanistan was in a position to rebuild the justice sector that had

been devastated by 23 years of armed conflict.

The January 2002 Tokyo donor conference was prioritized as part of the reconstruction

process. Subsequently, a Group of Eight (G8)17 security donor meeting held in April 2002 (the

Geneva Process) created a five-pillared Security Sector Reform (SSR)18 strategy (Sedra 2011,

262). Each pillar was assigned a G8 donor to oversee. The United States (US) led military

reform, Germany initially headed police reform, the United Kingdom (UK) ran counter-

narcotics, the Italians led judicial reform and Japan headed Disarmament, Demobilization and

Reintegration (DDR)19 of former combatants (Spernbauer 2014, 89). Judicial reform initially

focused on rehabilitating courthouses and legal libraries, and providing support to legal

education for the state legal sector. These ideals of judicial reform had also been outlined in

the Bonn Agreement.

From the outset of the judicial reform process, the informal legal sector was under scrutiny

from US feminists, including Laura Bush, and the focus was on replacing alleged patriarchal

justice (Wardak and Braithwaite 2013, 203). This was also supported by the Afghan judiciary.

In 2007, the debate on traditional justice gained support from USIP to form a hybrid system

of justice (Coburn and Dempsey 2010). This was an attempt to enhance recognition of human

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rights, particularly gender rights, in traditional dispute settings. Wardak (2014, 1320–21) was

instrumental for the hybrid approach by ensuring that the decision-making of the informal

justice sector did not infringe Afghan law, Shari’a law and international human rights

standards. High funding from the US 2007-2010 rule of law budget predominantly supported

the Afghan state legal order. Yet, only a small portion was invested in traditional justice. This

was due to the fact that women’s rights were still breached at the informal level (Wardak and

Braithwaite 2013, 204). However, the state legal order20 was (and still is) hindered by

prevalent corruption, delays, complexity, and inaccessibility, and therefore publicly loathed

(Singh 2015, 241). Consequently, there was increased investment in the informal sector.

The NSP aimed to develop CDCs to deliver development in every village and to decide

how funds are spent. The funds mainly focused on enhancing community governance rather

than supporting traditional customary dispute resolution. Despite ideas based on legal

pluralism to merge state-sponsored justice, national laws and international human rights

standards, Islamic law has been included in the 2004 Afghan constitution. However, tribal

customary law has not. Therefore, the hybrid approach was promoted so that community-

based resolutions could function without breaching Islamic law, the Afghan constitution and

international human rights standards.

Human rights and project law in the Afghan context

According to von Benda-Beckmann (2009, 115–117), human rights can promote ‘our culture’

or western rights, which may create political tensions concerning support for or resistance

against human rights. Internationally driven good governance standards may be the contested

outcome. Van Gastel (2001) suggests that good governance is often externally driven; in

negotiations between actors, local and reformed institutions often play a passive role due to

western policy influence. It could be argued that the various sources of legitimacy attached to

SSR and the rule of law in Afghanistan are driven by project law. As Weilenmann (2009a,

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2009b) argues, project law attempts to promote its own political ideology and notions of

social justice, next to local customary law, state law and international law. Yet, separate

development programmes clash or overlap with one another. US feminism and hybrid

approaches to justice in the context of Afghanistan serve as two examples central to this

paper. There are different Islamic schools and traditions within the local legal orders that may

contrast and be in confusion with all SSR lead donor nations. These donors have different

goals to promote their versions of (social) justice.

If understood and used as a management tool, legal pluralism serves a larger and

encompassing development goal. It is part of a larger legal framework, established

by western development agencies such as the United States Agency for International

Development (USAID),21 DFID, the World Bank etc. in cooperation with the Afghan

government. Therefore, the five-pillared SSR strategy should not be taken for granted, due to

its political sensitivity. Bi- and multilateral framework conditions can be scrutinized. For

instance, the different donor countries subdivided their governance and rule of law

approaches — like at a market place —into several bundles of intervention. Subsequently, the

pillars were attributed to different donor countries such as the US, the UK, Italy, Japan or

Germany. These different nation states refer to different concepts of law (e.g. continental law

vs case law). They also uphold different understandings and philosophies of the role of civil

society, different governance structures and different ways to administer and control the flow

of their finances in foreign countries. None of these concepts refer to the political and cultural

framework conditions in the country of intervention. The simple fact that these states provide

experts in legal sciences is, therefore, not a sufficient guarantee for a successful intervention

in Afghanistan.

Italy was the lead nation to oversee reconstruction and coordination of external

commitments in the rule of law (Tondini 2010, 46). A Justice Sector Consultative Group was

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established in January 2003, chaired by the Afghan Ministry of Justice, but Italy held its

donor principal status. In addition, UNAMA22 chaired human rights and rule of law working

groups with Italy. Within the Consultative Group, Italy had the task to preserve justice

interests with other donors and UN agencies involved. Italy was also a co-founder of the

Geneva Group of Four to pursue interests within Afghan political development (Tondini

2010, 47), and led justice sector reforms. Law reform consisted of an Interim Criminal

Procedure Code, which consisted of 98 articles – including the right to defence, prevention of

arbitrary arrest and examination of witnesses – virtually identical to the “Italian criminal

procedure code” (Tondini 2010, 54). Similarly, rule of law and human rights organizations

like the International Development Law Organization are financed by the Italians. Additional

Italian contractors included the United Nations Development Programme (UNDP)23 and

United Nations Office on Drugs and Crime (UNODC)24 to provide training to Afghan judicial

personnel in, initially, Kabul (Tondini 2010, 56). The Justice Reform Commission was

staffed with English-speaking Afghans who had returned from western states (Tondini 2010,

59). The dialogue was influenced by the conflicting donors involved. Hence, the

rehabilitation process was slow but the US’ counterinsurgency strategy of financing mainly

Tajik warlords to fight the Taliban had increased the strength of regional tribal leaders

(Goodson 2003, 90). Therefore, the political imperatives of each donor and their

interpretations of law have driven judicial reform in Afghanistan. This has not resulted in

successful intervention.

Issues relating to SSR and the promotion of the rule of law are thus partly legitimized by

international human rights standards and their foreign interpretation. To some extent, such

issues relate to the “better world visions” (Weilenmann, 2009a) of the operating development

agencies (who are financed and ordered by foreign tax payers). They are only partly

legitimized by the parliamentarian processes of legal decision-making in recipient countries.

