Gender dynamics in access to justice in Afghanistan (original) (raw)
2018
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William and Mary journal of women and the law, 2014
Cultural and religious practices are critical to explaining Afghanistan’s dreadful reputation concerning the preservation, protection, and promotion of women’s rights. Those advocating misogynistic practices assert that the calls for reforms challenge their religion and culture, while also claiming that many women’s issues exist within the private realm. Accordingly, they assert that reforms that aim at addressing disempowerment are not vital to the state and go beyond the established limits of state authority. Building on feminist legal theory, which distinguishes between the public and private spheres, I argue in Afghanistan misogynistic and discriminatory practices stem from contrived cultural and religious norms. Using the notion of state strength, this paper advances the idea that the discourses countering the lack of official action in ending discrimination must emphasize that unless women’s role in contemporary Afghan society is strengthened, the state will continue to remain...
The Pitfalls of Protection: Gender, Violence, and Power in Afghanistan
The Pitfalls of Protection: Gender, Violence, and Power in Afghanistan
Nations Development Fund for Women (merged into UNWOMEN in 2011) UNODC United Nations Office on Drugs and Crime USAID United States Agency for International Development WAW Women for Afghan Women ix Note on L anguage The official languages of Afghanistan-and those most widely spoken-are Dari (a dialect of Persian) and Pashto. Both contain a number of Arabic loanwords. For words that have become common in English, such as sharia, ulema, and mullah, I have used the established form. Words less common in English appear in italics throughout the text, with a brief explanation the first time they are used. xi Acknowled gments When carrying out this research, I benefitted from the support, insight, and inspiration of numerous people. I am deeply grateful to the Research Council of Norway for financially supporting this work through the grants Violence in the Post-Conflict State (project number 190119), Governance, Justice, and Gender in Afghanistan: Between Informal and Formal Dynamics (project number 199437) and Violence against Women and Criminal Justice in Afghanistan (project number 230315). Chr. Michelsen Institute, where I have been employed throughout this research, has been a great institutional home, and I wish to thank my colleagues there for their encouragement and help. My debt and sense of gratitude to Astri Suhrke for her advice, enthusiasm, mentoring, and great company are enormous. In more than one way, this project could never have been realized without her. Arne Strand first introduced me to Kabul and gave me the confidence to carry out fieldwork in Afghanistan again and again. Karin Ask provided invaluable suggestions at important junctures of this work. Deniz Kandiyoti has been an immensely generous, inspiring, and thorough supervisor, and I cannot thank her enough for agreeing to take on this role, for her many pieces of crucial advice, and for her close reading of my drafts. In Afghanistan, numerous people shared their time, knowledge and company. Above all, I want to thank Mohammad Jawad Shahabi. His research assistance during the first part of this work and our subsequent collaboration on what is now chapter 3 of this book have been invaluable. I remain immeasurably grateful for his insights, skills, and efforts over the years. In the early summer of 2012, another case of sexual abuse reached Afghan television screens and the international press. Lal Bibi, an eighteen-year-old nomad woman from the province of Kunduz, came forward in Afghan media recounting how, on May 17, 2012, she was seized by men linked to a local armed group. She was held captive for five days and sexually assaulted as revenge for her cousin's elopement with a woman from the family of one of the kidnappers. Lal Bibi's family declared to journalists that unless justice was done, they would have no option but to kill her. However, Afghanistan's women's right activists quickly mobilized in support, and pressure mounted on the government to arrest the perpetrators. But back in Kunduz, the man accused of the rape protested that no such thing had taken place. He argued that there had been an agreement of baad-a practice in which a woman or girl is given in marriage as a form of compensation for a crime or an affront. A mullah had married Lal Bibi to him just before intercourse, and "once the marriage contract is done, any sexual intercourse is not considered rape" (A. J. Rubin 2012). In present-day Afghanistan, this version of events did not necessarily exonerate him from having committed a crime. Women's rights activists pointed out that forced marriage was also an offense, according to Afghan law and particularly the new Elimination of Violence against Women law (EVAW law), which had become a cornerstone of gender activism in the country. Moreover, his attempt to justify his actions with reference to a framework of baad implicated others. A friend of mine, who happened to be in Kunduz on fieldwork at the time, told me upon his return that the elders who had sanctioned the kidnapping (as an appropriate redress for the affront to the honor of the eloped girl's father) VIOLENCE AGAINST WOMEN AS ANALY TICAL ENTRY POINT S This book is filled with people who sought in various ways to have their ideas about gender violence accepted by others. For some it was a matter of immediacy. trafficking in sex workers, sexual harassment, forced pregnancy, forced abortion, forced sterilization, female foeticide and infanticide, early and forced marriage, honour killings and widowhood violations" (Merry 2009: 82). And as we will see later, the Afghan EVAW law decreed in 2009 listed many of these acts as violence and added a number of other acts more particular to Afghanistan, which many Afghan women considered a violation of their rights, entitlements, or persons, such as the cursing of a woman or even the denial of an existing familial or marital relationship that would absolve obligations toward a woman. 