TLO-Policy Brief / 2 December 2013

Where Do We Go from Here? Towards Improved Structures for Dispute Resolution in

Summary TLO’s practical experience has shown that 1 Introduction engaging traditional dispute resolution Despite more than a decade of concerted providers does not systematically undermine effort, Afghanistan’s state dispute women’s rights. Blanket denials as to the resolution capacities remain a work in willingness of “traditional” leaders to uphold progress. At the same time, non-state women’s rights are overbroad; at the same capacities – particularly those offered by time, TLO experience has shown great tribal and religious leaders in certain parts diversity in tribal leaders to engage with of the country – have retained a significant women’s rights. The most important entry degree of integrity and legitimacy. point in this regard is Sharia law. Between 2009 and 2011 the Afghan Engaging traditional dispute resolution government and international community providers does not undermine Afghan undertook dedicated steps to develop government authorities and empower local mechanisms by which state and non-state elites, NGOs and international donors. dispute resolution providers could interact Linking the state to these traditional dispute within a recognized policy and legal resolution processes in various capacities framework. These efforts bore some fruit, serves to increase, rather than diminish, including a Draft Policy on Dispute state involvement in the justice sector Resolution Shuras and Jirgas that received broadly defined. In particular, provincial and significant buy-in, and a Draft Law on district authorities usually cooperate Dispute Resolution Shuras and Jirgas that productively in developing links to non-state proved highly controversial. Ultimately, capacities, and seem to see significant however, the Afghan government adopted practical improvement to the government’s neither document, reportedly due to reach and effectiveness. opposition within the Ministry of Women’s Affairs, Supreme Court and other institutions. The Liaison Office is grateful to funding provided by the Heinrich Böll Foundation for this policy paper.

Since that time, significant non- present in the Southeast (Section 2), the governmental work on state and non-state paper will go on to discuss particular dispute resolution collaboration has lessons TLO has learned on dispute continued – not only by The Liaison Office resolution stakeholder engagement: more (TLO), but also by the Peace Training and specifically on effectively engaging non- Research Organization (PTRO), the Welfare state dispute resolution providers Association for the Development of themselves, on working with women, and Afghanistan (WADAN) and others – while on promoting women’s rights, during official efforts appear to have stalled. engagement; and increasing collaboration Based upon the experiences of TLO – with the Afghan state. After reviewing active in working with both state and non- these lessons learned, the final section of state dispute resolution structures since this policy brief will attempt to outline a 2007 – this policy brief has two goals: 1) to path forward on dispute resolution issues. offer practical lessons from TLO’s programming on the most contentious 2 Setting a Baseline aspects of state-non state dispute TLO’s dispute resolution programming has resolution collaboration; and 2) to develop focused on Loya Paktia for a variety of a practical way forward for all stakeholders interrelated reasons. On a practical level, it seeking to improve Afghanistan’s systems was tribal leaders in Khost who first of dispute resolution – local communities, approached TLO with a request to help non-governmental organizations, the them facilitate a dispute resolution Afghan government, and the international commission bridging state and non-state community. stakeholders (termed a Commission on This policy brief will focus most intently on Conflict Mediation or CCM).1 On a TLO’s experiences in the Loya Paktia region theoretical level, beginning such work in (Paktia, Khost, Paktika, and parts of Ghazni Afghanistan’s Southeast also made sense. and Logar), while also drawing on lessons Observers have frequently noted the learned in other parts of the country. strength of the region’s tribes2 and, Although we do not in this policy brief especially in light of Afghanistan’s decades aspire to lay out a comprehensive of upheaval, a notable degree of continuity framework for the interaction of state and in their leadership structures and decision- non-state dispute resolution providers, we making processes (if not in the rules of do hope that the experiences of TLO will decision they follow, or, certainly, in their provide insight on issues surrounding this actual leaders), in large part because interaction, and provide a rationale for re- Afghanistan’s Communist government in starting national dialogue on dispute the Southeast did not “bring the fight” to resolution issues. rural areas or purge local elites to the same extent it did in other areas, such as To this end, after describing Afghanistan’s the South.3 As a result, Southeastern tribes dispute resolution systems as they are

