Formal and Informal Justice in Helmand and Uruzgan: A TLO Working Paper Draft Report: Not for Circulation or Citation June 2011 i Table of Contents Executive Summary and Recommendations ....................................................................................... iii 1 Introduction and Data Overview .................................................................................................1 2 Formal and Informal Justice in Deh Rawud ..................................................................................5 2.1 Land Disputes in Deh Rawud ................................................................................................. 6 2.2 Criminal Justice in Deh Rawud............................................................................................. 10 2.3 Family Cases in Deh Rawud ................................................................................................. 13 3 Formal and Informal Justice in Grishk ........................................................................................ 16 3.1 Choice of Forum in Grishk ................................................................................................... 17 3.2 Land Disputes in Grishk ....................................................................................................... 19 3.3 Criminal Justice in Grishk ..................................................................................................... 22 3.4 Family Disputes in Grishk .................................................................................................... 25 4 Formal-Informal Justice Linkages in Deh Rawud and Grishk ....................................................... 26 5 Conclusion: Legal and Political Settlement ................................................................................. 30 6 References ............................................................................................................................... 32 ii Executive Summary and Recommendations The South is Afghanistan’s most volatile and strategically important region. Even more than the rest of the country, it has suffered during the past three decades and countinG of war, resultinG in social disintegration. In rebuilding the nation and its political system, both the Afghan government and international community have committed themselves to the key strategic goal of finding more stable and efficient ways for Afghans to solve their disputes. Yet the years of war have affected all aspects of life in Afghanistan, including how disputes arise, and how, and by whom, they are solved. The present report, funded by the United States Institute for Peace, examines dispute resolution in two comparatively stable Southern districts—Deh Rawud district in Uruzgan and Grishk district in Helmand.1 Based on village levels surveys and semi-structured interviews with government officials, tribal elders, and other key informants, the followinG findings, recommendations, and ideas for further research are presented. Key Findings Both of these districts are seeing a disproportionately large number of Land cases per capita. Deh Rawud, for example, sees about 1,034 Land cases per 100,000 population; Grishk sees 1,007 per 100,000 population; while, for comparison purposes, the Nangarhar district of Mohmand Dara sees just 439 per 100,000 population. Competition over farmland, and the inability of either formal or informal government to restrain opportunistic land grabbinG, explains some of this high rate of disputes. Although about 80% of property owners in both Deh Rawud and Grishk hold Government land title, this title is often over 100 years old, and appears to be doing nothing to restrain Land conflicts. Moreover, while rates of dispute and Land titling in the districts are similar, Grishk Land disputes involve violence far more often than do those in Deh Rawud. Both districts experience a very high crime rate, with the crime rate in Grishk being particularly striking: 597 crimes per 100,000 population in Deh Rawud; 900 crimes per 100,000 population in Grishk; and, for comparison purposes, only 247 crimes per 1 A subsequent version of this report will also cover Chahar Borjak district in Nimruz province. iii 100,000 population in Mohmand Dara. The disintegration of tribal Governance partially explains this frequent resort to criminality, as weakened tribal structures and social cohesion are often associated with a large number of violent or otherwise Criminal disputes. The number of family disputes in Deh Rawud and Grishk occur at a rate roughly analogous to, or even lower than, more stable areas of the country: 218 Family disputes per 100,000 population in Deh Rawud; 134 Family disputes per 100,000 population in Grishk; and 138 Family disputes per 100,000 population in Mohmand Dara. Despite their ostensibly private nature, these disputes can sometimes spur instability and larger tribal conflicts, far beyond the importance of the individuals involved or any resources implicated. In both districts, informal mechanisms of dispute resolution resolve about 95% of all cases. The judiciary thus does not play a large role in dispute resolution in either district, and the capacity of the Deh Rawud district court in particular seems very low. While the court in Deh Rawud hears a (small) cross-section of Land, Family and Criminal disputes, the one in Grishk hears exclusively Criminal matters. Instability appears to cause more people to go to local executive branch officials to solve disputes. In stable areas of Grishk, and almost all of Deh Rawud, tribal or village jirgas predominate in handling disputes. However, in areas under threat from the Taliban (in Grishk) or experiencing more localized problems (such as a sudden influx of internally displaced persons (IDPs), as has affected some Deh Rawud villages), Chiefs of Police and District Governors are hearing as many, if not more, cases than the jirgas. The Grishk Taliban, when in control of an area, additionally prevent elders from hearing disputes, and Grishk elders sometimes have trouble enforcing their decisions, especially if conflict parties have Taliban connections. Linkages between the informal and formal system varies between both districts, with relatively robust ones in Grishk and hardly any in Deh Rawud. o In Deh Rawud, linkages between formal government and tribal leadership center disproportionately on the AfGhan Social Outreach Program (ASOP) shura recently established by the Independent Directorate of Local iv Governance (IDLG). Similarly, governance cooperation in the district is rare, with elders stating that the government does not support their anti-Taliban efforts. o By contrast, the Grishk government sends a large number of cases to traditional shuras, meets with them often, and sometimes enforces their decisions. Cooperation for dispute resolution is thus much more common than in Deh Rawud. However, elders and Government do not cooperate to systematically exclude Taliban from the district, with Grishk elders reluctant to take an openly anti-Taliban stance. Recommendations Based on these initial findings, the following recommendations can be made: The international community and Afghan government should work to strengthen both the formal and informal justice systems equally, as well as links between them. While both systems do not need to be combined, they should respect each other’s decisions, and cooperate on justice issues, especially in solving larger and more persistent disputes. Over time, these linkages can become more institutionalized, and both sectors can work to improve the quality of service they are providinG. Here the Government can direct resources and raise performance standards to develop the formal justice system, but development of the informal justice system will probably require elders’ voluntary cooperation to secure their engagement in trainings, the development of best practices, and other similar initiatives. The international community, for its part, should support both systems’ development, as they often provide complementary services and areas of strenGth and weakness. As argued in other studies, if land title is going to provide its full economic and governance benefits, the Government of Afghanistan must undertake reforms to discard some formal title, and recognize some customary title. Particularly, title, from whatever source, should both bear some resemblance to current realities of property possession and boundaries, and also confer enforceable benefits on the holder sufficient v to quickly defeat or preempt competing claims, thereby Giving incentives for lonG-term and large-scale investment. Getting these results will entail expandinG recognition of some forms of customary land title as superior to formal title, as well as designating a powerful but relatively disinterested entity to enforce land claims backed by valid land title. The international community and Government of Afghanistan should provide training on sharia law to executive branch government officials, especially those hearing Family cases. Providing this training to district governors and chiefs of police (as well as to tribal elders) could result in modest, but real, human rights improvements. Sharia- based decision-making would also help reduce the potential for Family conflicts, including conflicts over women, to escalate into inter-tribal or violent disputes by providing clear and individual-based rules of decision. In order to improve our understanding and fine-tune