T H E L I A I S O N

O F F I C E TLO Program Brief/1 March 2009

Between the Jirga and the Judge Alternative Dispute Resolution in Southeastern Afghanistan

1. Introduction Summary Rebuilding governance in countries emerging from • Restoring rule of law and promoting good war is increasingly a priority in post-conflict governance are necessary first steps for societies emerging from protracted conflict. To this end, peacebuilding. Without the rule of law and good there is a growing realization that nascent governance it is difficult for societies to make the government structures can benefit from transition from war-related lawlessness to peace incorporating aspects of existing traditional and social justice. Often overlooked during the conflict resolution mechanisms. The challenge is reconstruction process are the traditional conflict finding practical ways of linking formal and customary systems. resolution mechanisms that continue to serve portions of the population. On the one hand, • At the request of Khost Provincial Governor, traditional mechanisms of justice and conflict Arsala Jamal, the The Liaison Office facilitated the resolution have been credited as an important formation of the Commission on Conflict survival mechanism for communities that have Mediation (CCM) in Khost in November 2006. Composed of six respected tribal elders, the suffered protracted conflict. On the other hand, Commission provides an alternative dispute they are often criticized for being pre-modern and resolution mechanism akin to western out-of-court lacking adherence to international human rights arbitration. standards. • During its first 18 months the CCM has worked The Afghan Ministry of Justice (MoJ) understands on 31 conflicts: 18 cases have been resolved; 10 cases are currently being processed; and 3 have the severe limitations and lack of capacity of the been referred to the provincial court. formal justice system and has recognized the need to explore ways to link traditional methods of • Key to the CCM’s initial success has been its ability to offer arbitration services free of charge, dispute resolution with the formal system in order and to remain neutral. to specifically address land disputes and civil 1 • Challenges include securing a stable source of cases. Further, the 2007 Afghanistan Human funding, and formally linking the CCM to the Development Report: Bridging Modernity and state judicial system.

1 Justice For All: A Comprehensive Needs Analysis for Justice in Afghanistan (Kabul: Ministry of Justice, 2005) http://www.moj.gov.af/pdf/justiceforallEng.pdf

The United States Institute of Peace (USIP) is currently funding the Commission on Conflict Mediation program in Khost and Paktia Provinces.

Tradition, Rule of Law and the Search for Justice, emphasized the need for a co-evolution of the CCM statistics after 18 months formal and informal legal systems; yet very few local examples exist. Resolved This program brief provides an overview of one 10% example of how traditional and modern governance systems could be successfully linked in order to Pending decrease communal conflict and contribute to 32% stability in Southeastern Afghanistan. 58% Referred to

2. The Khost CCM provincial The formation of the Commission on Conflict court Mediation (CCM) was initiated by Arsala Jamal, the Governor of Khost Province, in 2006. The Governor realized that land- and resource-based Governor’s Office) oversees a customary method conflicts were straining the provincial government, of conflict resolution. and that left unresolved these conflicts had the potential to destabilize the province and region. During its first 18 months of existence, the CCM has been authorized by the Governor to work on 31 The CCM emerged from a large jirga (ad-hoc conflicts: 18 of these conflicts have been traditional conflict resolution mechanism) successfully resolved, with no reported resumption convened on 23 November 2006 in Khost City to of hostilities; 3 conflicts have been referred to the discuss ways of increasing security and stability provincial court; and 10 conflicts are in the process throughout the province. The gathering included of being arbitrated by the Commission. The longest respected tribal elders, religious figures, district open case took the Commission six months to councils, district governors, and line departments. resolve. Building on intact tribal structures, the six-member All of the CCM’s cases thus far have been land CCM is composed of respected and influential disputes. It is estimated that 70 percent of the land elders nominated by tribal representatives in a in Khost Province has no legal documentation of community jirga. The Commission provides an ownership. In many cases ownership is based on alternative dispute resolution mechanism, akin to competing claims/documents which have frustrated western out-of-court arbitration, for resolving the formal court system. As the population of resource- and land-based conflicts in Khost Khost continues to grow, the competition for land, Province. The CCM members work on a volunteer especially in urban areas, is expected to increase basis, receiving only a small honorarium and travel the number of disputes and further tax the and office expenses from TLO. overburdened court system. The CCM is officially authorized to arbitrate One subset of land disputes in Khost with conflicts by the Provincial Governor, who is also escalation and spillover potential is the settlement responsible for selecting and referring appropriate of Afghanistan’s nomadic (kuchi) people. Loss of conflicts to the Commission. After the Governor’s livelihoods as the result of drought and continued referral, the Commission proceeds to investigate, conflict are pushing kuchi to settle permanently on discuss, arbitrate, and, after reaching a consensus, land they have for centuries only inhabited issue a non-binding decision. seasonally. Presently, 12 to 13 land conflicts This complementary framework allows official between settled tribes and kuchi exist in Khost government appointment of CCM members and Province; some of these disputed areas straddle the oversight of case selection while ensuring that Afghanistan-Pakistan border. According to CCM decision-making procedures are still firmly members, these conflicts are of “high concern” embedded in the traditional jirga process. Thus, a because tribal rivalries often have the potential to formal government body (the Provincial escalate rapidly, and the parties involved are susceptible to manipulation by insurgent or criminal groups operating in the region. 3. How the CCM Works

