Senier - Rebuilding the Judicial Sector in Afghanistan: The Role of Customary Law

8/12/2019 Senier - Rebuilding the Judicial Sector in Afghanistan: The Role of Customary Law

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Al Nakhlah

The Fletcher School Al Nakhlah Tufts University

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Talibans pursuit of an Islamic state.21

Afghanistanis widely thought to have seen an end to activeconflict after the U.S. invasion of 2001.

22 However,

violence persists throughout the country.23

Afghan Customary Law

Afghanistan is home to approximately 55distinct ethnic groups and as many customarylegal systems.

24While customary systems vary b y

tribe and geography, there are some keysimilarities that should be considered whenplanning for national judicial reform. First, the useof the customary tribunals jirgas, maracasshuras ormookee khans are employed by nearly all ethnicgroups in Afghanistan.

25 While the precise

makeup of the tribunals varies from elders26

to

imams,27

the local mediation/arbitration panel iscommon among Afghanistans customary legal

traditions. Afghan traditional systems also sharethe core principles of apology and forgiveness.28

These are seen as necessary precursors toreconciliation. Most Afghan customary systems are

based on the principle ofrestorative justice. Whilemany tribes utilizesentences of poar (bloodmoney), such remediesare accompanied byrequests of forgivenessand are intended toeliminate enmitybetween parties and

restore harmony to thevillage.

29 Even the

Pashtunpoarfor murder --two fair and virgin girlsto be given by theperpetrators family tothat of the victim isjustified on restorativegrounds.

30 When the

girls are wedded to thevictims family, kinshipand blood sharing willtransform the severe

enmity into friendship.31

Precisely howrestorative this practice is for Pashtun women is notconsidered. Indeed, Afghanistan could be held inviolation of international human rights law forpermitting suchpoar.

32

While Afghanistans Ministry of Justice (MOJ)praises customary law as flexible, adaptablejustice, [which is] tailored to local beliefs andconditions, it cautions that customary practices canviolate human rights norms.

33Yet customary laws

flexibility might be its very savior fromdesignation as a human rights pariah. Forexample, tribes in the Hindu Kush havecondemnedpoarof girls in recent times. The tribesblood money for murder is now 200 to 250cows.

34 The evolution of the poar for murder in

central Afghanistan indicates that custom isflexible. Thus, Afghans may be able to retaintraditional legal practices that promote forgivenessand reconciliation provided that tribes repealparticular practices which violate internationalhuman rights standards.

Notwithstanding questions surrounding thedefinition of customary law and its implications forhuman rights in Afghanistan, the reality is that itremains the populations venue of choice. War,corruption and ineffectiveness have reduced theformal judiciary to a non-option for many Afghans.The MOJ estimates that 90% of Afghans rely oncustomary law due to a lack of trust andconfidence in the nations formal judicialinstitutions as well as such institutions physicalabsence and low capacity.

35 The Ministry warns

that this reliance will take considerable time toreverse.

36 Such caution should weigh heavily on

national and international rule of law reformers.

Theoretical Considerations for Customary Lawin Post-Conflict Afghanistan

Customary law may provide the antidote to amajor shortcoming of rule of law reform inAfghanistan. Surveying a variety of reforminitiatives in post-conflict and developing states,Thomas Carothers offers a persuasive empiricalcritique of rule of law and democratic reform.Carothers concludes that traditional reforms top-down design has contributed to its lack ofsustainability.

37 He argues that the international

communitys focus on state institutions and lawdrafting

38 has been less effective than recent

bottom-up approaches.39

Carothers recognizesthat sustainability of reconstruction necessitatespopular support. He avers that programs that workwith judicial institutions as connected in manifoldways with the societies of which they are a part aremore successful than those that treat judiciaries as

self-contained entities that can be tinkered with asthough they are machines that run on their own.

40

Carothers thus recognizes that sustainability ofreconstruction necessitates popular support.

41 In

Afghanistan, customary law may very well be themechanism by which such sustainability isachieved.

Customary legal tradition, also known aschthonic law, has been the subject of a great deal ofscholarship and debate. Though its oral, fluid

Afghani stan i s home toapproximately 55

distinct ethnic groupsand as many

customary legalsystems. While

customary systemsvary by tr ibe and

geography, there aresome key similarities

that should beconsidered when

planning for nationaljudicial reform


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nature has complicated its evaluation by outsiders,some useful constants have been identified

42 that

can help frame the judicial reconstruction effort inAfghanistan. Most relevant to the post-conflictreconstruction process is chthonic lawsrelationship to the broader cultural tradition inwhich it operates.

43 Chthonic law has been

mistakenly characterized as resting in the hands ofa few select elders, rigid traditionalists imperviousto change.

44 Yet an alternate view casts elders as

informal procedural gatekeepers intent more onmaintaining communal order than onperpetuating fixed norms. Indeed, chthonic legalnorms are shaped by their overall society.

45

Tradition is not static, and traditional chthonicnorms influence and are influenced by the forcesaround it.

46Shariahsinfluence on customary law in

Northern Afghanistan is evidence of this.47

Theconsequences of chthonic theory for judicial reformare momentous. If customary law is viewed as an

institution in a dynamic society, then by engagingwith that society and its law, reformers have theopportunity to affect change.

The term customary law has also beencast as an imperialist construct that subordinatestraditional legal institutions to those of the state.

48

Such critiques point out that modern state systemswhich purport to adhere to legal pluralism in factundermine traditional systems by carving them

up and relegating them tosecond-tier status.

49 A

better view would be tocast customary law as aquestion of self-determination.50 Inpractice, each culturewould choose how itadopts state law, if at all.