16

This constellation becomes even more complex. As in this case, under the broad umbrella

terms of “security sector reform” and the “promotion of the rule of law,” different donor

agencies with different legal traditions and political intentions (e.g. US feminism) carry out

different development programmes and projects. These donors (usually) only have slightly

coordinated development goals. Here, the US, the UK, Germany, Italy and Japan comply

with different tasks, interests and goals in the development process. This may provoke

confusion, especially about the local legal settings largely framed by a variety of local actors

rooted in different Islamic traditions.

As for project law, Weilenmann (2009a, b) and van Gastel (2001) clearly specify the

problems related to the different sources of legitimacy. This explanation of development

agencies and international donors as legally plural actors – aiming to reproduce their legal

ambitions, political culture and notions of social justice – is also helpful to understand issues

of good governance and corruption. This is because issues of kickbacks and corruption play

an important role, which will be addressed below. Corruption is not only an outcome of

poverty. The debate of corruption because of poverty fits Singh’s (2014) study on the lower

levels of the Afghan police force. One finding, based on a survey with 100 patrolmen, finds

that the police demand or expect bribes to supplement their low wages to cater for large

families living in distant provinces. However, the study also finds that corruption has much to

do with patronage impacting on meritocracy, lack of controls, opportunity-seeking (access to

cash) and lack of responsibility (Singh 2014, 637–644). Matters of control, responsibility and

opportunity are typical markers of (and often strongly tied to) legally plural constellations

with overlapping (and conflicting) sources of legitimacy and conflicting notions of (social)

justice.

The Afghan state legal order post-2001

17

The Afghan justice system has been rebuilt as part of the judicial reform pillar of the SSR

arrangement. The Italians headed judicial reform, and the Wolesi Jirga (House of People)

drafted the 2004 Afghan constitution. The justice system consists of three main organs: the

Ministry of Justice (MoJ), Attorney General’s Office and the Supreme Court. The MoJ is the

main institution of the executive branch to uphold the rule of law. It serves as the principal

link for Afghan citizens and the court system. The Attorney General’s Office is mandated to

uphold people’s fairness, justice, impartiality, security and safety when investigating and

prosecuting criminal acts that break the law. The Supreme Court is Afghanistan’s highest

constitutional court of appeal, with powers to manage a judiciary consisting of an estimated

1,500 judges (Singh 2015, 244).

The 2004 constitution, which was compromised by a grand assembly (Loya Jirga), is

largely based on modernization thinking and the political conditions of western secular law.

However, reference to Islam is provided. Article 3 states that the legal order cannot infringe

on Islam, but capital punishment is abolished, unless approved by the President under Article

129, to uphold the right to life under Article 23. There are also contradictions of statutory law

and the legal order with the favoured Hanafi jurisprudence. Article 130 clearly specifies that

statutory law should be applied to cases brought before the courts, but that Islamic

jurisprudence should be applied elsewhere. This contrasts with Article 7, which affirms

compliance with human rights treaty law ratified by Afghanistan because Islamic family and

criminal law is, at times, in contradiction with them (Tondini 2010, 50). The current legal

order contains a mix of customary tribal law and traditional Islamic jurisprudence. This means

that legal pluralism is managed in the 2004 constitution, in an attempt to balance the quest for

a modern legal order to uphold the rule of law and basic human right with the recognition that

Islamic jurisprudence still has a role to play. Although Islamic law holds supremacy, it is

18

regularly side-lined for tribal customary law to preserve community relations and consensus

(Khan 2015, 1).

Despite the 2004 constitution complying with basic universal human rights and the role of

the three principal organs to uphold the rule of law and investigate and prosecute criminality

fairly, there are many pitfalls. Wardak (2005, 62) recognizes that the Afghan legal order is

susceptible to corruption and is incapable of delivering justice impartially. Hence most

Afghans prefer the informal order of dispute resolution, which will now be discussed.

Corruption and the drive for informal justice

In Afghanistan, judicial corruption often occurs when the salaries of adjudicators are so low

that they resort to corrupt activities, such as extortion or bribery, to supplement their income.

Although judges now earn United States Dollar (USD) $1,000–2,000 per month thanks to

reforms, prosecutors are still lowly paid at $200 monthly.25 This leaves a big pay gap. Bribery

is persistent in the state judiciary to pay for justice as a purchasable market commodity. 26

However, corruption in the Afghan justice system relies on more than poverty and unequal

salary constellations. Problems related to a lack of control, opportunity and the lack of

responsibility are other causes of corruption. This is especially the case where much foreign

money is pumped into national structures, such as the state-sponsored justice system, and

where those in power are not necessarily accountable for this flow of money vis-à-vis the

local tax payers. Consequently, corruption and the payment of kickbacks are typical

outcomes. A kickback is required and paid to judges to speed-up processes of dealing with a

case, and judges only attend if they expect a bribe at the provincial level. This means that

cases can be delayed for months.27 The justice system operates slowly in anticipation of

bribery to speed-up cases, which has hindered the integrity of the judicial system.28 The

European Union Delegation’s Attaché for Justice, Rule of Law and Human Rights also argued

that “the formal justice system is extremely slow, very corrupt and hard to understand, which

19

just basically means that you have more entry points for corruption,” due to “delays and

susceptibility of bribery”.29 These manifestations expose high levels of discontent with the

Afghan judicial sector, due to postponement, bribery and extortion.

There are other shortcomings related to the Afghan state legal order. The judiciary is not

truly independent and not free from political or criminal infiltration. People affiliated with the

presidential cabinet, political cronies and powerful criminals, factional commanders and

warlords involved in drug trafficking avoid prosecution or are released prematurely

(Bassiouni 2005, para. 14). This hinders the rule of law. These consequences of state capture

were supported by judicial specialists in the field. A senior member of the Afghan human

rights commission contended that impunity remains “due to weak judicial organs that fail to

prosecute various criminals, warlords and notorious drug traders”.30 A rule of law and human

rights specialist based at the USIP argued that:

The culture of impunity that exists today, where powerful people aren’t held

accountable and the people who languish in the prison system will be the guys

driving the car with the narcotics, but not the drug-lord who’s profiting from

that. The driver doesn’t have any political connections whereas the drug-lord

can bribe or threaten his way out from being held accountable.31

Similarly, a specialist working in Afghanistan’s highest anti-corruption agency stated that:

If somebody is arrested on a corruption charge, you have somebody calling

whether it is the president’s office, his vice president or a minister or it is just

the connections. The next day, he is released on bail or something and then he

is never prosecuted or pursued again.32

20

Therefore, Afghan senior officials collude with corrupt figures, including narcotics smugglers,

and interfere in criminal justice by releasing them from investigation and custody. These

shortfalls in the state judicial system – bribery, systemic corruption and state capture

(infiltration from the drug mafia) – lead to a loss of public faith in the competence and trust of

the judicial sector and anti-corruption investigations (Bisogno et al. 2010, 24, 27; De Lauri

2013, 540).

