LAND BASED CONFLICT IN : THE CASE OF PAKTIA

December 2008

Tribal Liaison Office Page 1 of 79 Table of Contents

1 INTRODUCTION...... 7 1.1 Methodology ...... 8 1.2 Constraints...... 9 2 MAGNITUDE OF LAND-BASED DISPUTES IN AFGHANISTAN...... 11 3 HISTORY OF LAND OWNERSHIP AND TENURE IN AFGHANISTAN ...... 14 4 LAND TENURE IN AFGHANISTAN – IN SEARCH OF A TYPOLOGY...... 17 5 LEGAL FRAMEWORKS DEALING WITH LANDOWNERSHIP...... 21 5.1 Formal Systems...... 21 5.1.1 Constitutional or Supreme Law...... 21 5.1.2 State, statutory or national law...... 22 5.1.3 The Civil Code (qanoon madani) ...... 22 5.2 Informal Systems ...... 22 5.3 Acceptable Evidence of Land Tenure...... 23 5.4 Land Registration Efforts...... 26 6 CONFLICT RESOLUTION MECHANISMS ...... 28 6.1 Formal Conflict Resolution Mechanisms ...... 29 6.2 Informal dispute mechanisms ...... 30 7 ASSESSMENT OF THE CAUSES OF LAND-BASED CONFLICTS ...... 35 7.1 Conflict Actors...... 35 7.2 Structural Factors of Land Based Conflicts ...... 42 7.2.1 Resource Scarcity and Ecological Factors ...... 42 7.2.2 Social Importance of Land ...... 43 7.2.3 Heterogeneity – Multi-ethnic society...... 44 7.3 Conflict Dynamics – the Continued Weakness of the State...... 46 7.3.1 Multiple Governments, Land Policies and Land Documentation ...... 46 7.3.1.1 Competing Ownership Rights and Documentation ...... 48 Table 7. Overview of Landownership documents in the Case Studies ...... 48 7.3.2 Weak State Structures and Persistent Corruption...... 51 7.3.3 Strongmen and Land grabbing ...... 53 7.4 Accelerating Conflict Factors...... 55 7.4.1 Vested Interests of Spoilers and Insecurity ...... 55 7.4.2 Weak Legal System and Enforcement Bodies ...... 56 7.4.3 Demographic Pressures...... 57 7.4.3.1 Population Growth ...... 57 7.4.3.2 Returning Refugees and Rural Urban Migration ...... 58 7.4.3.3 Settlement of (Semi)nomadic populations – the Kuchi ...... 60 7.5 Possible Decelerating Factors...... 60 CONCLUSION ...... 62 REFERENCES...... 64 APPENDIX I – QUESTIONNAIRES...... 68 APPENDIX II – CASE STUDIES...... 70

Tribal Liaison Office Page 2 of 79 LIST OF ABBREVIATIONS

AGCHO Afghan Geodesy and Cartography Head Office CCM Commission on Conflict Mediation DA District Administrator DDR Disarmament, Demobilisation and Reintegration DIAG Disarmament of Illegal Armed Groups FGD Focus Group Discussion IDP Internally Displaced Person ISAF International Security Assistance Force ILAC Information and Legal Aid Center (of the Norwegian Refugee Council) NATO North Atlantic Treaty Organisation NRC Norwegian Refugee Council PAR Participatory Action Research PDPA People’s Democratic Party of Afghanistan UNAMA United Nations Assistance Mission in Afghanistan UNHCR United Nations High Commissioner for Refugees USAID United States Agency for International Development

Glossary farman/ firman Decrees, edicts or legal letters etc. issued by the King or President used as ownership documents hanafi One of the four established schools of legal thought in Sunni Islam. It is the predominant school of Islamic jurisprudence in Afghanistan. huqoq a person’s rights under the government ibtidaya mukhama Primary Courts operating at the district level imlak Municipal Land Office jirga Traditional temporary/ad hoc decision-making body in Pashtun Afghanistan created usually for solving disputes among tribes, sub tribes, clans, families or individuals, but also between the government and the tribes. Also called marakha in the South. kabargen An agreement by all surrounding tribes to socially isolate those who did not accept the jirga decision as they promised. kuchi Nomads and semi-nomads in Afghanistan, mostly from Pashtun tribes.

Tribal Liaison Office Page 3 of 79 machalga A guarantee (usually money or other valuables) from both conflict parties prior to entering a jirga. malik Pashtun local authority, leader in war and responsible for interactions with the government usually recognized by the state and linked to a municipality (similar to mayor). makhzan State owned archive of land deeds. morafiya muhkama Secondary Courts operating at the provincial level. Fighters involved in a holy war ( jihad ). Afghan resistance fighters who fought against the Communist government adopted this title. narkh Refers to the local interpretation of various elements of the customary law ( Pashtunwali) that are used in a jirga. The mediators are bound to follow specific rules for differenct crimes, the narkh. narkh waak Establishes limited authority for the mediators in a jirga . orfi/urfee Customary Documents pashtunwali The Pashtun customary law and traditional code of conduct structuring social behaviour in Pashtun dominated areas. qabala shariat Statutory land documents. qanoon madani Civil Code rawaj Customary law dealing with landownership stara muhkama Supreme Court operating at the highest and most central level shariat Islamic law composed of the Koran and the Hadith (sayings of the prophet). shura Originally the term shura was used for gathering of Islamic dignitaries ranging from mullahs to ulema. However, during the Afghan War and the emergence of the mujahidin the term shura was introduced for all kinds of gatherings with official character. The shura and also its members are of more long-term character. Shuras are sometimes also established for development project. spin giri Pashtu for ‘white beard’, meaning a tribal elder. toya warai waak Establishes absolute authority to the jirga mediators, without a need to look for more specific narkh waak . waak To give authority to jirga mediators to deal with a dispute and agree to accept the decision made. waaqf Religious land, originally provided as gift and non-transferable. wakil guzar A wakil guzar is a special form of malik , who is responsible for a specific area such as a street or a neighbourhood. wasayeq shari’a Legal Documents (Deeds) in accordance with Shariat watan Homeland or Country wilayati shura Provincial Council

Tribal Liaison Office Page 4 of 79 Executive Summary The objective of this study was to produce an analysis of the scope and dynamics of land based conflicts in Afghanistan with a special focus on conflicts in located in the Southeast of Afghanistan. Scarce resources, the weak Afghan state, social norms, population movements and the presence of different social groups were identified as the structural factors of land based conflicts in Afghanistan. These structural factors, considered necessary but not sufficient causes of conflict, were exacerbated by a set of different factors making up the conflict dynamics (e.g., the legacy of war and frequent regime changes). The most important conflict dynamics identified for Paktia relate to the history of land policies, state presence/ outreach and local power struggles. Local power struggles mainly include land grabbing by actors with access to means of force/violence or strongmen with connections to people in positions of (political) power. The actors involved in land grabbing are diverse and not limited only to former mujahideen commanders but also include tribes or communities taking advantage of the weakness of the state to (re-) appropriate government land. As the Afghan state has not fully been rebuild, and the reach of the central government outside is weak, different actors currently seize the opportunity presented by the absence of strong, efficient and impartial bureaucratic structures in order to grab land to their own benefit. Issues of political power, economics and migration are often inter-connected. War and forced displacement has created a situation where returning populations found their land occupied by a neighbouring tribe. Land that was of little value during the war has regained importance since the fall of the . Some of the conflict actors have important constituencies still living in . Many claims or reclaims of land are based on the expectation of the return of these populations in the future, and the subsequent distribution or sale of land to them. Furthermore, frequent regime changes over the last decades, each implementing different land policies and/or reforms has created a situation where government departments are engaged in conflicts with tribes over the appropriation or re-appropriation of land. Since the fall of the Taliban regime the number of conflicts has also augmented due to the increasing land prices. In Paktia this especially concerns the provincial centre where the rise in land and real estate prices and proposed township schemes have increased land grabbing and hence conflicts. This is a development which has to be interpreted against the general trend of rapid urbanization and expansion of provincial and district centres. Our research suggests that land conflicts currently are more prevalent in semi-urban areas as they provide better access to services and security and are of economic value to businessmen, leading to rapid increases in land prices. Existing land-based conflicts in Afghanistan in general, or Paktia in particular, may be less problematic if adequate and efficient conflict resolution mechanisms were present. However, as in many post-conflict contexts, a rise in land-based conflicts goes hand in hand with a lacking ability to deal with them. In Afghanistan, the problem is manifold. First, there are weak, unclear and conflicting land ownership laws leading to competing land ownership documentation. The latter is a product of frequent regime changes, the legacy of war, the competition between state and customary laws, and particular interests of power holders.

Tribal Liaison Office Page 5 of 79 In all cases examined in Paktia, conflicting parties claim to have some proof of ownership. The evidence presented takes on different forms: state tax receipts, registrations with courts, presences of graveyards, previous jirga decisions, or proof of earlier state intervention. In a culture where both formal and informal institutions exist and overlap it is crucial to understand the influence and impact these mechanisms can have on resolving land disputes adequately and fairly. The relation between formal state and informal customary conflict resolution mechanisms, however, currently is precarious at best, due to the fact that both state and tribal actors are often involved in land-based conflict themselves. In Paktia, where tribal systems have retained some strength, informal systems of conflict resolution such as jirgas are often called upon to solve conflict disputes. The local population usually prefers jirgas because they are considered more efficient in terms of time and costs, and seen as more transparent than a corrupt state system that is frequently entangled in land-based conflicts in Paktia Province. However, jirgas are not free from corruption and the association of jirgas members with conflict parties often hinders a fair resolution. The Afghan state is facing a complex challenge. In addition to finding innovative ways of combing customary and formal justice mechanisms into an efficient conflict resolution mechanism for land-based conflicts, it needs to address resources scarcity, greedy power holders, and the (re)settlement of various population groups (returnees, IDPs, Kuchi).

Tribal Liaison Office Page 6 of 79 1 Introduction Afghanistan has suffered a long and volatile history of war, with the most recent string of conflicts dating back to the April 1978 Communist coup d’etat that was further aggravated by the Soviet invasion in December 1979. Subsequent follow-on conflicts involving warring mujahideen factions and later (1994) the radical Taliban movement lasted until the US-led invasion toppled it in late 2001. During these years, Afghanistan had its fair share of turmoil associated with conflict: violent deaths, forced migration, destruction of infrastructure (including property rights registries), ineffective and failed state institutions and forceful seizure of property and land. Different than in other cases, however, Afghanistan had also a series of successive governments with a wide range of political and economic visions for the country, which introduced multiple and competing, at times contradictory, land policies and land ownership schemes, none of which ever fully solved the problem of land tenure and ownership in the country (Wily 2003b, 2004a). Added to incomplete, inconsistent and confusing state laws come customary rules and regulations that exist side-by-side and are still commonly used. Existing studies (d'Hellencourt et al. 2003, McEwen and Whitty 2006, Gebremedhin 2006, Stanfield 2006, Emerging Market Group Ltd. 2006), several under the auspices of the Afghanistan Research and Evaluation Unit (Wily 2003 a, b; Wily 2004 a, b, c, d), have demonstrated the persistent problems with land relations and tenure in Afghanistan throughout past regimes and a neglect by the current Afghan government and international actors to address them through adequate policies. These authors echo more general studies (e.g., van der Molen and Demmen 2004, OCED 2005, Stanfield 2005) that advocate the introduction of secure land tenure, transparent conflict resolution mechanisms, land allocation and restitution as a primary prerequisite for the restoration of peace and stability in post-conflict societies. All this has created a situation in Afghanistan, where resource-based (mainly land) conflicts are on the rise not only in rural, but also fast-growing urban areas. This second layer of conflict (to the one between the Afghan government and its allies against the Taliban-led insurgency) is currently still underestimated in its threat to peace and stability in Afghanistan. The insurgency has already moved to exploiting these conflicts. On the one hand, this is making their resolution more difficult now than in the past and on the other hand these processes directly feed into local instability and the wider mobilisation-dynamics of the insurgency. Against this backdrop, the objective of this study is to produce an in-depth analysis of the scope and dynamics of land based conflicts in Afghanistan with a special focus on conflicts in Paktia Province located in the Southeast of Afghanistan. For this purpose, four conflicts in Paktia province were examined in more detail in order to identify the underlying roots of conflict, the actors involved, and conflict resolution mechanisms used. The report first presents a historical overview of landownership and related policies laws in Afghanistan in order to shed light on the complicated situation facing conflicting actors and conflict resolution bodies. Then it goes on to discuss the current state of formal and informal conflict resolution mechanisms dealing with land-based conflict. This involves formal justice mechanisms such as courts as well as customary conflict resolution bodies such as jirgas and the relations between them.

Tribal Liaison Office Page 7 of 79 In the last part, the report presents an analysis of the causes of land-based conflicts with a specific focus on the study area of Paktia, divided into an overview of conflict actors, structural factors, conflict dynamics, and accelerating factors. In this section, conflict actors are also discussed. The main structural factors, considered necessary but not sufficient causes of land-based conflict in Afghanistan, are identified as resource scarcity, social norms, and inter-group conflict. The main conflict dynamics for Paktia province interacting with and exacerbating structural factors are the historical legacy of successive land-policies, weak state-structures and greed-related land grabbing. Accelerators were identified as vested interests of spoilers, weak judicial structures and demographic pressures (e.g., population growth, rural-urban migration, returning refugee populations, settling of nomadic populations).

1.1 Methodology Research was conducted using the Participatory Action Research (PAR) method. 1 Qualitative data was collected via semi-structured in-depth interviews and focus group discussions (FDGs). In purposive/stratified sampling a subset of the population that shared the common characteristic of knowledge of land disputes and conflict mechanisms was selected to participate in this PAR. • Actors involved in the studied land-based disputes (both tribal and government) • Jirga members involved in the settling of the land-based disputes • Government representatives (district governors, provincial council, property and cadastre department) In total, 43 individuals were interviewed between 14-28 November 2007 in seven FGDs (20 participants) and 13 semi-structured interviews. Focus group discussions included mainly tribal elders that involved in land-based conflicts in Paktia. Semi-structured in-depth interviews were held with governmental officials (7), tribal elders (3) and official mediators (3). While general interviews were held in Gardez-city with government officials, more detailed interviews and focus group discussions were limited to two rural districts in Paktia (Ahmad Aba and Said Karam) and one urban area in Terra district. Specific questionnaires for conflict parties and mediators were developed (see Appendix 1). A total of four conflicts (one in each district and one in an area between Ahmad Aba and Said Karam), representative of land conflicts in Paktia, were chosen for in-depth research (see Appendix 2 for a detailed description). They include three conflicts that involved tribal actors as main conflict parties (one with government involvement), and one between tribal groups and the Afghan government.

1 Participatory action research (PAR) is a method of research where creating a positive social change is the predominant driving force. Counter traditional extractive research, PAR tries to make research relevant for the stakeholders involved in the research process. Ideally it facilitates co-learning and capacity building throughout the research process leading to ownership of the research process by local stakeholders. Recommendations that derive from such research are meant to make a difference locally and lead to an improvement of people’s lives.

Tribal Liaison Office Page 8 of 79 • Conflict between tribal actors o Usman Khail and the Sallam Khail (Said Karam district) o Sallam Khail vs Shali Khail () • Conflict between government and tribes o Baghi Shah Terra Land Conflict (Kabul-Gardez highway in Terra District) • Conflict between tribal actors, with government involvement o Nagram Farms Land - Yahya Khail vs. Momazai and Tuta Khail; with involvement of the Agricultural Department (between Said Karam and Ahmad Aba districts)

Figure 1. Study Areas with identified land tax paying units

1.2 Constraints Security Situation – Although the security situation in Paktia is better than in other provinces, travel and access to certain areas was nevertheless difficult. Security measures (e.g., not taking loot-able resources such as digital cameras or tape recorders) were taken to

Tribal Liaison Office Page 9 of 79 ensure the safety of the research team and participating groups and individuals. Some interviews were held without proper note taking, with researchers recording their findings at a later stage. Confidence-building assuring respondents of their anonymity was necessary before many agreed to participate in this study. Respondents Perceptions and Expectations – Since some tribal members are involved in land conflicts with non-Ahmadzai tribes, the last names of both the researcher and co-researcher as "Ahmadzai" created some distrust among the respondents regarding the use of the information collected. This constraint was minimized or eliminated by the confidence gaining skills of the researchers. Similarly, heightened expectations that researchers would help to resolve conflicts also had to be managed. Social Status – The traditional structures of governance in tribal areas revolve around a strict hierarchy of social status between tribal elders. For example, it is not necessarily appropriate for an elder of lesser status to present his opinion in the presence of an elder of higher status. During focus group discussions, it was quite common for a single respondent to dominate, in which case elders with a lower status did not speak openly. Researchers had to strongly encourage each participant to express his point of view, and in some cases, provide strong justifications for why they wanted every single person to talk. These social norms need to be taken into consideration when research is performed and efforts need to be made to ensure that focus group discussion involve people of similar social status. Technical – Difficulties including limited working hours and limited resources in the field, such as electricity and heat created delays in the research process, but did not gravely impact on the outcome.

Tribal Liaison Office Page 10 of 79 2 Magnitude of Land-based Disputes in Afghanistan According to Wily (2004a, 4) “landed property issues in Afghanistan are deeply intertwined with both continuing instability and slow recovery and reconstruction.” While the author does not see land and resource issues in Afghanistan as a primary driver for conflict, she argues that they are important “tipping points to conflict” and have contributed much to the “turmoil during the past 25 years” (Wily 2003b, 11). Giustozzi (2007) further notes that land conflicts represent an opportunity for the insurgency to exploit village level divisions to their advantage. 2 As common in post-conflict contexts, land conflicts have increased in Afghanistan since the fall of the Taliban and the new administration that began in 2002 (Stanfield 2005). This has largely been attributed to an increasing value of land and property associated with migration pressures from returning refugees, but also rural-urban migration, coupled with new economic opportunities in post-2001 Afghanistan. During the times of war and displacement, land was of little value and demand for land was minimal. After the fall of the Taliban, with many promises of reconstruction and international assistance, land gained importance, and many tried to grab as many resources as they could. The link between increased land grabbing, economic benefits (either in agricultural production or township schemes) and land-based conflict was widely acknowledged in the Paktia cases studied. 3 The increase in land value also created more resistance to return grabbed land that may have been sold off to a third party. 4 According to Wily (2004a), all this increased the magnitude of property disputes involving different kind of lands (farms, pastures, homes, shops, private, and government). “Even in quiet communities that have seen almost no violence over the last 24 years and have not endured co-option by land-grabbing leaders, the instability of the last decade has stirred old grievances” (Wily 2003b, 65). Although it is hard to gauge the exact magnitude of land-based conflict in Afghanistan, the following post-2001 statistics help to illustrate its severity: • Most of the submissions to the Information and Legal Aid Centres (ILACs) of the Norwegian Refugee Council were related to property (Wily 2004a, 38). • Eighty-six percent of all cases mediated by the Norwegian Refugee Council (NRC) in Kabul dealt with properties in private lands (World Bank 2005a, 1). • Property related court cases nearly quadrupled between 2002 and 2004. While only 16 percent of all court-related cases in 2002 related to property, this figured jumped to 63.4 percent of all cases submitted to the Supreme Court between March 2003 and March 2004 (Wily 2004a, 39). • The District Primary Courts claimed that about half their case load was related to property disputes (Wily 2004a, 39) • The Faryab Provincial Courts, one of the AREU case studies, reported that about 75 percent of its cases were property related (61 percent- illegal occupation of land; 16

2 A point that the Tribal Liaison Office has also pointed out in so far unpublished reports since 2006. 3 Interviews, tribal representatives, 17 and 25 November 2007, focus group discussions, 17 and 25 November 2007 4 Focus group discussion, 17 November 2007

Tribal Liaison Office Page 11 of 79 percent- inheritance, 7 percent- mortgages, 2 percent land claims made by widows; Wily 2004a, 39). In Paktia the situation is very similar, as nearly all government officials and tribal elders interviewed pointed to the problem of land-based conflict in both rural and semi-urban areas of the province. Land conflicts in rural areas tended to be mainly inter- and intra-tribal, while (semi)-urban land conflicts were often between tribes and the Afghan government. 5 Most respondents asserted that the occurrence of land-based conflicts in Paktia had increased since the fall of the Taliban due to the rise in land and real estate prices especially in semi-urban areas of the province. The increase in property prices in urban areas was attributed to refugee return, rural-urban migration (fuelled by a dual search for employment and security) and proposed township schemes. The following factors give a glimpse at the problem with land-based conflict in Paktia: • A known jirga mediator estimated that about half of all conflicts that are dealt with in the traditional system were related to land and property disputes. 6 • Over the last two years up to 40 large land-based conflicts were referred to the Paktia Provincial Council for Mediation. • According to the Property Department of Paktia Province, there are 14 large land conflicts between the government and local tribes currently registered within the court system. 7 The majority (70-80 percent) of all other land conflicts are dealt with in the customary system. 8 • It was observed that traditional conflict mediators, who usually only travel to attend specific jirga duties, had set up permanent shop in a local hotel in Gardez-city.