Commission on Conflict Mediation (CCM) Procedural Diagram

2 First the Governor, 1 Identification & and then the disputants, 3 Documentation, Selection of Conflict au4thoMrizaek iCnCgM, is tsouing, and signing investigation, artbhiter dateec itshioen conflict arbitration d • The Commission meets regularly in n ou Religious gr Khost City to update and discuss k c CCM Authorities a b o n Members Party t t i new conflicts or developments. Third en a Courts d i g B A Party B n st c Parties Police pe v e • The Commission works jointly c e I n I ly e d n a l n ? u p I p id t Governor's Office u n iv n Hearing t o with the provinciadl goiovernment and i in is s c s ts e Selects conflict Conflicting i n d t a o f m its line departumen ts in selecting and Parties r s p e d e Di m P r f o identifying iun nresolved conflicts that I d o n c CCM p CCM s u m u u p e t Field Commission n Governor's Office pose a threat to stability in Khost – p o ts r t Regular Meeting holds closed door in g Disputants and c l these mdiscuassyion sbe urgent cases where the a i Additional Governor sign decision Party m CCM members share arrives at a consensus Conflict Officially refers conflict to 6 memberspartiesd eacisiolrneady engage in active (copies of decision go to B t information on new shares this non-binding u Info the CCM chosen on CCM, governor, and p CCM + decision individualy In and existing conflicts a case-violence, or latent conflicts that have with both disputants disputants) members specific NGOs , basis a high escGaovlearntoiron potential. or gov't Shuras , t u representative Third p The Governor refers conflicts to the •P D n e is Party Field Commission I p r Parties m in u fo ta A With permission of both i CCM. r n s Envoys from m t s t s e d in p i d disputants, Commission o disputing parties o iv e Party A n f d id c e u reviews claimant ? c a c sign agreement is ll Courts, io y A documents and conducts giving CCM n Governor or gov't representative Police, permission to independent investigation Governor arbitrate (in Party pashto this is A R Unlike a traditional jirga , wak called wak ) e je at this stage either party c t can reject the Commission's s im nt la decision without penalty Be uy Sc martDraw !- purchased copies print this Commission on Conflict Mediation (CCM) Pro cedural Diagram um ng c r ti d o o p p document without a watermark . s u Visit www .smartdraw .com or call 1-800 -768-3729 . 1 Identification & 3 Documentation, D Selection of Conflict is in p u investigation, fo ta lly rm n t a e s d u arbitration d in iv i n o d iv d io d f d id in is n • Afteer suelecting the conflisct, tche u c a nt d e o 2 The Governor isi lly t a f Religious gr o n u d o k Governor formallyi sapppoe ints the Authorities c CCM and the disputants Party D r m a n b o fo t t i Members authorize the CCM to B in n a Commission; only with government Courts Third e i g d t arbitrate the conflict A CCM Party B n s y c Parties Police pe v e t authorization can the commission i c e n r I I e d n o n h p I p holds closed door t t Governor's Office u begin working on the conflict. u Hearing t discussions A Governor arrives at a consensus Conflicting or gov't Selects conflict decision • A Field Commrepirseseinotantive composed of Parties shares this non-binding permanent CCM members (udseucisioanl linydiv idualy I with both disputants d o n c CCM p s u m u Field Commission u t all 6) and other individuals with p e n Governor's Office p o ts r t Regular Meeting in g knowDilsepdugtean/etsx apnedrience regarding the c la Additional sGpoevceirfnico rc soignnf ldicecti siiso nestablished. Party im CCM members share Authorizes CCM to begin 6 members information on new (copies of decision go to B t working on specific conflict chosen on p u CCM + TheC CFMi,e glodve rCnoor, amndmission contacts n and existing conflicts • I a case- disputants) members specific both parties and asks for permission NGOs , Conflict basis Shuras , to work on the conflict. t u Info Envoys from Third p n disputing parties Party Field Commission Parties I • The authority to deal with a given A sign agreement A With permission of both u t t h conflict (pPashto: wak) is agreed guivpinog nCC M disputants, Commission o e Party A r c i permission to reviews claimant t c y and signed, usually by a delegation Courts, A arbitrate (in Governor documents and conducts pashto this is or gov't representative 4 MPoalkicine,g, issuing, and signing Party of six envoys from both parties. independent investigation the Gdoevceisrniorn called wak ) A R Unlike a traditional jirga , e wak je at this stage either party c t can reject the Commission's s im nt la decision without penalty e c um ng c r ti d o o p p Buy SmartDraw !- purchased copies print this s u document without a watermark . Visit www .smartdraw .com or call 1-800 -768-3729 .