TLO Policy Brief 2/2013 – Justice 2 have been able to maintain a high degree repeatedly resisted resolution, taking place of autonomy from the state. over a large geographical area or Even as the terms of tribe-state important economic resources, and/or interaction, have certainly continued to characterized by violence – usually take evolve, this same general pattern seems to place not over agricultural land but, most persist in the provision of dispute commonly, over the region’s valuable but resolution services in the Southeast. Here, dwindling forest resources. Within Khost tribal leaders have maintained primacy province along, TLO has documented several dozen such disputes taking place with, as further discussed below, Afghan state and insurgency systems in subsidiary currently, but with some dating back more roles. At the same time, practical tribe- than 100 years. Here, as with smaller state cooperation is occurring, if not quite disputes, tribal leaders take the lead in frequently, then at least on a regular resolution efforts, even in some disputes basis.The insurgency in the Southeast has with levels of violence approaching armed 7 vacillated between tolerating a degree of conflict. autonomy in tribal dispute resolution, and 2.2 Government Involvement competing, sometimes violently but so far with limited success, in the provision of By contrast, TLO has not observed any dispute resolution services. systemic pattern of government involvement in dispute resolution in the 2.1 The Place of the Tribes in Southeast, although occasional, important Dispute Resolution intervention does occur, particularly by the As underlined by a now-substantial body of executive branch. research, tribal leaders resolve the 2.2.1 The Executive majority of disputes in the Southeast, both in rural and urban areas.4 The most The executive appears to be the most common sort of dispute seems to be over active of all Southeastern government land, usually less than one jerib (0.2ha).5 organs in dispute resolution. Within the This aligns with the historical pattern of aforementioned survey of major conflicts land ownership in the region, in Khost, TLO found executive branch characterized by a large number of small, involvement in the resolution or independent landowners. Tribal leaders attempted resolution of 21 out of 40 cases. within the dispute parties’ village appear Notably, though, the executive appears to be able to resolve such disputes fairly only rarely (if ever – TLO found no actual quickly (within a few weeks or months) examples) to act as a dispute resolution and without the parties resorting to provider as such. Rather, district violence.6 governors, provincial governors, and to a By contrast, major disputes in the lesser extent chiefs of police, are Southeast – defined as those having organizing, sitting on and, occasionally,

TLO Policy Brief 2/2013 – Justice 3 observing the enforcement of jirgas as well capacitated to evaluate land claims comprised primarily of tribal, and with a resting on witness testimony, community smaller complement, religious leaders.8 memory, or informal title documents. Jirgas with executive branch involvement As a result, court intervention is scarce: comprise only a small part of the total. most dispute parties are reluctant to More minor disputes, certainly the large approach the court, and the courts seem majority of disputes overall, TLO could find reluctant to address many claims, even no comparable examples of government when they appear.13 involvement.9 Nevertheless, this type of government involvement – led by the 2.3 Insurgency executive, filtered to an extent through Despite the region’s purported insecurity, tribal leadership – appears to be the most Taliban14 dispute resolution also appears common in the region. limited in its scope. While the do attempt to apply sharia law in the 2.2.2 Courts Southeast, they are also forced to Court involvement appears less common, compromise and let the traditional or for reasons of both history and practicality. customary justice system resolve Historically, the high degree of autonomy numerous issues using Pashtunwali. In of the Southeastern tribes has enabled these instances, Taliban involvement them to resist government attempts at appears broadly similar to the involvement expansion of services, or registration of of the government executive branch, with persons or property holdings, even when the Taliban playing a role in liaising with, those efforts have been well funded – and supervising, the decision making of which has not always been the case. This tribal and local religious leaders. has included resistance to government Disputes between two tribes, subtribes, mass attempts to survey land and villages or manteqa15 seem to be a distribute land title, which have occurred particularly tricky issue. Taliban case periodically, especially since the 1960s verdicts which seem to be partial or (and in large part with USAID funding).10 observe only one conflict party’s rights As such, at most five percent of may not only be challenged by the other landholders in the region appear to conflict party but lead to their opposition possess government documents for the to the Taliban in general. In such cases, land they are using. This paucity of formal where the relations of force do not allow title, on the one hand, creates a reluctance the Taliban to impose a verdict, they prefer to go to the court11, as land without formal to refer the case to local mediators or title in most cases reverts to government tribal elders to solve it for tactical reasons. ownership.12 On the other hand, judges Similarly, more sensitive conflicts (between and other government officials in the families or involving women) are often Southeast do not seem to view themselves

TLO Policy Brief 2/2013 – Justice 4 referred to tribal elders or local mullahs 3 Lessons from TLO’s because they know the context of the Programming and Research conflict better than Taliban judges. This is not to say that the Taliban simply let The above represents TLO’s understanding, tribal processes play out autonomously. A supported by substantial research, of the Paktia resident said that “when [the] dispute resolution conditions that prevail Taliban judge or Taliban commanders refer in Afghanistan’s Southeast. This research, conflicts or local problems to local mullahs complemented by our implementing or spingiri [white beards], they follow up experience, has led to TLO incorporating a on the case to make sure the verdict is number of premises into our dispute impartial and to ensure that both parties resolution programming: 1) In areas where accept the decision when the mullah or research indicates a relatively high degree spingiri make decisions. Taliban also stamp of tribal cohesion, such as the Southeast, the spingiri’s decision so that both parties tribal leadership retains a reasonable know that Taliban agree and fully support degree of legitimacy, or at least is seen as a the decision.”16 more equitable and desirable provider of dispute resolution services than the This process stands in contrast to more available alternatives; 2) This leadership is fully articulated Taliban dispute resolution inevitably somewhat fragmented (e.g. systems elsewhere. In other areas where between tribes with a historical rivalry), the Taliban are relatively established, such but effective programming requires 17 as parts of Logar and Kunar, residents engaging a broad spectrum of tribal (or generally know where the Taliban courts other ethnic) groups; 3) Although tribal are located. For example in Khurwar and forms of dispute resolution do not, as a Charkh districts of Logar, people know that habit, deeply engage the state, the system they should write Ariza (petition) first to is not itself anti-state; and 4) although the District Governor, who refers it to the tribal dispute resolution bodies do not as a District commission and then the District rule observe the rights of women, the Judge who will decide whether he or local system itself is not necessarily anti- mullahs or tribal elders will solve the woman. conflict. “If there is conflict, people write their complain or suit against the opposite The first two premises appear relatively person, then go and present their letters to uncontroversial, although they do contain Taliban district governor, then governor important implications for working in areas refers the letter to commission and then where the population is not tribal, or commission refers it to the judges.”18 where tribal structures have degraded. By contrast, premises three and four are highly controversial and have formed the core of resistance to working with tribal dispute resolution providers. After

