Formal and Informal Justice in Helmand and Uruzgan: A TLO Working Paper

Draft Report: Not for Circulation or Citation

June 2011 i

Table of Contents

Executive Summary and Recommendations ...... iii 1 Introduction and Data Overview ...... 1 2 Formal and Informal Justice in Deh Rawud ...... 5 2.1 Land Disputes in Deh Rawud ...... 6 2.2 Criminal Justice in Deh Rawud...... 10 2.3 Family Cases in Deh Rawud ...... 13 3 Formal and Informal Justice in Grishk ...... 16 3.1 Choice of Forum in Grishk ...... 17 3.2 Land Disputes in Grishk ...... 19 3.3 Criminal Justice in Grishk ...... 22 3.4 Family Disputes in Grishk ...... 25 4 Formal-Informal Justice Linkages in Deh Rawud and Grishk ...... 26 5 Conclusion: Legal and Political Settlement ...... 30 6 References ...... 32

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Executive Summary and Recommendations

The South is Afghanistan’s most volatile and strategically important region. Even more than the rest of the country, it has suffered during the past three decades and counting of war, resulting in social disintegration. In rebuilding the nation and its political system, both the Afghan government and international community have committed themselves to the key strategic goal of finding more stable and efficient ways for Afghans to solve their disputes. Yet the years of war have affected all aspects of life in Afghanistan, including how disputes arise, and how, and by whom, they are solved.

The present report, funded by the United States Institute for Peace, examines dispute resolution in two comparatively stable Southern districts—Deh Rawud district in Uruzgan and Grishk district in Helmand.1 Based on village levels surveys and semi-structured interviews with government officials, tribal elders, and other key informants, the following findings, recommendations, and ideas for further research are presented.

Key Findings

 Both of these districts are seeing a disproportionately large number of Land cases per capita. Deh Rawud, for example, sees about 1,034 Land cases per 100,000 population; Grishk sees 1,007 per 100,000 population; while, for comparison purposes, the Nangarhar district of Mohmand Dara sees just 439 per 100,000 population. Competition over farmland, and the inability of either formal or informal government to restrain opportunistic land grabbing, explains some of this high rate of disputes. Although about 80% of property owners in both Deh Rawud and Grishk hold government land title, this title is often over 100 years old, and appears to be doing nothing to restrain Land conflicts. Moreover, while rates of dispute and Land titling in the districts are similar, Grishk Land disputes involve violence far more often than do those in Deh Rawud.

 Both districts experience a very high crime rate, with the crime rate in Grishk being particularly striking: 597 crimes per 100,000 population in Deh Rawud; 900 crimes per 100,000 population in Grishk; and, for comparison purposes, only 247 crimes per

1 A subsequent version of this report will also cover Chahar Borjak district in Nimruz province.

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100,000 population in Mohmand Dara. The disintegration of tribal governance partially explains this frequent resort to criminality, as weakened tribal structures and social cohesion are often associated with a large number of violent or otherwise Criminal disputes.

 The number of family disputes in Deh Rawud and Grishk occur at a rate roughly analogous to, or even lower than, more stable areas of the country: 218 Family disputes per 100,000 population in Deh Rawud; 134 Family disputes per 100,000 population in Grishk; and 138 Family disputes per 100,000 population in Mohmand Dara. Despite their ostensibly private nature, these disputes can sometimes spur instability and larger tribal conflicts, far beyond the importance of the individuals involved or any resources implicated.

 In both districts, informal mechanisms of dispute resolution resolve about 95% of all cases. The judiciary thus does not play a large role in dispute resolution in either district, and the capacity of the Deh Rawud district court in particular seems very low. While the court in Deh Rawud hears a (small) cross-section of Land, Family and Criminal disputes, the one in Grishk hears exclusively Criminal matters.

 Instability appears to cause more people to go to local executive branch officials to solve disputes. In stable areas of Grishk, and almost all of Deh Rawud, tribal or village jirgas predominate in handling disputes. However, in areas under threat from the Taliban (in Grishk) or experiencing more localized problems (such as a sudden influx of internally displaced persons (IDPs), as has affected some Deh Rawud villages), Chiefs of Police and District Governors are hearing as many, if not more, cases than the jirgas. The Grishk Taliban, when in control of an area, additionally prevent elders from hearing disputes, and Grishk elders sometimes have trouble enforcing their decisions, especially if conflict parties have Taliban connections.

 Linkages between the informal and formal system varies between both districts, with relatively robust ones in Grishk and hardly any in Deh Rawud.

o In Deh Rawud, linkages between formal government and tribal leadership center disproportionately on the Afghan Social Outreach Program (ASOP) shura recently established by the Independent Directorate of Local

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Governance (IDLG). Similarly, governance cooperation in the district is rare, with elders stating that the government does not support their anti-Taliban efforts.

o By contrast, the Grishk government sends a large number of cases to traditional shuras, meets with them often, and sometimes enforces their decisions. Cooperation for dispute resolution is thus much more common than in Deh Rawud. However, elders and government do not cooperate to systematically exclude Taliban from the district, with Grishk elders reluctant to take an openly anti-Taliban stance.

Recommendations

Based on these initial findings, the following recommendations can be made:

 The international community and Afghan government should work to strengthen both the formal and informal justice systems equally, as well as links between them. While both systems do not need to be combined, they should respect each other’s decisions, and cooperate on justice issues, especially in solving larger and more persistent disputes. Over time, these linkages can become more institutionalized, and both sectors can work to improve the quality of service they are providing. Here the government can direct resources and raise performance standards to develop the formal justice system, but development of the informal justice system will probably require elders’ voluntary cooperation to secure their engagement in trainings, the development of best practices, and other similar initiatives. The international community, for its part, should support both systems’ development, as they often provide complementary services and areas of strength and weakness.

 As argued in other studies, if land title is going to provide its full economic and governance benefits, the Government of Afghanistan must undertake reforms to discard some formal title, and recognize some customary title. Particularly, title, from whatever source, should both bear some resemblance to current realities of property possession and boundaries, and also confer enforceable benefits on the holder sufficient

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to quickly defeat or preempt competing claims, thereby giving incentives for long-term and large-scale investment. Getting these results will entail expanding recognition of some forms of customary land title as superior to formal title, as well as designating a powerful but relatively disinterested entity to enforce land claims backed by valid land title.

 The international community and Government of Afghanistan should provide training on sharia law to executive branch government officials, especially those hearing Family cases. Providing this training to district governors and chiefs of police (as well as to tribal elders) could result in modest, but real, human rights improvements. Sharia- based decision-making would also help reduce the potential for Family conflicts, including conflicts over women, to escalate into inter-tribal or violent disputes by providing clear and individual-based rules of decision.

In order to improve our understanding and fine-tune some of the recommendations provided, the following areas deserve further investigation:

 Expand TLO’s research on dispute resolution to other districts in order to improve our understanding of the types of disputes that arise and in which forum they are resolved.

 Conduct further studies of the role of land titling in either fuelling or restraining disputes and examine why it is playing this role.

 Enable an improved understanding of the role of governors (both district and provincial) and chiefs of police (district and provincial) in dispute resolution. Studies should try to establish why parties have a preference for reaching out to these officials in some situations, the basis for these officials’ decision, and how their decision-making can be improved and reconciled with Afghanistan’s emerging judicial system.

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1 Introduction

The efficient and fair resolution of disputes is necessary for an orderly and well-functioning society. It also constitutes, for many governments, a core competence and way to build legitimacy. The Government of Afghanistan, however, has struggled in this area, with most Afghans viewing informal means of dispute resolution, such as shuras or jirgas2, as less costly and more equitable than government courts (See, e.g., Asia Foundation 2009). With these concerns in mind, both the international community3, and the Afghan government4 have articulated a strategic goal of improving dispute resolution services in the country, and bringing formal and informal dispute resolution closer together. Yet rebuilding the Afghan justice system also requires a clear picture of dispute resolution as it currently exists. Thus the present report analyzes the formal and informal justice systems in two districts in the strategically and politically vital South of Afghanistan: Grishk district in Helmand, and Deh Rawud district in Uruzgan.

The Liaison Office has been working on dispute resolution issues since 2007. In 2009 it issued its first report on formal-informal justice linkages in Paktia and Nangarhar provinces, finding a large majority of cases settled in the informal justice system, and increasing, if occasionally problematic, interactions between the informal justice system and the state. In turn, TLO in 2011 published an updated and expanded report on these areas, attempting to give a picture of their formal and informal justice systems as they presently exist. This report confirmed earlier findings that informal dispute resolution bodies (shuras and jirga) hear the overwhelming majority of most types of disputes, with the state only playing a large role in murder cases. Indeed, findings indicated some normative preference for state action in those cases. By contrast, there was a significant preference against state involvement in most disputes dealing with Family issues or Land. That report also showed that courts only

2 In all of TLO’s survey areas, respondents have used these terms more or less interchangeably. This report, therefore, does as well. The reader, however, might want to be aware that a shura, as technically understood, is a standing committee devoted to some purpose; while a jirga is an ad-hoc body formed to resolve a certain dispute or related set of disputes. Because the same individuals tend to be chosen for jirgas over and over again, and shuras often assign a shifting group of people to resolve disputes, there is a natural tendency for jirgas and shuras to blend together. 3 See, e.g., United States Department of State, “Afghanistan and Pakistan Regional Stabilization Strategy” (2010) (Listing reforming the formal justice system, and “Strengthening Traditional Justice” as US “Key Initiatives”). 4 See Government of Afghanistan, “Afghanistan National Development Strategy” (2008) (Listing justice sector reform, including defining the role of the traditional justice system, as a “Key Objective”).