Com m ission on Conflict Mediation ( CCM ) Procedural Diagram

2 First the Governor, Third 3 Documentation, • The parties are then asked to 1 Identification & Parties 4 Making, issuing, and signing and then the disputants, investigation, Selection of Conflict authorize CCM to Courts the decisionprovide all documents that support arbitration Religious arbitrate the conflict Authorities their claimPa.r tyIn unclear cases, the Police CommissioBn members conduct

CCM ly al indepuendent background Members d d n n i o u iv i A ro d is invn esctigations, wc hich include g i e c ? d k C o c t s d e n Party B cu a n n of p o o su m b io a co nsultations with relevant n i p p en t t ut d t f s n a e l i s o t s p c i rt e ig s m t ing d t i r government departments such as m c en es D fo Conflicting r la p v n e im e n Hearing i Parties P d I courts, the agricultural directorate, In CCM C the provincial police department, o CCM holds closed door n f Governor's Office discussions lic Field Commission district governors, Dainspdu tcaonmts manudnity t Daily Meeting Field Commission arrives at a Officially selects conflict With permission of both non-binding consensus Governor sign decision decision members. Conflict Additional disputants, Commission Party Party (copies of decision go to CCM members share Authorizes CCM to begin shares decision CCM , governor, and 6 members reviews claimant A B individually w ith both t information on new • After conducting its own ic working on selected chosen on disputants disputants) fl + documents and conducts n and existing conflicts conflict CCM o a case- C independent investigation investigation, the CCM invites members specific G overnor G overnor or gov't NGOs , or gov't representative basis representatibveoth parties to advocate their claim t Shuras , c l i D f i is verbally in an open forum with the Third n n p t o P f u p e s im o t Parties C nt la r a r e c m Governor or a govere nment m m g n c n e ts Envoys from cu ti d c si do or in s p of rdepresentative presAent. disputing parties oi up d i Party A s e vi n c d sign agreement u Courts, ? is a io l giving CCM n ly Police, permission to Governor arbitrate (in pashto this is Party

