Improved Dispute Resolution Structures (2013)

TLO-Policy Brief / 2 December 2013 Where Do We Go from Here? Towards Improved Structures for Dispute Resolution in Afghanistan 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 Taliban 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,

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