Types of Conflict Not only has the magnitude, but also the type, of land-based conflicts changed in Afghanistan. Comparing 2002 with 2004 Supreme Court data, Wily (2004a) found that both the incidence of land-related conflicts had gone up from 16 percent in 2002 to 62.4 percent in 2004 and that the predominance of certain types of land-disputes had shifted from more “traditional” disputes such as farm water rights or inheritance disagreements to new issues mainly linked to illegal occupations and land seizures. Cases dealt with in the Special Land Disputes Court, emphasize the problem of illegal occupations (mainly in Kabul and surroundings) with 69 percent of all cases in this court dealing with this issue (World Bank 2005a, 2, citing data by Wily 2004a). The other 31 percent deal with ownership disputes related to false documents or fraud (26 percent) during sale/purchase (5 percent). McEwen and Whitty (2006, 37-38), analysing data from the Norwegian Refugee Council’s (NRC) Information and Legal Aid Centres (ILAC) database, demonstrate that ownership disputes were about equally driven by the appropriation of private land by commanders and disagreements between “ordinary” villagers, the latter including a significant problem with inheritance rights. Yet, again, these ownership disputes

5 Interview, government official, 22 November 2007 6 Interview, 20 November 2007 7 Interview, 22 November 2007 8 Interview, jirga mediator, 24 November 2007

Tribal Liaison Office Page 12 of 79 (89 percent) by far outweigh others, such as passage rights (3 percent) or water and boundary rights (1 percent), which were primary problems in the past. In light of the above, researchers involved in this area (e.g. Wily 2003 a, b; Wily 2004 a, b, c, d; Stanfield 2005, 2006, d'Hellencourt et al. 2003, McEwen and Whitty 2006, Gebremedhin 2006) all emphasize the urgent need to address land tenure issues in order to guarantee peace and stability, especially since “the tendency to solve land disputes by force, falsified documents and other corrupt practices” is on the rise (Stanfield 2006, 6). This is echoed by a jirga mediator of land-based disputes in Paktia, who estimates that up to 25 percent of land- based disputes “end with hostility and bloodshed.” 9 In nearly all of the cases studied in Paktia, conflicting sides were willing to resort to violence in defence of their land rights. 10

9 Interview, 20 November 2007 10 Interview, tribal representative, 16 November 2007, focus group discussions, 17, 24 and 25 November 2007

Tribal Liaison Office Page 13 of 79 3 History of Land Ownership and Tenure in Afghanistan According to Wily, the problem in Afghanistan lies less with attempts to record land ownership (which seems to have been ample in the country’s history), but more with the absence of a “clear regime for managing land rights” (2003b, 2-3). Starting in 1880, each successive regime in Afghanistan (including monarchy, republic, communist, military and Islamic; see box) implemented a new system of land documentation. McEwen and Whitty (2006) argue that land law has been one of the main instruments for successive governments to intervene into the affairs of its citizens and were used to help shape greater political goals and visions for the country.

Periods of the Modern Afghan State 1880 - 1973: Monarchy • Absolute monarch - Abdur Rahman Khan 1880-1901 • Popular absolute monarch - Amir Habibullah Khan 1901-1919 • Interregnum monarch - Nasrullah 1919 • Constitutional monarch - Amanullah Khan 1919-1929 • Reformist monarch - Mohammad Nadir Shah 1929-1933 • Modern monarch - Mohammad Zahir Shah 1933-1973 1973 - 1979: Republic • First Republic - Mohammad Daoud 1973 - 1978 • Second Republic - Noor Mohammad Taraki & Hafizullah Amin 1978-1979 1979 - 1989: Communist/ Occupied State • Second Republic continued - Babrak Karmal 1979-1986 • "Third" Republic - Najibullah 1986-1992 1992 - 1996: Mujaheddin State/ Factional Conflict • Sebghatullah Mujaddidi 1992 • Burhanuddin Rabbani 1992-1996 1996 - 2001: Islamic State (Taliban) • Taliban - Mullah Omar 1996-2001 2001 –2004: Interim State • Interim Administration - 2001-2002 • Transitional Administration - Hamid Karzai 2002-2004 2004 – present: Islamic Republic • Presidential Democracy - Hamid Karzai 2004-present)

Adapted from: Wily, Liz Alden (2003b) Land Rights in Crisis: Restoring Tenure Insecurity in Afghanistan, Issues Paper Series; Kabul: Afghanistan Research and Evaluation Unit (AREU), March 2003, p.39 (Box 10).

New policies, however, built inconsistently on old ones, sometimes only partially voiding them. This resulted in over 60 land laws and various other land decrees (for a detailed list of these laws see Appendix F in Wily 2003b, 91-93). They influenced both formal and informal

Tribal Liaison Office Page 14 of 79 tenure regulations, and made it increasingly difficult to establish accountable and uncontested forms of land ownership. According to Wily (2003b, 5), all main strategies related to land tenure “implemented in the service of state building and modernisation” failed to meet their objectives leaving the current government with the difficult task of untangling resulting conflicts. In sum, since Afghanistan has never had a coherent system of landownership, the fragmented landownership laws can be considered a structural cause of conflict (see Wily 2003 a, b; Wily 2004 a). The following paragraphs, drawing extensively on the work of Wily (2003a, b; 2004 a, b), provide a brief summary of the history of land tenure in Afghanistan. • In the 1880s, under the reign and state-building drive of Abdur Rahman Khan, an unofficial strategy of pashtunisation was put in place by the King in the form of farmans (decrees) in order to “colonise the territories of minority and potentially rebellious ethnic groups” (Wily 2003b, 4). It effectively gave land rights to while disadvantaging other ethnic groups. This policy included the forced relocation of Ghilzai Pashtuns to the north of the and Southern Afghanistan in order to increase Pashtun influence in these areas, but also break the domination of specific Pashtun tribes elsewhere (Dupree 1980, 418f). • In the 1930s systematic records were established in an effort to formalise property taxation. However, tax payment receipts were often abused to establish land ownership rather than to reflect actual land ownership. For example, owners would try to increase their amount of land by paying tax on land they did not own; using tax receipts to subsequently establish and prove land ownership. During this period, those unable to pay taxes or contribute to communal taxes often lost their land ownership rights. • Zaher Shah implemented new settlement schemes in the 1940s , encouraged by the United States of America in their support for large dam and irrigation developments mainly in the South of Afghanistan focussing on opening up dry land areas for cultivation. In the south, the resettlement schemes sparked a degree of discontent through the mostly forcible settlement of nomadic Kuchi in the Helmand Valley Authority. In the north, particularly and Kunduz, which had already been prominent sites for Abdur Rahman Khan’s resettlement-policies, Pashtuns from other parts of the country were, often also forcibly, resettled on the newly irrigated land. Again, this policy served as much to dislocate and fragment ‘troublesome’ tribes, as to create a social base dependent on, and therefore loyal to, the government in the north (Dupree 1980) • In 1963 , Prime Minister Mohammed Daoud Khan, still under the auspices of the monarchy of Zaher Shah, sought to bring more areas of land under government control for taxation purposes and a survey and registration programme was implemented. Despite the large-scale assistance and heavy funding from the United States Agency for International Development (USAID) only one-fifth of the total land area and one-third of the landowners were registered and the title deeds that were established have not been sustained. • Land redistribution practices started with modest reforms in the 1970s after Daoud Khan seized power from his cousin (and brother-in-law) Zaher Shah with the assistance of the People's Democratic Party of Afghanistan (PDPA). These reforms put a ceiling on private landownership, required the sale of excess land to the state and implemented

Tribal Liaison Office Page 15 of 79 progressive taxation based on the size of the holding. This process saw “a massive expansion of government land, including the bringing of some 2.6 million hectares of pasture under state control” (Wily 2003b, 5). Under communist rule, the focus was on “distributive reform designed to bring more equity to grossly inequitable land ownership” (Wily 2003b, 5). Attempts to limit land- holding inequity via extreme taxation allowed the state to acquire excess land and redistribute it to the landless population. • In 1978 , after coming to power through a coup d'état, President Taraki and the PDPA revised these reforms by drastically reducing the land ceiling, redistributing excess land without providing compensation and cancelling all standing debts that were aged five years or more relating to mortgaging. According to Wily (2004a, 34) “around 700,000 ha of land” was distributed during this time, “mainly deriving from land under government control, not private holdings.” The communist Afghan government later downsized their policies, focusing on opening government land and developing large-scale commercial farms using landless labour instead. • Resistance to the communist reforms (land and others) lead to a massive popular uprising, subsequent Soviet invasion and a war that lasted over ten years. In the early 1990s the different mujahideen factions looted and/or burned all documents found in provincial property departments. Allegedly the orders to destroy land documentation were deliberate and meant to assist the future occupation of private and state land by jihadi factions and strongmen. Shortly before its defeat in 1992, the Communist government under the leadership of President Najibullah revoked all communist land decrees. • After a period of near-anarchy (with many incidences of illegal land-seizures by mujahideen commanders) during the short rule of the mujahideen government ( 1992- 1996 ), the Taliban regime ( 1996-2001 ) was particularly prolific in decree making. During their reign important new aspects of land policy (e.g. forestry, classification of lands) appeared. The current status of these decrees, however, remains uncertain. • After the fall of the Taliban in 2001 , and the subsequent Bonn agreement, the new Afghan state was left with the problematic legacy of previous regimes, having to sort out all these successive land policies. According to Wily (2003 a, b; 2004 a, b), the new interim administration, however, did not have land policies immediately at the centre of their attention. Only “in January 2007, a new Draft Land Policy was approved for submission to the cabinet” (McEwen and Nolan 2007, 6). Yet, already in late 2005, a presidential decree (No.104) On Land Distribution for settlement to eligible returnees and IDPs was issued (Date: 15/09/1384 - 06 December 2005), indicating a possibility to address the issue of competing land policies within the recent administration.

Tribal Liaison Office Page 16 of 79 4 Land Tenure in Afghanistan – In Search of a Typology It is important to discuss the system of land classification in Afghanistan, as unclear as it may be, given “the rules addressing who may own land and in what circumstances vary depending on the type of land under consideration” (McEwen and Whitty 2006, 2). Two problems arise from existing land definitions. First, many ‘government definitions’ overlap with one another and make a clear distinction between the different classes of land difficult. Second, not all land types are actually defined within the law creating vague areas open for interpretation (McEwen and Whitty 2006). There are different typologies of land that can be made. McEwen and Whitty (2006), for example, tried to establish a typology based on land usage – as ambiguous as this may be – distinguishing between: • Pastureland or all land where animals can graze (including hills, deserts, mountains, river beds, forest) – problematic here are garden lands of universities or public parkland. • Cultivable/rainfed land which overlaps with pastureland, as “virtually all rain-fed farming land is also potentially grazing land” and vice versa (Wily 2004b, 6). Problematic is the ambiguity in law regarding this kind of land. • Wilderness ( mawaat ) or “unused lands” such as deserts, mountains, hills, rivers, virgin land, barren land and forests) – problematic is here how to interpret “unused” – as historic “unused” land may be used in the future through modern technologies. • Irrigable land , which is agricultural land that has been irrigated in the past; it is different from grazing land. Problem here is that pastureland can be made into irrigable land through the introduction of irrigation methods. Such a classification, however, is problematic, as Wily (2004b, 6) argues that “[t]he distinction between land suitable for arable and pastoral … does not always coincide with local perceptions of arable potential or customary dual use land in appropriate areas.” Furthermore, such a classification would only work if land was used for a sole purpose, but in Afghanistan, there is often a dual or even plural usage of land (e.g., using pasture lands for grazing animals and rain-fed agricultural land; see also Wily 2004b). Therefore, we decided to focus on the classification put forth by Wily (2003b), which is based on land tenure (see Table 1), distinguishing between private, public, government/state, common/communal, and waaqf (religious) ownership (see Table 1). Table 1. Defining Land in Afghanistan

Type of Land Brief Description

• Similar to private ownership with government acting as “private individual.” Government Land • Originally defined in the 1965 Land Survey and Statistics Law as (amlaki dawlati) “land registered as belonging to the government.” • Subsequently expanded to include wastelands, forests and pastures.

Tribal Liaison Office Page 17 of 79 Type of Land Brief Description

• Definition then abandoned and no clarification has since been given beyond the land already registered and/or held by the state. • Post 2001 policies seemed to dually focus on securing government ownership of land, while preventing government actors to distribute land at will (McEwen and Whitty 2006). • Decree No. 99 (April 2002) froze future distribution of government land (McEwen and Whitty 2006, 3).

• Land owned by the nation (people of Afghanistan) and controlled by the state acting as a “landlord”, including land that cannot be owned (e.g. wasteland). • Land reserved for local community use ( mawaat = for public use ); hence government has serious limitations on the use of and access rights to the land. • Purchase, sale or lease needs to be authorised by the “supreme Public Land leader” (maraa, mawaat) • Unclear boundaries between “national public” and “local public” land reflect “weak tenure development and unresolved conflicts between state and customary notions of tenure.” • “The wholesale legal capture of pasture as public/government land since 1970 rides roughshod over customary precepts of common property and exposes pasture to the ills of open access characteristic of public lands” (Wily 2004b, 6).

• Private individuals can offer land as gift, as long as it is used for charitable purposes (McEwen and Whitty 2006). • Once the gift has been made, the land may neither be bought nor Religious Land sold (non-transferrable) (waaqf) • Originally held by religious institutions • Now largely controlled by the state as government or public land, or by local for the common good

• Ownership provides exclusive rights to the property; rules largely laid out in the Civil Code. • Conceptually defined as individual ownership of an estate (farm or Private Land house plot) as opposed to a group-owned property. (amlaki shakhsi) • In practice, this often includes shared ownership (e.g., by family, clan or village). • A single male head of family likely controls Land owned by a family, disadvantaging women.

Tribal Liaison Office Page 18 of 79 Type of Land Brief Description

• Includes all non-farm properties: local open spaces, dry uplands, pastures, swamps and rain-fed agricultural land. • Generally understood as jointly owned by community members; albeit traditional landed elite families ( khans) have superior rights. • Most common example is maraha land – village-owned Communal Land pastureland – only to be used for grazing purposes (McEwen and (mushtarak) Whitty 2006). • Home ownership in neighbouring communities is often a prerequisite for access rights to such land. • Subject to increasing conflict between seasonal pastoralists and settled cultivators due to different historic and customary claims.

Types of Landowners As the description of land classification based on tenure already shows, there are further complications in terms of actual land use. Wily (2003b, 16) argues that “[m]any Afghans are not living in their homes and/or are occupying land that may not legally be theirs.” This is not solely linked to Afghanistan’s legacy of war creating internal and external displacement, but also to a complicated “web of relationships in which it is difficult to distinguish creditors/debtors from owners/sharecroppers, or to know precisely who is the legal or accepted right-holder over the property” (Wily 2003b, 2). This creates a high degree of uncertainty about land ownership in Afghanistan with parts of the population essentially considered either as landless or near landless. Among agricultural land, sharecropping (a form of leasing) and not ownership seems to be the predominant land tenure arrangement in rural Afghanistan (Wily 2004b). In terms of landownership-patterns, three broad categories of actors can be distinguished (this mainly applies to agricultural areas, albeit similar arrangements can be found in urban centres as well): landlords, smallholders, and landless (Wily 2004b). Often landlords and the landless live side-by-side, as it is the landlords that rely on the landless for farm labour. They tend to engage in what is often considered a complicated, traditional, reciprocal, patron (landlord) and client (landless) relationship, with the clients often in full support of even absentee landlords. However, in many parts of Afghanistan, the legacy of war significantly eroded the “beneficial reciprocity between landlord and serf that characterises conventional feudalism. What remains is significant labour exploitation” (Wily 2004a, 14). The situation in , especially the study area Paktia, is an exception here, as Pashtun tribal institutions have generally remained more true to the traditional reciprocal relationship between landed elites and landless villagers. • Landlords (estimated between 9-19 percent of rural land owners), belonging to traditional landed elites, tend to be very pre-dominant in Pashtun areas of Afghanistan, where land is an important attribute of a man’s wealth and honour. Albeit data is scarce, they still own a large proportion of rural land (around 50 percent), suggesting that communist redistribution policies did not manage to crack the feudal system (see Wily 2004a). This is also linked to the fact that mujahideen forces

Tribal Liaison Office Page 19 of 79 immediately reversed the land redistribution in areas where they came to power. Throughout the war, landholdings of large “absentee landlords” became prevalent, some of them having fled into exile to neighbouring countries, others belonging to the nomadic Kuchi population. According to Wily (2003b, 19), regional differences do exist: “In the north, for example, landlordism is frequently described as a form of ethnic rule over conquered non-Pashtun populations, whereas around Kandahar client groups tend to be people who have sought refuge in the area and are generally of the same tribe.” This, however, is also changing with many Pashtuns unable to return to the north to reclaim their land that was given to them in the past. • Smallholders (estimated at about 63 percent of rural landowners) often engage in shared tenancy known as sharecropping. Despite their vast numbers, they tend to concentrate on only about 16 percent of all land (see Wily 2004a, 14). • Landless individuals own no land at all and are dependant on landlords for employment and support. Near-landless individuals own a piece of land too small for subsistence purposes, thus are often treated jointly with the landless. Figures for both populations are hard to obtain, as it depends on land categories, such as whether they own no land at all, rain-fed or irrigated land. Deducting from the above estimates, however, these two groups may comprise around 18-12 percent. A similar, if not even greater, number of people in urban areas may not own their homes.

Tribal Liaison Office Page 20 of 79 5 Legal Frameworks dealing with Landownership 11 Land ownership and tenure rights in Afghanistan falls under the influence of a complex regulatory system composed of different legal regimes (i.e., customary, civil, Islamic and state law). “Land cases are officially dealt with in civil courts, which rule on the basis of state, civil and religious law, in uncertain mix and measure” (Wily 2003b, 3). Wily (2003b, 11) asserts that these systems “are under challenge, difficult to enforce and in any event, insufficiently developed to meet the demands of the present situation”. Thus, while land laws not only need to be modified to address the current realities in Afghanistan, ways need to be found to enforce that formal and informal justice providers adhere to existing civil and religious laws. “The legitimacy of ‘legal’ documents and the integrity of the courts as actors in both land administration and land dispute resolution are [presently] questionable” (Wily 2003a, 2). For the purpose of this report, we will distinguish between two broader categories: formal and informal (customary and religious) systems, due to the blurring of lines between religious and customary laws (see Wily 2004a), religious law having some application in state laws (McEwen and Whitty 2006) and because property transfer also tends to distinguish between formal and informal transferral. It is important to note, that while important differences exist between informal and formal, state and Islamic, laws, “there is also an unusual degree of commonality among these in their treatment of land rights” (Wily 2003b, 3).

5.1 Formal Systems 12 According to Wily (2004b, 9), “land law in Afghanistan is complex, inappropriately arrived at and irrelevant to the rural majority”. Since the passing of the 2004 Constitution, the hierarchy of applicable land law is stipulated as follows: “first, constitutional provisions are to be applied; second, statutory law; third Hanafi jurisprudence” (McEwen and Whitty 2006, 2). Statutory law is linked to the Civil Code, which in turn is based on hanafi jurisprudence. Property transfers using the formal legal system are complex and lengthy and involve more than one government body (judiciary, financial and municipal). In order to complete this process an estimated 7-8 percent of the assessed property value has to be paid in taxes, not including the other ‘fees’ paid along the way in each relevant government office (Emerging Market Group Ltd. 2006, 1).

5.1.1 Constitutional or Supreme Law Constitutional Law is perhaps the clearest source of law when it comes to property and land rights (Wily 2004a), despite its limited set of proclamations on the right of the state to appropriate property, the protection of private property rights, the right to travel and settle freely, the definition of government land and the right of foreigners to own land. The new 2004 constitution, however, is very closely based on the 1964 one, both insufficiently addressing the issue of land rights and tenure (Wily 2004a, McEwen and Whitty 2006). According to Wily (2004a, 30) “[v]irtually the only innovation in 2004 is that foreigners may now lease land (Article 41)”. Nevertheless, it is “notable for its support against random foreclosures by creditors, a prominent concern of poorer rural Afghans” (Wily 2003b, 3).

11 This section draws heavily on the AREU report by Wily 2003 a, b and Wily 2004 a, b 12 This section draws strongly on Wily (2003b).

Tribal Liaison Office Page 21 of 79 5.1.2 State, statutory or national law State law combines sector law (agriculture, housing, taxation etc.) and supreme law/constitutional law (see above). It was mainly executed through “statutes ( qanoon ), passed by Afghan kings and presidents in the form of decrees or edicts” known as farmans (Wily 2003b, 3). State law has had trouble coping with the frequent regime changes since, instead of sustaining laws, new governments (in)completely revoked old regulations while issuing new ones. This contributes to the lack of continuity (discussed earlier) between land statutes of the early 1960s and the current government today. Somewhat surprisingly, however, a number of new decrees or edicts that were issued during the Taliban era (1990’s) are still being used today as the law in force. Over the past regimes Wily (2004b, 9) identifies the following “key original statutory legislation on rural land:” Acquisition for public purpose (1935, 2000), Property taxation (1965, 1976), Survey and registration (1965), Distributive reform (1975, 1976 & 1979), Acquisition & sale of land (1979), Mortgages (1979), Cooperatives (1979), Pasture (1970), Forests (2000), Poppy production (2000), Restitution (1992, 1999, 2000), Classification of land classes (1965, 2000), Land dispute resolution (2002, 2003), Making land available for investment (2003), Restitution of public lands (2004).

5.1.3 The Civil Code (qanoon madani) The Civil Code was formulated in the 1970s based on the historical principles of the Hanafi School of Islamic Jurisprudence. It comprises strong elements of religious law but is influenced by customary law as well. It includes over 1,000 directives relating to property law including the subjects of land inheritance, tenancy, leases, sales and even mortgages. According to the Afghan Constitution the Civil Code is subject to State Law and must be referred to before s hariat law whenever an issue is not covered in state law (Wily 2003a). Its articles are hard to interpret, increasing the likelihood of inconsistent application.