1 In other words, the Afghan EVAW law was developed at the intersection of transnational and national registers. As the global campaign against VAW moved to the center stage of international politics, it also, perhaps unsurprisingly, became entangled in existing global power structures. With the shift from national to global advocacy came a more professionalized, bureaucratic mode of operation, standardized programs and compliance mechanisms, and the arrival of international "VAW experts. " In an influential article, Kapur (2002) scrutinizes the political effects of this global VAW discourse, noting that it rose to international prominence through the obfuscation of the power relations positioning Westerners, white women, and feminists differently from ethnic minorities and women in the Global South. It constructed women of the Global South and nonwhite women who are subjected to violence or abuse as victims of their culture and in need of (outside) protection. Kapur argues that this effectively amounts to a kind of gender and cultural essentialism that cannot accommodate the different positions that nonwhite women and women in the Global South inhabit, or take into account the historically specific forms that violence against them assume. It is difficult to think of an example of this more glaring than Afghanistan since 2001. Western claims to "liberate Afghan women" while entangled in the geopolitical interests driving the war on terror, exhibited many of the traits that Kapur warns against. Afghan women were frequently represented as victims in need of outside saving, trapped in a backward state, and suffering what the West knew to be violence and abuse-violence that occurred as part of Islam or Afghan culture. Examining the employment and effects of such "victimisation rhetoric" (Kapur 2002) is integral to the analysis in this book, but a clarification nonetheless feels necessary. Stating that the book is about "violence against women" does not mean it places itself uncritically into the VAW discourse. I do not assume the existence of a fixed or absolute set of practices that await recognition as violence against women. This would suggest an endpoint of liberation and inevitably place countries along an axis of development or civilization, enabling the kind of global VIOLENCE AGAINST WOMEN AND BROADER FIELDS OF POWER As the discussion has already hinted at, definitions of and negotiations over violence against women are not just entry points to looking at gender relations. They also illuminate other fields of power. As Hajjar points out, struggles over women's rights are also contestations over jurisdiction and authority (2004). Attempts to make gender violence a public issue could signify an important shift in the demarcation between the private domain of family and kinship on one hand and public authorities on the other. For instance, if a rape case is adjudicated in a state court rather than settled between the families involved or by a local leader or kinship group that traditionally settles disputes, this expands (or attempts to expand) the Western powers played a fundamental role in structuring Afghan statehood-to the extent that international actors explicitly tasked themselves with the wholesale building of the Afghan state. With this in mind, it is far from certain that the power exercised in a government court-for instance, if an Afghan man is prosecuted for rape or wife beating-is that of the Afghan state. As I will discuss in some detail in the chapters that follow, the ways in which the Afghan state intervened in cases of gender violence was often underwritten, funded, and even designed by global, mostly Western actors, suggesting that the sovereign power exercised in Afghan courts was partly global. At the same time, the economic and political resources flowing from the international interventions often constituted opportunities for local actors to exercise and consolidate power in ways unintended by the international "state builders. " It makes sense, then, to understand sites of international peace-building interventions as "fields of power where sovereignty is constantly contested and negotiated among global, elite and local actors" (Heathershaw and Lambach 2008: 269). In this vein, challenges to and negations of the nation-state (the sovereign) in (post-)conflict settings are best conceived not as from below or above (that is, from local or global sources), but as parallel or alternative alignments that often are transnationally woven. In order to make sense of the ways the global, the national, and what might be termed the tribal are entangled in Afghanistan, I draw upon Saskia Sassen's concept of assemblages (Sassen 2008: 67; Heathershaw 2011). She argues that thinking in terms of assemblages allows us to appreciate that the global can be "dressed in the clothes of the national" (Sassen 2011). In other words, Sassen underlines how national institutional capabilities are reassembled to serve Yet despite the many ways...