The lack of legal knowledge is also a factor that has hindered the Afghan justice sector.

Adjudicators lack qualifications which is due to numerous judges that had graduated from an

old education system or a Shari’a law school (Rafi, 2014). A chairman of an Afghan human

rights organization stressed that judges lack educational qualifications, and human rights

awareness is frail or violated by statutory Islamic family law.33 Islamic family law includes

marriage, marital impediments, inter-religious marriages, polygamy, and the traditional roles

of men and women in relation to inheritance. It also governs family relationships, marriages,

childcare and divorce. The consequences of divorce rest on women, who have an inferior

position in the social hierarchy and are often illiterate (Fawzy 2004, 17, 22). Many judges

have a deficiency of comprehending the Afghan constitution and relevant criminal codes, due

to a lack of awareness of contemporary changes in the justice system. A US embassy-based

official argued that “in some districts, not all judges have graduated from law schools” and

“when you’re dealing with judges that haven’t even been to law school, there is not a lot of

hope”.34 This has resulted in controverting interpretations of law and decisions that contradict

the Afghan constitution. In addition, the Executive Director of the main bar association

emphasized that most of the “judges and prosecutors” do not “know about the defence

lawyer’s responsibility and because of that the defence lawyer is faced with some challenges

and problems during cases”.35 This manifestation is grounded on legal standards and the

proficiency of adjudicators to satisfy such legal criteria.

21

The aforementioned shortfalls of the state judicial sector discourage poorer families from

seeking state justice. Paying for judicial services weakens the social contract. In addition,

public frustration with a corrupt and overly centralized judicial sector has remobilized Taliban

support from 2005–2006 (Singh 2015, 250). In this context, the social contract concerns

perceived state legitimacy and socially accepted and unaccepted perceptions of adjudicator’s

behaviours (Azami 2009). This includes the social norms that arise during transactions

between law enforcement actors and citizens. The slow and corrupt Afghan justice sector

encourages Taliban justice, which can also be brutal (Rubin 2010). Yet, the Taliban courts

have great appeal because their decisions, unlike state modes of justice, are not reliant on or

influenced by bribes paid (Ledwidge 2009, 7). The Taliban have a parallel system of courts

used for land conflicts and resolutions for agreements that include an ombudsman and an

appeals structure (Giustozzi et al. 2012, 32–33). This is perceived by many Afghans as more

impartial than state legalisms (Braithwaite and Wardak 2013, 187). The shadow Taliban

courts provide punishment, either demotion or physical harm, if illegal bribes or kidnappings

are involved (Peters 2011, 108–9). Jirgas are the most trusted means of dispute resolution in

Afghanistan (Schmeidl 2011, 162).

Although corruption has been one reason why communities might forum-shop, customary

justice is not perfect either. It contains some corruption as well. Sometimes communities

simply lack access and choice. The Taliban justice system often uses customary justice to

simply enforce decisions. Both sides involved in a dispute must pay with money, arms or land

(as machalgha) to cover the case costs at the start of proceedings to pledge the execution of

the decision (Spernbauer 2014, 107–8). The case is forfeited if they fail to comply with the

Jirga’s decision, which discriminates against poorer families (Wardak and Braithwaite 2013,

203). However, there is limited research into what communities really think about Taliban

justice. Hence, the opinions of interviewees may be biased and inaccurate.

22

Therefore, van Gastel’s (2001) suggestion to study how the power relations in formal state

processes impact on the poor can help demonstrating problems with good governance and the

Afghan justice sector. Moreover, Weilenmann’s (2009b) conception of ‘project law’ can be

applied because development agencies have promoted their notions of law and legal orders in

restructuring the national justice system. This has clashed with both the Jirga system (local

customary laws) and Shari’a law (religious law). Reconstruction was largely driven from Italy

and other western development agencies. They assumed that externally imposed laws and

legal bodies could be applied worldwide. This excludes how cultural aspects of law, religion

and informal politics deeply influence the fabric of Afghan society.

Most Afghans resort to traditional practices held in a Jirga or pursue private/rough justice.

In a nationwide survey, the respondents expressed that Jirgas are preferred to state courts

because they are accessible, impartial and trusted, comply with local values and norms, are

effective and efficient at delivering justice, and able to resolve cases aptly and timely (The

Asia Foundation 2011, 152). Jirgas can be referred to as circles, village councils or maraka in

southern Afghanistan, which are predominant dispute resolution and decision-making

institutions at the village, tribal and inter-tribal levels (Wardak and Braithwaite 2013, 199). A

Jirga is an ad-hoc mechanism to deal with a problem. A Shura is a more permanent standing

body. Inter-tribal Shuras are rare (unless they are district Shuras) and the same is true for

Jirgas – unless the problem is between tribes and necessitates such a body. After all, each

tribe has its own law (Nirkh).

The values that the various local customary norms are standing for involve the cooperation

of two parties. This is to bring about reconciliation, sustain community relations and avoid

reprisal attacks on mainly land and civil disputes (Schmeidl and Karokhail 2013, 120). The

traditional assembly of elders takes decisions based on consensus, which comply with

Pashtunwali. The contrasting value orientation between those living in the countryside and

23

the “development world” is based on the differences between local value systems (customary

justice) and the externally driven court-based justice order. The latter has entry points for

corruption and bribery due to low wages and poverty, but also lack of controls and

accountability.

Traditionally, only elders were part of Jirgas though Mullahs have increasingly been

included. However, it is important to note that Shari’a and customary law are not the same

and in many ways at odds with each other. Mullahs speak justice using Shari’a law, but elders

use customary law. Thus both prescribe different expertise sets. Local mediators are pre-

informed about the cases’ backgrounds, unlike judges and prosecutors in state-run courts, and

utilize such information to decide cases to comply with communal approval (Ledwidge 2009,

7). At least 80 per cent of Afghans seek redress from Jirgas (Londoño 2011). This is due to

higher perceptions of accessibility, trust and less corruption than state-sponsored courts, and

half of the plaintiffs/victims receive compensation (UNDP 2007, 93–94; Ruttig 2012, 111).