TLO Policy Brief 2/2013 – Justice 5 discussing our experiences working in On the one hand, CCMs which TLO has tribally strong versus tribally weak or non- facilitated in Khost, Paktia, and Logar have tribal areas, we will lay out the lessons we compiled an impressive record of dispute have learned from working with women, resolution. In each province, TLO began and promoting women’s rights, within our with its own surveying to identify dispute resolution programming, and how tribal/ethnic groups (including minority we have been able to carry out such groups such as Kuchis), and the leaders of programming in a way that appears to such groups. This surveying led to lists of strengthen, rather than weaken, potential CCM members in each province government involvement in dispute (the lists of potential members varied resolution. If TLO’s observations of dispute considerably in length, as the Khost CCM resolution in the Southeast are accurate, has been operating since 2007, the Paktia then both engaging tribal leadership, and CCM off-and-on since 2008, while the doing so in a way that goes toward Logar CCM was a new initiative). TLO then answering objections to Afghanistan’s non- further refined these lists through state dispute resolution systems, will be additional research, internal consultation necessary if collaboration between state (e.g. with TLO employees highly and non-state systems is to occur. knowledgeable of the area but not working on the project as such), and consultation 3.1 Engaging Tribal Strength with both NGOs working in the area, and For the most part, the recommendations in each province’s government (line this policy paper derive from TLO’s work in departments, Provincial Council, Provincial an area of notorious tribal cohesion. Governor, etc.). TLO’s criteria for selecting However, that condition does not obtain final CCM membership were that each for Afghanistan as a whole. Some member should be a credible provider of populations, such as Tajiks, are non-tribal, dispute resolution services; acceptable to and have traditionally adopted various all project stakeholders, and particularly other forms of social organization.19 In the provincial government; and that CCM other areas, tribal structures appear weak, composition would need to include all with tribal leaders not able to counter the major ethnic and tribal groups, including power of local commanders or insurgents, minority representatives. and frequently unable to enforce their Between September of 2012 and October 20 decisions. Within areas of tribal strength, of 2013, these CCMs resolved 67 conflicts. TLO’s dispute resolution programming has Most of these were land and resource achieved considerable success. By conflicts between tribes and sub-tribes, contrast, within areas of tribal weakness, both in areas of government control, and such programs have encountered great outside government control. They have difficulty, and seen their effectiveness also included a smaller number of sharply limited. instances where the CCMs have arranged a

TLO Policy Brief 2/2013 – Justice 6 ceasefire in particularly violent conflicts, have been more disposed than others to though without resolving the underlying lend it valuable support.22 conflict as such; and a number of family Within , unlike Deh Rawud, TLO cases, particularly involving women’s rights encountered an area where tribal leaders of inheritance and divorce, as will be had lost considerable ground as insurgency explained in the next section. and pro-government forces competed for Ascertaining the success of dispute territory and influence. Because of resolution activities is neither short-term insurgent threats, the shura could only nor simple. But, within these very meet infrequently, and in secret. In turn, important limits, TLO regards these CCMs when the shura did address cases, parties as robust and successful bodies, and very with insurgent connections seemed to find much hopes to work with them on future it fairly easy to brush off CCM decisions. endeavours. That the shura was able to occasionally Of course, not all TLO projects have met meet, and did at times negotiate with the same success. TLO’s experience successfully for its decisions to be with CCMs in Deh Rawud district of implemented, speaks to the dedication of Uruzgan and Grishk district of Helmand is its members. However, like the Deh Rawud CCM, TLO could not in truth identify any particularly instructive here. particular improvement in Grishk’s overall Deh Rawud district is divided among the dispute resolution due to the CCM’s Popalzai, Babozai, and Noorzai tribes activities. (putting aside for the moment smaller groups). The CCM in that district, however, TLO does not attribute this lack of success did not meet regularly, and ultimately TLO to insecurity per se: Logar is hardly more could not attribute any particular secure than Helmand, but the former CCM improvement in district dispute resolution is extremely active throughout the to its activities. Upon examination, TLO province. However, within Logar, tribal found that, amongst other issues, shura structures have shown themselves to have leadership had not taken substantial steps maintained sufficient autonomy for to engage with Noorzai leaders – perhaps collective decision-making, and decision the district’s largest tribe21, but one at the implementation, to take place. In the case time somewhat marginalized from both of Grishk, however, tribal centres of power government and insurgent sources of were simply unable to function effectively influence. Although it does not fully in the face of massive outside pressure. account for the shura’s non-performance, Taken together, these data indicate that TLO’s failure to ensure involvement of all CCM-type bodies may operate in both district tribes arguably cut the shura off secure and insecure areas – so long as tribal structures in those areas have from the support of groups that might maintained a degree of coherence and autonomy.