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infrequently interact with shuras and jirgas: in both Paktia and Nangarhar, district governors and chiefs of police formed the core of local state governance, with some of them interacting quite closely with tribal leaders. Although these officials did not settle significant numbers of disputes themselves, they nevertheless formed the most significant link between the formal and informal justice systems.

Dispute resolution in Grishk and Deh Rawud (TLO has also surveyed the latter extensively; See TLO 2009, 2010, 2011A) displays some similarities to the East, along with a number of very striking differences. Most prominently, in all areas heretofore surveyed but Jalalabad City, disputes over Land have constituted a majority of all disputes, and informal means of dispute resolution have settled the vast majority of cases, typically over 90%. A village jirga settling a dispute over Land ownership would thus constitute the closest thing to a “typical” case in both Eastern and Southern areas.

These similarities, however, only go so far. First of all, both Deh Rawud and Grishk are seeing a per capita rate of dispute much higher than in any of the Eastern districts surveyed – up to 300% higher as detailed in Table 1. And, second of all, Deh Rawud and Grishk are not necessarily that similar to one another.

Deh Rawud has minimal insurgent presence (TLO 2009, 2010, 2011A), a crime rate that appears within normal parameters, and tribal institutions that settle most disputes. By contrast, Grishk suffers from a large insurgent presence5, a crime rate much higher than in any other district TLO has surveyed, and a relatively weak tribal system that solves only a bit more than half of all cases, and can have trouble enforcing its decisions. Concomitantly, the district’s Chief of Police and District Governor hear a very large caseload, and sometimes work with jirgas on enforcing decisions.

The role of the state also differs between these two districts more broadly. In Deh Rawud, state and tribal structures do not generally have very much to do with one another, with tribal leaders expressing the opinion that they cannot rely on the state, and that it plays favorites among different tribes.6 A District Shura supported by the Independent Directorate of Local Governance (IDLG) appears to be the only stable formal-informal linkage. In Grishk, however, not only do district executive authorities solve a large number of cases

5 Interview with Grishk Data Collector, April 27, 2011; Interviews with Grishk Justice Providers, Received March 30, 2011. 6 Interview with Deh Rawud Tribal Elders, May 3, 2011.

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themselves, they also refer a significant number to tribal bodies for resolution, and sometimes enforce tribal shuras’ decisions – even as these same elders attempt to maintain a position of neutrality between the government and the insurgency.7

Given these differences, this report will discuss the justice systems in Deh Rawud and Grishk separately, except for a combined section discussing the formal-informal linkages in the districts. In compiling these findings, TLO utilized a combination of quantitative data collection, gathering case studies, and key informant interviews.

Between November, 2010 and May, 2011, TLO data collectors gathered information from 152 villages in Deh Rawud – representing almost all large villages, and a number of smaller ones (see TLO 2009) – and sixty-one towns in more densely-populated Grishk, covering almost all population centers not currently under insurgent control (and including several under insurgent control earlier in the year). Key informants in each village or town were asked the number of disputes the village or town had seen within the past year, the type of dispute, and the forum that had settled the dispute; TLO then developed databases of these findings for each district. TLO staff subsequently conducted initial interviews with tribal leaders and government officials in each district (the latter meaning the District Governor, Chief of Police, District Judge, Prosecutor, and, where available, Huquq Department Head). Following these initial interviews, TLO researchers from Kabul conducted follow-up interviews as security and the cooperation of district officials permitted.8

Table 1 summarizes the quantitative data findings from the two districts, comparing them to Mohammad Dara in Nangarhar as a reference point, a district where TLO possesses both reliable population figures and dispute survey data. Chapter 2 of this report discusses the justice systems in Deh Rawud; Chapter 3 the justice systems in Grishk; and Chapter 4 the formal-informal justice linkages in both districts.

7 Interview with Grishk Data Collector, April 27, 2011. 8 On the one hand, it did prove possible to conduct some lengthy in-person follow-up interviews in Deh Rawud, although insurgent attacks interrupted these before completion. On the other hand, officials in Grishk flatly declined to cooperate with TLO researchers after they had completed short initial interviews. Bad security also prevented Kabul staff from traveling to Grishk, or Grishk elders from traveling to Kabul. As possible, TLO staff interviewed these elders over the phone, or dispatched lists of follow-up questions to local TLO data collectors (who are themselves known tribal elders).

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Table 1: Summary of Quantitative Data Findings

Mohamand Dara Deh Rawud (Uruzgan) Grishk (Helmand) (Nangarhar) Number of Formal 15 65 25 Court Cases Number of Jirga/Shura 1,195 1,494 282 Cases Number of District Governor/Chief of 116 964 20 Police Cases Per Capita Rate of 1,033/100,000 pop. 1,007/100,000 pop. 439/100,000 pop. Land Disputes Per Capita Rate of 597/100,000 pop. 900/100,000 pop. 247/100,000 pop. Criminal Disputes

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2 Formal and Informal Justice in Deh Rawud

Deh Rawud is often considered to be the most stable district in Uruzgan, with only a “small and weak”9 insurgent presence (TLO 2009A, 2010), but a large population of 78,750 (TLO 2009A). Moreover, as the below data and analysis will make clear, tribal jirgas and shuras dominate the district’s dispute resolution process. Of Deh Rawud’s roughly 1,415 disputes within the past year, tribal jirgas have settled about 1,195; district executive authorities about 116; and the court only about 1510 (see Table 2; please note that the number of total disputes reflects both settled and ongoing disputes, while numbers for each forum reflect only settled disputes, thus the small discrepancy). This dominant position of tribal dispute resolution bodies bears a distinct resemblance to the pattern of dispute resolution in Eastern Pashtun areas, such as Paktia and Nangarhar (See TLO 2009, 2011).

Table 2: Forums for Dispute Resolution in Deh Rawud

Village District Provincial District Chief of Court Shura/Jirga Shura Shura Governor Police

1,194 11 5 48 68 15

Total Disputes: 1,415 (1,797 per 100,000 pop.)

That being said, the available data also indicate that Deh Rawud is experiencing a per capita rate of Land and Criminal conflicts much higher than in these same Eastern Pashtun areas – nearly 200% as high in some cases (see Table 3).

Table 3: Issues of Deh Rawud Cases

Minor Major Land Civil/Criminal Boundary/Access Family Commercial Criminal Criminal (Ownership) 191 203 76 508 115 218 46 11 Total Land Disputes: ~814 Total Criminal Disputes: 470 (597 per 100,000 pop.) (1,034 per 100,000 pop.)

9 Interview with Deh Rawud Jirgamaran, May 3, 2011. 10 Interview with the Deh Rawud District Judge, May 3, 2011. 11 The number of Land disputes was calculated by adding together several categories of TLO quantitative data: responses for the number of Land disputes (meaning primarily disputes over ownership); the number of Water disputes (meaning primarily boundary and access disputes); and Civil/Criminal cases (which typically begin as Land disputes, then turn violent). Because of the fluidity of the final category – principally, but probably not entirely, Land disputes – the total number of Land disputes remains somewhat more fluid than for other categories of cases.

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Mohmand Dara, this report’s reference district, has a bit more than half of Deh Rawud’s population, or 42,103 people (TLO 2010A), but saw only about 321 cases in all forums (TLO 2011). On a per capita basis, Deh Rawud has thus seen about 1,797 disputes per 100,000 population, while Mohmand Dara has seen only 721 disputes per 100,000 population.

2.1 Land Disputes in Deh Rawud Even more than for total disputes, Deh Rawud is experiencing a very high rate of Land conflicts. During the past year, the district saw about 814 Land disputes in total, making about 58% of all disputes. These figures indicate a per capita rate of Land disputes of 1,034 per 100,000 population. By contrast, Mohmand Dara, in line with other Eastern areas, recorded 185 Land disputes, or 439 per 100,000 population (TLO 2011). Of these many cases, the Deh Rawud District Court has heard something less than ten12, with jirgas and shuras hearing most of the rest.

Deh Rawud’s high rate of disputes reflects, first and foremost, competition over land. Deh Rawud is among the most productive agricultural areas in Uruzgan (TLO 2009A), and a jerib of irrigated farmland in the district costs nearly twice as much as in Mohmand Dara. More specifically, a jerib of irrigated farmland in Mohmand Dara costs about 200,000 Afghanis (approximately 4,444USD), while a jerib of irrigated farmland in Deh Rawud costs about 360,000 Afghanis (approximately 8,000USD).13 A very high incidence of legal title – approximately 80% of Deh Rawud residents have formal title of some sort14 -- seems to have done nothing to reduce the rate of land conflict.