Therefore, most Afghans trust local mediators to provide judgements that are based on the

ideals of restorative justice at the Jirga level.

The current judicial system has, so far, failed to promote human rights at the community

level. This may be due to the Afghan constitution that fails to recognize the competence and

roles of community-based dispute resolution institutions (local customary law). To better

manage legal pluralism, community-based programmes that have a wealth of funding – from

recent support from NSP and CDCs – could better promote human rights at a more

decentralized level. These initiatives will now be addressed.

National Solidarity Programme and Community Development Councils

The NSP has provided community block grants which are headed by the Afghanistan

Reconstruction Trust Fund (ARTF)36 and the Ministry of Rural Rehabilitation (MRRD) and

Development to establish local development and enhance communal governance.37 Since

24

2003, the NSP has promoted nationwide development from the community level. The NSP

had expanded to at least two-thirds of Afghanistan’s communities by 2008 (Nixon 2008a, 16),

focusing on interventions that stress the importance of community empowerment and

communal participation to provide resources, via block grants, for small-scale community

development projects (World Bank 2005, 154). NSP had two aims: deliver ‘community-based

development’ under projects and enhance ‘community governance’ (Murtazashvili 2016, 92).

Community development focuses on roads, schools, irrigation, health facilities and drains.

The aspect of local (community) governance concerns the interaction and integration between

communities and the administration of districts (UN-HABITAT n.d).

CDCs function under NSP. To facilitate both goals of the NSP, the MRRD contracted out

to establish over 30,000 CDCs in villages across Afghanistan (Murtazashvili 2016, 92). Over

30 mainly international NGOs were contracted to cover whole districts, and thus had taken

ownership of the CDCs, with high sources of funding from international donors

(Murtazashvili 2016, 92–93). This way however, NGOs become satellites of foreign

governments, who take control not only of their budgets and finances, but also of their

personnel, their programmes and development goals. One could therefore problematize their

current understanding of being an NGO and focus on the multiple ways international donors

intervene in local politics. The same happens also with local CDCs who get funding through

the NSP channel. The concept of project law can explain development agencies’ political

objectives and notions of social justice as part of their “better world visions”. CDCs undergo

election processes and are structured, but these vary. They are dependent on regional and

local customs and norms, which makes comprehending CDCs a difficult task. Nevertheless,

council members of CDCs are elected via a secret ballot if over the age of 20 and each plan

has proposals for community projects and a Community Savings Box (UN-HABITAT n.d).

The NSP (that sponsors CDCs) are democratic, include the participation of women, are

25

locally owned and driven, trusted, accepted and legitimate. The democratic compromise of

CDCs has resulted in the acceptance of women’s participation in local meetings, and women

have an influence on decision-making (Nixon 2008a, 8). However, women’s roles are limited

with governance functions.

Moreover, CDCs are also involved in non-NSP governance roles such as dispute

resolution. In these cases, CDCs function alongside trusted individuals, such as elders, with

customary norms and structures. However, there is a local power-holder; CDCs adjust the

bases of local authority with electoral and collective measures (Nixon 2008a, 8). In 2005–

2006, the NSP and affiliated CDCs extended into clusters within communities as part of the

elected Provincial Development Communities (Nixon 2008a, 11). Phase II of the NSP

commenced in April 2007 and ceased in March 2010. Phase II extended to 4,300

communities, fetching the total number to 21,600 communities. This means that at least 80

per cent of Afghanistan has CDCs. Despite the cluster approach from NSP, since 2001, which

resulted in forming CDCs in the countryside, CDCs have created new institutions. Yet,

protracted insecurity, informal exertion of power and authority, patronage, corruption and

weak state capacity have failed to sustain subnational structures of governance (Nixon

2008b). Phase III is determined to improve the quality of participation, the institutions, and

governance over CDCs and sustainability in the communities. It was forecast to spread to

more rural areas that did not have CDCs. However, CDCs operate as a channel for

developmental funding, and are sub-contracted to NGOs over certain areas, rather than

enhancing personal security and safety with social customary organizations (local dispute

resolutions) such as Jirgas and Shuras (Murtazashvili 2009). Murtazashvili (2009) concludes

that CDCs do not play a major role in local dispute resolution, while Jirgas and Shuras do,

namely with local land disputes. Local dispute resolutions and CDCs are in conflict due to

disagreements over using additional resources.

26

Despite this criticism, CDCs, as part of NSP’s two goals, have the support and capacity to

also assist with local dispute resolution to some extent. With high sources of foreign funding

and resources, CDCs with involved NGOs, due to sub-contracting, can assist with training in

basic human rights for local dispute mediators. Local NGOs can provide training on women’s

rights, in compliance with international human rights standards and the Afghan constitution,

whilst respecting Shari’a law.

Challenging human rights abuses in the Afghan countryside

According to van Asperen (2011, 97), legal pluralism can consist of several legal frameworks

operating simultaneously. This has been attempted in Afghanistan. However, Afghan

institutions have been centralized and run under formal bureaucratic rules and governance.

This resembles a framework based on Western liberal philosophy rather than decentralized

and indigenous modes of law (De Lauri 2013). It has been attempted to intertwine

international legal standards, the rule of law and human rights, which includes the 2004

Afghan constitution, with Shari’a law and community-based dispute resolutions in the

countryside (Singh 2015, 233–34). Formalized laws have been the primary focus enshrined

within a constitutional regime imposed by international intervention. Articles 3, 6 and 7 of the

constitution specify that a workable justice system should remain respectful of Islamic legal

tradition and interpret older Islamic jurisprudence that is compliant with human rights and

civic accountability.

Ba’ad arguably breaches human rights, but the challenge rests on the Afghan government

to implement laws, including Shia family law. Ba’ad is present in almost all tribal systems

and is prevalent in tribal customary law. This includes qawm systems that are tradition-based

social solidarity divisions that share kinship, beliefs and professions within a location, which

can also determine ethnic confines. In many provinces, particularly in Helmand, the Taliban

lead community-based dispute resolution (Singh 2015, 236). In doing so they violate human

27

rights, such as the right to appeal and to a fair trial, and regularly bestow harsh and

inconsistent bodily punishment, particularly against women (Fearon 2010, 20). A United

Nations worker for a human rights unit similarly argued that:

Concerns have been raised over women’s and children’s human dignity, such

as giving up the youngest daughter for a land dispute. Traditional justice

systems are accessible but the Taliban, which is known to guarantee security

and justice in places where formal systems are absent, supports these

violations against girls and young women.38

Ba’ad noticeably abuses women’s human rights and is illegal under Afghan national law.39

This traditional act is punishable for an imprisonment period of up to two years under the

Afghan Criminal Code. Ba’ad also violates fundamental human rights. This includes the

August 2009 Law of Elimination of Violence against Women, international law and is

inconsistent with Islamic or Shari’a law. Forced marriage breaches the right to bodily

integrity under the Universal Declaration of Human Rights (1948: Article 5), the International

Covenant on Civil and Political Rights (1966: Article 7), the UN Declaration on the

Elimination of Violence against Women (1993) and the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment (1984).