5.2 Informal Systems As noted earlier, two bodies of laws are included among the informal systems, customary and religious law. They often converse on land issues, with the exception of women’s land rights and common property, where religious law is actually more liberal than customary one, and thus often overruled by customary law in informal settlements (Wily 2003b). • Customary law ( rawaj ) refers to established group norms and accepted community practices that determine how land is owned and transacted. These rules and regulations are rarely codified and tend to change over time (Wily 2003b). The most elaborate customary law in Afghanistan is the Pashtunwali – the Pashtun customary law and traditional code of conduct structuring social behaviour in Pashtun dominated areas (see Steul 1981). • Religious law (s hariat or shari’ia) refers to the original rules set down in the Qur’an and is applied in formal courts, whenever the Civil Code does not cover an issue. It is also used, to a varying degree, in informal customary procedures. It is locally interpreted and commonly referred to in both formal and informal settings. One example of this is the practice of swearing on the Qur’an in the presence of witnesses.

Tribal Liaison Office Page 22 of 79 5.3 Acceptable Evidence of Land Tenure As there is more than one framework that people use to define their particular ownership, both formal and informal documentation of land ownership exist. Relevant authorities issue formal documents according to the Civil Code, state laws or s hariat . In urban areas, especially in Kabul, there are three main kinds of documentation of ownership: legal, customary and unofficial deeds. Courts provide legal deeds for the inheritance, purchase, allocation or gift of real estate. Customary deeds are recognized and countersigned by recognized and elected/selected local community elders ( Wakil Gozar ). Unofficial customary deeds are not recognized and signed by the elders (Word Bank 2005e). Religiously acceptable practices such as swearing on the Qur’an do not have a formal recognised legal status, even though they may be given credit in customary systems. The various forms of accepted evidence of land tenure and legally accepted land documents are illustrated in Table 2. Other kinds of documents include (Wily 2003b, 34): • Water rights documents ( haqaba ), where there is no evidence against their legitimacy and where the land is registered in the book of ownership and taxation. • Purchase documents , where the document has been issued by an authorised department and where the land is registered with the tax department. In Afghanistan, the various rebellions and wars during the past three decades resulted in the destruction of many deed archives (eight of the 34 provincial archives were completely destroyed). In other archives, volumes of documents were scattered across floors, and in others there was lack of care resulting in insect and water damaging of documents (Stanfield 2005, 7). There are, however, some basic rules for making land documents legal (Wily 2003b, 34), in case legal documents have been destroyed: • Owner makes a declaration in regards to land ownership • Ownership must not be disputed • Sings of buildings or farm activity on land by alleged owner • Neighbours testify to validity of land occupation/ownership • Local state authority approve land occupation/ownership • Document must be registered in the “Book of Ownership and Taxation”

Tribal Liaison Office Page 23 of 79 Table 2. Legally Accepted Evidence of Land Tenure 13

Issuing Document Type Period Issued Description Authority/Body

• Qabalae Qatae : Land ownership deeds • Qabalae Jayezi : Warranty deeds • Wakalat Khat : Power of attorney Legal Documents • Taraka Khat : Distribution of inherited property among heirs (Deeds) in Court • Hasre Weresat : Identification of legal heir accordance with Registration • Taqsim Khat : Division of property (during lifetime of owner) Shariat (Wasayeq • Shari’a) Tamlik Khat : Letter of conveyance • Ejara Khat : Lease agreement • Wasayat Khat : Last will and testament • Eslah Khat: Mediation finding

Statutory land Issued when legal registration process is completed, and ownership needs documents Court to be reflected in the Book of Ownership and Taxation . (qabala Shariat )

Private transactions or acquisition of land in informal settlements. This includes documents witnessed by relatives, neighbours or elders, bills of sale and purchase, pawn agreements, wills, sub-divisions of plots etc. Submitted to a 15 th of Asad 1354 The procedure of this kind of documentation ends with the signature or Customary concerned (1975) and thump stamp of those how are engaged in the deal and of numerous Documents government submitted by 1357 eyewitnesses from each side. (orfi/urfee) department by (1978) • 1978 Unofficial customary documents need only a signature or thumbprint from the involved parties and multiple eyewitnesses. • Official customary documents must be signed by selected community elders (Wakil Gozar).

13 This table has been comprised from information found in Box 7 (Wily 2003b, 34) and Box 4 (Wily 2004a, 35)

Tribal Liaison Office Page 24 of 79 Issuing Document Type Period Issued Description Authority/Body

Decrees, edicts or legal letters etc. issued by the King. They are generally Farman/Firman King/President vague and may only indicate the district and the size of the land granted. These traditional certificates are still used as claims of ownership.

Other documents used to prove (or establish) land ownerships:

• Ministry of Finance (1930- Started in 1880, 1958) formalised in 1930, Taxes for grazing rights on pasturelands also exist. They have Tax Receipts stopped in 1978, frequently been interpreted as evidence of ownership rather than • Thereafter restarted by access rights; especially in tax receipts for pastureland. Provincial Taliban in 1996 authority

Cadastral The cadastre only encompasses one-fifth of the cultivated land area Department; Afghan and 30 percent of the owners who were registered in the 1960-1970s. Geodesy and Cadastre 1960s-1970s The cadastral registry card includes: name of owner, how land was Cartography acquired and plot size. Most documents are unconfirmed and people Department, Prime are merely registered as ‘possible owners’. Minister’s Office

Compiled via Districts to Books of These books are based on self-declaration forms ( Ezharnama ) by Provincial Land Integrated Land elders and landlords and were filed at the district level between 1971- Offices then under Size and 1971-1978 1978. Records include the grades of land and the amount of taxes the Ministry of Finance Progressive paid. Sometimes they also include the family name; but only for the (Amlak Department, Taxation extended family. now Ministry of Agriculture)

Tribal Liaison Office Page 25 of 79 5.4 Land Registration Efforts As illustrated earlier, several efforts to register ownership and land for taxation purposes were made during the 1960s and 1970s, with each being incomplete and mismanaged. In the mid 60s (1966-1975) a Government Book of Ownership and Taxation system was introduced for land registry under the land survey and statistical law and funded by USAID. This law stipulated the creation of a Department of Cadastral Survey , which is now integrated into the Geodesy and Cartography Head Office (AGCHO). The aim behind this project was to create a single registry system for the country. But only 584,816 landholders and landowners were registered (producing over 5,000 books of ownership), while 720,000 landowners remained un-registered (Wily 2003b, 35 and 101-2 for more detail). Until 1978 it was only possible to survey 5,779 villages and 33 percent of Afghanistan’s total cultivated land. According to a comparative study by the World Bank (2007), land registration in Afghanistan is complex (11 different steps – see Table 3), time consuming (252 days) and costly (an estimated 10 percent of the property value). This ranks Afghanistan at the bottom (169) of 175 countries in South Asia (World Bank 2007). McEwen and Nolan (2007, 6) even assert that “[t]here is an absence of a properly functioning system for land registration in rural Afghanistan” and a study by the Emerging Market Group Ltd. (2006) found that as a result the systems had a low level of compliance. The study further documents a decline over the past 25 years in official property registrations attributed initially to disorder and war, and more recently to the increase in property values, especially in urban areas. Many simply seem to be unable to afford registration fees and sales taxes in the event a property is sold. Table 3. Steps Required for the Registration of Real Estate Two signed copies of the Circular form are submitted to the Head of Step One Makhzan (judge) Step Two The Circular form is then submitted to the Chief of Makhzan (judge) The Circular form is sent to Imlak (Municipial Land Office) for Step Three certification Step Four The Imlak Committee establishes the value of the land Step Five The Circular form is submitted to the local Tax Collection Office Step Six The Circular form is submitted to the provincial Tax Collection Office Step Seven The Circular form is submitted to the Human Resource Directorate The completed Circular form is submitted back to the Primary Court Step Eight Judge Step Nine The Seller pays the property tax at the designated bank Step Ten The completed Circular form is submitted to the Primary Court Step Eleven The Buyer obtains a copy of the deed. (Source: World Bank 2007, Figure 2.1, 16)

The complexity, tax fees and corruption of the formal property transfer procedure have encouraged the use of informal mechanisms for any real estate transferrals. This is especially prominent in rural areas (Wily 2003b). This mechanism is simply based on an agreement between the two parties involved and no government tax is paid. All that is

Tribal Liaison Office Page 26 of 79 required is for the seller to provide proof of ownership for the piece of real estate in question. According to an UN-Habitat study (d'Hellencourt et al. 2003) four specific factors encourage and facilitate informal property transactions: a) weak central government power in rural areas; b) lack of feasible transportation and communication facilities; c) strong traditional and tribal culture (why customary law is so prevalent); and d) religion.

Tribal Liaison Office Page 27 of 79 6 Conflict Resolution Mechanisms Land tenure and rights in Afghanistan fall under both formal and informal management systems. This is mirrored in mechanisms dealing with land disputes comprised of a) the formal or state judiciary system (courts) and b) the informal customary system ( jirga and shura ) and in some areas using sharia law. According to Barfield et al. (2006), the main difference between the two systems (other than what kind of laws they adhere to) is that the focus of the formal system is on justice and consistent sentencing throughout the country, while the informal system resolves disputes according to local conceptions of fairness so as to restore harmony in the community. It also strongly builds on the notions of equity and community consensus for sentences. This focuses the customary system on restorative rather than retributive justice, which most formal justice systems practise. Studies on both systems (Asia Foundation 2006, Barfield et al. 2006, Centre for Policy and Human Development 2007), suggest that about 80-90 percent of all disputes (including those over land) are resolved through informal mechanisms. This is confirmed by the independent estimates of two jirga mediators in Paktia, one believing that up to 80 percent of land conflicts are currently being resolved via jirgas ,14 with many court referrals being sent back to the jirga to be resolved, 15 while another tribal actors put the figure slightly lower at 70 percent. 16 District government officials in Said Karam and Ahmad Aba Districts of Paktia, however, would like to believe figures to be lower with one suggesting that only 30 percent 17 and the other that least 60 percent 18 of all land-based conflicts are referred to customary dispute resolution mechanisms. One reason for the predominance of customary conflict resolution in Afghanistan is a lack of functioning courts in many parts of Afghanistan, especially rural areas, and the ones that do exist are perceived as inefficient, corrupt and/or inaccessible. Many government officials also feel quite comfortable to operate within the customary mechanism, as courts do refer cases to traditional mechanism on a frequent basis. 19 In Paktia, the deteriorating security situation has resulted in a sharp reduction of the presence of judges at the district level. While there are judges permanently based in five districts (Gardez, Jaji, Chamkani, Sayid Karam and, curiously, ), all other districts are served by the City Court (Mahkamaie Shahri) in Gardez and mobile judges. It is important to note that despite the fact that the government is currently seen as more of a threat to land tenure than a source of tenure security, most rural communities would prefer to see their existing customary entitlements and documentation formalised in some way through the government to guarantee their land rights under state law. This shows the power of formal over informal land deeds – and an overall wish for regulated and documented land affairs over a reliance on oral history or local community knowledge to determine land boundaries for properties (see also McEwen and Nolan 2007).

14 Interview, jirga mediator, 20 November 2007; focus group discussion, 24 November 2007 15 Interview, jirga mediator, 20 November 2007 16 Interview, jirga mediator, 24 November 2007; focus group discussion, 25 November 2007 17 Interview, government official, 24 November 2007 18 Interview, government official, 14 November 2007 19 Interviews, jirga mediators, 18 and 20 November 2007, tribal representative, 17 November 2007

Tribal Liaison Office Page 28 of 79 The ability to move between the two legal systems, allows the possibility of playing then off against each other, such as conflict parties picking the one where they believe they have better chances of winning their case. This means, for example, appealing to the formal system if the outcome of the customary one is not in their favour, and vice versa (wherever they may feel better represented, or where their clientele may sit). 20 Referring a case back to the formal court system is often seen as a last resort (see McEwen and Whitty 2006) before taking up arms. One conflict party described it as follows: “ We tried all the possible options and now we are trying the government option. If this also does not work, then we have only one option left and that is the option of kotak ( stick - conflict) – our third option is force .” 21 Furthermore, the state may also limit which land disputes can be judged through the informal system, such as cases involving government land, which have to go strictly through the formal system. Thus, (land-based) conflicts can become an area for the contestation and delineation of power and authority between the state, traditional structures (i.e. tribes), and other stakeholders.

6.1 Formal Conflict Resolution Mechanisms The state judiciary system is composed (at least hypothetical as many of the primary courts do not exist) of three courts that operate in hierarchical order: • Primary Courts ( Ibtidaya Mukhama ) operating at the district level, • Secondary Courts ( Morafiya Muhkama ) operating at the provincial level • Supreme Court ( Stara Muhkama ) operating at the highest and most central level. In addition to these three general courts, a Special Land Disputes Court was established in 2002 via presidential decree, “to specifically deal with private persons who are returnees or internally displaced and who seek to retrieve private properties of which they have been unwillingly deprived during the period since 1978” (World Bank 2005b, 2). After the initial Special Land Disputes Court proved to move too slowly (only solving 5 percent of all disputes in its first two months of operation, see Wily 2004a), it was modified in 2003 into a Special Property Disputes Resolution Court , with the important addition of an appeals court to the two other ones splitting their case load between Kabul and the provinces. The other two adjustments were that judges were now required to go to the different provinces for case hearings and the Ministry of Internal Affairs was supposed to implement court decisions. Lastly, land disputes that involve government land cannot be resolved within the court system, but must be submitted to the Ministry of Justice’s Hoquq 22 Department. Since most pasture and communal land disputes involve government land it limits the amount of cases that actually get presented (Wily 2004a). Even though the idea of a special court to deal with land disputes is sound, the entire formal system suffers from problems with accountability, efficiency, corruption, and lacking capacity of judges working within the system. Many poor people feel that they lack “status, financial means, documents or knowledge to pursue the matter successfully” within the formal court system (Wily 2004 a, 41), others fear bias against their ethnic background (such as Pashtuns

20 Interview, jirga mediator, 18 November 2007; focus group discussion, 17 November 2007 21 Focus group discussion, 17 November 2007 22 Huqoq is defined as persons’ rights under the government.

Tribal Liaison Office Page 29 of 79 in the North, where courts are dominated by Uzbeks). This creates a situation where the majority of all land disputes are still handled by the informal system, simply because the general population trusts this system more than the formal courts. The following statements from interview partners in Paktia echo these sentiments: • The court will pass the decision in favour of those who pay them.23 They are corrupt. 24 • State power is so weak in the area whereas jirgas are easily accessible and cheaper. 25 Jirga decisions are quicker and more practical than lengthy courts procedures. 26 • Courts are either unable to implement decisions or their sentences are not upheld (lack of enforcement capacity). 27 They lack professional and honest judges. 28 • Courts and the state system lack credibility among the people, partially as they do not understand local sensibilities. 29 • Inconsistent stance within the formal system: In only one of the four cases studied, an earlier jirga decision resolving a dispute with the ratification of the then acting Provincial Governor was later overturned by his predecessor with the argument that jirgas were invalid in disputes between tribes and the state. 30 As noted earlier, cases handled by the formal system are often referred back for settlement to the informal system. 31 Most participants (including some government officials) see no conflict between customary law and state law. The formal judiciary system works in collaboration with informal dispute resolution mechanisms to some degree and recognizes and respects the jirga/shura as an effective remedy in some cases. However such linkages are still ad hoc and not yet formalized, which has reduced the potential influence of the state in working with the local informal system to deal with land-based conflict more robustly. In the rural areas of Paktia, the Provincial Council (Wilayati Shura) is sometimes involved in the resolution of land-based conflicts, especially if local shuras were unable to do so. 32 According to the Secretary of the Paktia Provincial Council, in the last two years up to 40 land conflicts were referred to the Council, which managed to resolve 20 of them. 33

6.2 Informal dispute mechanisms There are two main informal mechanisms dealing with land-disputes, jirgas and shuras . In some areas of Afghanistan sharia law is also used. Similar to the formal justice system, jirgas

23 Interview, government official, Paktia, 22 November 2007 24 Interviews: government officials, 14 and 21 November 2007; jirga mediator, 24 November 2007; tribal representatives, 17 and 25 November 2007; focus group discussions, 25 and 24 November 2007 25 Focus group discussion, 24 November 2007; Interviews, jirga mediator, 18 November 2007; government official, 24 November 2007 26 Interviews: government officials, Paktia, 14 and 22 November 2007; jirga mediator, 24 November 2007 27 Interview, jirga mediators, 18 and 24 November 2007; tribal representative, 25 November 2007, focus group discussion, 25 November 2007 28 Focus group discussion, 24 November 2007, Interviews, jirga mediator, 18 November 2007; tribal representative 25 November 2007 29 Interview, jirga mediator, 18 November 2007 30 Interview, government official, 27 November 2007 31 Interviews, jirga mediators, 18 and November 2007; tribal representative, 17 November 2007 32 Interviews, government official, 14 and 21 November 2007 33 Interview, 21 November 2007

Tribal Liaison Office Page 30 of 79 and shuras are hierarchical, even though rules are not as firm as in the formal court system. The most commonly used traditional mechanism to resolve any kind of disputes, including land-based cases, is the jirga . A jirga is a temporary body created for resolving inter- and intra-tribal disputes but in some cases also disputes between tribes and the government. After a decision is reached the jirga is dissolved. The form and composition of a jirga depends on the dispute considered (as participants are required to hold knowledge of the case considered), but generally it includes marakachian/rishsafidia/spin giri (elders, notables, tribal leaders etc.; see Centre for Policy and Human Development 2007, 9). The only common feature is that it is comprised exclusively of adult males, and as such does not present a representative body. A jirga decision, however, is binding for the entire community. A second informal body dealing with dispute resolution is the shura, a local council or consultative body. The term is used for all official gatherings and every tribe (Pashtun and non-Pashtun) has one. In comparison to the jirga, shuras are more permanent. Recently shuras have adapted to government structures and there are village, district, provincial and ulema shuras (council of religious scholars). In the southeast even some political movements have taken on the form of shuras. While Sharia-law has applicability in the formal and informal justice system, it is also used as predominant basis for conflict resolution in some parts of Afghanistan where the Taliban have set up a parallel justice system. Sometimes Sharia is also applied by religious actors (pirs, mullahs, syeds) for conflict resolution and mediation at the request from local communities. This is particularly the case in southern Afghanistan, due to the general demise of the tribal system and the thin presence and lacking influence of the state. The province of Paktia and the larger southeast (Paktia, and Paktika), in contrast, still largely remain under the strong influence of tribal institutions such as jirga s and tribal shuras . According to Wily (2004a, 41) disputants reach out to local shuras (or even other local mediation means) in disputes over land such as water rights, boundaries, right of way, inheritance or mortgage disputes (see also McEwen and Whitty 2006). 34 Shuras or individual elders and religious figures that resolve land-based disputes may work more as mediators/arbitrators, while a jirga can make decisions based on the pashtunwali code (Pashtun customary law) or the shariat (in Southern Afghanistan). 35 Before the proceedings begin it must be established and agreed upon by all parties involved which laws will be used in the mediation/resolution process. People in rural areas prefer to resolve their conflicts through jirga/shura processes involving their local village elders (and community consensus). A government official explained this with the fact that the state judiciary system is still a very “young” institution, while the traditional jirga structure has been practised for hundreds of years. 36 If the village jirga/shura is unable to resolve the conflict, conflict parties refer to the tribal jirga, which has more influence and authority. In the case of large-scale and difficult land disputes it is also possible to call together a provincial jirga that can draw on various respected elders from different tribes in the area to ensure there is complete impartiality.