Such high prices speak to increased competition over land, but do not entirely explain that competition’s roots. For example, intergenerational competition over resources is fierce. When asked to describe a typical land conflict in his district, a prominent Deh Rawud jirgamar thus gave the example of one small farm being divided between five inheritors, several of whom then bring a case against the others in order to increase their modest plots.15 However, most of rural Afghanistan is experiencing a similar dynamic, very much including Mohmand Dara.16 As a result, a shortage of land does not by itself seem to explain

12 Ibid. 13 Interview with Deh Rawud Jirgamaran, May 3, 2011. 14 Ibid. 15 Ibid. 16 Interview with Mohmand Dara Jirgamaran, May 15, 2011.

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why Deh Rawud experiences so many conflicts, although it is surely worth noting that Deh Rawud interviewees said the current rate of Land conflicts is actually somewhat reduced from past years.17

A lack of stable governance might also contribute to explaining the district’s high rate of Land disputes – a point that interviewees, including the District Governor18 and prominent elders, emphasized.19 Small farmers on irrigated land appear particularly at risk, as neither the government nor jirgas have been able to stop predatory acquisitions. The judge in Deh Rawud, for example, told of a small farmer on irrigated land who was trying to fight off forced acquisition by at least three wealthier neighbors (the outcome of the dispute was not known at the time of writing).20

The Deh Rawud District Governor further described this process as extremely common, and taking place on all types of land, including that claimed by the government.21 Indeed, he memorably described the situation as 50% of people stealing the land, and then re-selling it to the other 50%.22 He further elaborated that community leaders have tried to put a brake on land-grabbing, but without success – thus leaving the precise role of tribal leadership in these disputes highly ambiguous, as in his narration they are both grabbing government land, and trying to restrain land-grabbing more generally.23

A more detailed examination of the position of the Deh Rawud government regarding occupied land cements the impression of a lack of governance. In particular, the District Governor related not only knowing of open conflicts over government land, but also being personally involved in mediating several of the aforementioned disputes, adding that the government would only attempt to take its land back “when the time comes.”24 Occupation of government land is certainly occurring other places (TLO 2008, 2009, 2011), but elsewhere the state is at least making a nominal attempt to re-take land it has used previously (TLO 2011). Thus, on the one hand, the involvement of the Deh Rawud governor in such cases might represent a commendable accommodation to reality leading to reduced

17 Interview with Deh Rawud District Governor, May 4, 2011. 18 Ibid. 19 Interview with Deh Rawud Jirgamaran, May 3, 2011. 20 Interview with Deh Rawud District Judge, May 3, 2011. 21 Interview with Deh Rawud District Governor, May 4, 2011. 22 Ibid. 23 Interview with Deh Rawud District Governor, May 4, 2011; Interview with Deh Rawud Jirgamaran, May 3, 2011. 24 Interview with the Deh Rawud District Governor, May 4, 2011.

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conflict. But, on the other, it also shows a government which has concluded that, for the foreseeable future, it will have no ability to actually exercise governance functions, an observation with which the District Governor himself agreed.25

Perhaps unsurprisingly, then, the presence or absence of government land title does not appear to be strongly influencing the rate of conflict in the area, although it might be influencing how conflicts unfold. More specifically, Deh Rawud authorities said that while they had not had a functioning way to register or issue land titles for forty years, up to 80% of people still hold title from the time of King Zahir Shah (reigned 1933-1973).26 Both royal title and that from the Karzai government would be legally acceptable under the Afghan Land Management Law of 2008.27 With that said, the judge in Deh Rawud stated that he would accept more recent title as binding and superior to title from the King’s time, but he admitted that such a position is theoretical since, as above, essentially no one possesses it and the district government is not equipped to issue or record it.28 In terms of the title that does exist, the district judge in Deh Rawood stated that he mostly saw having old title as an accelerator of conflict, as it was usually invoked by parties in support of otherwise dubious claims,29 an observation that accords with previous TLO studies of land conflicts (2008).

Case studies reinforced this impression of weak governance, without the state playing much of a role in Land conflicts. For example, in the Deh Rawud case of Mahboob v. Ghulam Mohammed, the former bought land from the latter for 700,000 Afghanis (about 12,000USD), and the parties then went to local elders, who issued them a new customary deed. Ghulam Mohammed later regretted the deal and sought to renege on it, as another party had offered him one million Afghanis for the same land (about 20,000USD). Mahboob refused, even after Ghulam Mohammed tried to return his money, and both sides threatened to kill each other. The jirga eventually split the land, with Ghulam also refunding some of the purchase price.

Such a case not only provides an example of how Land conflicts can escalate, but it also shows a situation when, if Deh Rawud had a functioning land registration system, parties

25 Ibid. 26 Interviews with Deh Rawud Justice Providers, March 30, 2011. 27 At Art. 5.2, art. 6 (Latter allows for exchange of royal deed to a modern land deed). 28 Interview with the Deh Rawud District Judge, May 3, 2011. 29 Interview with Deh Rawud District Judge, May 3, 2011.

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could have applied for formal title, by registering a transfer of land30, but of course could not. As a result, two parties without apparent formal title to their land have now transferred that land again under an informal title regime. From one perspective, this transfer shows customary title fulfilling some of the purpose of government title, by solemnizing a Land transfer and notifying (informal) community authorities. It is also certain that Deh Rawud’s Land market could not function without using informal title. Yet, based on a reading of Afghanistan’s current Land law, illegal transfer has followed illegal occupation, with the government having at least theoretical legal authority to undo both. Given the district’s lack of any government Land titling services, this situation promises to set the district government and its landholders at loggerheads if and when the government gains enough capacity to enforce the Land law as written.

However, unsurprisingly, individual title transfers are not necessarily the Deh Rawud government’s largest short-term problem. Rather, even some of Deh Rawud’s traditional elders realize that Land conflicts between tribes undermine governance in a more direct way by both feeding into large-scale private conflict, and again putting the government in opposition to some of its citizens. Interviewees thus related a large conflict between the Popalzai and Alokozai tribes. After the King’s fall, these tribes began jockeying for the right to irrigate and cultivate desert lands titled to the government (this is also an example of the complex relationship of irrigation to Land conflict: if the land were not irrigable, no one would want it). The land passed back and forth between them until Taliban times, when the fighting ceased. More recently, however, the politically dominant Popalzai (TLO 2009A, 2010) have, in these elders’ telling, exploited their ties to the government to gain exclusive use of the land, which they have indeed irrigated and put under cultivation. For these reasons, the elders also asserted confidently that “when” the current government falls, fighting over these lands will begin anew.31

Such a case is obviously troubling for several reasons. It first of all implies a government that is aware of, but either unable to end, or itself aggravating, a large Land conflict – thus a lack of present governance. More disturbingly, however, the elders’ narration seems to also imply a lack of faith in future governance: this regime will fall, a stronger one will not

30 Afghan Land Management Law of 2008, at Art. 5.1. 31 Interview with Deh Rawud Tribal Elders, May 3, 2011.

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replace it immediately, so fighting over the land can resume. If a large number of people share this attitude, that might explain, in part, the district’s high rate of Land conflict, as parties that do not have faith in any long-term settlement of their claims or security of their title would possess a powerful incentive to grab as much land as they could, as quickly as they could (or, at least, given the economic value of land in Deh Rawud noted above, they would have fewer incentives not to do so).

Government-approved land documentation would in theory ameliorate this situation. However, as the section analyzing Land conflicts in Grishk (at Section 3.1) will demonstrate, government titling itself can appear just as fraught and uncertain as its customary counterpart. If that is the case, then the advantages of obtaining government title, an onerous process (TLO 2008), shrink considerably, even in areas set up to issue such title.

2.2 Criminal Justice in Deh Rawud As with Land conflicts, Deh Rawud is experiencing a crime rate significantly higher than Mohmand Dara, if also significantly below that of Grishk (as will be seen). In the past year, TLO data collectors in Deh Rawud found 333 criminal disputes, including 191 disputes combining Civil and Criminal elements (largely Land disputes that turned violent32), 203 Minor crimes, and 76 Major crimes.33 By way of comparison, Mohmand Dara saw 59 Civil- Criminal cases, 40 Minor Crimes, and only 5 Major ones. Using the same methodology as above, Mohmand Dara is experiencing a crime rate of 247 Criminal disputes per 100,000 population, while Deh Rawud has a rate of 597 Criminal disputes per 100,000 population, a difference of more than 100%.34

As already noted, Deh Rawud’s tribes maintain a high degree of power and authority (TLO 2009).35 The tribes’ power and stability matter, in part, because they are the prime movers in solving criminal cases, with formal authorities apparently not playing a significant role. The broader quantitative data in this report already have indicated that jirgas and shuras

32 Interview with Deh Rawud Jirgamaran, May 3, 2011. 33 In line with TLO’s previous study, interviewees tended to define a Major Crime as any that involved death or serious injury. Interview with Deh Rawud Justice Providers, Received March 30, 2011. 34 The reader should not take the “crime rate” referred to here as the same as the crime rate compiled in Western countries. For example, interviewees did not treat forcible occupation of land as a Criminal matter (in the United States it would be the crime of Conversion, at the least). There was also no equivalent of Simple Possession of Narcotics charges in the United States, which account for the plurality of American courts’ caseloads. In other words, the systems are not analogous. That being said, the crime rate compiled here should be valid for comparing the conditions in different Afghan districts. 35 Interview with Deh Rawud Jirgamaran, May 3, 2011. See also, TLO 2009, TLO 2010.