Ba’ad has been challenged in the countryside because of applicable codified laws. A

judge and legal researcher based at the Supreme Court argued that ba’ad and human rights

violations at the Jirga level were rare and have significantly decreased, but that international

reports have exaggerated such abuses.40 He specifically stated:

I have seen that here there is no problem to be considered. Maybe more than

30 or 20 years ago there were human rights problems. There was a lot but, in

these days, and last years, I have heard and also I have researched that the

28

condition of human rights problems is very low. But, you know, we have had

a bad habit that we call ba’ad: when someone kills someone, the victims’

family comes to the offender and says “you should give us your daughter

because you killed our son”. This condition was against human rights and

happening a lot across the country but right now this habit has become very

rare. I have done research. My data show that in southern and western

provinces of Afghanistan it has become resolved in 20 or 21 cases about

killings, of serious crime; there was no report of this human rights violation. I

didn’t see these violations exactly or witness any human rights violations. I

think that, within a few years, this phenomenon is going to go out from the

alternative dispute resolution section of the judiciary.41

Hence, the alleged decrease of ba’ad is a contentious debate. International literature states that

ba’ad remains prevalent, but a judge based at the Afghan Supreme Court argues that it has

substantially decreased, despite there being no clear figures quoted. If taking the honour of

Pashtun men into consideration, women are deemed as a resource. If ba’ad has been in

decline, it is where communities are wealthy enough to use other forms of payment. Poverty

tends to still force the use of ba’ad (Civil and Liberal Initiative for Peace 2014, 14). The

economic side of this practice might consider some thought as well because ba’ad is used

only to compensate murder. Payments are linked to the severity of the crime. As previously

argued, it was Western-based feminism that attempted to protect Afghan women against harsh

and cruel traditional practices of justice such as ba’ad. However, former President Hamid

Karzai and USIP later reiterated that Jirgas could not be scrapped due to their high

prominence in the countryside (Coburn and Dempsey 2010, 8). Due to this belated

knowledge, funds from the US rule of law financial plan were doubled in 2007. This further

29

increased until 2010, yet then decreased again in 2011, but only a small amount has funded

Jirgas at the village level (Wardak and Braithwaite 2013, 204).

Furthermore, NGOs and human rights organizations such as Amnesty International and

Human Rights Watch have notably criticized human rights abuses. The interviewees (human

rights and organizations and NGOs) might be so critical of non-state dispute resolutions and

the Afghan state justice system to continue to receive international donor funding. This

impacts on the suggested solution of international human rights to reflect the criticisms by

donor governments. As von Benda-Beckmann (2009, 116) critically argues:

[The] acceptance and implementation of human rights have become a frequent

conditionality for financial and technical support. Human rights are used as an

instrument of pressure on state governments in other parts of the world in order

to implement standards of good governance.

It could be argued that the exaggerated concerns about ba’ad, provided by UNAMA and

international donors, are based on the intention to defame community-based dispute

resolution.

There are further limited success stories of the multifaceted Afghan legal order. For

instance, the hybrid approach of merging Shari’a law, human rights from national law with

local traditions fit restorative principles. In a Shi’ite and Hazara zone of Kabul, this hybrid

approach has enhanced transparency between locals and whitebeards, elders and Mullahs, and

promoted nanawati (Gang 2011, 4, 22, 28). Education of women’s rights and ba’ad, as a

custom of forgiveness, promoted by elders to foster hostility into a relationship is decreasing

in Muhmand village based in the Nangarhar province (Singh 2015, 247–48). Moreover, the

Cooperation for Peace and Unity (CPAU)42 and the Sanayee Development Organization have

lowered domestic violence against women and children. They have changed attitudes

30

concerning women’s rights within a peace Shura located in Badghis which spreads to wider

communities.43 In Herat, men have also encouraged women’s participation in a CDC in

Pashtun Zarghun (Nixon 2008a, 22). Women are included in participation since the inception

of NSP building CDCs. However, attitudes on women not knowing about elections are

problematic in some areas, such as in Nangarhar. Despite this drawback, when women are

included, debates on human rights issues can commence. By way of illustration, since 2009,

Australian Aid (now part of the Australian Department of Foreign Affairs and Trade), has

funded ActionAid to work with CDC members, local Jirgas and religious leaders (ActionAid

2014). These initiatives have promoted an understanding of women’s rights, raised awareness

on human rights issues, delivered legal training for volunteers, and provided safe zones for

female participation to eliminate violence against women in Afghanistan.44 Needless to say,

these examples are limited and insufficient to support the contention that local organizations

and CDCs are influencing the justice landscape surrounding ba’ad without extensive

triangulation. The promotion of justice and democracy, funded by foreign money, drives

forms of governance based on foreign transplants.

Rather than impose externally driven contentions on the use of state laws and relevance of

indigenous justice, a hybrid model was proposed to provide checks and balances by both the

state courts and Jirgas at both ends. The decisions made by Jirgas under the hybrid model are

applicable if these informal dispute resolutions do not abuse Afghan state law, Shari’a law

and universal human rights (Choudhury 2011). Yet, ba’ad infringes all three. This resembles

legal pluralism on co-existent state and indigenous forms of justice. Western modernity,

secular and theocratic modes of justice have failed in Afghanistan. Afghan traditional

indigenous institutions such as Shuras need to be reconciled with modernity as part of a

hybrid approach. This can provide bottom-up and top-down approaches and checks and

balances simultaneously for more effective justice, human rights and crime control.

31

Despite human rights success or international exaggeration of practices such as ba’ad, the

rule of law standards and legal modernization efforts have attempted to centralize state

justice. This has failed to deal with many sources of law ranging from Shari’a / Islamic law,

the Afghan constitution and tribal customary practices. This has also resulted in confusion

between modern efforts to construct a new legal order with codified laws, state courts and

historical social, cultural and tribal customary practices. The judges are attempting to juggle

all these forms of jurisprudence with little resources and extremely low salaries. This has

resulted in the richer society paying for justice.

