Tribal Jurisdiction and Agreements

TLO-Policy Brief / 1 December 2009 Tribal Jurisdiction and Agreements The Key to SubSub----NationalNational Governance in SouthSouth---- eastern Afghanistan 1 Introduction Summary In many parts of Afghanistan, non-state • Tribal agreements in South-eas tern Afghanistan continue to be an institutions remain relevant to security important means to establish and stability, despite repeated and binding rules within and between concerted state-led attempts from the tribal groups and to negotiate th governance and security issues late 19 century onward to expand its between tribes and the Afghan administrative influence, including control government (and supporting over the provision of security and the international military forces). administration of justice. In the East and • International actors promoting Southeast, these relatively autonomous such local security arrangements need to understand existing local structures are very much a present day institutions, the geographic reality and largely linked to Pashtun concepts of tribal jurisdiction tribes and the influence of individual (manteqas /wandas ) and the level of tribal fragmentation. elders. It is important to emphasize that • Only where tribal institutions are tribal security and governance never was still very much intact, links geared toward undermining the state. In between formal and informal contrast, tribes and their elders tried to security institutions can strengthen cooperate with the state whenever Afghan government structures. possible to improve governance and reduce conflict in their areas, taking on state roles during times of state failure. The Liaison Office is grateful to The importance of local customary funding provided by the Heinrich structures has not been lost on Böll Stiftung to its’ programmes in Paktia and Nangarhar. 2 policymakers of late. 1 The “US negotiate local governance and maintain Government Integrated Civilian-Military security at the sub-national level. Campaign Plan for Support to Afghanistan”, written in August 2009 with the collaboration of United Nations Assistance Mission in Afghanistan (UNAMA) and the International Security Assistance Force (ISAF), acknowledges the Pashtuns’ guarded independence “against the perception of a predatory central government” and the Afghan government’s “inability or perceived unwillingness to ensure security and justice” as “major dynamics” within Afghanistan. In order to compensate for this latter Map 1: Location of Ahmad Aba District, Paktia gap, the report promotes employing “community security arrangements when Using the case study of Ahmad Aba local conditions necessitate and in district in Paktia, specifically field association with Afghan National Security research among the Ahmadzai tribe in Forces (ANSF).” 2 June 2009, this policy brief examines the historical background of tribal contracts, Such generalized policy prescriptions to to what extent they still play a role in security issues, however, are not without local governance today, and what dangers if implemented with ignorance of implications can be drawn for the current existing local institution and a lacking promotion of community governance understanding of the fragmentation of arrangements. communal structures in some parts of Afghanistan (especially the North and 2 Tribal contracts in brief South). Tribal contracts mostly pertain to Many community security arrangements maintaining security and/or the are contiguous to a specific local context administration of justice in the specific such as Eastern and South-eastern areas where a tribe or sub-tribe holds Afghanistan, where relationships between jurisdiction. In principle, however, any state and non-state actors are regulated social and political issue can be regulated through so called "tribal contracts or through such contracts. agreements" used by local representatives of the Afghan state to Various external pressures and local complexities influence elders to establish TLO Policy Brief 1 / December 2009 3 tribal agreements, such as to fill power on an oral culture, tribal agreements are vacuums or respond to state requests. written documents signed off by From the state’s perspective, local responsible elders (e.g., signature or government representatives use tribal fingerprint). In addition to spelling out agreements to negotiate governance and rules, the agreements also define maintain security. The aims and sanctions for violations, ranging from emphases of the agreements change monetary fines or burning down the according to the given political house of the offender up to ostracising environment. him from the tribe. The strength of the state determines its level of involvement in the agreement 3 Tribal Agreement prior to 2001 with a positive correlation between the Agreements between tribes and two. When the state is weak it has a government have a long history in minimal or non-existent role. As a matter Eastern and South-eastern Afghanistan. of fact, tribes often establish agreements Many foreign invaders from Alexander the when the formal governance system has Great to the British in the 19 th century failed. By contrast, when the state is also brokered contracts with local tribes strong, it signs agreements with tribes to levy armed tribesmen for the that oblige them to maintain security (or protection of logistical supply routes. other state policies) within specified areas When Afghan rulers started to consolidate of tribal jurisdiction in exchange for the Afghan state and attempted to resources and a degree of local expand their administrative influence into autonomy. rural areas in the late 19 th century non- The agreements are established through state institutions still provided local jirgas on the basis of consent by tribal governance, including the administration elders and apply to all members of the of security and justice, in large parts of tribes and sub-tribes represented by the the country. In order to increase state jirga . influence and centralise its policies, While elders (the white-bearded spin giri ) Afghan kings began to enter into usually negotiate tribal agreements on agreements with local tribes. behalf of their tribes and are held One of the older and more renown ones is accountable by other tribes, or the state, the mawad-e sang (stone agreement) in in case of a breach of contract, the the Eastern Nangarhar Province. responsibility for implementation of rules Negotiated between King Zahir Shah spelled out equally lies with all members (1963-1973) and Shinwari as well as of the community. Mohmand elders, this agreement details While much of the customary structure in the rights and responsibilities of the Eastern and Southern Afghanistan relies tribes vis-à-vis the state. In return for TLO Policy Brief 1 / December 2009 4 regulatory autonomy and especially the Arbakai - The Tribal Police of right to resolve disputes according to South-eastern Afghanistan their own customary practises, the The notion of an arbakai is an old Shinwari and Mohmand tribes were concept in rural Pashtun Afghanistan responsible for maintaining security in best compared to community-based specified manteqas (tribal areas of policing. It is important to draw a clear jurisdiction). For this purpose, they were line between the arbakai and militias of asked to raise an arbakai (tribal police, any sort that are associated with strongman and commanders: see box below) or shilgun (another form • of tribal police) to guard roads and The arbakai are a very temporary body that is only established for solving generally enforce jirga (ad-hoc decisions- specific problems, and only for the length 3 making body) decisions. While the of time required to do so. agreement was formally written down • The size of the arbaka i depends on under Zahir Shah’s rule, a witness to the the kind of operation, in many cases it is signature ceremony claimed that it had simply for the purpose of dispute already been in force in verbal form since resolution or executing the decision of a the reign of Ahmad Shah Abdali (1747- jirga or shura . 1773), the founder of the Durrani • Despite the fact that each arbakai Empire. 4 has a clear leader ( mir ), the accountability goes back to the tribal council ( jirga or The oldest agreements that elders in shura ) that called upon the arbakai , which Ahmad Aba recall were established under in turn is accountable to its own community. the reign of Zahir Shah (1933-1973) during the period when Mohammed • Arbakai only function in the very limited realm of the tribe they represent. Daoud Khan was royal prime minister Their fighters are volunteers from within (1953-1963). In these agreements, the the community and are paid for by the tribal elders pledged to provide security community. This emphasises again that and policing, particularly from robberies. their loyalty lies with their communities, The state, in turn, allowed tribes to and not an individual leader. govern day-to-day issues with their • Due to the association with customary mechanisms. 5 Similarly to the customary mechanisms, arbakai can only function in areas with strong and cohesive mawad-e sang agreement in the East, the tribal structures. agreements was enforced by an arbakai . Source: Susanne Schmeidl and Masood Karokhail, 2009, This formalisation of tribal governance “The Role of Non -State Actors in 'Community-Based arrangements came to a temporary halt Policing' - An Exploration of the Arbakai (Tribal Police) in South-Eastern Afghanistan,” Contemporary Security when Daoud Khan overthrew

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