Commission on Conflict Mediation ( CCM ) Proccalleedduwraak l) Diagram wak A Unlike a traditional jirga , at this stage either party R e First the Governor, j can reject the Commission's 2 e 1 Identification & c decisDioon cwuithmouet pnetnalttyion, and then the disputants, Governor's Office t 3 Selection of Conflict authorize CCM to 4 Making, issuing, and signing investigation, Selects conflict • The Field Commission convenes an arbitrate the conflict the decision arbitration Buy SmartDraw !- purchased copies print this d internal jirga to discuss the case. n document without a watermark . ou Religious gr Every Commission member can voice ck CCM Visit www .smartdraw .com or call Auth1or-it8ies00 -768 -3729 . a b o n Members Party t t i his opinion before a disTchuirsdsion en a Courts d i g B Party B n st A Parties Police pe v e follows to reach a consensus decision. e n lly c I C a c nd o u ? id e I n iv n Governor's Office n d o p Hearing f i The CCM meets with each party l o in is t • i i c c s e t s t s n d Selects conflict Conflicting i ta o f p u d individually to explain how and why m s e Parties r D i m e o r P f in it reached its decision; only after C d o CCM o c CCM n s u f Governor's Office sensitizing each paruty wmill the CCM l i c Field Commission p e t p o n t Daily Meeting rt s Officially selects conflict holds closed door publicly announce its deicn ision. Disputants and g c discussions la Additional Governor sign decision Party im CCM members share Conflict arrives at a consensus • The parties can then accept or reject Authorizes CCM to begin 6 members decision (copies of decision go to B ct information on new working on selected shares this non-binding l i chosen on CCM , governor, and f CCM + decision individualy the decision. Unlike traditional o n and existing conflicts conflict a case- C with both disputants disputants) members specific jirgas, there is no penalty for NGOs , basis Governor t or gov't rejecting the decision at this stage. c Shuras , i l f representative Third n o Party Field Commission P D • In the case of mutual acceptance, the Parties C e is r i p u t With permission of both m n A fo t a p Envoys from i r n parties and the governor sign the s m ts e disputants, Commission s e d in c disputing parties i d c Party A o o f iv reviews claimant n d id A decision. sign agreement e u Courts, ? c i a l Governor documents and conducts giving CCM s io ly n or gov't representative Police, permission to independent investigation Governor arbitrate (in Party pashto this is A Unlike a traditional jirga , wak R called wak ) e at this stage either party je c can reject the Commission's m t t s a i decision without penalty Be nuy Sc lmartDraw !- purchased copies print this um ing o c rt d p o p document without a watermark . s u Visit www .smartdraw .com or call 1-800-768-3729 .

4. Opportunities and Advantages of the CCM

Collaborative: Eighteen months after its inception, the experience of the Khost CCM demonstrates that, far from being antagonistic, government and traditional justice systems can be mutually of the influence of tribal elders throughout society. reinforcing. Working in tandem, the CCM and Map 1: Khost Province, Loya Paktia, and Pakistan's Federally Administered Tribal Areas (FATA) Provincial Governor have resolved 18 protracted disputes, managed emerging conflicts (inter-tribal “I would say that in the past the work of jirgas was as well as conflicts between district-level transparent and almost all of the tribal elders government bodies), and proactively de-escalated wanted to serve their tribes by resolving their conflicts that threatened to flare up. conflicts and bringing peace among them,” one From a regional security and stability standpoint, Khost CCM member recently noted. “But now I resolution of land disputes like those in Khost can say that corruption is associated with jirgas and Province are important because of the potential for most of the tribal elders do jirgas for their own non-state armed groups operating in Afghanistan’s benefit by taking bribes or by taking khalaat [a Pashtun Belt and Pakistan’s Federally customary fee for conducting a jirga]. Such things Administered Tribal Areas (FATA) to exploit influence the process of decision making and most them. of the time unjust decisions are made in jirgas.”