Irrespective of the potential for co-existent laws and traditional or local justice, there are

major issues with case tracking, notably in the Afghan countryside. There is no formal record-

keeping procedure for decisions made in informal community-dispute resolutions. Decisions

of cases are virtually untraceable in the countryside. Revising cases and buttressing case law

is almost not possible (Singh 2015, 237). Most ordinary Afghans that reside in rural areas lack

access to centralized legal institutions, and if accessing the latter, they are often unworkable

or short-staffed. At the provincial level, a case tracking system is absent. This leads to failure

of Jirgas observing human rights, while state accountability is still inadequate. This often

causes the re-emergence of disputes, especially in land cases (Coburn and Dempsey 2010,

15). A senior member of a major corruption perceptions survey similarly argued that case

tracking and case law is absent in the countryside. He stated that:

You do not really have any structure that will allow you to track cases to make

sure that even without the name of the person who is being judged or who is

being prosecuted is recorded. However, you need to know where the case

system is, where it stops, or where it is blocked. If it is blocked, efforts should

be made to make sure that these things happen and that the proper people are

involved. If, for example, in a case, you have at least not only the attorney but

32

also a lawyer, or someone who can defend the accused person, to make sure

that these persons are there. This is problematic because you do not have any

real system to improve that.45

The lack of resources, weak case tracking and corruption occur in cases that are constructed

on secular law. The Special Advisor to the Executive Director of International Assistance

Mission (IAM)46 contended that “the drain of resources is the problem” and provinces “do not

have enough resources for the judicial system or the process will drag out and it is also

difficult to have a transparent scheduling system that issues a case, taking its time until it gets

treated”.47 The lack of tracing cases results in the manipulation and control of judges who

circumvent utilizing specific laws for their personal interests.48 A team leader of a rule of law

project based at the US embassy emphasized that, in the countryside, many decisions are

unrecorded, not written and not filed.49

These manifestations disclose that there is a weak capacity in Afghan rural areas and

proceedings are postponed. Poor case tracking intensifies bribery and extortion. Cases need to

be traced on women’s human rights violations rather than just land inheritance and family

cases dictated by Islamic family law. This is to build localized common practices based on

human rights to continue minimizing ba’ad. Better case tracking would be needed to gather

better data regarding the caseload of informal Jirgas because the collection of such data has

not occurred. Therefore, this article has focused on the degree to which internationally funded

“legal pluralist” programming in Afghanistan reduced human rights violations targeting

women. It has especially analysed violations involving ba’ad. Ba’ad persists due to a lack of

rural courthouses and perceptions that the state-led judiciary is corrupt. This is mostly due to

low salaries for prosecutors and bribes to judges for expeditious action, as well as a lack of

sophisticated constitution-focused legal education. Finally, a pattern of legal impunity for

powerful elites, warlords, and drug barons with connections inside the state impact on justice.

33

Internationally funded judicial reform approaches succeeded in raising awareness of human

rights norms amongst tribal elders and Mullahs, thus arguably reducing the prevalence of

ba’ad. The context within which this change occurred – for example, the specific modalities

surrounding internationally funded CDCs – can play a further role. This can only be the case

if multifaceted laws are pursued rather than forming the “formal” state and “informal” dispute

resolution dichotomy. Various modes of law, including local law for villagers, Islamic law,

state law and the bureaucratic model are required to properly manage legal pluralism.

However, von Benda-Beckmann (1989, 129–130, 144) argued that, when non-Western laws

do not comply with development agents’ orders, it is development, promulgated by

interventionists, rather than local law, modernity or development that are blamed by villagers.

This can apply to the context of Afghanistan. The majority of the rural population do not

either have access to or trust the bureaucrats’ model of justice. In addition, the lack of

resources to provide better case tracking and basic human rights protection at the informal

level are due to development agents’ shortcomings. It could be argued that international

developers and organizations involved in promoting human rights at the community level

merely blame local customary law for the abuse of women’s rights in the Afghan countryside

rather than themselves.

Conclusion

This paper has addressed legal pluralism-based approaches to re-order the relationship

between state law and other legal orders, including human rights law. It describes efforts in

Afghanistan to bridge the gap between state and indigenous legal processes, with a focus on

criminal law. This emphasis is interesting, as most of the literature on top-down “legal

pluralism” programming focuses on civil or family law. Attention to historical and analytical

literature dealing with legal pluralism in a criminal law context revealed that Hanafi

jurisprudence has always held influence. Consequently, Ulema, Mullahs, the Taliban and

34

other trusted local persons will strive to attain judicial authority. This is particularly evident in

the countryside. The current state-based justice system is too centralized. Therefore, local

judicial authorities fill the void because they are more accessible, trusted and arguably less

corrupt. These authorities reinterpret Shari’a, if competent to do so, and comply with Islamic

family and Islamic criminal law. Although the latter are supported by the 2004 Afghan

constitution under Article 130, they are in contention with Article 7 affirming international

human rights treaty law. Moreover, Pashtunwali tribal codes are often repressive against

women, leading to segregation and ba’ad, which clearly violates women’s fundamental

human rights. Islamic law and tribal codes (the latter will inevitably persist due to nominal

legal orders in remote Afghan areas and retention of local judicial authorities) are not

compliant with women’s human rights standards.

Shari’a law or Islamic law construed as fiqh (understanding of Islamic jurisprudence)

under the Hanafi School was encompassed in the 2004 Afghan constitution (Spernbauer 2014,

91). However, as indicated from the interviewed judicial experts, it is debatable whether

Afghan adjudicators are competent to refer to the Afghan constitution and basic human rights

in the countryside. The right to a qualified defence lawyer is frequently unknown; and women

are often omitted from Jirgas.50 Jirgas and Shuras provide a rapid means of dispute

resolution, are cost-effective and easy to understand. Hence they are generally preferred to the

slow and corrupt state-based judiciary. The judicial experts in the field concurred with the

perception that bribery, institutional corruption and permeation from the drug mafia, which

hinders the independence of the judiciary, has resulted in nationwide loss of faith in the

judiciary.