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probably hear most Criminal cases in Deh Rawud (as they hear the overwhelming majority of all disputes), a point strengthened both by the negligible number of Criminal cases in the court, and the statement of jirgamaran that the jirgas had to rely on themselves in settling Criminal cases.36

Indeed, in line with previous studies (Roeder 2010), the Deh Rawud court is notably anemic both in the number of Criminal cases it receives, and in the way it handles them. To begin, the District Judge stated that his Criminal docket was entirely murders, but that he did not have records for cases. Regarding these murder cases, he also lacked complete information, as he had only made minimal inquiries after the Attorney General had ordered the accused individuals imprisoned (although he did state that he intended to find – before trial or a full hearing – one of the accused innocent).37 In one particularly troubling case, a woman had killed a man attempting to rape her. The Attorney General then ordered her brother imprisoned in her place, because of his policy of not incarcerating women. The judge, for his part, stated that he had concluded that the matter was “not self-defense”, and that he would hold the trial (of the brother) in the coming months,38 a series of actions which appear to have no basis in Afghan Criminal law.39 Such cases are of course troubling, but, given the court’s minimal caseload, only represent a very small part of the Criminal Justice system in Uruzgan.

Putting the court aside, two factors contribute to, if not entirely account for, Deh Rawud’s rate of Criminal disputes, notably an increased rate of Civil-Criminal disputes, and some localized areas of instability, resulting in more Civil-Criminal and Minor Criminal offenses. As to the former, it undoubtedly relates to the large number of Land disputes the district is also experiencing, as many of these conflicts, even among family, turn violent.40 Thus one can speculate that a reduction in the number of Land disputes would also reduce the number of Criminal disputes, by removing one of the latter’s main causes. And village-level insecurity also contributes to the crime problem, increasing both Minor Criminal and Civil-Criminal offenses. To give the most prominent example, the village of Dum Wajan has, in the last

36 Interview with Deh Rawud Jirgamaran, May 3, 2011. 37 Interview with the Deh Rawud District Judge, May 3, 2011. 38 Ibid. 39 See, e.g., Interim Criminal Procedure Code for Courts 2004, at Arts. 6, 36 (Stating that generally an accused person (not the accused’s brother) may be detained for up to 15 days after arrest). 40 Interview with Deh Rawud Jirgamaran, May 3, 2011.

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year, absorbed a large number of IDPs.41 As in other places42, such an influx leads to a spike in the number of Minor Criminal disputes, as well as disputes combining Civil and Criminal elements: the village experienced 25 such disputes in the past year, by far the highest number in the district. The influx of IDPs, and concomitant increase in crime, has also affected parties’ choice of forum. In Dum Wajan, far more disputes went to the district executive than was the case elsewhere: eight to the District Governor, 20 to the Chief of Police, and 37 to the village jirga. Put another way, district executive officials heard about 43% of Dum Wajan cases (28 out of 65 total), while, for Deh Rawud overall, these officials heard only eight percent of cases (116 out of 1,415).

Such factors in part account for Deh Rawud’s higher rate of Civil-Criminal and Minor Criminal cases. They do not, however, account for its large number of Major Crimes. Yet the rate of such cases in Deh Rawud does not appear to be any higher than in the relatively stable Paktia areas previously surveyed43, suggesting not that Deh Rawud’s rate of Major Criminal cases is particularly high, but rather that Mohmand Dara’s is particularly low. Contributing to this impression, Deh Rawud jirgas appear to handle Criminal cases efficiently, and to carry much authority to both decide and punish. For example, in the case of Purdil v. Khodia Dost, large-scale fighting broke out between neighboring families after a dispute over the sale of land, resulting in multiple clashes and the serious injury of Khodia Dost’s son. Neither party approached the police, and the case study gives no indication of government involvement at any stage. Rather, the jirga took control of the situation itself, stipulating conditions on which the parties could buy and sell one another’s land, and extracting guarantees that the fighting would cease. The jirgamaran also stated that any party who violated these terms would be forced off his land and be exiled from the area – one of the most serious penalties that can be imposed in a tribal society. The jirga’s successful resolution of a heated and violent dispute indicates in itself a high capacity and, assuming the jirga’s threat of punishment is credible, a substantial ability to enforce its decisions. Indeed, such a case supports the surprising statement of Deh Rawud jirgamaran

41 Report of Program Monitor on USIP South to Program Officer, May 1, 2011. 42 For example, Chahar Borjak District in Nimroz Province is, overall, highly stable and sees only a relatively small number of disputes. However, the village of Islam Abad sits on the border with Iran, and absorbs a large number of refugees expelled from that country. TLO’s data on the district remains incomplete, but, based on survey results so far, Islam Abad has to date seen more disputes, particularly Minor Criminal and Civil/Criminal than the rest of the district combined. 43 The three Paktia districts previously surveyed saw 51 Major Criminal cases in total. If one accepts the CSO estimate of their population at 75,000 combined, then they would be seeing almost the exact same rate of Major Criminal cases as Deh Rawud.

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that parties prefer solving cases with them because they can enforce harsher penalties than the state.44

2.3 Family Cases in Deh Rawud Family cases are the third major category of disputes in Deh Rawud and, in the past year, justice providers in Deh Rawud heard roughly 218 Family cases. Thus, the district, in a pattern already familiar, saw Family cases at a substantially higher rate than Mohmand Dara. The latter recorded 58 Family cases in total, or 137 cases per 100,000 population, against 276 per 100,000 population in Deh Rawud. Based on these numbers, Deh Rawud appears to be hearing a higher per capita number of Family cases than any other area TLO has surveyed.

However, the Deh Rawud District Judge court reported hearing no Family cases in the past year45, although other government authorities did hear a few informally.46 Indeed, although the judge in Deh Rawud claimed competence to handle Family disputes, he clearly does not relish the role, and stated plainly that he regards these cases as much more the province of elders.47 Elders in Deh Rawud in turn prefer to sit alongside ulema members in these disputes, in order to receive advice on proper Sharia rules and procedures.48 Deh Rawud jirgamaran even stated that, if a jirga decided a Family issue without consulting the ulema, parties were then free to reject the decision and appeal to the state, which the elders presume to have sharia competence.49

That being said, Family issues in these districts seem to be more conceived of as matters of group rights than individual ones, a trait of Pashtunwali (and other customary law systems) generally (Rzehak 2011). Such a conception of rights excludes from consideration almost all assertions of rights against the family itself (e.g. a right to choose a marriage partner). Thus,

44 Interview with Deh Rawud Justice Providers, Received March 30, 2011. 45 Ibid. 46 Interview with Deh Rawud Jirgamaran, May 3, 2011 (reporting the Woliswal hearing Family cases). 47 Interviews with Deh Rawud Justice Providers, Received March 30, 2011; Interviews with Grishk Justice Providers, Received March 30, 2011. 48 Interview with Grishk Data Collector, April 27, 2011. The same source also indicates that ulema sometimes sit with Grishk jirgas even for disputes that do not implicate Sharia. Unlike the ulema shuras of Nangarhar, there is no sign that the ulema in Deh Rawud and Grishk take a publicly pro-government position. Indeed, Deh Rawud interviewees indicated that the ulema there are used as a neutral party between the Taliban and government: when the government wants to deliver a message to the Taliban, they send it through local ulema. This would hardly be possible if the ulema were, for example, recruiting for the ANA and ANP as at least some are in Nangarhar. 49 Interview with Deh Rawud Jirgamaran, May 3, 2011.

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while women only bring cases very rarely50, women’s issues were sometimes addressed as family grievances. For example, a shura in Deh Rawud reported the case of Janan v. Wali Jan. The parties to the case had, some years before, married one another’s sisters, but now each woman was being prevented from visiting the home of her father, resulting in persistent conflict between the families. After hearing the dispute, the jirga ruled that, if a married woman has been invited to her father’s home, her husband’s family may not prevent her from going. The jirga also stipulated a fine of 100,000Afs (about 2,000USD) if any party violated the ruling. While the jirga’s decision certainly benefitted the (unnamed) women involved, it only addressed them through the intermediaries of their husbands and families. The woman’s right of movement would, in turn, seem to depend on her father’s invitation – indicating that the father, not the daughter, “owned” the right, and could assert it.