A program like the CCM is also important from a Even though tribal systems have gradually larger post-conflict peace- and state-building weakened during the last 30 years of conflict, these perspective. If the stated aim of the donor systems still remain relatively strong when community, international organizations, and host compared to government justice mechanisms which governments is to seek out traditional conflict have been largely absent or ineffective in much of resolution mechanisms and find ways of rural Afghanistan. It is clear that both formal and incorporating customary law into emerging, and customary systems have weaknesses. It is also clear often overburdened formal justice systems, then that in Southeast Afghanistan tribal systems need the CCM represents a practical opportunity for the government as much as the government needs these actors to transform peacebuilding and tribal systems. reconstruction rhetoric into real programming. A crucial difference between the CCM and Impartial and Accessible: Though conceived as a traditional conflict resolution mechanisms is that practical means of addressing the low capacity and the Commission’s services are provided to the local mistrust of formal justice systems at the disputants free of charge. Customary structures provincial level, the CCM also provides an usually request the provision of meals, cash, and alternative to traditional forms of tribal dispute transportation for elders or tribal leaders who assist resolution increasingly seen as corrupt and in the resolution of conflicts. In addition to ineffectual after being damaged by successive payment for services rendered, disputants often years of conflict. make an up-front deposit of cash, livestock or weapons as a means of guaranteeing that they will Even as the tribal social code of pashtunwali accept the jirga’s decision. By signing the remains relatively intact in Khost Province, the agreement which gives a jirga permission to handle jirga method of resolving disputes (in which a conflict, the disputants submit themselves to any disputants pay jirga members for their role as decision whatsoever, tempting them to unfairly mediators and arbiters) has weakened. The influence the decision-making body. Further, the weakening of jirga is linked to an overall erosion deposit (machalga or baramta in Pashto), which is meant to show each side’s commitment to the process, leads many parties to accept the decision in order to get their money back. In many cases these economically motivated agreements are soon broken. When the Commission started By removing payment from the process and adding people didn’t know about our government oversight, the CCM decreases the “wo rk. Now the Commission is potential for bribery and insures that disputants enter into agreements that are not financially quite popular and even motivated. Moreover, the jirga process tends to conflicting parties ask the disadvantage lower income groups unable to cover the expenses of mediators or make the traditional Governor to refer their ‘good faith’ deposit. Thus, the no-charge CCM disputes to us. Khost CCM Member mechanism allows greater access to justice for a wider portion of the population. Effective: Despite, or maybe because of, the lack of machalga, the CCM has been successful in reaching lasting agreements. Commission members also attribute their success rate to the manner in which they inform the disputants of their decision. that continues to beguile state-building efforts. As the Afghan government attempts to establis”h itself “Before announcing our decision we talk to conflicting parties and share it with them and even as a legitimate presence in rural Afghanistan, listen to some of their suggestions,” a Commission government officers (from governors to magistrates member stated. “This is why our decisions are to police) will need to build up their credibility, one accepted. We do not have any other way of doing this is working with and through implementation force for our decisions.” However, customary bodies like the CCM. the Commission has not hesitated to use its formal linkage with the Governor to facilitate agreements. 5. Challenges “When one of the parties doesn’t listen to us,” a Sustainability: The CCM has been effective CCM member stated, “we share [this information] because it has had government support and is seen with the Governor and he invites the party for as a legitimate, impartial, and accessible forum for further discussion.” The Governor and the party are disputants to resolve conflicts. As mentioned free to explore other possible solutions and/or above, unlike traditional jirga mediators the compromises. Commission is not paid by the disputing parties; In one sense, the CCM has bridged the gap and unlike the formal justice systems, the CCM is between formal and customary systems by not reliant on government funding. In the long allowing the government to have oversight of case term, however, government funding will be selection while remaining accountable to the necessary to make the CCM sustainable. In fact, community it serves. As a result, the community active government involvement is vital to the and the local government view the process as continued success of the Commission in Khost and legitimate, and both benefit: community members is the sine qua non of expansion into other have greater access to justice and the strain on the Provinces. Looking ahead, the challenge is for the court system is decreased. CCM to retain a level of independence while becoming a state-supported entity. The Commission has also bridged a less visible, though arguably more important gap: the In the immediate sense, however, the CCM’s long credibility gap. The legitimacy of ‘modern’ term sustainability is directly tied to enhancing its governance systems in tribal societies depends on present capacity and increasing awareness (at the the credibility of those who institute and operate community and government level) of the these systems. The fact that personal credibility is a Commission’s services and potential. These prerequisite for institutional legitimacy is a reality immediate priorities require securing a stable tailored to local beliefs and conditions,” and has source of external funding. recommended “stronger linkages […] between the Recognition: Realizing the Commission’s potential state system and the traditional systems,” the 2004 to lighten the case-load for the provincial Afghan Constitution makes no reference to 2 government, the Governor of Khost has been a customary law. Thus, it remains to be seen what strong supporter of the CCM. By contrast, the legal weight a CCM decision, even when signed by Khost Provincial Court tends to see the the Governor, actually carries. Commission as competition, and has in some cases blocked the CCM’s request for land title documents. The mistrust of the Provincial Court 6. Moving Forward can be partly traced to the CCM’s ambiguous status TLO, with funding from the United States Institute within the Afghan judicial system. of Peace (USIP), is strengthening the CCM in Khost and expanding the program into Paktia While the Afghan Ministry of Justice has praised Province. Building on the success of the Khost customary law as “flexible, adaptable justice Commission, while taking into consideration lessons learned from an ongoing evaluation of this project, TLO aims to Lessons Learned • Build institutional memory for government officials and CCM members • Linkages between traditional and in Khost by developing a tribal conflict database which will record, map, and modern conflict resolution mechanisms manage information on conflicts within can be found and used in support of, the district and catalogue CCM case files;