34 This was confirmed in an interview, with a jirga mediator, 18 November 2007 35 Interview, government official, 21 November 2007 36 Interview, government official, 21 November 2007

Tribal Liaison Office Page 31 of 79 There is an appeals process of sorts if conflict parties are not satisfied with the solution. Altogether they are allowed to appeal twice, hence having a case run through three jirgas . 37 If one conflict party or tribe is unhappy with the decision in the first jirga they can challenge it in a second bigger jirga . If they are still unhappy with the decision they can refer it one more time to a third and highest jirga composed of seven representatives from the seven Pashtun tribes of the region. 38 Given this jirga involves “supreme mediators” from all tribes no one has the authority to reject their decision, called tokhom .39 Once the last jirga is reached, conflict parties can only go to the formal court system for another “appeal.” While the four land-based dispute cases from Paktia demonstrate the opportunistic switching between the formal and informal system, they do not necessary follow similar patterns. Two cases went from a local appeals process (holding two jirgas ) to the formal system. In another case, dispute parties switched to the formal system already after the first dissatisfactory jirga decision. According to tribal mediators in Paktia, the jirgas depend on three things: • Waak , which is the authority given to jirga mediators by the conflicting parties to resolve the problem at hand. 40 There are two kinds of waak : narkh waak and toya warai waak . Narkh is similar to a civil code; meaning there are specific rules to be applied to different types of conflict, with the rules differing between tribes and subtribes. Narkh waak thus binds the mediators to a specific narkh . Toya warai waak is an absolute authority to the mediators, without a need to look for more specific narkh . 41 • Machalga – a guarantee (usually money or other valuables) from both conflict parties. If the conflict parties accept the jirga decision then the machalga is returned to them. If one or both of the conflict parties do not accept the decision, then the machalga is not returned to the party who refuses the decision. 42 • Kabargen – an agreement by all surrounding tribes to socially isolate those who did not accept the jirga decision as promised. This can guarantee that “sentences” are accepted by conflict parties and upheld. 43 Kabargen is crucial as jirgas lack enforcement mechanisms, 44 such as a police, with the exception of Southeastern provinces where a tribal police, the Arbakai, can enforce jirga decisions. McEwen and Nolan (2007, 21) argue, “accessibility and local control is perceived to guarantee the integrity of both land records and the system itself.” The fact that, in comparison to the more formal court mechanism of dispute resolution, the jirga/shura is considered less costly, more (time) efficient and respected in local communities does not mean that it is without problems. The following flaws were identified: • “[W]hile customary systems may provide a strong foundation for land management, under some situations it may potentially favour elites, specific gender, age or ethnic groups”

37 Interview, government official, 21 November 2007 38 Interview, jirga mediator, 18 November 2007 39 Interviews: jirga mediator, 20 November 2007; government official, 21 November 2007 40 Interview, jirga mediator, 20 November 2007 41 Interview, jirga mediator, 20 November 2007 42 Interview, jirga mediator, 20 and 24 November 2007; government official, 21 November 2007 43 Interview, jirga mediator, 18 November 2007 44 Interview, jirga mediator, 18 November 2007

Tribal Liaison Office Page 32 of 79 (McEwen and Nolan 2007, 21, see also Barfield et al. 2006). During one focus group discussion, it was suggested that “for the poor people it is tough to provide food and other accommodations for the jirga members”. 45 • Due to being rooted in community values, individual property disputes might be easier to resolve than cases where communal interests are involved (Wily 2004a). o In one of the land conflicts studied it was suggested that an initial jirga was not powerful enough to pass and enforce a decisions. 46 o In another, the unwillingness of conflict parties to reach a compromise or find a solution (neither side wanting to move an inch from their stance) was seen as the major obstacle. 47 • “Some traditional practices violate Afghan and international law, including honour-killings, forced and underage marriage, and payment of blood money in lieu of punishment” (Barfield et al. 2006, 3). • Bias and favouritism of jirga mediators, especially when conflict actors pick their representatives for the local jirga . Mediators are then often seen as puppets for the actors involved, as “they are having their own deals with different involved actors in the conflict” 48 , be it for family relationships (patronage) or money. 49 This can lead to a splitting among jirga mediators and a failure of the jirga itself. 50 o One government official interviewed suggested: “The local tribes are normally claiming the ownership of state lands and then they give money to the jirga mediators to pass the decision in their favour. Then the government registers the decision of the jirga as a deed; this is the common procedure nowadays in the area. It is indeed a trick of the tribes to gain more land though jirgas .” 51 o It was hinted that some jirga mediators might also be corrupt, seeking funds from conflict parties to speak in their favour. 52 In cases, where this becomes known, the jirga decision holds little value and jirga mediators will “loose their face” and will no longer be used. 53 Corruption among jirga mediators, however, was considered less prevalent than with state judges. 54 • “[I]mbalanced power relations between landowners, landless farmers, and gun-holders tend to subvert the principles of equity upon which the system relies for its popular legitimacy” (Barfield et al. 2006, 3). This, however, is also true for the formal justice mechanism.

45 Focus group discussion, 24 November 2007 46 Interview, jirga mediator, 20 November 2007 47 Interview, government official 21 November 2007 48 Interviews: government officials 21 and 24 November 2007; jirga mediator, 24 November 2007; focus group discussion, 25 November 2007 49 Interview, government official, 24 November 2007 50 Interview, government official, 24 November 2007 51 Interview, government official, 22 November 2007 52 Interviews: jirga mediator, 18 November 2007; government official, 21 November 2007; tribal representatives, 16 and 25 November 2007 53 Interview, jirga mediator, 18 November 2007 54 Interview, tribal representative, 17 November 2007

Tribal Liaison Office Page 33 of 79 • “Large-scale problems often defy resolution by the existing means, as community-based justice mechanisms are often unable to deal with inter-community problems – especially between communities from different ethnic or sectarian groups” (Barfield et al. 2006, 3). • Government departments and courts may not accept any kind of jirga judgements or documentation as proof of a resolved land title. 55

55 Interview, government official, 20 November 2007

Tribal Liaison Office Page 34 of 79 7 Assessment of the Causes of Land-Based Conflicts Conflicts in Afghanistan are a multi-faceted phenomenon relating to social, economic, ecological, historical and current political factors as well as inter-group tensions. This section discusses the conflict actors, structural factors, conflict dynamics, and accelerating factors of land-based conflicts with special attention to Paktia province. A relationship has been observed between armed conflicts (domestic or international) and the agriculture dependency of a society. De Soysa and Gleditsch (1999), for example, argue that armed conflicts are more common in societies that are primarily dependent on agriculture. While it is true that resources (including land) are the number one cause of secondary conflicts in Afghanistan, the country is facing a multitude of intersecting challenges. Afghanistan is an agrarian society where land determines not only livelihood, but also wealth and power. Yet, “[w]hile most of the rural population depends on arable agriculture, the amount of useable farmland is limited” (Wily 2003b, 2). Even though about 80 percent of all Afghans are engaged in the agricultural sector (FAO 2008), only about 12 percent of the entire landmass is considered arable land (Wily 2003b). The percentage of usable land, increasingly affected by environmental and war related degradation has decreased steadily over the past three decades. Added to this have come demographic pressure mainly from refugee return and a high population growth rate. Afghanistan, however, is also a society with a long legacy of internal strife that has led to the destruction of a great amount of infrastructure (currently still being (re)built) and introduced a war economy based on opium poppy cultivation which is infringing on legal agricultural crops, but also pasture lands. The continued prevalence of armed actors (linked to a marred Disarmament, Demobilization, and Reintegration (DDR) process and re-emerging insurgency) exacerbates land-based conflict as a control over the means of violence and facilitates illegal land grabbing while compounding fair resolution of land disputes. While at face value land conflicts in rural and urban areas differ, the differences can largely be attributed to types of land and property that exists in rural vs. urban areas, and different usage of land in both areas. The underlying causes, however, are often the same. For this reason the report focuses on a general discussion of factors leading to land-based disputes in Afghanistan, highlighting rural-urban differences wherever they come to the fore.

7.1 Conflict Actors Due to the complexity of land relations in Afghanistan, there is also a multitude of actors involved in land-based conflict driven by diverse motifs such as defence and reclaiming of property, disagreements over inheritance rights, need of livelihood and survival, greed and personal enrichment, and agricultural expansion (both legal and in order to grow opium- poppy). The actors involved can assume different roles, which can be categorised as follows: primary (direct conflict party), secondary (indirect stake in conflict, either through family linkages, political or economic opportunism or spoiler behaviour), and/or tertiary actor (trying to mediate in a conflict). Table 4 provides an overview illustrating the diverse roles actors and actor groups play in the cases examined in Paktia, either as primary actors, directly or

Tribal Liaison Office Page 35 of 79 indirectly supporting or benefiting from a dispute, or as tertiary actors mediating from a neutral position. 56

Table 4. Overview of Land-Based Conflict Actors in Afghanistan

Actor Type Actor Primary Secondary Tertiary Individual land owners  Families  Business people  Entire Village  (rural/urban)

Civilian actors Civilian Tribes/communities    Kuchi (nomads)  Government ministries   Municipality   Provincial/District officials    (incl. governors)

(central/ (central/ Various government departments at provincial   provincial/district) provincial/district)

Government officials officials Government level ANA   ANP   actors Security International security forces   Ex-mujahideen commanders   and militias Non-state Insurgency   armed actors Criminal elements, incl.   narcotics mafia Land Court judges    resolution actors jirga mediators  

There are slight rural-urban variations reflecting the different lifestyles and lands available. For example, conflict over housing and real estate is more common in urban areas while pastureland disputes are found in rural areas. 57 Similarly, individual land claims are more frequent in urban settings, 58 while communal land claims (extended family, villages, tribes) are common in rural

56 Focus group discussions, 17 and 24 November 2007 57 The difference, however, are too minimal to be considered separate discussions. 58 Using data from the Norwegian Refugee Council Data, the World Bank (2005e) shows that 36 percent of all urban land dispute cases involve individuals or families, while 29 percent involve different

Tribal Liaison Office Page 36 of 79 areas. McEwen and Whitty (2006, 36), using 2004 data collected by the Norwegian Refugee Council in six provinces, find that about 86 percent of all rural land-based conflicts are disputes within the same village, and 60 percent within a family (e.g., inheritance disputes). Another 16 percent were with another village. Land grabbing, however, seems a bit more prevalent in rural areas, likely due to the larger landmasses available. Universal, however, is the involvement of government actors (at various levels), security forces, conflict resolution bodies (with informal ones dominating both in rural and urban settings), and last but not least, strongmen. McEwen and Whitty (2006, 36) observed that in 33 percent of the conflicts the government had some claim in the dispute and warlord–s or strongmen 59 were involved in more than 60 percent of all land-based conflicts. Wily’s observations (2004a, 88) sum up the findings of other studies (e.g., World Bank 2005b, Stanfield 2006, Gebremedhin 2006, McEwen and Whitty 2006, McEwen and Nolan 2007), which were also reflected in the four Paktia case studies: ”A crucial element of conflict is the role that has been, and is still being, played by warlords/commanders. All too many land disputes have been prompted, led or exacerbated by their role in land grabbing, terrorising or exploitation of farmers. Although their motives appear increasingly to stem from personal economic interest, they tend to garner ethnic support and the effects are being delivered along ethnic lines. Problems and disputes have however also fed upon long- simmering ethnically-shaped grievances as to land access. Because of this land history, warlords/commanders may be as much instrument as cause.” The issues get even more compounded when actor categories overlap, such as when strongmen cum government or state security actors grab land for their own benefit. Another example is corrupt court judges or jirga mediators that may not remain a neutral tertiary party but (begin to) have a stake in the conflict outcome through patronage and/or accepting or requesting bribes. In the four case studies, centred largely in an urban or semi-urban context, the primary conflict actors were a combination of tribes or individuals with tribal affiliation and government officials (e.g., Ministry of Agriculture and the State Cases Department). The involvement of strongmen was more difficult to define, as at least in one cases, one of the conflict actors was a former mujahideen commander functioning as an Afghan National Official while likely acting in his own interests. 60 Overall in Paktia there were a total of 14 land-based conflicts registered and filed in state courts to involved state-actors (see Table 5).

government official (both for personal gains, but also development projects, latter is around 19 percent). Land grabbing by strongmen accounted for 13 percent of the cases, and another 15 percent were unclear (hence also could involve land grabbing). 59 Giustozzi and Ullah (2006) distinguish between warlords, whose authority is primarily based on military capacity and largely autonomous from the local population, and strongmen, who are militarily less strong and politically more dependent on maintaining a degree of legitimacy vis-à-vis the local population. Pashtun tribal institution with their strong demands on egalitarianism and lineage solidarity, are not conducive to the emergence of warlords in the strict sense and in the Pashtun belt, particularly the southeast, including Paktia, commanders have not been able to establish themselves as warlords and remain dependent on support by tribal institutions. For the purpose of this study, local leaders commanding military capacity will therefore generally be referred to as strongmen rather than warlords (see also Schetter et al. 2007). 60 Interview, tribal representative, 16 November 2007

Tribal Liaison Office Page 37 of 79 Table 5. Various land conflicts between the government and local tribes over the state properties in different areas of Paktia province (1 jerib equals 0.2 ha)

Location of the N Size Involved Actors Status Land

Ministry of Defence vs. local tribes 1 800 Brigade 35 jerib Disputed (unspecified)

2 Khak Faqir; Gardez 35 jerib State vs. local tribes (unspecified) Disputed

Rohani Farms; Ministry of Agriculture vs. Zurmat 3 40 jerib Occupied tribes

Neek Nam Farms; 4 50 jerib State vs. Sahak () tribes Disputed Zurmat District

Ministry of Defence vs. Saleh Khail 5 Gardez City 4 jerib Occupied tribe

12 th Core, Ministry of Defence vs. 6 Gardez City 40 jerib Disputed Saleh Khail

12 th Core, Ministry of Defence vs. 7 Shikhan Gardez 20 jerib Disputed Saleh Khail

Ministry of Defence vs. Ahmadzai Military Air Field 8 15 jerib Tribe & some -speakers from Disputed Gardez Gardez

Ministry of Agriculture vs. Tuta Khail 9 Said Karam District 17 jerib Occupied tribe

Nagram Farms Ministry of Agriculture, Mamozai, 10 699 jerib Occupied Said Karam Tuta Khail tribes

Source identified conflict between the government and one local tribe – 11 Kolanga Gardez 200 jerib Unknown however, further details were not obtained.

Chamkani District, Ministry of Agriculture vs. Chamkani 12 63 jerib Disputed Paktia tribe

Sahak Village, 13 1,000 jerib State vs. Kuchi People Occupied Zurmat District

14 Gardez 40 jerib State vs. Sadat Khail Occupied

Tribal Liaison Office Page 38 of 79 Secondary actors, having an indirect stake in the conflicts, were largely defined as government actors and/or non-state armed actors that were rallying behind the conflict parties. In some cases persons in important political government positions use their influence in favour of a primary conflict actor due to patronage (family, social, factgional) relations or because of corruption. It was also alleged that some of the government officials, but also jirga mediators, had started to side with the primary conflict actors for similar reasons – making them no longer neutral teriatry actors. Furthermore, strongmen, overtly or covertly, acting as spoilers in the process, begin to manipulate the conflict, as they may benefit from the ensuing violence. 61 In the four cases studied, the insurgency seemed not yet involved in the land conflicts, which they are increasingly doing in other parts of the country.

Example: Patronage networks between tribes, local strongmen and government officials in land-based conflicts in Paktia Many land conflicts in Afghanistan, and most in our study area, see the informal involvement of local government officials and/or strongmen. Those local leaders, in turn, are connected to wider patronage-networks involving national level government actors and commander/strongmen. Consider the following two case examples: • In the Shana Zawar case (see Appendix II, Conflict 1), a former jihadi commander from the Sallam Khal tribe cum commander of the (ANA), started building compounds on land also claimed by the Usman Khail tribe. Members of the Usman Khail tribe allege, that the commander is supported by the governor of neighbouring Paktika who they claim to be “misusing his political position” by prolonging formal processes in the court or government offices at the district and provincial level. Both individual (the ex-jihadi commander and Govenor), in turn, are allegedly supported by the current and a former 62 Minister of Finance in Kabul. • In the conflict between the Sallam Khail and Shali Khail tribes (see Appendix II, Conflict 3), elders of the latter also alleged involvement of the same ex-jiahdi cum ANA commander and the Paktika governor as primary actors of the conflict. In this case one of the elders involved on the Sallam Khail side is the father of said Governor. Albeit he claims that his son is not supporting the conflict, the other conflict party believes he might be using is influence. Furthermore, the representatives of the Sallam Khail accuse the district governor of Ahmad Aba (previously Said Karam), to have encouraged two sub- tribes of the Shali Kail to claim Sallam Khail land in the first instance, and to have extended further financial support to them.

Table 6 provides an overview of the four land-based conflict cases studied and actors involved, showing which secondary actors supported which primary actors, and in which case there were tertiary actors involved.

61 Focus group discussion, 17 November 2007 62 Throughout this report, where the status of an office-holder is not explicitly specified, it has been ‘current’ at the time of data collection.

Tribal Liaison Office Page 39 of 79 Table 6. Overview of Conflict Actors for the Four Case Studies in Paktia 63

Land Tertiary Conflict Secondary Conflict Conflict Primary Conflict Actors Actors Actors Name

• Governor of Paktika (who is the son of • Tribal jirga

Prominent Sallam Khail elder, the Sallam Khail suspended after supported by the rest of the elder involved), tribe (according to Shali Khail two partial elders) • Ex-jihadi cum ANA factions commander of the emerged Sallam Khail tribe • Sallam Khail Sallam Paktia Provincial Council Ahmad Aba District Shali Khail tribe Governor

Yahya Khail tribe Partial jirga mediators • jirga (for conflict between tribes) Mamozai tribe Partial jirga mediators • Paktia Provincial Court (for conflict between Ministry of Agriculture Mamozai Tribe NagramFarms and Ministry)

Usman Khail tribe

• Ahmad Aba district administration • tribe Ex-jihadi, now ANA • Paktia Provincial (jirga ) commander of the Sallam Government • Khail tribe, supported by the ‘State’ resolution • Shana Zawar Shana the rest of the tribe Governor of Paktika • Current and a former Minister of Finance • Ex-Governor of Tribal jirga under ex- Alla-Din-Khail tribe Paktia Governor of Paktia Wafa • Afghan Millat Party 64

• State Case Department (allegedly the director as Local commander, individual) linked to a warlord of Northern Alliance Terra “Shah Bagh” “Shah Terra • Department of Property

63 Information comes from interviews with both conflict parties and external actors. Thus, involved of secondary actors is often alleged by one conflict party and denied by the other. Unless identified differently, government actors were in their position in 2007. 64 Literally: ‘Afghan Nation’; established in 1966, the Afghan Millat was originally set up as a social democratic party, but had a clearly nationalist focus, promoting a distinct Pashtun national identity for Afghanistan, until the mid-1980s. Recently, the party has shifted its emphasis to social democratic policies and actively tries to transcend its formerly mainly Pashtun membership and electoral profile.

Tribal Liaison Office Page 40 of 79 Five influential, ethnic Tajik

families from Gardez

Tertiary actors are, by and large, neutral parties trying to assist in the resolution of land- based conflicts. In the first instance they are representatives of the formal (court judges, district or provincial council members, Offices of the Governor) or informal ( jirga mediators) conflict resolution systems. International humanitarian and development actors, non- governmental organisations, UN actors (e.g., Offices of the United Nations Assistance Mission to Afghanistan – UNAMA), and international military actors (ISAF/NATO, Provincial Reconstruction Teams, Coalition Forces) may also try to assist in resolving land-based conflicts. The Norwegian Refugee Council, for example, has run Information and Legal Aid Centres (ILACs) for some years now in Afghanistan. In another study by the Tribal Liaison Office, the U.S. Coalition Forces (Operation Enduring Freedom) had built a Forward base between two tribes clashing over land rights. 65

Statement regarding (Im)partiality of jirgas mediators • “Mediators take sides of the involved actors in the conflict. Whenever the mediators favour an involved actor of the conflict then the jirga breaks in two sections and ends without any decision” 66 • “In most cases, especially when the involved parties choose their own mediators for resolving a conflict, the mediators are just like the puppets of the parties.” 67 • “We have a lot of cases where some mediators committed corruption but the decisions of those jirgas are without any practical values. But the local people can recognise honest and dishonest people. If a mediator has lost his face, then for the second time people will not choose him for the duty of conflict mediation.”68

As noted before, some tertiary actors loose their neutrality through becoming involved into the conflict by either accepting bribes from one of the conflict parties, or responding to patronage request. Neutral international actors, quite inadvertently, without their knowledge, may also become “…the problem is if we start a party of the conflict – or may be perceived as such. defending our land by the force of the gun, then the other side One conflict party feared that corrupt government actors of the conflict will use their may call on the assistance of international military actors influence to wrongly report us by discrediting conflicting tribal actors as Al-Qaeda, as Al-Qaida to the Americans especially if they would defend their land against in Gardez.” Shana Zawar Conflict, Usman Khail elder “invaders” with force. 69 There is ample evidence with civilian casualties in Afghanistan where aerial bombings of civilian gatherings resulted from faulty intelligence provided by actors trying to take out their rivals.

65 Conflict Assessment: Kamdeshie and Kashtozie tribes; . TLO Report, July 2008. 66 Interview, District Governor of Said Karam, 24 November 2007 67 Interview, Representative of the second mediating jirga in the Nagram Farms conflict, 24 November 2007 68 Interview, jirga mediator, 18 November 2007 69 Focus group discussion, 24 November 2007

Tribal Liaison Office Page 41 of 79

7.2 Structural Factors of Land Based Conflicts Structural factors of land-based conflict can be summarised as competition over scarce (land) resources, the social importance of land, and the presence of different ethnic and tribal groups. It is important to recall that structural factors are necessary but not sufficient causes of conflict, needing a complex interaction of conflict dynamics to trigger conflict. Thus, while. For example, in contrast to more deterministic literature (most prominently Homer-Dixon 1999), which has recently drawn increasing criticism, we see grievances and competition over scarce resources, including landlessness (see Wily 2003b, 2004a) as an important factor underlying land-based conflict, but not as sole cause. As a root cause scarce resources only lead to conflict if managed poorly or unequally distributed. Thus, the analysis of violent land conflict has to fundamentally consider the policies and politics regulating the access to land (see DiJohn 2008 for a summary of the debate). Similarly, ethnic and tribal diversity does not lead to land-based conflict, unless ethnic groups are pinned against other in land distribution schemes and grievances are exploited. Wily (2003a, 2004a), notes that ethnically coloured land policies, unequal access to different lands by the various ethnic and tribal groups, has laid the foundations for ethnic fault lines and fertile grounds for grievances to be exploited by ethnic and political entrepreneurs. The more recent conflict over access to pasturelands between settled Hazara farmers and Pashtun Kuchi nomads is a fitting example (IRIN 2008b).