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Similarly, when working with the provincial violative of individual, and particularly CCMs in Khost, Paktia, and Logar, TLO took women’s, rights.23 TLO acknowledges the great pains to emphasize the neutrality validity of some of these criticisms. For and inclusiveness of CCM set-up. In the example, TLO has found with great case of Paktia, this meant, as a focal point consistency that Afghanistan’s non-state for the CCM, not working with tribal forms of dispute resolution deny virtually leadership at all, but with a prominent all property rights to women, notably in local religious leader seen as neutral contradiction to sharia law. between Paktia’s major tribes. This However, TLO’s research and experience credibility-via-neutrality has in turn built have also shown that many people, the capacity of the Paktia, Khost, and Logar including women, derive a great benefit CCMs to operate in all areas and among all from these same systems via the disputes tribal groups. For example, in 2012-2013, they resolve and the subsequent stability the Khost CCM resolved several disputes in they foster. What is more, TLO has also highly insecure districts such as Mandozai found that patient effort can at least and Spera, and even Naka district of partially address human rights, and ; while the Paktia CCM particularly women’s rights, concerns was able to address cases in areas about non-state dispute resolution including Wazi of Paktia systems. province, and Tere Zayi district of . This ability to operate province- A key entry point for addressing women’s wide, and even across provincial and human rights in Afghanistan’s non- boundaries, points both to parties state dispute resolution systems is in throughout the region seeing the CCMs as Islamic Sharia. Although non-state dispute a desirable dispute resolution option, and resolution providers remain by and large to the CCMs themselves being well sceptical of human rights and women’s 24 embedded in, and supported by, expansive rights as concepts , they are willing to tribal networks. Where these tribal listen – on even highly controversial issues networks have degraded, or where TLO – to intermediaries whom they respect, has not fully engaged them, CCMs have and particularly intermediaries who have functioned far less well. religious credibility. Along the same lines, TLO’s experience, and that of others, 3.2 Working with Women strongly indicates that non-state dispute Even in those areas where tribal structures resolution providers hold acting according remain functional, a significant number of to the dictates of Islam as important, and 25 women’s and human rights organizations would prefer to do so whenever possible. have, with reason, resisted working with Within the past year, the CCMs in Khost non-state dispute resolution providers, and Logar, for example, have proven seeing them as arbitrary, inconsistent, and instrumental in improving the situation of

TLO Policy Brief 2/2013 – Justice 8 at least a small number of women. Here, rights are at the least overbroad. When all TLO had provided the CCM members with the evidence is taken into account, Sharia-based training in family law topics. improving women’s rights within non-state In one subsequent case, the Logar CCM dispute resolution bodies does appear learned of a woman whose husband had possible. abandoned her, moving to England while TLO’s work with men’s and women’s non- leaving her in Afghanistan and refusing to state leaders reinforces this point – while grant her a divorce. In this case the CCM, also pointing to the importance of local applying family law principles derived from context. While developing dispute Sharia, decided that the woman should be resolution guidelines in Nangarhar, TLO given the divorce which she requested. collaborated with around 30 tribal and They also negotiated the agreement of the religious leaders, and around 15 women’s husband’s family to the divorce. In turn, in leaders (the precise numbers varied another recent case the CCM upheld the meeting to meeting). Collaboration did not inheritance rights of a woman and her son begin robustly, with each group preferring against claims by the woman’s brothers. to engage the other via the intermediary of Similarly, the Khost CCM has periodically TLO. Nevertheless, by the end of the cooperated with the provincial Women’s project, dialogue between them became Affairs Department (WAD). Here, the frequent, and, when TLO polled the group, Department meets regularly with CCM about 90% of both men and women stated leadership, and has referred at least one that they would now be comfortable case to the CCM. This case also saw the sitting on joint male-female working CCM upholding a woman’s right to divorce, groups – whereas, at the beginning of the and the CCM, before finalizing its decision, project, both men and women had submitted it to the WAD for approval, rejected this idea out of hand. which was granted. It is within this context that TLO is now TLO does not wish to overstate these evaluating the set-up of women’s CCMs in gains, which have proceeded unevenly and Khost, Paktia, and Logar. The idea for these tended to be greatest in those bodies with CCMs did not come from TLO (although higher levels of education ex ante (such as substantial local variation exists, TLO the aforementioned Logar CCM, as well as research tends to show women’s councils a group of elders with whom TLO was as not being particularly sustainable or working in city). They also effective; hence, until recently, TLO has directly benefit a fairly small number of not pursued them). Rather, the idea began women, and do not deeply engage issues with the Logar CCM and then, after of women’s unequal treatment in other discussions where representatives of the aspects of life. However, they also indicate three CCMs were meeting together, to that blanket denials as to the willingness of have been adopted by the Khost and “traditional” leaders to uphold women’s Paktia CCMs as well.