Several of these dynamics also play out in a potentially destabilizing Family dispute related by a Deh Rawud elder. In that case, the husband, from the politically dominant Popalzai tribe, had allegedly been cruel to his wife, from the Babozai tribe that has sometimes been perceived as pro-insurgency(See TLO 2009 (delineating traditional political affiliations of tribes)). She ran away to her father’s home. Her father, in turn, approached a jirga, which attempted reconciliation. When that failed, the case went to Matiullah Khan, tribal leader of the Popalzai. After again failing to achieve a reconciliation, he granted the parties a divorce.

Despite being a tribal elder (albeit one who achieved his position, and was not born into it (Schmeidl 2011), Matiullah Khan will usually only hear the most serious and potentially destabilizing cases, and functions as something of a court of last instance (TLO 2010).51 According to TLO’s interviewee, this case went to him both because a woman “running away” from her husband’s home creates a major case in and of itself, and also because the case had turned into a much larger tribal dispute.52 In other words, the parties here quickly became stand-ins for their tribes, threatening a larger conflict even when no cognizable resources were involved. As such, Family disputes can sometimes pose at least the same

50 Ibid. When asked this question, the interviewee laughed and stated that, because women in his society were illiterate and powerless, state authorities took any notice of them, and they had no idea of the law or their rights. He also added that it was unknown for women to approach jirgas. 51 Interview with Deh Rawud Jirgamaran, May 3, 2011. 52 Interview with Deh Rawud Jirgamaran, May 3, 2011. TLO’s interviewees, Babozai tribal elders, did not get to sit with Matiullah in deciding the case, but were lobbying in support of the wife’s side of the dispute.

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potential for destabilization as Land or Criminal ones, meaning that these disputes, in practical terms, are often not just individual, but can carry political implications that might directly affect community interests.

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3 Formal and Informal Justice in Grishk

Grishk (also known as Nahr-I Siraj) is Helmand province’s second-most populous district, with 166, 827 residents (Walker 201053), and hosts a number of larger urban settlements such as Grishk City and Qalha Gar.54 Grishk also suffers from a large and persistent insurgency, and areas of the district fall regularly under Taliban control.55 On the one hand, both these urban areas and less stable rural areas witness the District Governor and Chief of Police playing a much larger role in justice provision than in either Deh Rawud or in more stable rural areas in Grishk. On the other hand, the Grishk insurgency appears to place a limit on the powers of both the state and the elders in the district, with the state not being able to exercise jurisdiction over all persons, and elders sometimes having trouble enforcing their decisions. Grishk thus represents an area of profoundly mixed state and non-state authority, a trait manifested especially in how both formal and informal authorities treat Land and Criminal disputes.

Much as in Deh Rawud, disputes are numerous (see Table 4), particularly of note is a rate of Land disputes (1,007 per 100,000 population) much higher than in Mohmand Dara, but highly similar to Deh Rawud, contrasted with a rate of Criminal cases (900 per 100,000 population) much higher than in any district previously surveyed. As such, this rate of Land disputes starts to look like a possible baseline for Southern areas. And while establishing the causes of Grishk’s high crime rate will require a much more in-depth study of Helmandi society, both it and the high number of cases heard by Grishk’s executive branch officials both plausibly relate to the district’s weak tribal governance, a point well in line with other studies of the area, as will be discussed below in sections dealing with the district’s Choice of Forum, Land Disputes, Criminal Justice, and Family Cases.

53 This estimate is the same as one produced by the United Nations Population Fund and the Afghan Central Statistics Office in 2003. It is not known whether the ISAF report borrows this data without attribution, or whether the authors of that report arrived at the same figure independently. 54 Report of TLO Program Monitor on Grishk District, Received March 30, 2011. 55 Report of TLO Program Monitor on Grishk District, Received April March 30, 2011; Interviews with Grishk Justice Providers, Received March 30, 2011; Interview with Grishk Data Collector April 27, 2011.

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Table 4: Issues of Grishk Cases

Minor Major Land Civil/Criminal Boundary/Access Family Commercial Criminal Criminal (Ownership)

1,037 328 136 363 281 224 185

Total Land Disputes: ~1,681 Total Criminal Disputes: 1,501 (900 per 100,000 pop.) (1,007 per 100,000 pop.)

3.1 Choice of Forum in Grishk Grishk parties split their choice of forum more than in any area TLO has studied, with the exception of Jalalabad (2009, 2011). Within the past year, Grishk jirgas and shuras have heard 1,504 disputes, while local executive branch officials have heard about 60% as many, or 964 (the Grishk distirct court has also heard about 65 cases; see Table 5). Several interrelated trends appear to influence parties’ choice of forum in Grishk, notably degree of urbanization, the corruption of state officials, and the weakening of tribal dispute resolution related to persistent insecurity and insurgency.

Separating the precise effects of urbanization versus insecurity versus corruption was not possible for this study, but one should note up front that Grishk’s relatively large and dense population does not explain all the choice of forum data presented here. To give the most prominent example, even within Jalalabad Nahiya Five, an area with a much larger population than any Grishk town, inside an even larger urban agglomeration, the Nahiya executive branch heard many fewer cases than its Grishk counterpart, while the Jalalabad City Court heard many more (TLO 2011). As a result, one can perhaps say that ease of access leads to disputants using more state resources, but does not necessarily play a large role in deciding which state resources they will use.

Table 5: Forums for Dispute Resolution in Grishk

Village District Provincial District Chief of Other Shura Court Shura/Jirga Shura Shura Governor Police

743 501 260 21 584 380 65

Total Disputes: 2,702 (1,619 per 100,000 pop.)

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That being said, insecure and urban areas in Grishk both have more cases heard by the district executive, and fewer heard by traditional elders. In Grishk City itself, neighborhood shuras heard only 59 disputes out of 300 total, while the District Shura (which sits in the city) heard 81 disputes, the District Governor 98, and the Chief of Police 85. In particular, the number of disputes heard by the District Shura points to ease of access as an important factor in parties’ choice of forum, as no other location sent nearly as many cases to this body. There is thus no observable correlation between security and District Shura use: the 81 disputes from Grishk City account for more than one-third of the District Shura’s caseload, with no other town, large or small, in either secure or insecure areas, sending even close to that number.

The ability to influence government officials by bribes is also playing some role in parties’ choice of forum, even if, within Grishk City, the available data do not reveal how this factor interacts with ease of access to state officials more generally. TLO data collectors stated that the willingness of the District Governor and Chief of Police to take bribes made them a popular choice for those litigants in a position to pay, and that these officials actively sought to involve themselves in cases from which they thought they could extract money.56 Such access to pay-on-demand state justice would of course put relatively non-corrupt57 elders at a disadvantage when hearing the cases of wealthy or influential parties. It would also weaken elders’ authority, as parties could essentially pay to have jirga decisions overturned.58

Somewhat different trends obtain outside Grishk City, with tribal elders hearing a much higher percentage of cases in stable towns and villages than in unstable ones. Coghlan (2009), in an analysis of the Helmand insurgency (including a great deal of material on Grishk), noted that the insurgency weakened elders’ authority by providing novel dispute

56 Interview with Grishk Data Collector, April 27, 2011. 57 Interview with Grishk Justice Providers, Received March 30, 2011 (stating that jirgas have a low level of corruption). One should however note that, according to government officials, “powerful people” in rural areas influence dispute resolution in jirgas. Interview with Grishk Justice Providers, Received March 30, 2011. 58 It is worth noting that Grishk elders stressed the voluntary nature of jirga settlement, and that parties were free to turn to other authorities if they did not like the jirga’s judgment. Interviews with Grishk Justice Providers, Received March 30, 2011. By contrast, their more powerful counterparts in Deh Rawud tended to emphasize the ability of jirgas to enforce large punishments for parties who professed to accept the jirga’s decision but then did not comply. Interview with Deh Rawud Justice Providers, Received March 30, 2011. They did, however, state that if parties openly rejected the jirga’s judgment, they were still free to take their case to the government. Ibid.

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resolution forums, with an enforcement capacity that elders sometimes lack.59 Interviews for this report also revealed that Grishk elders themselves bemoan their lack of enforcement capacity, and state that the insurgency is putting them under pressure.60 More concretely, Taliban in Grishk, when in control of an area, typically prevent elders from hearing cases, or even from meeting as a group at all.61

For example, the peaceful Grishk village of Mir Khanzai reported 77 cases in the village shura, and only two each with the Chief of Police and District Governor. By contrast, the village of Mir Mandan has persistently suffered from insecurity.62 During the past year, its village jirga heard only four disputes out of 81 total, while other shuras heard 29 disputes, the District Governor 21, and the Chief of Police 19. Similarly, the unstable village of Zambali63 saw only three disputes in the village shura, but 10 with the District Governor, 20 with the Chief of Police, and 18 with other shuras. Thus one can see, looking from village to village, indications of how insurgent presence appears to undermine customary dispute resolution most of all, while driving people either to Taliban courts64 or to the district executive branch. Notably, since the Taliban monopolize dispute resolution in the areas they control65, the number of people in these areas going to the state for dispute resolution would mostly reflect litigants going before or after the Taliban’s arrival, suggesting that the weakness of tribal jirgas in these villages is not merely because of the Taliban’s actual presence, but a more general phenomenon.