7.2.1 Resource Scarcity and Ecological Factors As noted earlier, scarcity of land (both arable but also for urban housing schemes) has been a significant problem in Afghanistan in the past and is increasingly so. Despite the fact that the livelihood of a majority of Afghanistan’s rural population (about 70 percent) depends on agriculture (Stanfield 2006, Wily 2003b), there is only about 12 percent arable land of which 5 percent is irrigated and 7 percent rain-fed (Wily 2003b). About 45 percent of the total land area in Afghanistan is pastureland designated to support livestock of settled and non-settled populations (Wily 2003b). It is for this land, however, that “land tenure arrangements are least well developed … and most subject to contention and even armed conflict” (Wily 2003b, 2). For example, pastureland can and has been frequently used as rain-fed agricultural land. In 2005, about 57 percent of the rural population was employed in the agricultural sector; with another 25 percent working with livestock (NVRA 2005, 38). For the nomadic Kuchi population this ratio is reverse with only 17 percent working in the agricultural sector while 74 percent live of livestock. Drought (ten since 1970) and desertification through rapid deforestation and unsustainable usage of fragile lands has added to this problem over time (see Stanfield 2006, Economic and Social Council 2004). On the flipside, floods have become more frequent in recent times due to a “[d]eterioration in upstream land cover through overgrazing and felling of the natural forest [that] has led to reduced infiltration and more rapid run-off” (Stanfield 2006, 7). Thus, fertile arable and pasture lands, as well as areas with remaining forest resources are particular scarce and contested. Lack of arable land has already led to what is considered landless or near-landless populations, that compete for work on scarce arable land as daily labourers or share-croppers (Wily 2003b, 2004a).

Tribal Liaison Office Page 42 of 79 According to McEwen and Nolan (2007, 22), the rising opium poppy cultivation is adding to a shrinking of legal agricultural land usage. “Research has indicated that control of land and water resources for the cultivation of high value crops may be a contributing factor to the incidence of rural conflict, worsening uncertainty and sensitivity surrounding the ownership of land” (McEwen and Nolan 2007, 22).

7.2.2 Social Importance of Land The fact that land ownership is extremely important, especially in , can also be considered a structural cause of conflict. Land ownership is strongly respected and deeply integrated into the pride and respect of individual Pashtun men. To own land makes a “real” Pashtun by virtue of fundamentally establishing membership in one’s tribe and subtribe, with all related rights and duties. Accordingly, landownership constitutes a direct link of a Pashtun to his community and is thus imbued with a deep meaning for an individual’s most immediate social relationships. Traditionally the landed elites (khans) were the ones with power among Pashtun tribes and elsewhere. In order to become a recognized leader, one had to have access to considerable landholdings. While initially such land was inherited, it can also be acquired over a persons lifespan. Especially with the war, where individuals by virtue of military might gained power, new leaders emerged through taking land by force (war loot) or purchasing it through economic gains. Thus, while the inherited status of a landed elite is still very powerful, new leaders have joined their rank. In the extreme case, loss of land would mean to become landless and internally displaced, as expressed by some focus group participants in one case. 70 Land, considered as watan (home) also has great immaterial value, as expressed by one conflicting tribal actor: “Finally it is the land of our own, it was our land and we were used to use this land for us.” 71 All local actors involved in land conflicts in Paktia described their utter determination to keep hold of the disputed land by any possible means necessary; one expressing: "Ya Mar Ya More" (literally: ‘either death or prosperity’). 72 Even if the potential real value of a disputed land is low, conflict parties may not want to give up out of a matter of principle, as it would mean loosing what is rightfully theirs (land of their fathers), 73 and hence “their dignity” (referring to honour/ nang ). 74 One tribe traced ownership back for thirteen centuries when their ancestors settled on the land, something that cannot be changed or challenged. 75 Another argued that giving up their land was to dishonour their elders who swore the land was theirs”. 76 The social importance of land was said to be particularly high when a religious or historic site, such as a graveyard is located on the land. 77 In one land dispute, for example, one conflict

70 Focus group discussion, 17 November 2007 71 Interview, tribal representative, 24 November 2007; Focus group discussion, 17 November 2007 72 Focus group discussion, 17 November 2007 73 Interview, tribal representative, 17 November 2007 74 Interview, 16 November 2007 75 Focus group discussion, 26 November 2007 76 Focus group discussion, 19 November 2007 77 Focus group discussion with different conflict parties, 19 November 2007 and 25 November 2007; Interview, government official, 20 November 2007

Tribal Liaison Office Page 43 of 79 party argued “The most important thing for our side is the presence of our ancestors’ graveyard in this land. This graveyard has a shrine too which is so admirable to us and we know as Tor Baba ". 78 At the same time, however, they acknowledged that an ancient historic site on a hill dating to the times of Zanborak Shah (pre-Islam) is also located on the land, which seems to be also of profound importance for surrounding tribes and the government. 79 There was also an added fear that giving in to one wrongful encroachment may entice the other conflict party to claim more land in the future. 80 A jirga mediator, also explained, that in Paktia province tribes consider mountains as their own rather then state property which is increasingly leading to conflicts between the tribes and the government. 81

7.2.3 Heterogeneity – Multi-ethnic society While the presence of different ethnic, tribal or other social groups should never be considered as a direct cause of conflict (as none of the structural causes discussed so far), it could provide fertile grounds that ethnic and political entrepreneurs can exploit. Often it is not actual but perceived differences among social groups that are manipulated (usually in times of resource scarcity) to create tribal and ethnic tension that historically may not have existed. 82 Whether and how these processes take place significantly depends on the institutional environment that governs the distribution of resources. Of particular importance here are the distributive practices of the state and the extent to which they are ethnically patterned (see Breuilly 1993, Wimmer 2002). According to Wily (2003a, 2004a), a long history of mismanaged tribal relations and ethnically coloured land policies, unequal access to different lands by the various ethnic and tribal groups, has contributed to a simmering of grievances rive for exploitation. An example were the pashtunisation policies of past Afghan kings noted earlier, with the dual purpose to undermine the power of some Pashtun tribes in the south and southeast by relocating them south an increasing Pashtun influence in the north by settling tribes there. During those, at times forced relocation, Pashtun tribes were allocated land and administrative positions, thereby rendering them increasingly dependent on the state. In recent times, this has lead to a backlash against Pashtuns in the north, who were harassed and forced to leave during the short rule of the Mujahideen government (1992–1996) and again after the fall of the Taliban (International Crisis Group 2003, Schmeidl and Maley 2008). “It is indeed a highly politicized issue supported from Kabul by the The experience of backlash since the fall of the Northern Alliance fanatical groups, who really want to unfairly promote Taliban in many areas made Pashtuns feel more the power of non-Pashtuns in this vulnerable to “coerced” sale or land appropriation area. It is just based on linguistic and (International Crisis Group 2003), as it was voiced ethnic fanaticism.” Terra Land during several interviews and focus group Conflict, Representative of the Allah- Din Khail on the actions of the State discussions in Paktia. The main anxiety issue in Case Department Paktia was between local Pashtun tribes, and the

78 Focus group discussion, 25 November 2007 79 Focus group discussion, 25 November 2007 80 Interview, tribal representative, 17 November 2007 81 Interview, jirga mediator, 20 November 2007 82 Here we tend to argue more on the socially constructed identity than the primordial one, as advocated prominently by Barth (1969). Schetter (2003) has argued this also for Afghanistan, demonstrating that ethnic and tribal boundaries are not as firm as outsiders may project it to be.

Tribal Liaison Office Page 44 of 79 perceived greed of Gardezi (Dari speakers) in the local provincial government, who the tribes felt wanted to promote non-Pashtuns in Pashtun areas. 83 As Gardezi were traced back to the Northern Alliance, it was not simply seen as an ethnic problem, but also a political one where Dari speakers are accused of being involved in a bigger scheme to dominate Pashtuns. Dari speakers in government positions in turn accuse Pashtun tribes in Paktia of being ethnic nationalists, unable to accept other ethnic groups in power and non-Pashtuns owning land in their region. 84 In other parts of the country, especially for semi-urban and urban land seizures, the plight of the Hindu and Sikh minority needs to be highlighted as they are discriminated against by most of the other ethnic groups in Afghanistan. Hindu and Sikhs are mainly found in urban and semi-urban settings as they largely functioning as a middleman minority (mainly shop keeping). They were encouraged by the former pre-communists Afghan Governments to open businesses in remote Pashtun areas in order to propel the private sector there, but now only remain in scarce numbers there, with in Nangarhar having the second largest Hindu population after Kabul. The Sikhs in Gardez had to flee entirely during the war. In Khost a small community still remains in the capital mainly engaged in business. is another area in the southeast which also has a small Sikh minority. In the south Sikhs especially in Helmand districts such as Nad Ali, Marjah and Lashkargah have lost land to commanders during the Afghan war. After the fall of the Najibullah government in 1992 thousands of Hindu/Sikh homes were looted and illegally occupied by jihadi warlords, forcing many of their owners into exile. According to the report of the United Nations Special Rapporteur on Housing and Land Right, of a pre-1990 Hindu and Sikh community in Kabul of about 15,000-20,000 families, only a fraction (350 families) is left today (Economic and Social Council 2004, 19). Due to their relative affluent status as businessmen, their houses were sought out for illegal occupation again after the fall of the Taliban; and returnees are forced to live in Hindu temples due to being unable to return home. Despite having endured discrimination under the Taliban times, the final straw for many Hindu families for leaving permanently is the lacking protection of their land-rights in recent years. Last, but not least, the growing conflict between the nomadic Kuchi population and some settled populations in Bamiyan, Wardak and Ghazni provinces over access to pasture lands has recently taken on an ethnic spin. Even though the Kuchi (mainly Pashtuns) have traditionally grazed livestock on pasture land in Hazara areas (the third largest ethnic minority in Afghanistan), the Hazara have recently denied access claiming that the land could no longer sustain both settled and nomadic populations (IRIN 2008b). As the Pashtun- dominated Taliban government not only oppressed the Hazara, but also committed genocide against them, political entrepreneurs were able to exploited grievances as an ethnic issue. According to a representative of the Afghanistan Independent Human Rights Commission, the lack of confidence both parties have in the ability of the government to resolve this disputes may lead to violence and ethnic conflict (IRIN 2008b). Even though none of the four cases studied here involved Kuchi, one of the fourteen land- based conflicts between government actors and local population in Paktia involves Kuchi

83 Focus group discussion, 26 November 2007 84 Interview, government official, 25 November 2007

Tribal Liaison Office Page 45 of 79 (Sahak Village, Zurmat District; see Table 5 in the actor section, case No. 13). Furthermore, the settlement of nomadic populations is increasingly linked to land disputes in neighbouring provinces of Paktia (e.g. Khost, Ghazni) and Nangarhar (see Economic and Social Council 2004). In addition to the Hazara-Kuchi conflict in Ghazni in the areas bordering Wardak, the issue is particularly pressing in Khost, where Kuchi and local settled tribes are engaged in land conflicts in at least seven districts.

7.3 Conflict Dynamics – the Continued Weakness of the Afghan State Conflict dynamics are often hard to separate from some structural causes of land-conflict, but in general they build on, interact with, and exacerbate structural factors to a point where conflict breaks out. While structural factors, such as resource scarcity, demographic pressure and ethnic and tribal diversity do not cause conflict on their own, a government’s inability (or unwillingness) to address them certainly can. While the Afghan state has historically been weak, public confidence in the Afghan government structures, especially its judicial and security apparatus is continuing to decrease. 85 One of the government official interviewed suggested that “the prolonged absenteeism of the government during the jihad and civil war eras” had a lot to due with state weakness and wavering public confidence. 86 In an annually published index of state-failure, that tracks the performance of 177 countries on 12 indicators linked to social (4), economic (2), political and military (6) indicators, Afghanistan was ranked as 7 th least stable country in the world, much above the warning range for imminent failure (Fund for Peace 2008). Furthermore, the lack of rule of law and the supremacy of warlords plays a large role in facilitating land conflicts. In this section we discuss the different aspects at work here, such as frequent regime changes and multiple state policies to land, all having lead to multiple ownership documents, which the current Afghan government has not been able to deal with. The weakness of the Afghan state in developing a system to deal with ownership rights, illegal land seizures and corruption is also discussed.

7.3.1 Multiple Governments, Land Policies and Land Documentation One crucial piece of the land-based conflict puzzle in Afghanistan, interacting with many of the other root causes, is the “history of rampant land grabbing by the state and related policies of ethnic favouritism in allocation” (Wily 2004a, 44). As outlined in Section 3, over the past century, Afghanistan has endured various government-led land policies that impacted on local land relations and rights. As neither government really tried to resolve past “wrongs” amicably, and none really ended up staying in power, one can relate to the arguments of local tribes and communities, believing that they were legitimately reclaiming their property that may have been taken away or sold to a government no longer considered legitimate. The problem with this, however, is to which period each community or ethnic group may return in justifying their land rights – and the discrepancy in such assumptions and beliefs is what often leads to land conflicts.

85 Interviews, jirga mediator, 18 November 2007, tribal representative, 16 November 2007 86 Interview, government official, 22 November 2007

Tribal Liaison Office Page 46 of 79 Without wanting to repeat what was said earlier, it is important to recap here the main government induced policies and who they favoured, to understand the structural foundations for land conflict in Afghanistan: o Pashtunisation (starting in 1880): Kind Abdur Rahman then mostly forcibly resettled (Ghilzai-) Pashtuns in order to break tribal resistance and at the same time defeat rebellious minorities, especially the Hazara in the central highlands and Uzbeks in the north. Furthermore, the aim was to expand Pashtun territory in the north. This “laid the foundation for ethnic land contestation in the Hazarajat and in the north” (Wily 2003b, 4), and created latent tensions between the two main Pashtun confederations – the Ghilzai and Durrani tribes in Southern Afghanistan. o Ethnic favouritism during settlement policies under King Zahir Shah (1933-1973) followed these policies by using large-scale irrigation and development schemes in the South to increase fertile agricultural land (Wily 2003b). This introduced a concept of naqilin tribes (new settlers or immigrants), generally Pashtun nomads (Kuchi) that were given first dips at these new lands over tribes that had lived in the area for a long time. While in many places the naqilin live in peace with the traditional local tribes, latent tensions exist. This favouritism again created the potential for intra-tribal conflict, as both local tribes and naqilin are Pashtuns. o Distributive reforms (under communism, starting slowly after 1973 and aggressive after 1978). Trying to break the power of the landed elite (very strong in Pashtun areas), the communist government “placed a ceiling on private landowning” initially forcing any land above and beyond the ceiling to be sold (often to the government), and later on simply seizing excess land without compensation (Wily 2003b, 5). The government in turn then focused on redistributing these lands among those who were considered needy – mainly the rural poor. Some land, however, remained under government control – and this is often the land that some original landowners are trying to reclaim today. o Illegal land grabbing (under mujahideen rule, 1992-1996). While some tribes tried to reclaim land that was taken from them during the communist rules, others took advantage of the anarchy that followed the collapse of the communist government to increase their own assets (as land meant wealth and power). “No farmer or farmland was safe [neither was government lands]. Asset-stripping and extortion flourished, as myriad warlords, militias and parties gained, lost and regained territory, and in some areas secured land specifically in order to launch large-scale poppy production” (Wily 2003b, 49). One government official interviewed argued that the burning of the cadastre documents was a clearly thought-out strategy of the mujahideen to facilitate land grabbing: The mujahideen were ordered from their top command to burn the land registration documents. They were and still now they are able to claim the ownership of state properties and even private lands”. 87 o Government-supported reclaiming of land (under Taliban rule, 1996-2001). Supported by the Taliban, “Pashtun nomads from the south and Pashtuns from the north, who … had been evicted by resentful, indigenous populations … now sought to recover their lands” (Wily 2003b, 49), even if through force. Furthermore, the Taliban government

87 Interview, government official, 20 November 2007

Tribal Liaison Office Page 47 of 79 sometimes occupied land of two conflict parties, trying to solve the conflict by making land into state property (especially if the land was considered communal land).

7.3.1.1 Competing Ownership Rights and Documentation The continuous absence of a clear system for managing land rights and land documents (Wily 2003b) has created a complex and confusing state of land tenure rights, with a multitude of land ownership documents in existence, both formal ones from successive regimes, but also between formal and informal frameworks that lack consolidation. Such a situation in-itself opens up the potential for conflict, 88 but also for manipulations of the system, or interpretations they suit whoever is in the stronger position or inside track. In all four case studied (involving nine land conflict actors), lacking ownership documents (by all parties involved, tribes and government) were an issue. Inadequate or competing ownership documents were cited as one of the main causes for land conflict in Paktia. None of the nine actors had any tax paying documents, and only one tribe was able to present formal land ownership documents (see Table 7). There were, however, various types of informal (customary or religious) ownership documents in circulation, and as alleged by conflict parties some counterfeit formal deeds. One conflict party, for example, argued that each tribe knows the boundaries of their land, and hence their “word” should not be questioned. 89 The existence of a tribe’s graveyard was also used as proof of ownership. 90 According to the Director of the Paktia Cadastre Department, using graveyards as a form of ownership claims is a common practice among tribes in the Southeast. 91

Table 7. Overview of Landownership documents in the Case Studies

Kind of Land Ownership Land Conflict Name Name of Conflict Actor Documentation

Religious Deed (Wolosi Wasiqa, Sallam Khail tribe Sallam Khail Shara-e-Qawala)

Shali Khail tribe Religious Deed (same)

Yahya Khail tribe None

20 tribal elders gave their word Nagram Farms Mamozai tribe (swear on)

Confiscation (communist regime Ministry of Agriculture era, Taliban regime era)

Shana Zawar Usman Khail tribe Tax documents

88 Interview, government official, 21 November 2007 89 Interview, tribal representative, 25 November 2007 90 Focus group discussion, 25 November 2007 91 Interview, 20 November 2007

Tribal Liaison Office Page 48 of 79 Kind of Land Ownership Land Conflict Name Name of Conflict Actor Documentation

Sallam Khail tribe Did not provide

Five official deeds from different Alla-Din-Khail tribe Terra “Shah Bagh” periods

State Case Department Noted in government registries

While lacking of ownership documents can play a vital role in the outbreak of conflicts over land, they can also obstruct and delay both formal and informal conflict resolution or mediation efforts. 92 Furthermore, it is often the government institutions that have the power to accept or reject ownership documents presented. On conflict party complained that the Head of the State Case Department, who claims the land as state property, accepted none of their twelve different kinds of ownership documents presented. 93 The government official in turn argued, “of course their documents have registration in the court but it is a general deed of a vast land. A tribe should not have that amount of land only with an old deed or document.” 94 The government official in question, regardless of what might be officially accepted as ownership proof in Kabul courts, insisted that two kinds of documents were needed to prove land ownership: tax documents and cadastre registered ownership documents. If these were lacking a formal court decision had to be presented. 95 This requirement seems difficult in an area where both the State Property Department and Paktia Cadastre Office report that all official property documents were burned by the mujahideen in early 1990s. 96 The head of the Paktia Cadastre Department recalls this day as the worst day of his life, when he saw his hard work burnt to ashes. 97 According to Stanfield (2005, 7), eight of the 34 provincial archives were completely destroyed and many others damaged. This loss resulted in a lack of documents in the Southeastern provinces, especially Paktia, as reflected in a limited amount of registered tax-paying units in the Cadastral Department (see Table 8). Due to this disarray, the tribe feels that the government itself is not providing adequate proof of their ownership: “Our standing is so clear; if any sources bring and show better ownership documents of this land then us, then we will differently give up with happiness.” 98

92 Interview, government official, 21 November 2007 93 Focus group discussion, 26 November 2007 94 Interview, government official, 25 November 2007 95 Interview, government official, 25 November 2007 96 Interviews, 22 and 20 November 2007, respectively. 97 Interview, 20 November 2007 98 Interview, tribal representative, 25 November 2007

Tribal Liaison Office Page 49 of 79 Table 8. District Wise Cadastre Surveyed and Registered Tax Paying Units of Loya Paktia (the only available land documents in the Paktia Cadastre Dept) Registered Tax Paying Province District Units Yahya Khail 11 Yousuf Khail 13 Khoshamand 59 Jani Khail 6 Paktika 31 Waza Khwa 7 Khost City 10 Tani 3 Khost Bak 7 Paktia Terra Valley Gardez City 1 Total 10 Districts 148

A jirga mediator and representative of the Provincial Council elaborated further on the fallacy of such a requirement, explaining why many tribes lack formal ownership documents. First, “ownership documents were not so common” and second, “in previous times, especially during the monarchy, the people of Paktia were providing soldiers for the state army instead of paying taxes”. 99 Wily (2004a, 33) adds that “the state sought to bring all landholdings more firmly under its control for mainly taxation purposes” through a rural land titling process (launched in 1963). Furthermore, it is also quite common in Afghanistan that those who could afford paying taxes on land used their monetary power to encroach on the land of others that were unable to do so (Wily 2004a), 100 especially as the wealth of some landed elite was in essence limited to land holdings and not cash. This explains why in one case, one conflict party felt that they had “genuine ownership documents”, whereas the contesters only had tax document, which they were using to encroach on their land. 101 McEwen and Nolan (2007, 6) found that “[m]ultiple, conflicting titles and deeds exist for land of high value but is practically non- existent for other types of land.” This already suggests that greed motifs may be involved with illegal land grabbing and the forging of land documents.