Public discontent with the Afghan administration and judicial institutions for corruption

has led to civilians consulting the Taliban for community-based dispute resolutions, which

includes Helmand.51 The Taliban provide an alternative means of arbitration that punishes

35

corruption. This has resulted in Taliban remobilization in the summer of 2006. The Taliban or

elders routinely abuse human rights such as rights to a fair trial and appeal, and regularly

distribute harsh, painful and inconsistent penalties, particularly against women. This is

“because most of the members of Shuras and Jirgas are illiterate”.52 In dispute resolutions at

the community level, ba’ad was widespread.

However, ba’ad has arguably decreased over the past few years53 (Civil and Liberal

Initiative for Peace 2014, 21). Taking this into consideration, it can be contended that human

rights abuses may be exaggerated at the Jirga level for international funding streams to focus

more on state legalisms. The international notion of judicial reform concentrates on the rule of

law, criminal law and human rights in courthouses rather than traditional modes of redress. It

is only over the past six years that the international community has realized that community-

based dispute resolution institutions have great scope across Afghanistan. As a result,

attempts have been made to copy and paste international human rights, criminal law and the

rule of law standards to the Jirga level. The elucidation of “project law” is appropriate to

explain efforts of implementing human rights (Western norms and values of international

developers) as part of a “better world vision” to informal dispute resolutions (local customary

law). Yet, this approach – as van Gastel (2001) would support – has failed to acknowledge the

social and cultural dynamics of Afghan local customary and tribal laws.

If van Gastel’s (2001) promotion of working on local ethics and culture is taken into

consideration, then local training initiatives could commence. In terms of discourse and

training, morality, ethics and religion (Islam) – which are culturally relevant to Afghanistan –

can bring about more robust discussions. This can also improve attempts for civilians to

discuss corruption and progress procedures to combat it. As an alternative of establishing an

irreconcilable difference between state justice and traditional disputes, and the drawbacks of

both – particularly bribery and human rights violations correspondingly – the entirety of

36

procedures concerning jurisprudence can be amalgamated from the legal orders of a legally

plural society. This can be achieved from the civil society and local NGOs raising women’s

rights awareness and training workshops in rural areas. Powerful individuals such as local

Mullahs, Ulema or tribal elders (local judicial authorities) can be urged to heighten emphasis

on the rule of law, human rights and numerous legal codes by being trained competently with

applicable Islamic law. These local judicial authorities hold the power to change attitudes

towards the detriments of ba’ad. Moreover, greater attention needs to be paid on the

education of adjudicators to fully comprehend the constitution and basic human rights. This is

so that rights can reach the provincial and district level across Afghanistan. The theory of

postcolonial criminology can provide support. This is to focus on decentralized modes of

crime control and justice that can utilize the Jirga system and CDCs, rather than solely relying

on the deeply distrusted civilian state (and allegedly) corrupt justice system.

Legal pluralism still has value because the focus on human rights and applicable laws may

have the potential to reduce ba’ad in the countryside by promoting human rights locally.

Cases on practices that breach women’s rights, such as ba’ad, can only be developed further

with a solid case tracking system at the district level, which is currently weak. Working with

CDCs is needed, due to their resources, funding and governance, as a tool to raise awareness

of human rights and empower women. This is because Islamic jurisprudence (which is

permitted from the 2004 constitution) and tribal codes will persist due to insignificant

legalisms in the countryside. However, it must be noted that legal pluralism can only be

utilized as a management tool and not as a tool of practicality, as done so with donors (namely

Italy and UN agencies) involved in Afghanistan. This has created more choices with legal

routes to pursue. However, new forms of legal pluralism have emerged at a higher political

level based on the priorities of timely donor funding. Aid has focused more on modernizing

state law by blaming informal councils of human rights violations and the need for an

37

externally driven rule of law. Yet, as Zips and Weilenmann (2011, 12) argue, legal pluralism

does not aim to dictate which law holds higher significance than others. Instead, legal

pluralism can analyse and govern various types of law within a territory. The analysis of the

various forms of law have identified blame on both state law (largely corrupt as perceived

from citizens) and community-based dispute resolutions (human rights abuses as perceived by

international donors and UN agencies). Brief policy recommendations have been provided to

rectify such blame, which include empowering the role of local mediators to work with

locally owned CDC projects on women’s rights.

Notes

38

1 Basic rights and fundamental freedoms that are assumed inherent, egalitarian and inalienable to all human beings irrespective of sex, colour, ethnicity, religion, nationality or any other particular vernacular. These include the right to life, liberty and privacy, education, respect and dignity, equality and freedom from torture, slavery and freedom of expression and opinion.2 A glossary is provided for all terms mentioned in italics.3 A dispute resolution procedure used to deal with a complaint or dispute. The creation of a dispute resolution process usually involves a community through its development phases. If it has already been created, it serves traditional, tribal, indigenous, cultural and religious values. 4 The concept of customary law is used here to denote unofficial law established in the history of a community. This reflects communal standards, customs and norms. Although customary law may not be deemed official law, the relevant actors of a community deem it to be law (opinion juris). Therefore, traditional common practices become engrained within a community, are culturally accepted and practiced in a community. 5 Rule of law ensures that no one is above the law by restricting senior officials from exercising arbitrary power or retaining immunity from prosecution for breaking the law. All actors, including the government and private bodies, are accountable under law; laws are clear, just and applied to protect individuals (such as human rights); laws are enacted by an open, fair and transparent open government; and justice is accessible and impartial. 6 The legal objectives, foundations and bodies involved when a project is implemented. Donors and international development agencies usually drive project law. This is based on their geopolitical motives, views of development and notions of social justice. 7 NSP was established in 2003 by the Afghan government, with World Bank support, to develop and rehabilitate 5,000 villages across the country. NSP pushed for local democratic elections to lead institutions at the community level. This was to provide trusted locally owned planning and management of funds for local projects. 8 CDCs have been funded by NSP and were established by the Afghan Ministry of Rural Rehabilitation and Development since 2003. CDCs are designed to implement developmental projects and enhance infrastructure or agricultural projects deemed the most needful from villagers. 9 This concerns a partial or entire reform of a state’s judiciary, including the promotion of an independent, transparent, accountable and effective judiciary, which is free of corruption and political interference. Wider initiatives include the promotion of codified laws (if none or reformed if outdated), criminal law, relevant training and education for legal personnel, and the rehabilitation of courthouses and legal libraries. 10 A postcolonial approach to criminology offers new theoretical thought of historical and cultural differences. The impacts of colonialism on the colonizers and those colonized cover protracted political, economic, social and cultural processes. Law and methods of crime control and punishment, influenced and enacted by the colonizers, are based on the imperial powers to those people colonized. 11 DFID is part of UK Aid to administer overseas aid. 12 USIP is an American institution that aims to promote domestic security and international stability by decreasing oppression and conflicts overseas. 13 Good governance is linked with international development to assess how public institutions engage in public affairs and conduct the management of public resources. The governance dimension covers the processes of decision-making and implementation. Principles of good governance include the rule of law, ethical conduct, transparency, efficiency and effectiveness, financial management and accountability. 14 A system of record keeping to trace cases for future reference. This is particularly useful to base consistency on similar cases adherent to law(s) or indigenous practice(s). 15 Islamic guerrilla combatants who organize into a group engaged in a Jihadist battle against non-Islam foes or non-Islam politics. The Mujahidin fought against the Mohammad Najibullah-led Afghan communist government, Soviet occupation later in 1979, and took control of most parts of Afghanistan in 1992. 16 Religious students in the early 1990s, who were in protest against warlords (during the Mujahidin era) engaging in corruption and conflict. They were part of a political fundamentalist movement to enforce their strict Shari’a interpretation and fight for an Islamic Emirate. 17 G8 originated from various summits since 1975. This was designed for the leaders of France, Germany, the UK, Italy, the US, Russia, Canada and the European Union to participate in annual meetings. 18 A reform or process to rebuild a security sector of a state to function independently once donor aid and international training cease. 19 DDR is a strategy to enhance stability and security in a post-war state by removing and disposing of weapons of former fighters. In addition, support is provided to former combatants left without livelihoods.

