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State and Non-State Justice Systems in Afghanistan: The Need for Synergy

Continual conflict in Afghanistan since the 1979 Soviet invasion left its state justice institutions in shambles. The post-Taliban era has seen a number of efforts to rebuild the justice system, many of which have failed to fix or even worsened the problem. In this article, Ali Wardak argues that synergy between state and non-state justice mechanisms offers the best way forward for the country. Significant problems with the current system mean that most Afghans bring their disputes to two non-state institutions, the jirga and shura, for mediation. Developing an evidence-based framework that includes both state and non-state bodies as well as civil society groups could offer an effective, accessible, and cost-effective solution, restoring public trust in Afghanistan’s justice system. Read the full article here.

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Pragmatic Realism in Justice and Security Development: Supporting Improvement in the Performance of Non-State/Local Justice and Security Networks

Current approaches to post-colonial statebuilding in fragile and post-conflict states have met limited success. Given that context, this report by Eric Scheye of Netherlands Institute of International Relations recommends a “pragmatic realism” approach for donor support of statebuilding efforts. Non-state/local justice and security networks represent a considerable portion of the polities from which post-colonial states derive their authority, while also delivering unmatched legitimacy, local ownership, and accessibility. Consequently, pragmatic realism means that statebuilding must begin with working with this “second state.” Though non-state actors can violate human rights principles, they are not necessarily more prone to do so than state institutions and are often more malleable, so while discernment must be used in engaging these groups, often violations can be addressed. Scheye concludes by exploring some potential challenges to the approach as well as practical concerns for implementation by the development community. Read the full report here.

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Five Lessons from the Congo’s Instability

While this article is about efforts to stabilize the the Democratic Republic of the Congo (DRC), it could just as easily be about Iraq, Somalia, Afghanistan, or a number of other countries. According to Ian Quick, a former member of the United Nations stabilization mission in the DRC, when stability activities began in the early 2000s, international actors assumed there was a complete lack of authority in those parts of the country not under formal state control. This was never the case. In fact, there was an “ecosystem of local actors and political and civic structures for regulating how people lived together.” No kidding. Humans have lived for thousands of years — and still do — without “state assistance.” Advice for those conducting stabilization activities: 1) read some history and 2) understand that humans will always establish some form of governance in order to fill a “government” void or prevent anarchy (think tribes, clans, small towns in Idaho, and the like). If  not, don’t delude yourselves into believing that you can help. Read the full article to learn about other unrealistic assumptions that held sway in the DRC.

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Tribal Mediation in Yemen

Najwa Adra’s working paper examines indigenous dispute resolution in Yemen. What makes this paper so interesting is that it includes seven (7) case studies from her extensive fieldwork between 1978 and 2005 in Yemen’s Central Highlands. These case studies, in addition to Adra’s apt description of what mediation looks like, allows the reader to leave the oh-so lofty (and somewhat tedious) realm of concepts to get a feel for what it’s like to live with and experience customary law. Another highlight is her coverage of women’s participation in dispute resolution. Although told that women play no role in tribal affairs, Adra learns that this is a myth. In fact, “women actively taking part in mixed gender mediation, again in contradiction to formally stated principles.” Read the full paper to learn how “c]ustomary law not only maintains peace among an armed population in a region of widely dispersed communities that are difficult of access, but it affirms, and the mediation process enacts, tribal values…”

 

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The Syrian Southern Front: Better justice leads to better governance

A strong judiciary indicates effective governance. In southern Syria, a coalition of several dozen local insurgent groups, known as ‘the Southern Front’, has formed an alliance that has been adept at understanding the importance of establishing and maintaining a legitimate and authoritative justice provider. Despite various allegiances, the armed groups have recognized the importance of establishing one main justice provider and, in turn, consolidated various Islamic Justice Committees to form the Houran Courthouse. In contrast to northern Syria where it is impossible to enforce law due to armed groups and power brokers each having their own courts and systems of justice, the creation of a strong judiciary has made the Southern Front one of the few viable alternatives to the Assad regime. Read full article.

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Islamic Law, Customary Law, and Afghan Informal Justice

The US Institute of Peace has produced another report about non-state justice filling a long-existing gap in rule of law literature.  It discusses the relationship between Islamic law and customary law noting that despite the apparent supremacy of Islamic law, the application of customary law is often preferred since it helps to maintain community relationships. The status of women under customary law is also addressed since this is considered by many to be its greatest weakness. It is well known that women are marginalized by customary law. Rights afforded to women by Islam, for example, are not extended under Pashtunwali.  While customary law is firmly entrenched in many parts of Afghanistan, surveys show that informal justice actors are open to overturning prevailing customary law to take a more Islamic legal approach to resolving disputes if  provided with education in Islamic law, especially as it concerns women and understanding gender-related norms. Read full report. 

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Traditional & Informal Justice Systems: Actors & Activities

Peacebuilding Initiative provides a comprehensive overview of traditional and informal justice systems including the broad topics of actors (both insiders and outsiders) and types of activities that support these forms of justice in peace building contexts. The following issues are discussed:  research; reforms and codification; financial and technical support to existing structures; creation of new forums or mixed structures; monitoring; training and capacity building; awareness-raising and information dissemination; advocacy and lobbying. This overview also addresses strategies concerning how to link formal and informal justice systems. Read more.

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Taliban courts gain favor among Afghans

The formal justice system in Afghanistan is dysfunctional and corrupt to a large extent.  It’s also not accessible to most Afghans, especially those who live in rural areas since Ministry of Justice officials refuse to accept postings in non-urban areas. This requires Afghans living in those areas to travel to nearby cities, often a difficult, if not impossible, task. Taliban courts, in contrast, are easy to access, provide quick decisions, are free of charge, and, most importantly, are viewed as fair and impartial. It’s no wonder that Afghans continue to seek justice from these courts rather than the state’s failing legal system. Read more.

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Lessons Learned on Traditional Dispute Resolution in Afghanistan

The majority of disputes in Afghanistan are resolved by dispute resolution mechanisms outside of the formal justice system, by individual tribal elders, maliks or mullahs who hold a place of respect in the community; by groups of such individuals meeting as a jirga or a shura; or in some places by Taliban-affiliated individuals or courts. Although some of the actors and mechanisms involved in this “informal” justice sector are of recent vintage, most areas of Afghanistan have greater experience and historical memory of such community forums of justice than of formal state-instituted justice.

While the informal justice sector provides Afghan communities with a swift, inexpensive, and accessible means of resolving local conflicts – enhancing prospects for stability by increasing the peaceful resolution of conflicts and mitigating the underlying driver of violence – there have also been significant critiques of traditional dispute resolution bodies and informal justice. Despite these critiques that are often valid and raise concerns about informal justice mechanisms, the fact remains that for many Afghans this is the only form of justice available, and is often preferred. Read full report.

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Tribal law, traditions, and stability in Yemen

Yemenis have relied on indigenous tribal traditions to regulate conflict and establish justice for centuries, if not millennia. Tribal law has effectively handled conflicts between various tribes, between tribes and extractive companies, and between tribes and the government. It has successfully prevented and resolved conflicts over resources, development services, and land, and has sometimes managed to contain complex revenge-killing cases. Nationally, tribal mediators have played an important role in promoting political dialogue and building consensus among political groups. Read full report.

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