99 Interviews: jirga mediator, 20 November 2007; government official, 21 November 2007. Indeed, the people of Loya Paktia, who had helped Zaher Shah rise back to power, had special arrangements with the king in terms of local autonomy and tax payments. 100 “The founding formal source is tax receipts, used often in rural areas to establish ownership over lands, rather than as testimony of legitimate occupancy; that is, receipt holders have frequently argued that their lands must comprise x area because this is the tax they have paid. Conversely, those who have been unable to pay tax or contribute tax to common properties have generally lost tenure. Corruption in the tax collection process on the ground has at times been rife” (Wily 204a, 33). 101 Focus group discussion, 24 November 2007

Tribal Liaison Office Page 50 of 79 7.3.2 Weak State Structures and Persistent Corruption The process of bringing order into the complicated situation of land tenure rights in Afghanistan seems to be slow moving. Early on Wily (2003 a, b; 2004 a, b) observed that reforming land administration (and learning from the experience of other countries), was not a priority of the powers to be in Kabul. The 2004 Constitution failed to clarify muddled issues, leaving it up to the legal system to untangle the growing dispute over land ownership rights (Wily 2004a). Yet, it is exactly the dysfunctional formal court systems that many interviewed perceived as an expression of the weakness of the Afghan state. 102 As discussed earlier, most respondents, both government and tribal actors alike, felt that traditional conflict resolution mechanisms, on average, were actually better to resolve land-based conflicts, especially in rural areas. 103 In addition to feeling that judges lacked professional credentials (likely this is worse in rural areas) 104 , the two other main complaints were dishonesty and corruption (extending to the entire state apparatus) 105 and a lacking enforcement capacity due to a weak police force. 106 According to a local government official: “A serious problem of the government is the inability of security forces to implement the state orders. They are completely under the control of others. They lack loyalty to the state and are running after their own financial and material advantages.” 107 Several recent studies confirm the concerns of the people in Paktia and present a somewhat sobering picture about state capacity in Afghanistan • In a recent random survey of 157 judges by the Brookings Institution, 36 percent were found to lack university degrees (21 percent had primary/secondary schooling and 16 percent were educated at madrassas). While the remaining majority (63 percent) had university education, only 12 percent were educated at law faculties (secular law), 8 percent held other kind of university degrees and the majority (44 percent) were educated at university in religious law only ( Shariat; all Campbell and Shapiro 2008, 18). Only 64 percent of all judges stated that they had access to statutes and government regulations, far less (45 percent) had access to textbooks on the law, and only 17 percent had access to Supreme Court decisions (Campbell and Shapiro 2008, 18). • According to the Transparency International’s 2008 Corruption Perceptions Index, Afghanistan scores at the bottom (176), with only Haiti (177), Iraq (178), Myanmar (178) and Somalia (180) ranking slightly worse. 108

102 Focus group discussion, 24 November 2007; Interviews, jirga mediator, 18 November 2007; government officials, 24 and 25 November 2007 103 Interviews: government officials, Paktia, 14 and 22 November 2007; jirga mediator, 24 November 2007 104 Focus group discussion, 24 November 2007, Interviews, jirga mediator, 18 November 2007; tribal representative 25 November 2007 105 Interviews: government officials, 14 and 21 November 2007; jirga mediator, 24 November 2007; tribal representatives, 17 and 25 November 2007; focus group discussions, 25 and 24 November 2007 106 Interview, jirga mediators, 18 and 24 November 2007; tribal representative, 25 November 2007, focus group discussion, 25 November 2007 107 Interview, government official, 22 November 2007 108 http://www.transparency.org/news_room/in_focus/2008/cpi2008/cpi_2008_table (accessed 1 October 2008)

Tribal Liaison Office Page 51 of 79 • Two recent studies on the Afghan police (International Crisis Group 2007, Wilder 2007) describe the “sad” state of the Afghan police, where police is associated with widespread misconduct and abuse and largely seen as producing insecurity rather than providing it. The International Crisis Group (2007, 1) argues that “the lack of effective state authority over police command and control exacerbates ethnic, sectarian and factional divides in law enforcement and thereby within the wider community.” Furthermore, both studies found that a poorly performing police contributed to an erosion of public trust in the overall state apparatus, if not even functioning as a destabilization factor. There was a clear perception that the central government was neither able to uphold previous decisions made, nor able to control its government officials abusing the power vested in them for personal gains. 109 According to a report by the World Bank (2005a), police, municipality and ministry officials are frequently involved directly or indirectly in land disputes in Kabul. Furthermore, the report indicates that in up to 20 percent of the land disputes in Kabul the officials involved in the case were allegedly corrupt. In one of the four case examples, a government official refused to accept a jirga decision brokered by the Provincial governor, because he disliked the outcome. 110 In the same case, another government official simply rejected an existing land deed presented to him with the argument that “a tribe should not have that amount of land only with an old deed or document.” 111 In yet another cases, an ex-jihadi commander cum Afghan National Army seized tribal land by force, using tanks. 112 The following statements underscore the dilemma: • “Our conflict is not with the government but it is with a few individuals who are misusing their position for their personal interests.” 113 • “When we go to court, the district officer or the governor office are not taking our grievances serious and subsequently are prolonging the dispute.” 114 • “When someone becomes a high ranking military official or a government civil servant they want to demonstrate their power by occupying people’s land.” 115 • “Neither the province governor nor the district administrator can control the misuse of formal authority by some sources. The setup of government is deeply (from top to bottom) involved in corruption, drug and commercial mafia. Our rivals in this conflict are also part of this corrupted system. As you know ‘might is right’" 116 • Weakness of the state, however, was also measured by the ability of tribes to move in and claim government land, simply taking advantage of enforcement abilities of the government. 117

109 Interviews, tribal representatives, 17 and 25 November 2007, government official, 22 November 2007, Focus Group Discussions, 24 and 25 November 2007 110 Interview, government official, 25 November 2007 111 Interview, government official, 25 November 2007 112 Focus group discussion, 24 November 2007 113 Interview, tribal representative, 25 November 2007; similar statement made during a focus group discussion, 24 November 2007 114 Focus group discussion, 24 November 2007 115 Interview, tribal representative, 17 November 2007; similar statement made in a focus group discussion, 24 November 2007 116 Focus group discussion, 24 November 2007 117 Interview, government official, 22 November 2007

Tribal Liaison Office Page 52 of 79 Yet corruption, not just by government officials, but increasingly also by jirga mediators (even though to a lesser degree), 118 was one of the main complaints (both by tribes and government actors). 119 Using data from the Norwegian Refugee Council Data, the World Bank (2005b) shows that in about 7 percent of all cases corruption or bribery charges could be document, while another 29 percent involved different government official (both for personal gains, but also development projects). • “From the last three decades the roots of the state have been weakened, corruption is widespread in the country and most of the government institutions are involved in corruption. Even high rank governmental officials are involved in corruption.” 120 • “Nothing is free from corruption in this country. The basis of our government is established by corruption and the corruption is running fast and dangerously in this society.” 121 • “Conflicting over land or other natural resources provide resource gaining activities for the people, such as the mediators will get money, the courts, police and others will find a source of income. Then if some one or one side of the conflict gets the piece of land then it is an obvious benefit for those.” 122

7.3.3 Strongmen and Land grabbing Tribal representatives and government officials interviewed for this report consistently blamed ‘warlords’ (some turned government officials) as a major problem in land conflicts. 123 Their involvement was either direct through land grabbing (greed) or indirect through financial or in- kind military support to one side of the conflict often due to a sense of patronage. This provoked land conflicts and penetrated into courtrooms and jirga gatherings by manipulating (bribes, coercion) or influencing state judges and jirga mediators. In almost all cases in Paktia respondents were quick to point out that “as you know, might is right.” 124 According to the report by the United Nations Special Rapporteur on Housing, “[l]and occupation by warlords and commanders striving to maintain or increase power in various parts of the country [through patronage via land redistribution] is widely considered to be one of the main obstacles to the implementation of the right to adequate housing, to the detriment of the rights of marginalised groups of society such as female-headed households, returnees, internally displaced person (IDPs) and ethnic groups” (Economic and Social Council 2004, 8; see also Wily 2004a). This is echoed in much of the existing research on land rights (e.g., Wily 2004a, World Bank 2005a, Gebremedhin 2006, McEwen and Whitty 2006, Beall and Schütte 2006, Stanfield 2006, McEwen and Nolan 2007). Wiley (2004a, 42) observed that “[a] new avenue of disorder has been stimulated by poppy production, tending to exaggerate land grabbing and distortions in the land market.”

118 Interviews: jirga mediator, 18 November 2007; government official, 21 November 2007; tribal representatives, 16, 17 and 25 November 2007 119 For example (as most interviews noted it) Interview, tribal representative, 17 November 2007 120 Interview, government official, 22 November 2007 121 Interview, jirga mediator, 24 November 2007 122 Interview, tribal representative, 17 November 2007 123 Interviews, government official, 25 November 2007, tribal representatives, 16 and 25 November 2007, focus group discussions, 17 and 25 November 2007 124 Focus group discussion, 24 November 2007

Tribal Liaison Office Page 53 of 79 According to the Afghan Minister of Urban Development, “land is being appropriated illegally by powerful individuals at a rate of two sq km (0.8 sq miles) a day.” 125 In a BBC interview he alleged that a "land mafia" stole already 5,000 sq km of land in 2007. The problem of land- grabbing by power holders was already highlighted in 2003 by two independent reports (Afghan Independent Human Rights Commission; United Nations Special Rapporteur on Housing and Land Right, Miloon Kothari; Economic and Social Council 2004, 19-20), about the official land seizure in Kabul’s Sherpur neighbourhood by the Ministry of Defence in order to redistribute it to cabinet ministers, other important political figures and warlords for the building of expensive villas (Beall and Schütte 2006). 126 The issue of land grabbing thus presents a major legal, social and political problem for Afghanistan; especially as there are well-document incidences of land grabbing throughout the country (Beall and Schütte 2006, 25). The main problem identified by Beall and Schütte (2006, 25) is an emergence of a “’culture of impunity’ among those in power, whose self- interest leads them to apply double standards to the enclosure of urban land, often at the expense of the vulnerable settlers.” One of the double standards observed is that in theory, “uncultivated and unusable land without an owner may be occupied and considered the property of the occupier subject to the Government‘s permission.[and] if land is occupied continuously for 15 years and not other claims are made on the property, the occupier will become the owner of the land” (Economic and Social Council 2004, 18). This may have worked for some strongmen associated with land grabbing in the past, but certainly does not seem to apply to ordinary citizens, as the Sherpur case documents. The occupants, considered squatters by some, had lives there for 25-30 years and most were former employees of the Ministry of Defence, who owned the property (Economic and Social Council 2004, 20). This fact, however, did not prevent their forced eviction by police – and despite some outcries in internal media and by the Afghanistan Human Rights Commission, nothing was done to prevent it (see Beall and Schütte 2006). This brings Wily (2004a, 88) to conclude that “limiting commander-led land conquest needs to be higher on the securitisation agenda than currently the case”. As discussed earlier, illegal land grabbing by mujahideen commanders began shortly after the fall of the Najibullah government (Wily 2003b).127 When the Taliban came to power, they tried to put a stop to these practises and largely achieved to do so (Wily 2003b) through issued legal decrees prohibiting the appropriation of land and authorising punishment via sharia law. 128 After the fall of the Taliban, returning mujahideen commanders, some having joined the government, began to illegally seize land anew (Economic and Social Council 2004). In order to address this problem, a Presidential Decree No. 99 (April 2002) was passed that froze future distribution of government land (McEwen and Whitty 2006, 3). The decree, however, does not deal with the grabbing of private land. However, without the

125 Irvine, Stephanie (2007) “Powerful 'grab Afghanistan land' “, BBC News Eurasia. 6 September in 2007. http://news.bbc.co.uk/2/hi/south_asia/6981035.stm (accessed 26 September 2008). 126 Synovitz, Ron (2003) “Afghanistan: Land-Grab Scandal in Kabul Rocks the Government”, Copyright (c) 2003. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036. www.rferl.org http://www.globalsecurity.org/military/library/news/2003/09/mil-030916-rferl-172117.htm (accessed 26 September 2008) 127 Focus group discussion, 17 November 2007 128 Mainly focused on wrongful appropriation of state land.

Tribal Liaison Office Page 54 of 79 political will and enforcement power (see earlier discussion), land appropriation will continue to be a problem, and the inability of the Afghan government to reign into such offences will be continued to be seen as a major weakness of the sate. Gebremedhin (2006, 14) argues that disarming armed militias is a necessity before land grabbing can be addressed “in any meaningful way.” Wily (2004a, 39) found that 61 percent of land cases in the provincial courts of Faryab were linked to the illegal occupation of land. Beal and Esser (2005, 41) report data from the Norwegian Refugee Council that reported 29 percent of the cases brought to their legal aid centres revolved around land grabbing by prominent strongmen or power holders. The case studies in Paktia suggest that while land conflicts have a long history, they have clearly been gaining momentum thanks to the empowerment of militants and warlords and the widespread corruption evident across the country. In three of the four cases observed in Paktia, land grabbing was identified as a cause of conflict. In two cases, former jihadi commanders or persons associated with former commanders used their military strength to create a de facto ownership by occupying the land and constructing buildings on it. 129 However, land grabbing is no phenomenon limited solely to “opportunism by economic- political or militant elites” (Wily 2004a, 5). Local tribal elites may also engage in the practise, if given the opportunity to do so. In one of the case observed in this study, respondents from the government side claim that tribes are actually doing the land grabbing by appropriating government land. The tribes, however, can easily evoke the argument of taking back what is rightfully theirs and portray themselves as victims of land reforms by former governments; especially those that were not considered legitimate, such as the Soviet-backed Communist government. Furthermore, as highlighted earlier, the ownership of certain communal land is still very fuzzy in Afghanistan (Wily 2004a). Nevertheless, tribes also participate rightfully or wrongfully in land grabbing to increase the wealth of their tribe. According to a government official, “each tribe and sub-tribe wants to increase the amount of their land by claiming illegally the ownership of the state property”. 130

7.4 Accelerating Conflict Factors Aside from population pressure, most factors presented here have been discussed earlier. It is important to note that in the complex situation of land disputes in Afghanistan, conflict dynamics seem to function at various levels, both as causing conflict or aggravating existing one. As most often references to previous discussions can be made, the discussion of the first two points – vested interests of spoilers and the weak legal system – will be kept to a minimum and only the most important ones are noted.

7.4.1 Vested Interests of Spoilers and Insecurity It is important to re-emphasize that strongmen are not only primary actors of land conflict (greed), but also support conflict parties out of a sense of patronage. Wily (2004a) argues that Afghanistan’s strongmen could be seen as much as a cause of land conflict as an instrument accelerating it. As noted earlier, the support is not solely finical, but often militarily either escalating conflict, or creating conflict where there is none, because one party may feel

129 Focus group discussion, 17 November 2007 130 Interview, government official, 25 November 2007

Tribal Liaison Office Page 55 of 79 they can claim land through having access to “might.” 131 Overall the ready availability of small arms, due to a difficult DDR and DIAG process increases the likelihood of escalating land conflicts further, or creating news ones where none existed. Similar arguments made earlier could be repeated here, but it might suffice to note that the interest of strongmen, and increasingly the insurgency, to exploit land conflicts for own purposes is on the rise in Afghanistan. Particularly the insurgency has been crafty in latching on to existing resource conflicts, drastically increasing escalation potential. One of the conflict parties also suggested that a lack of employment allowed for youth actors to be drawn into working with strongmen who may use them to manipulate land conflicts, or try to compensate them working for them by giving them land gained by force. 132 This argument of the existence of unemployed and disenchanted youth functioning as recruitment potential for militant groups (also called “youth bulge”) was already may by Huntington nearly ten years ago (see Schmeidl with Piza-Lopez 2002, 15).

7.4.2 Weak Legal System and Enforcement Bodies Similarly, while the weak state of the Afghan government, especially its legal system can be considered a conflict dynamic; the inability of courts to even enforce their rulings on the few land disputes it has handled can further accelerate land conflict. As discussed earlier, the formal legal system is considered too inefficient, costly and corrupt to process the diverse land disputes, forcing about 80 percent to be solved through informal mechanism. The latter can only work in some cases, as informal mechanisms (see earlier discussion) also have weaknesses (especially when strongmen are involved), and are not completely free of corruption. When conflict parties feel that they can either bribe their way to a favourable conclusion (both in formal and informal dispute resolution systems) or simply ignore court orders as the court lacks reinforcement potential, there is a higher likelihood for land conflicts to persist. Furthermore, according to the report by the United Nations Special Rapporteur on Land (Economic and Social Council 2004, 16), some government authorities have tried to resolve land disputes “by allocating land to landless persons, often without stipulating expressed and written approval by the central Government. Although some of these efforts have been successful others are questionable, in terms of fairness of the selection of beneficiaries.” Thus, even some well-meaning efforts of government actors regarding land conflicts have backfired due to a weakness of the overall system. As Wily (2003b, 5-6) concluded in his study “long years of misdirected policy have entrenched, rather than improved, deeply inequitable and often unjust land ownership relations among tribes, between agricultural and pastoral systems and among feudally- arranged classes of society. Attempts to remedy these have been poorly executed. Violence, insecurity, anarchy and land grabbing compound these problems. The question facing the new administration is whether to ignore disturbed land relations and hope that they will resolve themselves, or to deal with the issues directly. And if the latter, then how?”

131 Focus group discussion, 24 November 2007 132 Focus group discussion, 24 November 2007

Tribal Liaison Office Page 56 of 79 7.4.3 Demographic Pressures Demographic pressures are often seen as structural factors or conflict dynamics. However, they can also be considered as an accelerating conflict factor, when demographic pressure interact with and exacerbate already scarce land resources in Afghanistan. Demographic pressures are especially able to accelerate conflict if the country in question has the means and resources to deal with demographic pressures such as accommodating returning refugees, settling migratory population and population growth. In recent years Afghanistan has experienced new demographic pressures, such as one of the largest (and most rapid) repatriation of refugees efforts from Iran and Pakistan (around 5 million, see Turton and Marsden 2002) since 2001, continued settlement process of the nomadic Kuchi population (see Wily 2004d) and the high population growth rate of the Afghan population (the highest in Asia, IRIN 2008a). In urban areas, it is mostly the availability of quality housing and market land that is becoming scarce. The large-scale infrastructure destruction during the Afghan wars has left only a limited supply of housing for Afghanistan’s ever-growing population and returning refugees. In one of the cases studied, a link between population pressure (resulting from population growth, rural-urban migration, and returning refugees), increasing land value, and conflict was identified. 133 Due to the growing population, new housing areas were needed, and land that previously may not have had much worth increased in commercial value through becoming a desirable location for a planned township scheme, with people wanting to cash in on the potential profit.

7.4.3.1 Population Growth In the land cases studied, several of the interview partners and focus group discussants identified population growth as a problem related to land-based conflicts. 134 Land, more than in the past, was needed to accommodate the ever-growing tribal population. One tribal elder provided an example from his own family: “Thirty years ago, when we went to Pakistan as immigrants our family counted 12 individuals living in two rooms; now we are up to 100 individuals living in 42 rooms.” 135 He adds change in lifestyle to the problem: “Now every family member needs a room and they cannot share rooms, as we used to do in the past. 136 Another aspect of population growth is the interaction with unequal distribution of land to male offspring only. One jirga mediator suggested that land conflict between family members was linked to the fact that neither daughters nor siblings were able to inherit land. 137 As land becomes scarcer, the families of daughters and sibling may be willing to challenge these age-old practices and claim part of the land for themselves as rightful inheritance.

133 Interviews: tribal representative 25 November 2007; jirga mediator, 20 November 2007 134 Focus Group discussions, 17 and 24 November 2007; Interview, tribal representative, 16 November 2007 135 Interview, tribal representative, 25 November 2007 136 Interview, tribal representative, 25 November 2007 137 Interview, jirga mediator, 20 November 2007

Tribal Liaison Office Page 57 of 79 Adding to the problems emerging from rapid population growth is the fast growing urbanization of provincial and district capitals and the related expansion of settlements around. While tribal communities may have considered it dishonourable in the past to move away from their communities or subtribes, economically motivated migration of at least one family member to urban areas or abroad has become an integral component of most families’ livelihood strategies today. This trend has been reinforced by a certain extent of economic recovery in these urban centres as well as the influx of state resources through municipal development schemes. This has also affected a sharp hike in land-prices in urban centres. The rising land-prices then raise the incentives for land-grabbing and render access to land increasingly difficult for the majority of the growing urban and semi-urban population.