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The logic of male tribal and religious provocation, and which would thus leaders endorsing the creation of women’s endanger the women undertaking this dispute resolution councils is also notable. activity. While the CCMs are resolving women’s cases, the men composing the significant 3.3 Working with Government majority on each CCM, are not well As with women’s rights concerns, major situated to address these disputes (e.g. stakeholders have questioned whether they are not able to interview parties to working with traditional dispute resolution the case who are women). As currently (TDR) providers might actually undermine constituted, no good options exist for efforts to better establish Afghanistan’s increasing the number of women leaders courts and other government institutions. sitting on the CCMs. Thus, because CCM For example, in a recent paper Torunn leadership wants to see women’s disputes Wimpelmann has argued that the rise of addressed, but cannot do so themselves, what she terms the “informal justice they feel women’s CCMs are a good assemblage” empowered international option, to which the local population, and donors, local elites, and NGOs (she even local insurgents, would not mentions TLO explicitly), at the expense of necessarily be opposed.26 Whether Afghan government authorities women’s CCMs ever become a reality or accountable to their constituents.27 not, this course of events tends to show Even putting aside that the formal “justice local “traditional” leaders as being at least assemblage” in Afghanistan has been far somewhat solicitous of women’s more well-assembled and well-funded wellbeing, and even not opposed to than its informal counterpart28 29, such an women assuming a more public leadership analysis seems to discount the benefits of role, at least under certain conditions. engaging rural stakeholders – primary Finally, it must be said, these “certain “informal justice” providers often not conditions” matter a great deal. In deeply involved in Kabul-driven particular the prescriptions offered by the statebuilding processes – as well as the Southeastern CCMs contrast with TLO’s potential of such programming to link the experience in Nangarhar. In the latter case government to non-state justice processes. men and women leaders were far more Because these processes are resolving open than their counterparts in Paktia, most cases and controversies in Khost, and Logar to undertaking joint work Afghanistan and because the state role in – but Nangarhar women’s leaders in them, ex ante, is minimal, linking the state particular opposed the creation of a to these processes, in practical terms, women’s CCM, or increased women’s serves to increase, rather than diminish, involvement in dispute resolution more state involvement in the justice sector broadly, which, in their judgment, local broadly defined. insurgents would take as an extreme

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TLO’s practical experience bears this out: cooperating with judicial and governance within our programming, provincial and administrations/organs . . . The Huquq district authorities usually cooperate office of Khost province appreciates the productively in developing links to non- activities of the CCM and hopes for further state capacities, and seem to see achievements in the future.” significant practical improvement to the Similarly, TLO has recently begun working government’s reach and effectiveness. At with ARAZI on pilot projects to link that the same time, cooperation at the Kabul entity’s department in Khost with level has been far more sporadic: this is prominent TDR providers for the joint the level at which the lack of agreed law resolution of conflicts over land titled to and policy truly undermines state and non- the state. Although the project is far too state collaboration. new for TLO to properly evaluate its Outside of Kabul, and particularly outside effectiveness, we feel it does represent a of provincial centres, as above, particularly concrete example of how tribal government authorities do not appear to leadership – with reach throughout Khost have a high level of involvement in dispute province – may complement a government resolution.30 TLO’s projects have organ – with technical capacity, but themselves always attempted to involve without extensive reach. government authorities as stakeholders in With that said, cooperation at the Kabul three ways: for the referral of disputes level has proceeded more slowly, though which have come to the government, but much depends upon the government which the government does not feel well entity involved. On the one hand, the lack capacitated to address, such as disputes of a viable Draft Policy or Draft Law on taking place outside of administrative engaging non-state dispute resolution centres; for the registration of dispute providers appears to have limited abilities outcomes; and, in more recent projects, to engage with the Ministry of Justice. At for the review of CCM decisions regarding the same time, the Ministry of Tribal their basic consistency with Afghan Affairs has expressed increasing interest in statutory and Sharia law. Thus, in practical working with TDR providers for dispute terms, CCM activities provide for an resolution, and recently hosted a increase in government involvement in conference in Kabul to explore these dispute resolution. issues. Especially as projects progress, government authorities in general seem to 4 Recommendations and come to agree with this assessment. In a Next Steps recent letter to TLO, the provincial Huquq Contrary to what is sometimes Department31 of Khost wrote: “the suggested32, debates over formal and establishment of the CCM was a good step informal justice sector policy in which is considered to be closely