3.2 Land Disputes in Grishk With that said, the underlying dynamics of the Grishk’s Land conflicts appear largely similar to Deh Rawud’s. The Helmand district saw approximately 1,681 Land disputes within the past year, for a per-capita rate of 1,007 Land disputes per 100,000 population – similar to Deh Rawud but again substantially higher than Mohmand Dara. Moreover, as in Deh Rawud,

59 He also included this quote from a Grishk elder, “The local people used to support the elders. But nowadays the elders have lost their trust and the government does not listen to the elders.” Grishk elders do sometimes say, however, that at least over the past five years, their authority has stabilized. Interview with Grishk Data Collector, April 27, 2011. 60 Interviews with Grishk Justice Providers, Received March 30, 2011. 61 Interview with Grishk Data Collector, April 27, 2011. 62 Report of Progam Monitor on Grishk District, Received March 30, 2011. 63 Ibid. 64 The Taliban have a mobile court in Grishk. The Taliban do not have persistent physical control of any villages, but the mobile court goes between those villages in which the insurgency has temporary control, or very high influence. Interview with Grishk Data Collector, April 27, 2011. 65 Interview with Grishk Data Collector, April 27, 2011.

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Grishk irrigated farmland is extremely valuable, at about 8,000USD per jerib.66 Grishk, in turn, benefits from an extensive irrigation network, built in part by USAID’s Helmand Valley Project of the 1960’s. Interviewees praised this project in general, but also noted that it precipitously increased Land conflicts by driving up land values, as well as broadening Land conflicts by making it possible to cultivate desert land.67 As a result, land-grabbing – always a fundamentally economic decision – becomes more prevalent, even if it is expected to lead to a dispute, or, especially, if parties feel impunity for their land-grabbing.

There is also little doubt that Grishk suffers from extremely weak governance, as indicated both by the statements of jirgamaran and the ineffectuality of government land claims and land title. Disputes over government land appear common, with some tribal leaders also attempting, but without apparent success, to restrain Land conflicts more generally.68 Similarly, TLO’s data collector for the district estimated that 80% of people hold government title to their land from the time of Abdur Rahman Khan, the Iron Emir (reigned 1880-1901). And some parties also possess title from the Communist, Taliban, or present governments, but such title is held to be less authoritative than that from the Emir.69

As a result, even when parties do have Afghan government title, substantial confusion regarding ownership can still exist, leading to neither jirgas nor government offices actually treating official-seeming documentation as dispositive. In the case of Sayed Ishmael v. Abdul Razaq, both parties were able to produce apparently valid government documents establishing ownership of a plot of land in Grishk City. Both the formal authorities who initially heard the case (it spent around a year in various government departments), and the jirga that ultimately resolved it, took Sayed Ishmael’s earlier documentation of ownership as strong evidence of his rightful claim. However, they also weighed it against Abdul Razaq’s actual possession and use of the land at the time of the dispute, and the later documentation he possessed. Thus, even though the jirga, in resolving the dispute, established Sayed Ishamel’s ownership, he still had to pay Abdul Razaq for the improvements the latter had made to the property during his occupation. As was also seen in TLO’s previous reports (2008, 2011), this treatment of documentation, while perhaps

66 Interview with Grishk Liaison Officer, May 16, 2011. 67 Interview with Grishk Data Collector, April 27, 2011. 68 Interview with Grishk Liaison Officer, May 16, 2011; Interview with Grishk Data Collector, April 27, 2011. 69 Interview with Grishk Data Collector, April 27, 2011.

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understandable in the context of decades of upheaval and a formal state semi-functional at best, still provides very skewed incentives to parties. If Abdul Razaq was occupying the land illegally, with forged documentation, then he has now profited from his conversion and fraud. However, if Sayed Ishmael has produced forged documentation, then he has also profited from his misdeed by gaining a piece of land to which he is not entitled (there is also the possibility that the local government is double-selling plots of land).

Whatever the case, a party in the wrong – whether the plaintiff, defendant, or government –almost certainly profited. The circumstances of the case also seem to indicate that the government is not enforcing Afghan land law very aggressively: the case spent about a year with the government, with neither party able to satisfactorily establish ownership. In such circumstances, the government could have easily invoked the Land Management Law of 2008 to determine that neither party had legally valid title, meaning the land belonged to the state70, but did not do so. This lack of enforcement might stem from a lack of knowledge of the law, although the circumstances of the cases – at various stages involving the court, the Huquq Department, the Cadastre, and the bank – make this possibility unlikely. Quite possibly, then, the government did not feel enough confidence in its own title regime to actually apply it rigorously. As with the Deh Rawud governor mediating private disputes over government land, the government here seems to have acted in a humane and pragmatic fashion – but one made necessary by extremely weak capacity.

Such a finding is potentially troubling in light of the presumed importance of land title, and land title reform for economic development and stabilization.71 For example, the United States Government and USAID, first in its Land Titling and Economic Reform in Afghanistan (LTERA) project, and soon in a new project titled Land Reform in Afghanistan (LARA), has placed considerable emphasis on these areas.72 Without taking issue with these development priorities as such, the evidence presented here does indicate that, in line with

70 At Art. 3.8 (Defining government land as, inter alia, land without a valid deed to a private owner). 71 Miceli (2010) lays out the traditional case for the economic importance of land title: by cementing ownership, titling and registration of land, first of all, incentivizes owners to invest in immovable improvements such as houses and irrigation systems, as well as to make other investments in the land that will only pay-off in the long term. Second of all, land titling and registration, also encourages outside investors by reassuring them that their investment is safe from ownership claims by other private individuals and the state. 72 See LARA “DESCRIPTION/SPECS/STATEMENT OF WORK” (On file with author).

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other strands of law and development thought73, title only fulfills its economic potential when embedded within a functioning administration and dispute resolution system. This report, however, also indicates that a great deal of the title at issue is between 35 and 130 years old, and might no longer bear much of a relationship with actual ownership of land either now, or in any recent decade. As a result, simply enforcing existing title could severely injure a significant number of people in long-term actual possession of land, and land reform efforts, to be both effective and humane, would probably need to tackle title enforcement and title reform at the same time.

3.3 Criminal Justice in Grishk Criminal justice in Grishk shows a similar uneasy mixture of state and non-state elements. Grishk has seen 1,501 Criminal disputes within the past year, including 1,037 disputes combining Civil and Criminal elements; 328 Minor Criminal disputes; and 136 Major ones. Moreover, of all the areas heretofore surveyed, Grishk shows the largest number of Criminal cases per capita, at 900 per 100,000 population, against 596 per 100,000 population in Deh Rawud and 247 per 100,000 population in Mohmand Dara.

Given the district’s large population, its number of Minor Crimes and Major Crimes does not seem notably higher than Deh Rawud’s. Rather, the rate of Civil-Criminal disputes – more than seven times as many as in Deh Rawud – explains most of Grishk’s higher crime rate. Scholarship on Helmand has previously associated this trend toward criminality (and especially violence) with weakened tribal structures (Coghlan 2010; Ledwidge 2009). The pattern of cases presented here in turn suggests that Grishk disputants, in the course of “normal” disputes, turn to violence more often than do their counterparts elsewhere. In line with the above, such behavior makes more sense if neither the formal nor informal justice systems is functioning smoothly, and parties have little to fear, in terms of either punishment or social stigma, by using violence or other Criminal means to settle even ordinary disputes.

73 See, e.g., Michael Trebilcock & Paul-Erik Veel, Property Rights and Development: the Contingent Case for Formalization, 30 U. Pa. J. Int’l. L. 397 (2008)(Surveying literature indicating that functional property rights in land depend upon both social norms supporting their use, and a broader system of enforceable property rights already existing. Neither of these factors would seem to exist in unstable areas of rural Afghanistan).

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As to the formal system, the court’s docket is exclusively Criminal74 (a pattern also seen in the East (TLO 2009, 2011), but it heard only about 65 cases, out of the aforementioned 1,501 Criminal cases in total. Moreover, the court did not necessarily hear the most serious cases: of those 65 disputes, only one was a murder, and only six were kidnappings.75 Such a small docket almost certainly does not represent a significant percentage of the district’s Major Criminal cases. For example, in late April of 2011, TLO data collectors reported five unsolved murders in the Grishk area within a three week period, including that of a man murdered on suspicion of working for the government.76 Thus the court’s only handling one murder case for the year suggests not an absence of murder cases, but rather a pronounced lack of capacity in the judiciary, in the police, in Prosecutor’s office, or in all of these.

Putting aside the court, then, the informal justice system is hearing the lion’s share of Criminal cases, with, as above, village jirgas hearing 1,244 disputes in the past year, and the District Governor and Chief of Police hearing 964 disputes between them. Limitations of the Grishk data77 made it functionally impossible to determine exactly which informal authority – jirga, District Governor or Chief of Police – heard which disputes. That being said, as discussed in the section on Choice of Forum, village jirgas hear virtually all disputes in more secure parts of Grishk, necessarily including Criminal disputes; while, in more urban or less secure areas, the Chief of Police and District Governor heard the largest number of disputes, again almost certainly including most Criminal disputes. With the above caveat in mind, the forums for hearing Criminal disputes thus probably mirror choice of forum overall.

