State and non-state justice systems in Afghanistan : the need for synergy / Ali Wardak (original) (raw)
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The Afghan authorities and the international community have worked together to rebuild the justice sector into something which now at least approximates to a system that conforms to international standards. This article argues that while the process has been fraught there have been tangible advances and some verifiable ways to measure this. Capacity-building support of the state system will require continuing external monitoring, to gauge its impact, and the state system also has an important role in monitoring the way in which customary law institutions dispense justice. This article concludes that, despite many setbacks and uncertainties, now is not the time for the international community to turn its back on justice sector reform in Afghanistan.
This dissertation addresses the current state of transitional justice in Afghanistan, a country that still struggles with one of the longest conflicts. Despite global intervention to achieve peace, the level of violence has been increasing and Afghanistan seems to be moving backwards. This dissertation considers the negligence of justice regarding past atrocities as one of the main reasons for this failure. Whilst numerous studies have been conducted on the peace-building strategies in Afghanistan after 2001, transitional justice challenges have still not been addressed adequately. Therefore, this dissertation examines the post-2001 transitional justice efforts in Afghanistan done by the international community, the Government of Afghanistan, and civil society. The dissertation argues that the post-2001 peace-building strategy in Afghanistan was adopted to achieve negative peace first and justice later, leaving thus practically no space to transitional justice agenda in the peace-building strategy. As an effect, this strategy resulted in various challenges to transitional justice, mainly the lack of domestic political will. It also argues that the current Afghanistan capacity as a state is not feasible for transitional justice, especially with the lack of support from the international community. Most of the works on transitional justice are done by human rights organisations and civil society with a retributive approach to transitional justice, thereby presenting a criminal picture of transitional justice to the Afghan society. This dissertation recommends a new mechanism that is beyond traditional notions of transitional justice, such as retribution. This proposed mechanism should be composed of Islamic justice and formal as well as informal justice mechanisms. The dissertation proposes that this mechanism would be more compatible with the ground realities of the Afghan society and thus more effective in the execution of transitional justice in Afghanistan.
2010
The rule of law in Afghanistan has been, generally speaking, fragile. The role of the state (dawlat) as a formal structure of authority, and in maintaining social order in Afghan society, has historically been limited. This applies in particular to rural Afghanistan, where about 80% of the Afghan population has been living. 1 In some southern and eastern parts of the country, state institutions have no-or merely a nominal-existence. 2 The weakness of the Afghan state in mind, the Bonn Agreement of 2001 began a process, focusing on political institutions and procedures, emphasizing the reform of Afghanistan's justice system by stating that "[…] with the assistance of the United Nations, a Judicial Commission [should be established] to rebuild the domestic justice system in accordance with Islamic principles, international standards, the rule of law and Afghan legal traditions."
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.
Transitional Justice: Views from the Ground on How Afghanistan Fares
2016
She is a holder of a Certificate of Special Education. She combines her background in psychology with that of an educator and researcher. Her research involvement covers areas such as youth and risky behaviour, peace and conflict transformation, migration, and formulation of modules and session plans for communication as well as governance among youth. Aruni Jayakody is a lawyer and independent consultant who is currently pursuing a Ph.D. in International Human Rights Law and Policy at the Fletcher School of Law and Diplomacy, Tufts University. She was a former Governance Programmes Officer at AREU, where she managed the Afghan Constitutional Analysis and Dialogues. She has previously worked on transitional justice issues in Colombo, Sri Lanka.
Rebel rule of law: Taliban courts in the west and north-west of Afghanistan
ODI Briefing Note, 2020
• Taliban courts are becoming increasingly widespread across Afghanistan. They were seen by those interviewed as more accessible and easier to navigate than state courts, as well as quicker, fairer and less corrupt. However, those living in Taliban areas do not have much choice but to pursue their claims through Taliban courts. • The Taliban have used their courts not only to delegitimise the state and erode state justice provision, but also to disempower and replace customary dispute resolution. This has undoubtedly helped them to consolidate control over territory and compel civilians to follow their rules. • Understanding this system is becoming increasingly important, particularly for the prospect of peace talks and any intra-Afghan negotiations that may commence. It has implications for the future of justice in Afghanistan as well as the fate of legal norms and rights embodied in the current Afghan constitution. • Questions remain, including around how women, government supporters and ethnic minorities experience Taliban justice. Further field research is also needed in other areas of the country, on criminal and capital cases, and on Taliban official policies and judicial norms. This will only become more relevant as intra-Afghan negotiations progress.
Promoting the rule of law in Afghanistan has been a major U.S. foreign policy objective since the collapse of the Taliban regime in late 2001. Policymakers invested heavily in building a modern democratic state bound by the rule of law as a means to consolidate a liberal post-conflict order. Eventually, justice-sector support also became a cornerstone of counterinsurgency efforts against the reconstituted Taliban. Yet a systematic analysis of the major U.S.-backed initiatives from 2004 to 2014 finds that assistance was consistently based on dubious assumptions and questionable strategic choices. These programs failed to advance the rule of law even as spending increased dramatically during President Barack Obama's administration. Aid helped enable rent seeking and a culture of impunity among Afghan state officials. Despite widespread claims to the contrary, rule-of-law initiatives did not bolster counterinsurgency efforts. The U.S. experience in Afghanistan highlights that effective rule-of-law aid cannot be merely technocratic. To have a reasonable prospect of success, rule-of-law promotion efforts must engage with the local foundations of legitimate legal order, which are often rooted in nonstate authority, and enjoy the support of credible domestic partners, including high-level state officials.