National armed forces, irregular militias and opposition forces are downsized or disbanded through disarmament, demobilization and reintegration. 20 This refers to the strict adherence and consistent application of set laws and impartial rules. Formal justice aims to treat persons fairly within their rights, which is dependent on the rule of law. Usually, an official legalism functions within the parameters of a state or territory to provide set rules and laws. 21 USAID was established in November 1961 to succeed the International Cooperation Agency. This independent agency is mainly responsible to administer international aid and development in developing, war-torn and disaster-stricken societies. 22 UNAMA is a political mission created in March 2002. The mission was formed due to the Afghan government’s request to help Afghans strive for sustainable peace and development. This UN mandate was designed to assist the Bonn Agreement. Recently, UNAMA is assisting the UN Security Council for a temporary peace agreement with the Taliban. 23 UNDP has been operational in Afghanistan since 1966. It has close ties with the Afghan government, international and national partners and civil society groups. UNDP supports security, economic and development objectives of the 2020 Millennium Development Goals. 24 UNODC has headquarters in Vienna, Austria. This UN body responds to connected problems of illegal trafficking of narcotics, human and arms trafficking, international terrorism, crime prevention and political corruption. 25 Interview, member of Afghan Supreme Court, Kabul, 22 April 2016. 26 Interview, Operations Officer of ARTF: World Bank Group, Kabul, 5 June 2010. 27 Interview, Special Advisor to IAM Executive Director, Kabul, 31 May 2012. 28 Interview, Operations Officer of ARTF, Kabul, 5 June 2010. 29 Interview, Attaché for Justice, Rule of Law and Human Rights of European Union Delegation, Kabul, 6 June 2012. 30 Interview, Deputy Chair of Afghanistan Independent Human Rights Commission, Kabul, 27 May 2012. 31 Interview, Senior Rule of Law Advisor for USIP, Kabul, 30 May 2010. 32 Interview, Advisor of High Office of Oversight and Anti-Corruption, Kabul, 4 June 2012. 33 Interview, Chairman of Afghanistan Human Rights Organization, Kabul, 31 May 2012. 34 Interview, Team Leader of Afghanistan Rule of Law Project (ARoLP), Kabul, 3 June 2010. This project was funded by USAID to provide rule of law reform. This reform aims to enhance the institutional and human capacity of the Afghan justice sector. ARoLP also aims to enhance access to justice (namely for excluded women), increase public confidence and demand for the rule of law. 35 Interview, Executive Director of Afghanistan Independent Bar Association, Kabul, 1 June 2012. 36 The ARTF was established in 2002 from the World Bank to collaborate with Afghanistan’s Ministry of Finance to coordinate a financial mechanism, with pooled funding, for the government budget and domestic investment programmes. 37 Interview, Operations Officer of ARTF, Kabul, 5 June 2010. 38 Interview, Head of Transitional Justice for United Nations Assistance Mission in Afghanistan: Human Rights Unit, Kabul, 1 June 2010. 39 Interview, Deputy Country Coordinator and Legal Researcher of Max Planck Institute for Comparative Public Law and International Law, Kabul, 27 May 2012. 40 Interview, member of Afghan Supreme Court, Kabul, 22 April 2016. 41 Interview, member of Afghan Supreme Court, Kabul, 22 April 2016. 42 Since 1996, CPAU has focused on sustaining peace via active participation in education and other peacebuilding programmes. This organization supports local peace councils to report violence and daily disputes to resolve local conflicts such as marital issues and debts. 43 Interview, Programme Director of CPAU, Kabul, 30 May 2012. 44 Interview, Manager for Women’s Rights of ActionAid, Kabul, 26 May 2012. 45 Interview, Director of Integrity Watch Afghanistan, Kabul, 3 June 2010. 46 A not-for-profit Christian development NGO. This NGO has been operational in Afghanistan since 1966. IAM leads projects in health initiatives, medicine, community development, languages and small businesses. 47 Interview, Special Advisor to IAM Executive Director, Kabul, 31 May 2012. 48 Interview, Director of Integrity Watch Afghanistan, Kabul, 3 June 2010. 49 Interview, Team Leader of ARoLP, Kabul, 3 June 2010. 50 Interview, Executive Director of Afghanistan Independent Bar Association, Kabul, 1 June 2012.51 Interview, DFID Justice Advisor: UK Aid, Kabul, 6 June 2010.

52 Interview, Deputy Country Coordinator and Legal Researcher of Max Planck Institute for Comparative Public Law and International Law, Kabul, 27 May 2012. 53 Interview, member of Afghan Supreme Court, Kabul, 22 April 2016.

Acknowledgment

The author would like to thank all the interview respondents, and the organizations involved for

their hospitality. Moreover, the author wishes to express his gratitude to the reviewer and editor-in-

chief, who have spent a lot of time in guiding the author through this learning experience.

Disclosure statement

No potential conflict of interest was reported by the author.

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