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Afghanistan have not ceased with the horizontally organized dispute resolution collapse of the Draft Law and the Draft providers – attempts at engagement, to Policy. At the least, the problems that have achieve maximum effectiveness, should led to an interest in Afghanistan’s non- seek to embrace stakeholders of all state dispute resolution capacities have affected parties. Putting aside government not been resolved. The question still and women’s stakeholders (who are remains of what strategy to pursue, if any, addressed separately below), this means to link Afghanistan’s primary providers of that engagement efforts need to remain dispute resolution to the larger, continuing vigilant in neither purposefully nor statebuilding process. Without discounting inadvertently excluding important the importance of governmental population groups. This effort thus processes, or seeking to prescribe what requires extensive and detailed local shape any final settlement to these knowledge, best gained through bottom- questions ought to take, not seeking to up research and consultations. Especially work with non-state dispute resolution given Afghanistan’s diversity, the necessity providers in the short- and medium-term of ground-level engagement also suggests can seem wilfully perverse – an attempt to that such efforts need to proceed construct a dispute resolution system province-by-province (or even district-by- while leaving out most dispute resolution district) rather than through a “one size fits providers. all” national model. What is more, TLO’s experience has tended Put another way, failure to engage all to show that the most common objections groups (of which TLO has sometimes been to working with non-state dispute guilty) at the least limits the effectiveness resolution providers – that doing so would of such engagement; and, at the most, undermine women’s rights and state risks tainting efforts at engagement as – in justice sector involvement – are not fact – efforts at partisan empowerment. necessary conditions, and should not be Especially as dispute resolution institutions considered so decisive as to exclude need to be seen as neutral (and also be further debate and dialogue. neutral – but that is a slightly different 33 With this observation in mind, TLO thus matter ), efforts at engaging non-state offers the following recommendations: dispute resolution providers need to consistently take steps to ensure they are Efforts to Engage Non-State Dispute representative and give all groups at least Resolution Systems Need to Be Broad- a chance to be heard. based However, it must be said that this does not At the same time – and while mean that TLO to any extent endorses the acknowledging that it is impossible that empowerment of non-state, insurgent one dispute resolution architecture dispute resolution fora, which TLO embrace all of Afghanistan’s diverse and research shows to be often arbitrary,

TLO Policy Brief 2/2013 – Justice 12 brutal, and unpopular with local religious leaders are not unalterably populations.34 Within its programming, opposed to greater women’s TLO has found tribal leadership to be empowerment if approached in a willing to work with the Afghan state, and framework, such as Sharia, which they TLO further recommends that this respect. willingness be incorporated as a condition We think these experiences undermine of state-non state engagement efforts allegations against non-state dispute (certainly, if state or non-state actors are resolution providers, and suggest ways to unwilling to engage with one another, then make further progress on these crucial efforts to link them together almost issues. certainly will fail to launch). However, TLO remains equally aware that Nevertheless, our research and program our research and experience, especially on experience also indicates that this such crucial and sensitive matters, covers willingness exists in a substantial number only some provinces, in a few regions of of cases, and does not pose any Afghanistan. The experiences of other insurmountable obstacle to state and non- organizations, non-governmental, state dispute resolution providers governmental, and international, certainly collaborating productively. have much to add. Thus, because of the Experiences working with the government sensitivity of these issues, and because of and with women need to be consolidated the many and various experiences of Of course, even when a degree of different organizations throughout representativeness (and the appearance Afghanistan, stakeholders sharing their thereof) can be achieved, this achievement knowledge and experience is particularly does not answer the two most persistent important. However, no strong charges against the engagement of non- mechanisms for exchange currently exist. state dispute resolution: that these efforts National dialogue needs to begin anew undermine the Afghan state, and enable Even more broadly, since the collapse of the abuse of women’s rights. the Draft Policy and Draft Law, broad- In this policy brief, TLO has attempted to based, systematic dialogue on the outline how, in our experience, careful engagement of non-state dispute engagement with non-state dispute resolution providers seems to have more resolution capacities promotes, not or less ceased: even as programming on diminishes, the Afghan government’s these issues has continued, and the role of involvement in dispute resolution. It has Afghanistan’s non-state dispute resolution also attempted to show how these providers has not diminished. engagements can lead to practical For all the reasons outlined throughout improvement in the observance of this paper, national dialogue on these women’s rights, and that tribal and