Case studies reflect both the predominance of informal justice in handling Criminal cases, along with the problems that insurgency and insecurity are causing them. As indicated above, elders state that they have retained influence in government-controlled areas, but have been usurped in Taliban ones, and have difficulty enforcing judgments against parties with Taliban connections7879, as well as more generally.80 Concomitantly, jirga elders also

74 Interview with Grishk Justice Providers, Received March 30, 2011. 75 There is some uncertainty on this point. On the one hand, it seems obvious that the court is not hearing more than a fraction of murder and kidnapping cases. On the other hand, its other disputes might have involved other major criminal acts – for example, cases with serious security implications. However, the Grishk judge was not open enough about his court’s activities to make this judgment with any certainty. 76 Interview with Grishk Data Collector, April 27, 2011. 77 Notably, district government officials did not cooperate in the large majority of interview requests, or in the provision of data on their offices. 78 Interview with Grishk Data Collector, April 27, 2011.

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state that they benefit from working with the district government in Criminal cases, at least in part because of the state’s enforcement capacity.81 In one case – Lal Mohammed v. Abdul Hakim – the latter, an ungulate dealer in Grishk, accused the former’s son of pilfering livestock, and took his complaint to the district authorities. In the meantime, the case turned violent with Abdul Hakim’s son beating Lal Mohammed’s son, severely injuring him and taking his motorcycle. Despite the case’s indisputably Criminal nature, the District Governor referred it to a jirga for resolution. After satisfying themselves of Lal Mohammed’s guilt, and taking into account the injuries inflicted on all sides, the jirga ordered 25,000 Afghanis (or about 500USD) to be paid to Abdul Hakim, and both parties accepted the decision, without the state taking any further action.

However, not all cases in Grishk could be resolved so easily. In another reported case, a young man named Obaidullah accused Rahmatullah of sleeping with his (Obaidullah’s) niece. Rahmatullah then killed Obaidullah. After the murder, the case persisted for nearly three years before resolution, and apparently without any state involvement. Indeed, elders believed that both Rahmatullah and Obaidullah were working with the Taliban, even though neither party approached the Taliban for resolution. Rather, after a period of intransigence – Rahmatullah would initially not even hand over Obaidullah’s body for burial – both sides of the dispute accepted the authority of the elders, and their solution to the conflict, which involved Rahmatullah compensating Obaidullah’s family with a piece of land. On the one hand, these tribal elders seem to have proved themselves significantly more far-reaching and legitimate than the state, such that they engineered a solution to an important conflict even for parties capable of appealing to outside authority, or initially resistant. But, on the other hand, the elders still took almost three years to affect a solution, and such solution seems to have required Rahmatullah’s consent. Thus it would appear that these elders possessed legitimacy, but not power sufficient to compel settlement, at least for insurgent- connected parties. These difficulties probably make the elders limited as a source for

79 The state is also facing problems of its own. For example, parties do seem to often (if not always) call the police when crimes occur, so the paucity of criminal cases in the courts probably arises in large part because many serious crimes remain unsolved: for example, there were at least three unsolved murders in April, 2011 alone. Interview with Grishk Data Collector, April 27, 2011. 80 Interviews with Grishk Justice Providers, Received March 30, 2011. 81 Interviews with Grishk Justice Providers, Received March 30, 2011.

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bringing order, even if they have reach that the state lacks,82 so highlighting the desirability of formal-informal government linkages in the district.

3.4 Family Disputes in Grishk

(Forthcoming in public version)

82 This is suggestive of three categories of territory: areas under state control; areas under Taliban control; and areas not entirely under state or Taliban control but where elders can still operate.

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4 Formal-Informal Justice Linkages in Deh Rawud and Grishk

Even above issues of security as such, politics and governance in Helmand and Uruzgan remain notably weak83 Neither the Communists, nor the Taliban, nor the present government could bring stable and centralized government to these areas (as in much of the rest of Afghanistan), and decades of war have fractured tribal structures that were already experiencing intense rivalries (Coghlan 2009 (on Helmand); TLO 2010 (on Uruzgan). By comparison, most of the Paktia and Nangarhar districts previously surveyed84 have relatively homogenous and non-fragmented tribal compositions and stable politics. Such demographic homogeneity, on the one hand, and lack of fragmentation within and among tribes, on the other, seem to contribute to district stability, and allow the government to ally with one tribe without appearing to choose sides against others. And, although such homogeneity is not a prerequisite for district-wide action, it does seem to make that action more effective, and increase unity among tribal and formal governance. For example, the tribal leadership of Mohmand Dara (which is 90% Mohmand tribe (TLO 2010A)), once it decided to do so, could mostly exclude insurgent elements from the district.85 That district also featured almost-daily meetings between formal and informal authorities, the joint provision of security for important events, and the Woliswal referring a large number of civil cases to traditional (i.e. not state-sponsored) jirgas (TLO 2011).

Formal-informal justice linkages in Deh Rawud and Grishk operate under a somewhat different dynamic. In both places, difficulties in governance seem to have created a demand, both among the tribes and in the government, for closer formal-informal linkages. Yet, for various reasons, that demand is going at least partially unfulfilled. For the most part, Deh Rawud’s tribes and government -- the courts mores o than the District Governor and Chief of Police – exist parallel to one another, with only very occasional linkages, particularly

83 See, e.g., Coghlan (2009)(Memorably describing Helmandi politics as “endless factionalism”) 84 For example, Ahmad Aba and Mirzaka districts in Paktia is overwhelmingly Ahmadzai and Mangal respectively, and Mohmand Dara district in Nangarhar is about 90% Mohmand. 85 The tribal leadership of Chahar Borjak District in Nimroz, which will be included in a subsequent version of this report, also made a similar decision to exclude the insurgency, and received similarly positive results. That district, almost entirely Baloch, has also started to develop a highly integrated government model. Interview with Chahar Borjak Data Collector, April 20, 2011.

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when it comes to dispute resolution. By contrast, the more active insurgency in Grishk appears to have pushed the government and tribes to make greater links, even as the latter do not want to come down firmly against the district Taliban.

As already implied, few Deh Rawud cases move between the government (executive or judicial) and the shuras or jirgas, either for hearing or for enforcement.86 More precisely, the government does refer cases to a newly established ASOP shura set up by the Independent Directorate of Local Governance (IDLG), but not to tribal jirgas formed in the traditional manner. The government also reportedly does not enforce jirga decisions, except those of the IDLG Shura87, and significant government actors remain highly skeptical of the value of the tribal system.88 Generally, as the section on Criminal cases detailed, in Deh Rawud shuras can still enforce their decisions efficiently, and jirgamaran also state that they do not need the government in this regard89 (or more generally90). Jirga leaders, however, also reported occasionally registering cases with the District Governor’s office, although they described the process as unusual, and primarily for cases in which the government itself might have an interest (such as the Family case noted in the previous section).91

Jirga-government cooperation thus appears somewhat centered on the IDLG. Tribal interviewees spoke highly of this body, especially as it represents all tribes and not just the politically dominant Popalzai, but it is not present at the village level, only meets twice a month and depends upon central-government funding. 92 As a result, while the IDLG shura does solve some cases93, it is not adequate to replace more traditional bodies. Similarly, the twice monthly IDLG meetings cannot duplicate the semi-daily, informal meetings between

86 Ibid. 87 Interview with Deh Rawud Jirgamaran, May 3, 2011. 88 Interview with Deh Rawud District Judge, May 3, 2011 (The judge stated that he believed almost all decisions should be formal because formal decisions benefit from superior record-keeping and a better evidentiary basis. One should note that these are theoretical advantages; as the judge later pointed out, at present he has no files for any of his cases and, as above, the evidentiary basis for his decisions can be incredibly flimsy). 89 Interview with Deh Rawud Jirgamaran, May 3, 2011; Interview with Deh Rawud Justice Providers, Received March 30, 2011 (Indeed, the jirgamaran respondents even indicated that people preferred the informal system because its decisions were more enforceable). 90 As one jirgamar stated, “We have decided that this is our country, even if this government goes away.” Ibid. 91 Ibid. 92 Ibid. 93 Interview with Deh Rawud Jirgamaran, May 3, 2011; Interview with the Deh Rawud District Governor, May 4, 2011 (The latter provided a wildly inflated figure of the number of cases that jirgas and government solve together, one that contradicts every other interviewee, as well as TLO’s quantitative data and case studies. When asked to name specific examples of jirga-government cooperation, he could not do so beyond the IDLG, and instead noted cases that the government knew about, but was not involved in).

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government officials and elders that characterize districts with the highest levels of cooperation. In these conditions, state dispute resolution will have substantial difficulty in extending its influence to the village level.

