Federal And Customary Tribal Law Butt Heads In Afghanistan, With Troubling Consequences

Afghan Men

Photo: ISAF Media via Flickr

Dr. Kathleen Reedy is an anthropologist who opted to work with the military and served 15 months in Afghanistan on a Human Terrain Team.  She has some great insights into the sociopolitical challenges that Afghans are struggling with based on her recent experiences.  She is currently working for the DoD and is preparing servicemen to go downrange as advisors not just in Afghanistan, but across the globe.  I had the good fortune of crossing paths with her this month and was glad to find that the DoD has invested in real academics with recent field experiences to provide important insights and training for our service members. I came across her most recent article which appeared in Military Review and is entitled “Customary Law and Its Challenges to Afghan Statehood.”  I think this topic is relevant to the larger discussion about the future of Afghanistan for several reasons.  Not the least of which is that in order for any form of legitimate and lasting governance to take root in Afghanistan at the state level, Afghans are going to have to find a way to set aside some of their traditional practices and accept the writ and rule of GIRoA.  This is no small task and Dr. Reedy sets out to first explain the conflicts between state and local systems and then offer suggestions on a way forward.  While I’m not convinced that what she proposes is achievable in the near term, I do believe that she’s on the right path and that we’d all do well to understand her argument.

“They (Afghans) use the government as an alternative for justice, but it is not their preferred source for it, and this says a great deal about how effective the central government has been in extending itself into the everyday lives of the people. This kind of arrangement should come as no surprise to anyone familiar with Afghanistan or other societies where customary forms of justice are prevalent. However, in a country where government legitimacy is constantly in question, being in second place as a provider of governance has serious implications for state stability.”

“Dispute resolution, especially when a dispute involves violence or death, provides a fault line to examine to what extent a government has developed influence central to its credibility and power. A lack of government services and the resulting absence of popular support are prerequisites for an insurgency, so developing the formal judicial system and extending it across the entire county is a necessity for stability.”

This strikes at the very heart of the matter.  Traditional forms of dispute resolution remain the default for many Afghans, the vast majority of whom live in rural areas far outside of any persistent or meaningful government influence.  These tribal and local structures, when operating correctly, provide a legitimate and acceptable form of justice at the local level.  Decades of war and constant power struggles have consequently eroded the efficacy of these traditional systems and they have become less reliable, co-opted by violence and are prone to corruption.  As a result, some Afghans are tuning to the state for justice but are doing so as an effort of “last resort” and not out of a genuine desire to have their disputes resolved by the state.

In Afghanistan it is readily apparent that there is an expectations problem when it comes to justice.  Dr. Reedy points out that Afghans live at the local level, have no real belief that the current government structure will last and therefore see no lasting role for the government to fill as an arbiter of justice. Furthermore, she asserts that incorporating traditional forms of governance as an acceptable means of dispute resolution is detrimental to the long-term stability of the Afghan state.

“In Afghanistan, we must work with the existing political structures. No new or regional governance structures have appeared spontaneously. Afghans live at the village level and see no gap to fill.”

“…the current set-up of resolving problems in the absence a legal system merely highlights that the state has once again failed to provide an essential service to its people. As a result, Afghans continue to regard their informal, customary power structure as being the first and final authority.”

“Systemizing the current informal arrangements is therefore detrimental to the long-term stability of GIRoA as a state…. Ordinary Afghans already expect their new national government to fail as all the others have and are content to wait for this to happen. Government longevity and authority based on popular consent require the development of a judiciary that is effective, independent, accessible, and unquestioned.”

“Some—especially those whom customary law victimizes or leaves behind—actively seek the help of government, but the government is unable to provide it. If the GIRoA wants to be a state, it must act like one, and that means becoming the most popularly accepted source of justice and rule of law around.”

Dr. Reedy suggests that both GIRoA and the coalition should discard continued attempts to institute local  dispute resolution solutions and should instead focus on “rapid and aggressive improvements to the Afghan judicial system.”  She outlines six key tasks in which should be pursued in the effort to develop the Afghan judicial system.

● Capacity. To fill the gap, the GIRoA needs to quickly develop and train a strong corps of judges and lawyers, or legal-advisers-in-training knowledgeable about the formal law.

● Presence. The legal professionals need to be in every district, especially rural ones that do not have access to provincial courts.  They must work full-time, be available to all, actively seek out situations where they can become involved, and not cross boundaries separating the judicial role from the executive one.

● Degree of involvement.  Every situation, accidental or intentional, involving death should be the government’s responsibility to investigate.

● Transparency and trust.  Accusations of corruption are hard to fight, but the best way to do so is to provide oversight to ensure rulings are fair and just.  The government then must make judicial proceedings public, perhaps by having weekly radio broadcasts of current cases and impartial dispute resolutions.  Such public announcements will help develop popular trust in the system and enforce accountability.

● Enforcement.  The customary dispute resolution system generally works because people buy into it.  Creating a reliable and trustworthy formal judiciary process will help create the same buyin, but the police must be ready to get involved, regardless of personality conflicts.

● Community involvement.  Although this method places the GIRoA in the forefront, it does not lose the elements of community involvement in dispute resolution.  Judges and lawyers can call in local elders to provide advice, with the understanding that they are there by invitation and that ultimately the judges’ decisions are final, even if contrary to their recommendations or to traditional customs.

Dr. Reedy is calling for GIRoA to stand up and “act like a state” which I find both a fantastic suggestion and at the same time improbable.  After reading the article I had a flashback to Tilly’s argument that “wars make states and states make war.”[1] While there has been no shortage of war in Afghanistan, a sustainable state has yet to emerge and I have to wonder why?  More importantly, I have to wonder if it’s possible in the future.

Disclaimer: The postings and opinions expressed in this article are the author’s alone and do not represent the positions, strategies or opinions of the Department of defence or any Government Agency.

* Read more of Dr. Reedy’s insights on Afghanistan and Iraq at her blog Marking Time and Living War.

[1] Tilly. C. 1975 The Formation of National States in Western Europe. Princeton: Princeton University Press. Tilly, Charles (1990). Coercion, Capital, and European States, AD 990–1990. Cambridge, Mass., USA: B. Blackwell.

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