Is there legal pluralism in Afghanistan? Notes on injustice and access to justice
Norwegian Centre for Humanitarian Studies, 2023
This NCHS paper examines the use of the term legal pluralism in Afghanistan and argues that where access to justice is particularly difficult or neglected, social actors face an absence rather than a plurality of legal orders. The paper was originally developed as a contribution to the report Afghanistan and the Rule of Law after 2021: Legal and Social Developments by the Max Planck Foundation for International Peace and the Rule of Law.
Access to Justice and Human Rights in Afghanistan
2013
In anthropological and legal literature, the phenomenon termed 'legal pluralism' has been interpreted as a co-presence of legal orders which act in relation to their own 'levels' of referring 'fields'. The Afghan normative network is generally described in terms of pluralism, where different normative systems such as customs, shari'a (Islamic law), state laws and principles deriving from international standard of law (e.g., human rights) coexist. In order to address the crucial question of access to justice, in this article, I stress the category of legal pluralism by introducing the hypothesis of an inaccessible normative pluralism as a key concept to capture the structural injustices of which Afghans are victims. Access to justice can be considered a foundational element of every legal project. Globally, the debates concerning the diffusion and application of human rights develop at the same time ideologically, politically, and pragmatically. Today in Afghanistan, these levels are expressed in all their complexity and ambivalence. It is therefore particularly significant to closely observe the work done by the Afghanistan Independent Human Rights Commission and to discuss the issue of human rights by starting from a reflection on what might be defined a socio-normative condition of inaccessibility.
One step forward and many to the side: Combating gender violence in Afghanistan, 2001–2014
This article offers some reflections on the efforts over the last decade to combat violence against women in Afghanistan through reforms of laws and the justice system. The paper identifies two intersecting factors that have curtailed the transformative impact of these efforts. First, law making and legal practices have become infused with various forms of personalized and hierarchical politics. Progressive laws have taken the form of gifts bestowed to women by the president (and NATO countries) rather than gains achieved through broader political mobilization. Furthermore, the widespread application of 'mediation' in cases of gender violence serves to defuse claims of justice and instead leave women dependent on the benevolence of self-appointed patrons. Second, existing sexual ideologies have rarely been challenged, with women routinely arrested and prosecuted for 'escaping' from home or for 'attempted' adultery. The overall result is a 'protect and rescue' approach to gender violence that does little to transform the underlying causes of women's subordination.
State and non-state justice systems in Afghanistan : the need for synergy / Ali Wardak
2011
extend my sincere thanks to John Braitwaite, Amy Feinman and the staffs of the Journal of International Law and the Journal of Law and Social Change at the University of Pennsylvania for their very helpful comments on earlier versions of the Article. My heartfelt thanks also go to my wife, Safora, and to our children-Omar, Zohra, and Hossai-for their affectionate support while working on this Article.
Informal justice system in Afghanistan (Case study of Kabul and Kunduz Provinces)
Informal Justice System in Afghanistan (Case study of Kabul and Kunduz Provinces), 2021
Informal Justice System Formal Justice System Law on the Elimination of Violence against Women Law Court Attorney General’s Office Afghanistan Independent Human Rights Commission Afghan National Police Afghan Local Police Convention on the Elimination of all Forms of Discrimination against Women Criminal Investigation Division Civil Society organization Department of Women’s Affairs