TLO Policy Brief 2/2013 – Justice 13 issues must re-start. The imperatives for this conversation have not gone away, but Based Dispute Resolution Processes in Afghanistan, AREU; RZEHAK, Lutz (2011), Doing . the mechanisms for it have withered. In Pashtunwali as the ideal of honourable behaviour turn, if efforts to re-start discussion on a and tribal life among the , Afghanistan Analysts Network; The Liaison Office, Formal and Draft Policy or Draft Law succeed, they Informal Justice in Southern Afghanistan: Evidence ought not to, as with previous efforts, From Helmand, Uruzgan and Nimruz, (TLO & USIP 2011). proceed without substantial input from 5 The Liaison Office, Formal and Informal Dispute stakeholders outside Kabul. Resolution in Paktia and Nangarhar (TLO &USIP 2011). 6 If this dialogue occurs; and if its outputs TLO observed much higher levels of violence in other parts of the country, particularly those that are incorporated into processes of policy, seemed to lack powerful, or even coherent, non-state legal, and institutional reform; then leadership. See The Liaison Office, Formal and Informal Dispute Resolution in Southern Afghanistan stands the best possible Afghanistan: Evidence from Helmand, Uruzgan, and chance of developing dispute resolution Nimruz (TLO & USIP 2011) (outlining per capita levels of violence in Southern and Eastern sector policies that are inclusive and Afghanistan). sustainable. By contrast, if sectoral policy 7 The Liaison Office, Land Conflicts and Tenure Systems of Khost Province (TLO & USIP, develops without sufficient regard to the forthcoming 2013). knowledge and experience of current 8 Religious are particularly involved in disputes that stakeholders (Kabul, provincial; implicate Islamic law, such as matters pertaining to divorce or inheritance (although even here governmental, non-governmental, and adherence to Sharia is the exception rather than the international), then the very process of norm); and by contrast disassociate themselves from dispute resolution bodies that engage in practices policy or legal development risks such as taking an oath on the Qur’an that religious undermining the very institutions it ought leaders tend to view as un-Islamic. 9 The Liaison Office, Dispute Resolution in Paktia to strengthen. and Nangarhar (TLO & USIP 2011). 10 Liz Alden Wily, “Land Rights in Crisis: Restoring Endnotes: Tenure Security in Afghanistan” (Afghanistan Research and Evaluation Unit 2004). 11 Even looking beyond issues of institutional 1 TLO, CCM Evaluation (TLO 2009). corruption: corruption is many respondents primary 2 Southeastern Cluster: Paktia, Khost and Paktika, complaint against Afghan courts, but documenting Afghanistan Border-district Exploratory assessment, concrete instances is extremely difficult. Moreover, Tribal Liaison Office, 2008. it is unclear why corruption, by itself, would deter 3 Defining the “strength” of a tribe is a notoriously parties from addressing the court in particular, and fraught undertaking. As a general proposition, TLO not government in general. Thus, while certainly defines the term as meaning the tribes have seemed present, corruption is not here treated at length, as to maintain continuity over time both in their criteria the phenomenon is both difficult to document and for selecting leadership, and in their criteria for seems to have limited explanatory force as to parties recognizing valid decision-making. actual behavior vis-à-vis different government 4 The Liaison Office, Formal and Informal Dispute institutions: Resolution in Paktia and Nangarhar (TLO & USIP, 12 Government of the Islamic Republic of 2011). See also BARFIELD, Thomas (2003), Afghanistan, Law on Managing Land Affairs (2008) Afghan Customary Law and Its Relationship to at Art. 3.1 (defining “Landowner” as a person who Formal Judicial Institutions, USIP/ Boston “actually owns his/her land on the basis of legal University; BARFIELD, Thomas (2008), Culture documents”; i.e. implicitly denying ownership based and Customs in Nation-Building: Law in on undocumented possession, or on possession only Afghanistan, University of Maine School of Law; documented with customary instruments). SMITH, Deborah J. (2010), Examining Community

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13 The Liaison Office, “Formal and Informal Justice support and reform them only legitimize an in Paktia and Nangarhar” (TLO & USIP 2011) inherently misogynistic legal framework. . . “This is (noting that only in cases of murder does the court very worrisome,” said Latifa Sultani, Coordinator system appear regularly involved in dispute for Women’s Protection with the Afghanistan resolution) Independent Human Rights Commission (AIHRC). 14 Here we use the term “Taliban” in its umbrella “Tribal courts will never allow justice for a female sense, to encompass all groups expressing allegiance victim.””). to the Islamic Emirate of Afghanistan. 24 For example, elders with whom TLO worked on 15 A traditional unit of geographical delimitation the development of land dispute resolution bigger than a village but smaller than a district. guidelines in Nangarhar tended to reject human Traditionally, a district is composed of several rights rhetoric as a western imposition, but were manteqas. willing to embrace practical measures that improved 16 Paktia Interview 07 May 2013 human rights, such as protections for women’s 17 inheritance rights in Sharia. Here Logar stands as a particularly interesting 25 intermediate case. As will be explained below, Admittedly, some non-state dispute resolution TLO’s own experience in Logar is that tribal providers have told TLO that acting according to decision-makers still possess a high degree of Islam is in some cases simply not possible: this autonomy. Taken together with research on Logar’s reaction particularly occurs when one or more Taliban dispute resolution system as such, these data dispute parties has demanded a dispute resolution might suggest that Logar is in a period of transition outcome unacceptable in Islam (e.g. baad), and – with both functional tribal systems and a more indicated that they will walk away from the dispute developed Taliban system existing simultaneously. resolution process, and possibly resort to violence, if This set-up would seem inherently unstable and their demands are not met. As this description rivalry between tribal and insurgent sources of perhaps implies, dispute matters implicating family authority might go to explaining the rise in violence honor prove particularly resistant to even Sharia- in that province. based resolution. Indeed, when discussing disputes 18 Logar Interview May 12 2013 of this sort, otherwise powerful dispute resolution 19 Noah Coburn, Bazaar Politics (Stanford providers have disclaimed any ability to prevent the University Press, 2012) (detailing how the Tajik parties from carrying out their will. Although we population of Istalif, a district of Kabul, employs a might meet this expression of inability with great variety of non-tribal solidarity groups in its skepticism, the conclusion persists: non-state social organization, including familial, political, and dispute resolution institutions are, in at least some economic). cases, unwilling to disclaim preferred community 20 solutions when honor is on the line. TLO, Formal and Informal Justice in Southern 26 Afghanistan: Evidence from Helmand, Nimruz, and On the reasoning that what local insurgents, and Uruzgan (TLO & USIP, 2012) other elements of the population, might strongly 21 The Liaison Office, Deh Rawud District Profile oppose is more extensive male-female mixing on the (TLO 2009) (noting that both the Babozai and same body. However, an exclusively female shura to Noorzai are about 30% of district population, with address women’s issues would be far more acceptable. some persons stating the Babozai are a subtribe of 27 the Noorzai). See, e.g., Wimpelmann “Nexuses of Knowledge 22 Similarly, in Paktia TLO for a time over-relied on and Power: the Rise and Fall of the Informal Justice Assemblage in Afghanistan” 32 Central Asian Ahmadzai tribal leaders, creating a certain amount Survey 406 (2013) (arguing that the push for of suspicion among the district’s other tribes. In this “informal justice” disrupted lines of accountability case, TLO treated reformulation of the Paktia CCM that run from the Afghan people, to their elected as an opportunity to mend fences with other tribal leaders, to government courts). stakeholders – which seems, at the time of writing, 28 As of September 2013, USAID had obligated 18.9 to have been fairly successful. million USD to “formal” justice sector support, and 23 See, e.g., Jean McKenzie, “Afghan women 15.7 million USD to “informal” sector support. In Trapped in Tribal Court System”, Global Post turn, as of December 2012, the US Department of March 7, 2012 (at State obligated 212.7 million USD to “formal” http://www.globalpost.com/dispatch/news/regions/a justice system support, which does not include 47.2 sia-pacific/afghanistan/120306/afghan-women- million USD from the State Department’s Bureau of trapped-tribal-court-system) (“Critics say these International Narcotics and Law Enforcement tribal courts have grounding in neither constitutional Affairs for “formal” system support (figures taken nor Islamic law, and that international efforts to