Political cooperation is likewise rare in Deh Rawud. About a year and a half ago, the district’s tribes made the collective decision to reject the insurgency94, leaving the Taliban in that district perhaps the weakest in Uruzgan (TLO 2010). However, according to a Babozai elder, the tribes themselves are enforcing these security arrangements, again without support from the government. He did imply, however, that Papolzai tribal leaders enjoy a significantly closer relationship with district officials, and stated that other tribes had also adopted a policy of outreach to the government, but so far without much success.95 His comment thus seems to reflect the government, to an extent, playing favorites. As a result, the political orientation of the Deh Rawud tribes would appear to be more anti-Taliban than pro-government, a situation which again might limit cooperation going forward.

Comparatively, government-jirga linkages are closer in Grishk. In that district, cases frequently move from the office of the District Governor to the informal system96, with jirgamaran even stating that they give priority to cases so referred because solving them quickly helps improve security. Unlike their Deh Rawud counterparts, they also added that they lacked enforcement capacity, and preferred working with the government for this reason.97 Moreover, the Grishk Woliswal has set up a district shura98 to which he is referring cases, and with which he meets once a month.99 Unlike the IDLG shura in Deh Rawud100, it is also taking cases directly101, and TLO’s quantitative data reflect it hearing a much larger volume of cases, at least seven times as many as the Deh Rawud IDLG Shura.

These existing links certainly seem a positive development, but one must remember that this district, despite suffering from an insurgency pitted against not only the government

94 Interview with Deh Rawud Jirgamaran, May 3, 2011. 95 Ibid. 96 TLO’s Grishk case studies reflect Criminal, Land, and Tort cases referred from the Huquq Department, District Governor, Chief of Police, and Traffic Department. 97 Interview with Deh Rawud Justice Providers, Received March 30, 2011; Interview with Grishk Justice Providers, Received March 30, 2011. 9898 Interview with Grishk Data Collector, May 10, 2011 (clarifying that the aforementioned shura is not an IDLG shura but the Governor’s own initiative). 99 Interview with Grishk Data Collector, April 27, 2011. 100 Interview with Deh Rawud Jirgamaran, May 3, 2011. 101 Interview with Grishk Data Collector, April 27, 2011.

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but also substantial parts of the tribal leadership, has not been able to forge a formal- informal consensus to keep insurgents out. Reinforcing this point, where insurgents are present in Grishk, elders usually know who they are, but decline to report the information to formal authorities, and state that they do not treat cases involving insurgency members any differently than cases involving non-aligned or pro-government parties.102 Thus, while often cooperating with the government, tribal elders in Grishk are clearly also maintaining at least minimal ties to the insurgency. Given the Grishk insurgency’s anti-tribal stance103, many elders certainly take a neutral position more for reasons of self-preservation than ideological affinity. For present purposes, however, this attitude also strongly indicates that formal-informal linkages in the district, while real and more extensive than Deh Rawud, are also somewhat limited and shallow. Tribal leadership in the district at this point seems to possess neither the ability to push out the insurgency (as also discussed in the section of this report dealing with Grishk’s Criminal disputes), nor the will to push integration further.

102 Interview with Grishk Data Collector, April 27, 2011. 103 Ibid.

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5 Conclusion: Legal and Political Settlement

When taken together, the data presented here suggest several different district realities that any policy on formal-informal linkages needs to take into account. More precisely, and in sharp contrast to some Eastern areas (TLO 2009, 2011), data from Deh Rawud and Grishk suggest that tribal diversity and lack of security have both created a demand for formal- informal linkages, while also making them more difficult to establish and, often, less effective.

Various strategies have been proposed to improve access to, and the quality of, Afghanistan’s justice systems. Many strategies, including the government’s proposed “Draft Law on Dispute Resolution Shuras and Jirgas”, focus on setting down criteria so that, if an informal settlement meets those criteria, it can achieve formal recognition. This strategy has the putative advantages of maintaining the integrity of the state justice system, as well as helping ensure respect for sharia, statutory law, and “international human rights standards.”104 A forthcoming TLO policy brief lays out the problems with this law in particular. But, speaking in general, this approach does not match well with the structural realities of district governance this report has demonstrated: informal dispute resolution is already the center of these districts’ justice system, hearing the vast majority of cases, and enjoying claims of legitimacy and authority broader than the formal courts.

In many ways, then, the formal government has more to gain from cooperation with tribal structures than the tribes do from cooperation with the government; efforts at reform should take this into account. Thus TLO would recommend a policy of gradually building the capacity of, and reaching out to, the informal justice system – trying to build on, and improve, what is already working. Such capacity-building might include providing voluntary trainings for jirga elders (in addition to executive branch officials hearing cases), the organization of elders into a non-governmental association, and the development of guidelines for jirga best practices.

It can also, of course, include enhanced cooperation not only with the courts, but also with district governors and chiefs of police who, in many cases, hear more cases and appear to

104 At Art. 10(2) (Requiring jirgas to “observe” these sources of law).

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have higher capacity than the judges. These executive branch officials, for better or worse, are taking the lead both in forming links with the tribes and, sometimes, in solving disputes. From a Western standpoint, these latter activities raise obvious separation-of-powers concerns, as executive branch officials usually have no interest in recognizing rights or validating causes that limit their own power. Yet such concerns seem premature, especially in areas where formal government barely extends outside of the district center. Such a situation certainly does not counsel against extending aid to the courts, but it does mean that building the capacity of these executive branch officials would have a quicker and more wide-ranging impact. Disputants in some areas are already bringing cases to them. Giving them the tools to settle these cases efficiently and within some kind of legal or normative framework could lead to a notable improvement of governance and human rights.

Without broader improvements to governance – which is to say, law and politics – then any reform effort will inevitably come up short. Right now, even institutions such as land title, which should restrain parties and incentivize them to think long-term, are often being used as weapons in a battle to secure more resources. Such behaviors certainly represent economic dysfunction but, even more importantly, they likely represent political dysfunction – a lack of faith in the ability of any political system to bring long-term stability and order. Linking formal and informal governance structures represents one promising way to facilitate this larger political settlement. Legal and political linkages will hopefully prove able to reinforce one another, and eventually allow for law and politics to assume their proper roles, not as triage for a badly damaged system, but as often unremarkable features of a well-ordered society.

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6 References The Asia Foundation, 2009, Afghanistan in 2009: A Survey of the Afghan People; San Franciso: The Asia Foundation. Coghlan,Tom, 2009, “The Taliban in Helmand: an Oral History”, in Decoding the New Taliban: Insights from the Aghan Field (Giustozzi, Ed.); New York: Columbia University Press. Government of Afghanistan, 2004, Interim Criminal Procedure Code for Courts. Government of Afghanistan, 2008, Law on Managing Land Affairs. Government of Afghanistan, 2008, Afghanistan National Development Strategy. Government of Afghanistan, 2010, Draft Law on Dispute Resolution Shuras and Jirgas. Ledwidge, Frank, 2009, ” Justice in Helmand: the Challenge of Law Reform in a Society at War”, 40:1 Asian Affairs 77. The Liaison Office, 2011, Formal and Informal Justice in Paktia and Nangarhar: a TLO Working Paper; Kabul and Washington, DC: TLO and The United States Institute of Peace. The Liaison Office, 2010, The Dutch Engagement in Uruzgan: 2006 to 2010: A TLO Socio- Political Assessment; Kabul: The Liaison Office. The Liaison Office, 2010A, Preliminary Assessment of Nangarhar Province; Kabul: The Liaison Office. The Liaison Office, 2009, Linkages between State and Non-State Justice Systems in Eastern Afghanistan: Evidence from Jalalabad, Nangarhar, and Ahmad Aba, Paktia; Kabul: The Liaison Office. The Liaison Office, 2009A, District Assessment: Deh Rawud District, Uruzgan Province; Kabul: The Liaison Office. The Liaison Office, 2008, Land Based Conflict in Afghanistan: the Case of Paktia; Kabul: The Liaison Office. Miceli, Thomas J. & Joseph Kieyah, 2003, The Economics of Land Title Reform; Storrs, CT: The University of Connecticut. National Area-Based Development Program (NABDP) of the Afghanistan Ministry of Rural Rehabilitation and Development (MRRD), Helmand Provincial Profile; Kabul: NABDP and MRRD. Roder, Tilmann, 2010, Provincial Needs Assessment: Criminal Justice in Uruzgan Province; Berlin: GTZ. Rzhehak, Lutz, 2011, Doing Pashto: Pashtunwali as the ideal of honourable behavior and tribal life among the Pashtuns; Kabul, Afghanistan: Afghan Analysts Network. Schmeidl, Susanne, 2010, The Man Who Would Be King: The Challenges to Strengthening Governance in Uruzgan; The Hague, Netherlands: Clingendael. Trebilcock, Michael & Paul-Erik Veel, “Property Rights and Development: the Contingent Case for Formalization”, 30 U. Pa. J. Int’l. L. 397 (2008).

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United States Agency for International Development, 2011, LARA Development/Specs/Statement of Work; Washington, DC: United States Agency for International Development. United States Department of State, 2010, Afghanistan and Pakistan Regional Stabilization Strategy. Walker, Elizabeth Lee, 2010, Culturally-Attuned Governance and Justice in Helmand Province, Afghanistan; Kabul: the International Security Assistance Force.

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