7.4.3.2 Returning Refugees and Rural Urban Migration As noted earlier, about 5 million refugees have reportedly returned to Afghanistan since 2002 (Turton and Marsden 2002, Schmeidl and Maley 2008). Even though some recycling did occur (refugees going back to Pakistan and Iran), the figure is huge, accounting for about one-fifth of the current population in Afghanistan, and nearly one-third of the pre-war population in 1978. In either case, a country that, due to war and lacking development, already had difficulty to sustain its pre-war population now has to cope with 8 million more people (combined refugee return and population growth). A report by the Afghanistan Independent Human Rights Commission (2007) found that a majority of returnees (67.1 percent) were unable to return to their places of origin due to lack of land, or left after finding their land had been taken. A fear is, of course, that if land is ultimately lost, an entire extended family or tribe may become internally displaced. 138 “Returnee claims constitute a large proportion of all disputes over private rural land ownership. Indicatively, disputes over private land in villages overwhelmingly concern rights to the entire parcel, rather than disputes over boundaries” (McEwen and Nolan 2007, 22). As discussed earlier, studies (e.g., Wily 2004a, McEwen and Whitty 2006) found that property and ownership disputes related to illegal occupation were on the rise since 2002. In addition, the Special Land Disputes Court was established to specifically deal with claims by returning refugees and IDPs (World Bank 2005b). In a comparative analysis, OECD (2005, 3) found that “[t]ension and violence often cause and accompany population displacement and can arise when displaced people return to their place of origin, especially when others have since taken up occupancy.” Land conflict linked to returning refugees was cited in three of the four cases studied here. A similar pattern was observable where the tribe allegedly owning the land went into exile to Pakistan during the Afghan war, only finding upon return that a neighbouring tribe had encroached upon their land. This is not unique for Paktia, but common across Afghanistan, as during war there was no law enforcement, and taking land was easy. The strain of refugee return related population growth is particularly great in urban areas of Afghanistan where informal land and housing developments expanded rapidly to accommodate the influx of persons (Afghanistan Independent Human Rights Commission 2007, 64). This can be attributed to two factors. First, as in many other countries of the world, segments of the Afghan rural population already seek a better life in the cities, either

138 Focus group discussion, 17 November 2007

Tribal Liaison Office Page 58 of 79 due to reduced agricultural land unable to sustain its population (push factor) or in search of a better livelihood (job) due to rural un- and underemployment, and security (pull factors). 139 Second, Centlivres and Centlivres-Demont (1988) found early on that refugees from rural areas who were exposed to a semi-urban lifestyle in refugee camps were much less likely to return to rural areas. According to UNHCR (2007), about 40 percent of all refugees from Pakistan and Iran returned to urban destinations, 29 percent to alone. While people who fled to urban centres for safety during the war often settled in abandoned houses, 43.4 percent of internally displaced persons now cite lack of shelter as a main reason for displacement. Those who may have found shelter live in what is locally called Zor abad , “literally meaning ‘a place taken by force’ – where people enclosed public lands and established residence without seeking official permission” (Beall and Schütte 2006, 21). The World Bank (2005c) estimates the problem to be massive in Kabul where about 80 percent of the total population live in such informal settlements that cover about 69 percent of the total residential area in Kabul. There are also a few cases of IDP camps established and assisted by the United National High Commissioner (UNHCR) for refugees, 140 such in Kandahar, Khost, and Herat. In all cases the settlement is considered temporary, albeit UNHCR is seeking to make the Kandahar site permanent, the latter may create conflict both with government actors and local tribes. In Khost, UNHCR and UNAMA are jointly seeking a solution for the IDPs in and around the local camp. No solution so far has been found, and some IDPs have armed themselves in order to defend themselves from forced eviction. In Herat the problem has an ethnic dimension as IDPs and “some reports suggest that their ranks comprise a significant number of ethnic Pashtuns, whose anger at their precipitate expulsion from Iran has been a recruiting boon for the Taliban movement in the hitherto relatively stable area of western Afghanistan’ (Schmeidl and Maley 2008, 139). Even after having lived for years on land belonging to the government does not exempt from forced eviction as the Sherpur case in Kabul, where the Ministry of Defence reclaimed land by force, illustrates (Economic and Social Council 2004, 19-20; Beall and Schütte 2006). Lacking tenure security and forceful evictions can create grievances that can lead to violence (see OECD 2005). Returnees, however, may not only be victims here. One of the elders interviewed, argued that a part of the new property disputes is linked to an “unawareness of the new generation (especially returning refugees) about their own land's enclosure and boundaries ( polla and patai ). Upon return they start claiming wrong ownership of others real estate.” 141 One conflict party explained that “in our area most of the people do not know the measurement of the land, instead they just know their enclosures by nature of human made boundaries” which can lead to confusion. 142

139 Interview, jirga mediator, 20 November 2007 140 Information from UNHCR, IDP Task Force Meeting, 11 August 2008 141 Interview, tribal representative, 16 November 2007; similar statement made by a government official, 21 November 2007 142 Focus group discussion, 24 November 2007

Tribal Liaison Office Page 59 of 79 7.4.3.3 Settlement of (Semi)nomadic populations – the Kuchi Kuchi, who depend primarily on animal husbandry have historically used pastoral lands seasonally in common agreement with settled communities 143 . While the Afghan war has brought disruption to the lives of most Afghans, it has disproportionately affected the lives of the Kuchi nomads. First, war and insecurity has disrupted traditional migratory patterns of Kuchi; many going into exile. Second, years of drought that occurred in the late 1990s and the subsequent death of livestock severely disrupted the livelihoods of local Kuchi communities; many being forced to abandon their nomadic lifestyle and settle down (Wily 2004a, Economic and Social Council 2004). 144 Third, population pressure on scarce agricultural land meant that settled populations expanded their agricultural land into traditional pastureland. All this sparked a competition over scarce land resources between sedentary and nomadic people. Due to the extended exile of Kuchi during the extended years of war, many settled populations began to consider pasturelands as their own and are no longer willing to share. As pointed out earlier, pastureland is the cause of the majority of conflicts in rural areas due to its vague definition, multiple usage potential (grazing and agriculture), and least developed land tenure agreements leading to unclear understanding between ownership and access rights (see Wily 2003b, Wily 2004a). Grazing rights to communal owned pasturelands tend to be governed by traditional mechanisms or old edicts by previous kings. The lack of clarity over rights to pastureland provides a rich foundation for dispute and land grabbing; the question of who owns the land, or who may own the land is unclear and being contested (see Wily 2003b, Wily 2004a). Wily (2004a, 8) found that already by 2003 Kuchi were not able to return to pastures they historically used in 19 provinces and had limited access in another 13 provinces. This has only worsened in the past years, with Kuchi being associated with Taliban (Wily 2004a) or the insurgency exploiting the conflict to their advantage. In the southeast, aside from the Hazara- Kuchi dispute in Ghazni, this issue is particularly pressing in Khost, where Kuchi and local settled tribes have land conflicts in at least seven districts. The number of identified Kuchi in the province is about 210,00 individuals (about 32,000 families), the largest concentrations being in Matun, Shamal, Lakan, Trezai, Bak, Yaqubi and Gurbuz districts. The biggest tribal group of Kuchi in are Ahmadzai followed by the tribe. Both belong to the Ghilzai confederation of the Pashtuns. This stands in contrast to the majority settled tribal groups in Khost belonging to the Kiryani tribes (another confederation). Hence the division is very real also in tribal terms, and not just in lifestyle (sedentary vs. migratory).

7.5 Possible Decelerating Factors In an ideal case, efforts are put forth to decelerate conflicts. In the are of land based conflict in Afghanistan, however, little can be noted other than efforts by the United Nations Assistance Mission in Afghanistan (UNAMA) or international and national NGOs, notably the Norwegian Refugee Council by providing legal aid to disputing parties, and the Tribal Liaison Office in working with the government to utilise traditional settlement mechanisms to settle

143 ‘Kuchi’ does not represent a tribal denomination. Rather, almost every tribe has nomadic segments which are considered Kuchi. However, Kuchi has to a degree emerged as joint identifier for historically nomadic groups, even though many of them have in reality settled down long since. 144 In the 2003 National Risk and Vulnerability Assessment , seasonal use of pastureland by Kuchi had dropped by over 6 percent from pre-war times.

Tribal Liaison Office Page 60 of 79 land-conflict. For all these measures, however, there is still considerable scope for expansion, both in terms of geographical coverage and level of involvement into local dispute resolution.

Some Examples: • Norwegian Refugee Council: “Since 2003, NRC has provided information and legal assistance on property law issues. Through mediation and formal legal procedures we have assisted IDPs and returnees in Afghanistan with repossession of land and houses that had been confiscated while they were displaced. We train Afghan lawyers, judges and community elders in property law. We have assisted 1.3 million individuals in Afghanistan with pursuing legal cases and providing information services.” 145 • UNAMA: In a land-based conflict in Kamdesh district of Nuristan, the United Nations Assistance Mission in Afghanistan (UNAMA) has helped to initiate a joint conflict resolution process with local tribes, governmental officials, members of parliament, and jirga mediators. 146 In Paktia and Khost and Paktika, UNAMA in collaboration with TLO and the three provincial governors facilitated the formation of a jirga which ultimately succeeded in resolving a dispute over land and forest resources between the Balkhel and Sabari subtribes. The conflict had been going on for over 60 years, in the course of which it cost the lives of 60 people. • TLO: At the request of Khost Provincial Governor, , the Tribal Liaison Office facilitated the formation of the Commission on Conflict Mediation (CCM) in Khost in November 2006. Composed of six respected tribal elders, the Commission provides an alternative dispute resolution mechanism akin to western out-of court arbitration. 147 Experiences so far demonstrate the CCM mechanism to enable mutually supportive relationships between formal and informal justice systems. In cooperation with the Provincial Governor, the CCM has so far resolved 18 protracted disputes, and proactively deescalated emerging conflicts (inter-tribal as well as conflicts between district-level government bodies). Funded by USIP, the CCM in Khost is now going to be expanded and a new CCM is to be established in Paktia on request of the Governor.

145 http://www.nrc.no/?did=9169435 146 Conflict Assessment: Kamdeshie and Kashtozie tribes; Kamdesh District . TLO Report, July 2008 147 Between the Jjirga and the Judge: Alternative Dispute Resolution in Southeaster Afghanistan , TLO Program Brief 1/2008, July 2008; Kabul: Tribal Liaison Office (Box, p.1)

Tribal Liaison Office Page 61 of 79 Conclusion This study demonstrates land-conflicts in Afghanistan to be caused by an array of interrelated factors and dynamics. Existing structural factors that provide a foundation to land-based conflict in Afghanistan, while not causing them in isolation, were identified as: a) land scarcity, c) social importance of land, and d) ethnic and tribal diversity. Conflict dynamics were largely attributed to regimes changes having implemented ethnically coloured land policies in the past and persistent weak state structures unable to address land tenure issues, land grabbing and corruption. All these factors are accelerated due to small arms availability, the meddling of strongmen (both greed and patronage oriented), an inadequate and weak conflict resolution mechanisms, and demographic pressures (e.g., population growth; refugee return, and settlement of semi-nomadic populations). As land conflicts are increasingly exploited by the Taliban-led insurgency, we agree with Wily and other scholars (e.g. Wily 2003 a, b; Wily 2004 a, b, c, d; Stanfield 2005, 2006, d'Hellencourt et al. 2003, McEwen and Whitty 2006, Gebremedhin 2006) that there is an urgent need to address the issue of land tenure in order to avoid conflict escalation. This is echoed by a jirga mediator of land-based disputes in Paktia, who estimates that up to 25 percent of land-based disputes “end with hostility and bloodshed.” 148 In nearly all of the cases studied, conflicting sides were willing to resort to violence to defend their claim to land. 149 The complexity and intransparency of rights to land-access in post-Taliban Afghanistan interacts with a weak governance-environment, which is still to a large degree characterised by the localised rule of the gun. This poor governance situation results from the weakness of the state in terms of administrative presence on the other hand and the fact that state institutions themselves have been captured by, often competing, patronage-networks which include influential local leaders, strongmen and warlords. Both factors result in the inability of the Afghan state to implement centrally declared policies consistently. Thus, the ability of Afghan citizens to hold state and powerful societal actors accountable through formal mechanisms is limited and government officials and strongmen are able to appropriate economic resources including land with impunity. Land conflicts in Afghanistan are especially exacerbated by an inefficient and corrupt legal system, forcing about 80 percent to be solved through informal mechanism. The latter, however, also have weaknesses (especially when strongmen are involved), and are not completely free of corruption. The core-question is therefore, how the challenges of both formal and informal conflict resolution systems can be overcome at the same time. Previous studies on land-issues in Afghanistan have provided a host of recommendations on how to address land-conflicts. These include a focus on land-management, allowing shifts in ownership between pre-war and post-war times in order to not deny rights to landless populations, comprehensive and transparent legislation, and the necessity to enlist local support (bottom-up vs. top-down approach; Wily 2003b). There is especially great convergence on the proposition that resolution mechanisms have to be based at the community level (Wily 2004; Stanfield 2006; McEwen & Nolan 2007). Wily also stresses that

148 Interview, 20 November 2007 149 Interview, tribal representative, 16 November 2007, focus group discussions, 17, 24 and 25 November 2007

Tribal Liaison Office Page 62 of 79 the security context needs to be addressed, by rendering commander-led land grabs a priority on the securitisation agenda. In agreement with Wily (2003b, 2), we recommend an ‘incremental and learning by doing approach’ to resolve land conflicts and address the lack of accountability of the (local) Afghan state vis-à-vis its citizens. As of now, massive gaps persist in what we know about the precise role of the traditional governance systems in relation to local politics. Thus, in order to design meaningful interventions aimed at integrating informal with formal dispute resolution mechanisms, we need to know more about how the two systems interact and how such an interaction can impacts on the perceptions of government legitimacy and village-level power relations. Furthermore, we also need to understand better what role, if any, informal dispute resolution can play in a formalized context without opposing state laws. Furthermore, while the state should remain in an oversight function, the accountability of the state-officials vis-à-vis the local population needs to be ensured, possibly by giving a greater role to traditional (tribal) governance bodies in formal local governance. An existing example for this is the Commission on Conflict Mediation (CCM), which has been formed in Khost Province in 2006 150 , and effectively serves to include the authority of tribal elders into the formal conflict resolution architecture at the provincial level. The CCM consists of respected and influential elders, who ideally reflect the tribal composition of the province. At the same time, the CCM is authorised by the Provincial Governor, who selects and refers the cases for the council. The decisions of the council are non-binding. This model effectively combines government oversight with including actors into local governance who are accountable to their communities. In a society in which political legitimacy and personal credibility go hand in hand, a wider application of this or similar models would contribute to rendering ‘modern’ governance institutions more acceptable. While the institutional set-up of the CCM is not universally replicable all over Afghanistan, it is particularly suitable for the southeastern region, where Pashtun tribal institutions have maintained their regulatory authority to a high degree. Other such mechanisms could also be established adapting it to specific local contexts. The Tribal Liaison Office is currently involved with two projects with the US Institute for Peace that tries to assess cooperation potentials between the formal and informal justice system in order to further the resolution of civil disputes.

150 Between the Jirga and the Judge: Alternative Dispute Resolution in Southeaster Afghanistan , TLO Program Brief 1/2008, July 2008; Kabul: Tribal Liaison Office

Tribal Liaison Office Page 63 of 79 References

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Tribal Liaison Office Page 64 of 79 ent20Taxpercent20Regimepercent20inpercent20Afghanistan1.pdf (accessed 23 September 2008) Economic and Social Council (2004) Economic, Social and Cultural Rights: Adequate housing as a component of the right to an adequate standard of living Report by the Special Rapporteur, Miloon Kothari, Addendum, Mission to Afghanistan (31 August-13 September 2003). United Nations, Commission on Human Rights, Sixtieth session, Item 10 of the provisional agenda; E/CN.4/2004/48/Add.2; 4 March 2004; http://daccessdds.un.org/doc/UNDOC/GEN/G04/115/17/PDF/G0411517.pdf?OpenElement (accessed 1 October 2008) FAO (2008) Afghanistan’s Agricultural Prospects for the year ahead , Afghanistan: Food and Agriculture Organization of the United Nations (FAO), 09 June 2008; http://www.fao.org/world/afghanistan/FAOAF/FAOpercent20Factsheetpercent2009.06.2008.p df (accessed 23 September 2008) Fund for Peace (2008) The Failed State Index 2008. The Fund for Peace and the Carnegie Endowment for International Peace http://www.foreignpolicy.com/story/cms.php?story_id=4350&page=0 (accessed 1 October 2008) Gebremedhin, Yohannes (2006) Legal Issues Pertaining to Land Titling and Registration in Afghanistan. USAID: Land Titling & Economic Restructuring in Afghanistan Project, February, 2006. http://www.ltera.org/Documents/USAIDpercent20LTERApercent202006percent20LEGALperc ent20ISSUESpercent20PERTAININGpercent20TOpercent20LANDpercent20TITLINGpercent 20ANDpercent20REGISTRATIONpercent20INpercent20AFGHANISTAN.pdf (accessed 25 September 2008) Giustozzi, Antonio (2007) Koran, Kalashnikov, and Laptop: The Neo- in Afghanistan. New York: Columbia University Press. Giustozzi, Antonio and Noor Ullah, (2006) ‘“Tribes” and Warlords of Southern Afghanistan, 1980-2005”, Working Paper 7, London: Crisis States Research Centre London School of Economics, September 2006. Homer-Dixon, T.F. (1999), Environment, Scarcity and Violence , Princeton University Press. IRIN (2008a) Afghanistan: High birth rate killing mothers, infants - UNFPA expert , IRIN, 14 July 2008. http://www.irinnews.org/report.aspx?ReportId=79236 (accessed 23 September 2008) IRIN (2008b) Afghanistan: Threat of ethnic clashes over grazing land, IRIN, 7 April 2008. http://www.irinnews.org/report.aspx?ReportId=77647 (accessed 1 October 2008). International Crisis Group (2003) Afghanistan: The Problem of Pashtun Alienation’ Asia Report No.62, Brussels: ICG. International Crisis Group (2007) Reforming Afghanistan’s Police . Asia Report N°138, Brussles: International Crisis Group, 30 August 2007. McEwen, Alec and Brendan Witty (2006) Water Management, Livestock and the Opium Economy: Land Tenure. Case Study Series, Kabul: Afghanistan Research and Evaluation Unit (AREU, June 2006. McEwen, Alec and Sharna Nolan (2007) Water Management, Livestock and the Opium Economy: Options for Land Registration, Working Paper Series, Kabul: Afghanistan Research and Evaluation Unit (AREU), February 2007. OECD (2005) Land and Violent Conflict. The Organisation for Economic Cooperation and Development (OECD) Development Assistance Committee (DAC), Mainstreaming Conflict

Tribal Liaison Office Page 65 of 79 Prevention, Issue Brief, http://www.oecd.org/dataoecd/26/50/35785480.pdf (accessed 23 September 2008) Schetter, Conrad; Rainer Glassner and Masood Karokhail, (2007) “Beyond Warlordism. The Local Security Structure in Afghanistan”, Internationale Politik und Gesellschaft , Vol. 2 (2007), pp.136-52; www.fes.de/IPG/inhalt_d/pdf/10_Schetter_US.pdf (accessed 13 October 2009) Schmeidl, Susanne and William Maley (2008) “The Case of the Afghan Refugee Population: Finding Durable Solutions in Contested Transitions.” Pp.131-179 in Howard Adelman (ed.) Protracted Displacement in Asia: No Place to Call Home. Ashgate Publishers. Stanfield, David J. (2006) “Land Administration in (Post) Conflict Conditions: The Case of Afghanistan.” Paper presented at the Conference on Land Policies & Legal Empowerment of the Poor , Washington D.C.: World Bank, November 2 - 3, 2006. http://siteresources.worldbank.org/RPDLPROGRAM/Resources/459596- 1161903702549/S3_Stanfield.pdf (accessed 23 September 2008) Stanfield, David J. with M.Y. Safar, Edmond Leka, and Elton Manoku (2005) “Reconstruction of Land Administration in Post Conflict Conditions.” Paper presented at the Symposium on Innovative Technology for Land Administration , University of Wisconsin, Wisconsin, USA, 24 - 25 June 2005 http://www.terrainstitute.org/pdf/rcon_Landadminpercent20PstCnflctpercent20.pdf (accessed 25 September 2008) Steul, Willi (1981) Pashtunwali: Ein Ehrenkodex und seine rechtliche Relevanz . Wiesbaden: Franz Steiner Verlag. Turton, D. and Marsden, Peter (2002) Taking Refugees for a Ride? The Politics of Refugee Return in Afghanistan; Kabul: Afghanistan Research and Evaluation Unit (AREU), December 2002. Tribal Liaison Office (2008), Between the Jirga and the Judge: Alternative Dispute Resolution in Southeaster Afghanistan , TLO Program Brief 1/2008, July 2008; Kabul: Tribal Liaison Office UNHCR (2007) Statistical Overview of Afghan Refugee Population in Pakistan, Iran and Other Countries, Returned Afghan Refugees from Pakistan, Iran and Non-Neighboring Countries, IDP Population Movements, Reintegration Activities and Extremely Vulnerable Individuals (EVIs) Program (2 January – 31 October. 2007) , Operational Information, Monthly Summary Report – October 2007, Kabul: Operational Information Unit, , accessed 3 January 2008. Van der Molen, Paul and Christian Lemaan (2004) “Land Administration in Post Conflict Areas.” Paper presented at the 3rd FIG Regional Conference; Jarkarta, Indonesia; October 3- 27, 2004. Wilder, Andrew (2007) Cops or Robbers? The Struggle to Reform the Afghan National Police . Kabul: Afghanistan Research and Evaluation Unit (AREU), Issue Papers Series, July 2007. Wily, Liz Alden (2003a) Land and the Constitution: Current Land Issues in Afghanistan; Policy Brief, Kabul: Afghanistan Research and Evaluation Unit (AREU), August 2003. Wily, Liz Alden (2003b) Land Rights in Crisis: Restoring Tenure Insecurity in Afghanistan, Issues Paper Series; Kabul: Afghanistan Research and Evaluation Unit (AREU), March 2003. Wily, Liz Alden (2004a) Looking for Peace on the Pastures: Rural Land Relations in Afghanistan , Synthesis Paper, Kabul: Afghanistan Research and Evaluation Unit (AREU), December 2004

Tribal Liaison Office Page 66 of 79 Wily, Liz Alden (2004b) Rural Land Relations in Conflict: A Way Forward , Briefing Paper, Kabul: Afghanistan Research and Evaluation Unit (AREU), August 2004 Wily, Liz Alden (2004c) “Commons at the Core of Conflict: Looking for Peace in Rural Afghanistan,” Paper No. 016, Tenth Biennial Conference, International Association for the Study of Common Property (IASCP) , Oaxaca, Mexico, August 9-13, 2004 Wily, Liz Alden (2004d) “Putting Rural Land Registration in Perspective: The Afghanistan Case,” Paper Presented at the Symposium on Land Administration in Post-Conflict Areas Hosted , International Federation of Surveyors, United Nations, Geneva, 29-30 April 2004 Wimmer, A. 2002, Nationalist Exclusion and Ethnic Conflict: Shadows of Modernity Cambridge University Press, Cambridge. World Bank (2005a) What are the sources of conflict in urban land tenure?; Kabul Urban Policy Notes Series No.4 http://siteresources.worldbank.org/SOUTHASIAEXT/Resources/223546- 1150905429722/PolicyNote4.pdf (accessed 27 September 2008) World Bank (2005b) Will formal documents of title and the courts resolve all land disputes? Kabul Urban Policy Notes Series No.5 http://siteresources.worldbank.org/SOUTHASIAEXT/Resources/223546- 1150905429722/PolicyNote5.pdf (accessed 27 September 2008) World Bank (2005c) Why and how should Kabul upgrade its informal settlements? Urban Policy Notes Series No. 2 http://siteresources.worldbank.org/SOUTHASIAEXT/Resources/223546- 1150905429722/PolicyNote2.pdf (accessed 27 September 2008) World Bank (2007) Doing Business in South Asia 2007. Washington, D.C.: The International Bank for Reconstruction and Development/The World Bank; http://www.doingbusiness.org/Documents/SouthAsia07/Full_report.pdf (accessed 23 September 2008)

Tribal Liaison Office Page 67 of 79 Appendix I – Questionnaires

A. Questionnaire for Conflict-Parties 1. General Characteristics of the disputed land • Where the disputed land is located? • How much is the gage (size) of the land? • How is the nature of the land? (Arable land, rain fed, Pasture, Prairies, Commercial area, etc) • What kind of natural resources are existed in the land? • What is the status of the surrounding enclosures? • How was the past and present land uses? • What was the status of the land before the conflict? (disputed or undisputed) • What is the present status of the land? (open access, abounded, multi parties use…etc) • How about the management of the natural resources in the disputed land?