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from Special Insprector General for Afghanistan system probably does possess some of the virtues Reconstruction, “Governance” (SIGAR October occasionally attributed to it. However, judging its 2013) (available at actual popularity is nearly impossible under http://www.sigar.mil/pdf/quarterlyreports/2013-10- conditions where support for any other system is a 30qr-section3-governance.pdf) . At the same time, punishable offense. although other support to the “informal” sector 31 Literally “Rights Department”, tasked, in the exists, it is far more fragmented and oriented toward broad strokes, with settling disputes out of court, small grants that are dwarfed by those granted to including by referral to tribal elders. “formal” sector programming. 32 See, e.g., Wimpelmann 2013. 29 In the interests of full disclosure, TLO should here 33 For example, it is not possible that a single judge mention that it currently receives both funding can be properly “balanced” in his or her background directly from USAID and from implementing amongst all relevant groups. However, functioning partners of USAID’s Rule of Law Stablization – judiciary systems very much rely on this individual Informal project. However, we also note that TLO’s maintaining neutrality. Or, perhaps, one can say that support for non-state dispute resolution dispute resolution shuras function more like neutral programming dates from 2007 in our work with the political bodies – with membership balanced among Khost CCM - before the receipt of any US stakeholders – and less like neutral judicial bodies – government contract, and in fact before our receipt where the dictates of the office assume and, ideally, of any sectoral funding whatsoever. confer an aura of neutrality. 30 Giustozzi, Franco & Baczko, “Shadow Justice: How the Taliban Run Their Judiciary?” (Integrity Watch 2013, available at http://www.iwaweb.org/reports/PDF/130207%20- %20Taliban%20Justice%20Report-%20English.pdf) for example provides evidence for Taliban dispute resolution being in many cases seen as legitimate. This also accords with credible news reports (e.g. Bilal Sarwary, “Why Many Afghans Opt for Taliban Justice”, BBC, December 2, 2013 (at http://www.bbc.co.uk/news/world-asia-24628136). This evidence is not to be discounted lightly. However, several points must be kept in mind. First, such reports have disproportionately centered around areas, particularly Kunar, that have the best- articulated Taliban justice systems in the country, including a relatively strong cohort of judges, relatively clear separation of powers between judges and commanders, as well as appeals processes. This situation does not obtain in most other parts of the country, including some (others) with long-term Taliban control. Rather, TLO’s research has tended to show that within most areas, over the last several years, commanders have predominated over judges in Taliban justice administration, with all the lack of procedural safeguards that implies (here we must note that this is not entirely inconsistent with the findings of Giustozzi et al., but our research tends to show a greater predominance of commanders than does the research of Dr. Giustozzi and his co- authors). Second, even in areas where the Taliban justice system has maintained safeguards, the Taliban often punish those who attempt to approach any other dispute resolution institution but their own. In such conditions, calling the system “popular” is somewhat misleading. Certainly, some persons do prefer Taliban dispute resolution, and the

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