and complimentary to, state-structures. • Increase the number of permanent Khost • Customary mechanisms can be used CCM members from six to eight in order strategically as a government-approved to ensure greater tribal representation; out-of-court mediation/arbitration • Expand the CCM to other provinces throughout Afghanistan using the Khost mechanism. Commission as a model, while adapting to • Collaboration between traditional and the different social structures and modern systems enhances the capacities that exist elsewhere; transparency and accountability of both • Explore ways of developing a working relationship with the provincial court, and systems. establishing a place within Afghan law for • Communities appreciate conflict a customary arbitration mechanism; resolution that is free of charge because • Evaluate the success of the Khost CCM to it does not disadvantage the less affluent determine if the program is effectively meeting the needs of the community, and population, increases overall access to is sustainable over the long-term. justice, and can decrease corruption.

• Because the state court system and the CCM have much to offer each other, establishing a formal working relationship between the two bodies is vital for the CCM’s existence.

2 Justice For All, 4

H E T L I A I S O N

O F F I C E

Created in 2003 with a mission to facilitate the formal integration of communities and their traditional governance structures within Afghanistan’s newly emerging governance, security and reconstruction framework, the Tribal Liaison Office (TLO)

maps, researches, and analyzes ongoing conflicts in the Pashtun tribal areas, and prov ides expertise and logistical support to community-based conflict resolution. TLO focuses on a participatory approach to post-conflict peacebuilding that uses processes of customary Afghan structures such as jirga and shura, and thus differs from state-building that directly or indirectly only emphasises modernity. This approach, drawing on the “do-no-harm” and “reflecting on peace practises” frameworks, acknowledges the existence and importance that customary structures still hold in the minds of many Afghans—patrons and clients alike. TLO’s overarching goals are to serve as a platform for constructive dialogue in the Pashtun Belt, build the capacity of provincial actors to facilitate governance and development initiatives, and promote cross-regional dialogue. Presently, TLO is designing methodologies and models to address two objectives:

• Improving human security and governance in tribal areas: This includes activities that address aspects of freedom from fear (prevention, management and resolution of conflict with a diverse set of tools) and freedom from want (design and implementation of development objectives, and facilitation of projects that enhance the livelihood of communities, especially in the area of natural resource management);

• Supporting the Afghan government’s ability to carry out its Responsibility to Protect (R2P): Currently the Afghan government is not fully able to perform its responsibility to protect its citizens from conflict and violence (especially in the volatile areas of the Pashtun Belt). TLO aims to foster linkages between customary and other community structures and the Afghan government in order to improve on and strengthen the government’s capability to deliver in this regard

In addition to its headquarters in Kabul, TLO has regional offices in the Southeast (Paktia), South (Kandahar), East (Nangarhar); and four provincial offices (Khost and Paktika in the Southeast, and Helmand and Uruzgan in the South).