2. Nature of the conflict • How long the land has been disputed? • Why the different parties are involved in the conflict (their interests) • What is the type of the conflict? (armed conflict, non armed conflict, etc) • What is the present relationship of the parities involved in the conflict? • What are the main reasons behind the conflict? (institutional failure, identity related, needs) • How different involve parties justify the conflict? a. Financial drivers behind the conflict b. Social ethics and norms c. Others • What is the present dynamic of the conflict? (active, inactive, in the process of mitigation, postponed, etc) • How the engaged parties of the conflict justify the dynamics between the disputed land with their livelihood? • What are the strategies of the involved parties regarding the conflict? • How the involve parties justify their actions?

3. Involved Parties • Who are the involved actors in the conflict? • How is the relationship of different actors involved in the conflict? • How is the relationship between actors and the present institutions? • How different parities involved in the conflict prove the ownership of the land (instruments for the verification of ownership)

4. Conflict Resolution Mechanisms 1. Which mechanisms of conflict disputes are practicing in the area? 2. Which particular mechanism is using for the land dispute? 3. What are the obstacles regarding the resolution of the dispute in the mechanism?

Tribal Liaison Office Page 68 of 79 4. What other alternatives do the conflict involved parties are having for the resolution of the conflict?

B. Questionnaire for Conflict Resolution Practitioners (Mediators) 1. What are the main mechanisms practicing by the residence of the area for the land- based conflicts resolutions? 2. Which mechanism is more preferable in the area? 3. What are the potential weaknesses of each mechanism, by keeping the local ground realities of the area? 4. Which resolution mechanism the mediators chose for the settlement of the (particular) conflict? 5. What are the reasons for of conflict settlement delay (if delay occurred) 6. What are the obstacles for the resolution mechanism for the (particular) land conflict? 7. How the mediators observe the importance of ownership documents regarding the (particular) land dispute resolution? 8. How feasible and practical are the following conflict resolution mechanisms in the area especially for the (particular) land dispute? • The state (judiciary) law • Customary law • Religious

Tribal Liaison Office Page 69 of 79 Appendix II – Case studies

Conflict 1: Land Conflict between the Usman Khail and the Sallam Khail

Conflict Overview

• Primary actors: Usman Khail (subtribe of Tuta Khail) vs Ex-jihadi, now ANA commander of the Sallam Khail (subtribe of Ahmadzai), supported by the the rest of the tribe. Main actors • Secondary actors: Usman Khail elders allege the Salllam Khail side to be supported by the Ahmad Aba district administration, Paktia Provincial Government, Governor of Paktika, current and a former Minister of Finance

Time conflict 2007 started (approx.)

Current status • Pending in state court (unspecified) of conflict • Conflict is ongoing, but so far does not involve violence

Ca. 500 jaribs of farm land and 1000 jaribs of rain-fed land Located next to an area that is called Shana Zawar in Said Karam Properties of District of Paktia Province. 151 Shana Zawar borders Kondar Khal Village land contested of Said Karam District to the north, Sor Kali Village of the Ahmad Aba District to the west, the land of the Sallam Khail to the east and the land of the Usman Khail to the south.

• Jirga of elders of the two tribes, recognition withdrawn by Sallam Previous Khail Resolution • attempts Jirga of elders from the Mangal tribe, recognition withdrawn by Sallam Khail

Conflict Description According to Usman Khail elders, the conflict started in 2007, when a Sallam Khail commander who is now an Afghan National Army commander (and ex-jihadi commander) began to build compounds on a stretch of land next to an area which is called Shana Zawar in Said Karam District of Paktia Province by using force. Shana Zawar borders Kondar Khal Village of Said Karam District to the north, Sor Kali Village of the Ahmad Aba District to the west, the land of the Sallam Khail to the east and the land of the Usman Khail to the south. Ownership over the plot the compounds were built on is disputed between the Sallam Khail and the Usman Khail tribe.

151 Previously Said Karam district also included the newly formed district Ahmad Aba which later separated in 2003.

Tribal Liaison Office Page 70 of 79 The disputed area consists of approximately 500 jaribs of farmland and 1000 jaribs of rain- fed land. 152 The area is arable and remains unused. Water sources of the land are water from aqueduct wells and springs in the vicinity. Wheat and corn are grown in the surrounding land. Allegedly the area used to be filled with trees and orchards but during the jihad the land was destroyed and all the trees were cut down and never replanted. Representatives of the Usman Khail tribe claim the land to have belonged to them during the time of the communist government in Afghanistan. They attribute the loss of de-facto control over the land to the fact that many members of the Usman Khail tribe emigrated to Pakistan during the jihad and that during this time it was common for the abandoned land to be occupied by those who stayed behind. Several jirgas were convened without success, since the conflict broke out. For the first jirga both sides chose five mediators, but the Sallam Khail at some point refused to recognize the jirga. A second jirga composed of Mangal was selected and again the Sallam Khail refused recognition. The Usman Khail, who hold tax receipts for the land, then registered a complaint with the Ahmad Aba District Administration but have complained that the government is not taking their grievances seriously. They suspect the Ahmad Aba District to be hindering the resolution to the dispute due to the Sallam Khail’s influence in state affairs. 153 In particular, Usman Khail representatives argue Haji Matin, the Sallam Khail commander involved, to be supported by Dr. Akram Khpalwak, the governor of neighbouring Paktika, who “is supporting Sallam Khail by each means and he is misusing his political position” (Reference), e.g. by prolonging formal processes in the court or government offices at the district and provincial level (ref.). Matin and Khpalwak, in turn, are claimed to be supported by the current and a former minister of finance in Kabul. The case is currently in the hands of the state for a formal resolution. The conflict does at the moment not involve violence between members of the two tribes. While Usman Khail elders on the one hand assert their willingness to resort to violence as ultimate means, they appear on the other hand wary of the suspected ability of Sallam Khail members to use their influence in the government for labelling them as “Al-Qaida” with the “Americans in Gardiz”, in case violence breaks out. This caution has to be seen in the context of a fear of aerial bombing, as bombings by ‘the Americans’ in 2002 were cited as reason for many members of the Usman Khail to remain in exile.

Timeline “Communist government” Land belongs to Usman Khail (source: Usman Khail elders) jihad : Many members of the Usman Khail flee to Pakistan, and the now contested land is occupied by members of the Sallam Khail (source: Usman Khail elders)

152 1 jarib = 0.2 acres. Thus 500 jaribs is equal to 100 acres and 1,000 jaribs is equal to 200 acres of land. 153 They allege that the Governor of Paktia and his family are also somehow involved in the occupation of this land.

Tribal Liaison Office Page 71 of 79 2007: Sallam Khail commander builds compounds on the contested land and the conflict breaks out as Usman Khail elders register a complaint with the district administration. A Jirga comprised of ten mediators, five chosen by each tribe, is formed, but subsequently not recognised by the Sallam Khail. A second Jirga comprised of elders of the Mangal tribe is formed, but recognition is equally withdrawn by the Sallam Khail tribe

Tribal Liaison Office Page 72 of 79 Conflict 2: Baghi Shah Terra Land Conflict

Conflict Overview

• Primary actors: Alla-Din-Khail (sub-tribe of Ahmadzai) vs. State Case Department (allegedly the director as individual), Department of Property, five influential, Dari-speaking families from Gardez Main actors • Secondary actors : on the Alla-Din-Khail side allegedly ex-Governor of Paktia Wafa and the Afghan Millat Party; on the other side allegedly a local commander, linked to a warlord of Northern Alliance

Time conflict After 2001 started

Current status • Pending at the provincial court Paktia of conflict • Ongoing. So far no violence, but high escalation potential

Properties of The disputed area of land is located on the Kabul-Gardez highway in land contested Terra District of Paktia Province.

(Previous) • Tribal jirga resolution in favour of Alla-Din-Khail initially accepted by the government, but annulled by a later governor Resolution attempts

Conflict Description In various interviews it became clear that each conflict actor holds a different perception of the history of the area. It is thus necessary to give a brief description of each actors perception of the history of the conflicted area. According to local government officials the disputed land is divided into several parts: 308 (61.6 acres) jaribs of land are registered with the Ministry of Agriculture; 1310 (262 acres) jaribs of land belong to the Ministry of Civil Aviation and included a runway built for their base. The Ministry of Defence also claims to have shares in this area and an estimated 15 buildings (mostly ruined) are located on the eastern part of the land. There are no ownership documents held by the government since they claim that they were either lost or burned. Respondents refused to specify who had burned the documents. The tribes in the area claim to have owned the land for 13 centuries. After the fall of the Taliban the current government began to implement housing schemes on one side of the Kabul-Gardez highway which lead to a considerable increase in the value of the allegedly tribally owned land on the other side of the highway. The tribes thus decided to design and build their own township scheme across the highway from the government settlement. The municipality approved the scheme and initial development began on the site. It was around this time, post Taliban, that refugees and IDP’s started flowing back into the area.

Tribal Liaison Office Page 73 of 79 The conflict was triggered when a “strongman” from Gardez with connections to important leadership of the Northern Alliance allegedly forcefully occupied some of the above mentioned tribally owned land and built a compound on the land. The tribal representatives claim that the only reason their land was occupied was due to the increase in value and that the “people from Gardez” are trying to seize all the assets. Furthermore, they accuse non- Pashtuns of trying to take over their land and for oppression of Pashtuns in general. Initially the conflict was taken to a jirga for resolution. The jirga decided in favour of the tribes, deeming their ownership papers to be valid and having been registered with the government nearly 50 years ago. The jirga also requested the allocation of 308 jaribs of land to the government for the construction of state buildings. The decision was accepted by the then- Governor of Paktia and the tribes who agreed to pass over some land to the government for a small runway and Paktia University. However, when the new Governor of Paktia assumed his post the jirga decision was annulled and the conflict rekindled. Interviewed state officials stated that the jirga decision was not relevant to state matters – according to Civil Courts Principles included in Article 171 of the Civil Code those decisions which are harmful to the state do not have any legal or legitimate value. When the interviewee was shown a copy of his own signature on a document accepting the jirga’s decision the official alleged that his hand had been forced by the then- Governor of Paktia. 154 State officials also originally stated that any ownership documents held by the tribes in the area are no longer valid since they have not been properly registered in any court which contrasts to the jirga findings. However, upon reflection it was alleged that the documents were actually registered but that the tribes held no tax receipts for the land. Currently the case is with the Provincial Court in Paktia. The interviewed tribal representatives appeared confident that the court would resolve the dispute in their favour, especially since they have the ownership documents and a copy of the previous jirga ruling accepted by the former Governor. Although no hostilities have broken out so far, the tribes were clear that if the state takes the land away from them by a court decision they resort to violence.

Timeline After 2001: Government starts to implement housing schemes next to the now contested land Tribes start own township scheme on the now contested land, with approval of the municipality. Strongman from Gardez occupies some of the land and builds a compound. A jirga is convened under governor Wafa and decides in favour of the tribes. The jirga-decision is annulled, when a new Provincial Governor assumes office. The case is currently at the Provincial Court in Paktia

154 The official alleged that the then-Governor was a Pashtun fanatic and a member of the Afghan Milat party “(a fanatical Pashtun political group)” which is why he pushed for an acceptance of the jirga decision.

Tribal Liaison Office Page 74 of 79 Conflict 3: Sallam Khail vs Shali Khail Land Conflict

Conflict Overview

• Primary actors: Prominent Sallam Khail (subtribe of Yahya Khail) elder, supported by the rest of the tribe (according to Shali Khail elders) vs. Shali Khail (also sub-tribe of Yahya Khail) Main actors • Secondary actors: on the Sallam Khail side allegedly Governor of Paktika Khpalwak(who is the son of the Sallam Khail elder involved) and an ex-jihadi , now ANA commander of the Sallam Khail tribe; on the Shali Khail side allegedly the Ahmad Aba District Administrator

Time conflict 1995 (according to Shali Khail representatives) started 2004 (according to Sallam Khail representatives)

• Pending at the provincial council Current status • So far the conflict remains non-violent. However, both tribes have of conflict stated that if it is not resolved in their favour they will use kotak (the stick), stating “ Ta Mar Ya More ” (‘Either death or prosperity’).

The disputed area is located in Ahmad Aba District of Paktia Province west of Sallam Khail land that shares border with Shali Khail. The area under dispute is approximately 180 steps according to Sallam Khail and 200 (40 acres) jaribs according to Shali Khail. The disputed area Properties of borders Garak in the North, the Joojoree Stream to the South, Salam land contested Khail land to the East and Feroz Khail land to the West. The disputed land is semi-rain fed land, but the residents had dug some karez , tube wells and wells providing the land with water. Currently, neither the Sallam Khail nor the Shali Khail are working on the land and both tribes are still waiting for the decision of the Provincial Council.

• Jirga of representatives of both sub-tribes, then referred to a Tribal (Previous) jirga of four non-involved tribes, decision in favour of Sallam Khail not accepted by Shali Khail. Resolution attempts • Shali Khail turned to the provincial governor, who referred the case to the provincial council.

Conflict Description The dispute is characterised by widely differing perceptions of the conflict history and dynamics by both involved tribes. It is therefore necessary to give a brief overview of each tribe’s perception. The representatives of the Shali Khail tribe claim that the disputed land is about 100 jarebs and is located behind the district office building. They claim to have legal documents along with tax receipts from 70 years ago, as proof to their claim. Although they cultivated the land

Tribal Liaison Office Page 75 of 79 for many years, after the invasion of the Soviet forces in 1979, they were obliged to flee from the country. They claim the Sallam Khail tribe who were living and working on the land in their absence changed the field boundaries. According to representatives of the Sallam Khail the conflict began approximately 3 years ago when the Shali Khail demanded land from the district administrator (DA). Allegedly the DA told the Shali Khail that they should claim ownership of whatever land they wanted and once they had obtained it they should share the land with the DA. The Shali Khail who were allegedly supported morally and financially by the DA proceeded to claim land that was owned by the Sallam Khail. According to representatives of the Shali Khail the conflict over the piece of land originally began 24 years ago over between the Sallam Khail and Abdul Khail (another tribe from Garak). Allegedly the Sallam Khail swore on the Quran that this land belonged to them and the dispute was settled. However, the Shali Khail had not been informed of this dispute and were unaware that Sallam Khail were claiming ownership of it. The conflict between the Sallam Khail and Shali Khai erupted 1995 when the Sallam Khail began building compounds in the area. Initially, both tribes agreed to solve their dispute by a jirga/shura and each tribe selected their tribal representatives to take part. Subsequently, these representatives selected four tribes from the area and referred their case to the tribal jirga . Allegedly a decision was reached in favour of the Sallam Khail but the Shali Khail refused to accept the decision. The Shali Khail alleged that the mediators in the jirga were not impartial. Although it was difficult to establish what actually happened in the jirga it was agreed by both tribes that the case should be referred to the provincial courts. The Shali Khail tribe submitted a petition to the Paktia Governor who then referred their case to Provincial Council. The case is still being examined by the council although it stated that it will declare a decision in the next few days. Both tribes have apparently given w aak (complete authority) to the court to solve the conflict based on the validity of the ownership papers presented. The Sallam Khail claim to have Shara-e Qawala – the ultimate ownership document in Afghanistan. One representative of the Shali Khail claimed that they have Sharayi Wasiqa (alleged to be over 79 years old) – a decision of a jirga that has been approved, registered and recognised by courts. However, during the interview they were unclear how they received this document and which dispute was taken to the jirga 79 years ago. A second representative then claimed the opposite stating that actually Sallam Khail held Sharayi Wasiqa and the Shali Khail hold the Wolosi Wasiqa. It was then claimed by another Shali Khail representative that any documents held by Sallam Khail were in fact issued by the Taliban.

Timeline After 1979 Many members of the Shali Khail flee to Pakistan 1983 Conflict between Sallam Khail and Abdul Khail over the contested land, which is settled peacefully in favour of the Sallam Khail

Tribal Liaison Office Page 76 of 79 1995 Outbreak of conflict according to Shali Khail representatives, when Sallam Khail start building compounds on the contested land. 2004 Outbreak of conflict according to Sallam Khail representatives, when Shali Khail claim ownership of the contested land. After 2004: A jirga comprised of representatives of both tribes is convened A second jirga comprised of members of four other tribes is instituted by the first jirga Shali Khail refuse to accept the decision of the jirga Both parties agree to refer their case to the Provincial Council, where it is still pending

Tribal Liaison Office Page 77 of 79 Conflict 4: Nagram Farms Land

Conflict Overview

• Primary actors: Yahya Khail tribe vs. Ministry of Agriculture and Main actors Yahya Khail tribe vs. Mamozai tribe • Secondary actors: partial jirga mediators

Ca. 699 Jeribs The disputed area is called the Nagram Farms. It is under dispute to which district the land belongs. The Yahya Khail claim it is in Said Properties of Karam District and the Mamazoi claim it is in Ahmad Aba District of land contested Paktia Province. The land is to the north of Zaram Khak (a historic hill) and the Momazai tribe, to the east are the Yahya Khail and to the west is Gul Shah Qala (of the Nazai tribe). According to the Momazai the land is located in the Momazai village of Machalgo in Ahmad Aba district.

Time conflict 1950s (according to Momazai representatives) started Taliban regime (according to Yahya Khail representatives)

• Jirga currently active according to Momazai representatives Current status • Case filed in court (unspecified) of conflict • Conflict is ongoing

• The conflict escalated into armed hostilities and six people were (Previous) killed. After the fall of the Taliban the conflict resumed but there Resolution have been no more casualties. The Yayha Khail filed a case in court attempts stating that if the land is acknowledged not to be state land that it should be divided evenly between the Momazai and Yahya Khail.

Conflict descriptions This conflict again presents different perceptions by tribal representatives as to the origins of the conflict and even the conflict actors themselves. According to the representatives of the Yahya Khail the area comprising Nagram Farms was seized as part of a government initiative in the 1960’s with the aim of establishing farms. The amount of land seized was 699 jeribs, 11 beswas and 4 beswisa. After the government seized the land a German agency came in and built 150 meters of wells to provide for irrigation. Nursery gardens and orchards were planted along with houses and finished roads. Farms were set up for research purposes. Nearby, on the Zaram Khak, the Yayha Khail have an ancestral graveyard known as Tor Baba – making the area extremely important to them and laying the foundation for their claim to the land. 155 The Yahya Khail allege that the

155 Tribal graveyards are often used as proof for ownership of land.

Tribal Liaison Office Page 78 of 79 government was aware that the land was always disputed between them and the Momozai and decided to intervene and claim the land as their own in order to resolve the dispute. The conflict escalated when the Momazai began building compounds on the land during the Taliban regime after allegedly bribing government officials. According to representatives of the Momazai the area of land under dispute is also 699 jaribs however, they claim that they were responsible for all the wells and aqueducts built to irrigate the land (excluding 48 jaribs of land seized by the government which the German agency helped to irrigate). They allege to have always cultivated the area with wheat and corn. Roughly 56 years ago the Yahya Khail tribe invaded the Momazai land and started building homes there. The conflict immediately became hostile and an unknown number of people were killed. The dispute ended when ten individuals belonging to the Momozai tribe swore on the ownership of the land and a treaty was reached with the Yahya Khail. Now the conflict has resumed since the Yahya Khail have re-entered the dispute claiming that if the government agrees that the land is not actually state land, then the area should be divided evenly between Yahya Khail and Momozai. According to the Momazai a jirga is currently in discussions to resolve the conflict between themselves and the Yahya Khail.

Timeline 1950s: Yahya Khail invade land belonging to the Momazai and start building compounds, according to Momazai representatives. An unknown number of people is killed in the ensueing conflict.

1960s: Area comprising the Nagram farms seized as part of a government agricultural initiative according to Yahya Khail representatives. German agency builds wells for irrigation.

During Conflict escalates as members of the Momazai tribe start builing Taliban-rule: compounds on the contested land, according to Yahya Khail representatives. Six people are killed.

After 2001: Conflict resumes when Momazai claim land from the government. A jirga is called to resolve the conflict.

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