51

Proponents of thisapproach are adamant,however, that customarysystems should adhere to

international human rights standards.52

Though acustom-centric system has its appeal, its realizationin Afghanistan raises significant political andlogistical challenges.

Rama Mani also provides a cautionary

critique of customary law, which she callsinformal justice.

53 She notes that proponents of

informal justice cite customs focus on community,reconciliation and problem-solving as itsstrengths.

54 However, she argues that dual legal

regimes create debilitating confusion when therelationship between the formal and informaljustice sectors is not clear.

55 She also suggests that

hybrid legal systems subordinate the rights of thedisenfranchised by relegating their claims to

customary institutions while reserving formalcourts for the rich and powerful.

56 These critiques

have either been borne out in Afghanistan or posea very real threat to its future rule of law and mustbe considered during the reform process.

Critique of Current Treatment of AfghanCustomary Law

The Afghanistan National DevelopmentFramework states that [t]he judicial system will berevived through a program that provides training,makes laws and precedents available to all parts ofthe system and rehabilitates the physicalinfrastructure and equipment of the judicialsector.

57Afghanistans justice sector is defined as

the Judicial Reform Commission (JRC), theSupreme Court, the MOJ, the Attorney GeneralsOffice, police, corrections and legal trainingcenters.

58Neither the guiding framework nor the

definition of Afghanistans judicial sector explicitlyrecognizes customary law.

Moreover, the 2004 Constitution passed byAfghanistans Loya Jirga (national assembly) issilent on customary law. Guidance may be inferredfrom the documents treatment of Islam. The newconstitution precludes the adoption of laws whichare not consistent with the tenets of Islam,

59 and

shariah permits the practice of customary lawprovided it does not interfere with those tenets.

60

Since 2001, Afghanistans Transitional

Authority and the international community havebeen planning the reconstruction of the countrys

judicial sector. The JRC, a body of Islamic andsecular law scholars, must reform Afghan law inconcert with the national judicial sector andpropose legal and regulatory amendments.

61 No

seats on this council were allotted torepresentatives from the customary law tradition.As a result, the JRC has given customary law scantattention.

62

A May 2005 needs assessment by the MOJ setforth an ambitious vision for the countrys justicesector, including stronger linkages whereappropriate and where in keeping with the rightsof citizens between the state system and thetraditional systems that are for many Afghans their

only regular justice system.63

The report alsoincludes customary law among several of itsstrategic principles. Justice reform must beappropriate to Afghanistan. In its policy, it mustreflect Afghan political circumstances, social andlegal traditions and aspirations for the futureJustice reform should address traditionalinstitutions and their capacity to function withinstate and international norms.

64 Unfortunately,

the Ministrys suggestions have yet to be absorbed

The Ministry of Justiceestimates that 90

percent of Afghans relyon customary law dueto a lack of trust and

confidence in thenations formal judicial

institutions


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by the strategies of either the JRC or theinternational community.

The international response to Afghancustomary law has been tepid at best, prioritizingresearch over action and circumscribing thetraditional system.

65 This is compounded by the

marginal funding of the internationalcommunitys judicial reconstruction effort as awhole, especially when compared to other rule oflaw efforts such as policing.

66

Internationally-aided judicial reformprograms in Afghanistan center on state-centric,top-down initiatives to the exclusion of grassrootscustomary law. For example, the United NationsDevelopment Programmes (UNDP) activitiescenter on strengthening the JRC, training judicialstaff, establishing a state judicial bureaucracy,constructing physical judicial infrastructure andimproving legal education.

67

There are signs that the international

community is broadening its approach to judicialreform by devoting some resources to local justice.In February 2005, Italy and UNDP launched

Access to Justice.68

Billedas a "judicial literacy"program, Access to Justicewill educate ruralpopulations aboutnational legal reforms thatcould impact therealization of their rightsbefore traditional courts.The program will teachrural Afghans how to

demand their new legalrights in the face ofdiscriminatory traditions.Rather than dismantlecustomary structures,Access to Justice

empowers villagers to defend their rights withinexisting local structures.

Another area in which the internationalcommunity has been receptive to customary lawhas been research. In addition to UNDPs strategyfor mapping customary law,

69 several

international organizations such as the U.S.Institute for Peace,

70 the International Legal

Foundation71and the UN Childrens Fund72haveundertaken comprehensive surveys on Afghancustomary law. This research lays the groundworknecessary for effective partnering betweeninternational, national and local reformers. It iscrucial that such research is applied in the judicialreform process via concrete programmaticstrategies.

Recommendations for Integrating Customaryand Formal Courts

Factors to Consider When Recognizing Customary

Law

Despite the reluctance of reformers toadequately integrate customary law into thejudicial reconstruction process, there areadvantages to creating space for customary law inAfghanistans judicial reform process. Customarylaw reflects the needs of the citizens themselvesand has continued to maintain social harmonywithin the communities for centuries.

73The little

documentation available thus far on traditionaljustice systems in Afghanistan reinforces this point.Afghans have long resorted tojirgasand shurasas aresult of state judicial failure. Thus, it is thetraditional systems in Afghanistan which engagewith and embody citizens sense of justice.Consequently, reform efforts that ignore orsubordinate customary law will not win thesupport of those they aim to serve.

The second advantage to including customarylegal institutions in any post-conflict reform processis cost.

74 It has been estimated that Afghanistans

judicial reconstruction effort will cost US$ 9 millionover two years.

75By relying on existing customary

courts to dispense justice in rural areas on issuesrelated to property and minor crime, Afghanistancan fill the post-conflict rule of law vacuum while itdetermines the shape of its formal judicial system.

Customary institutions also afford parties a

level of comfort that state courts cannot. Jirgasandshuras are close to the parties communities andoften comprised of people with whom they arefamiliar. While such ties can have the drawback ofcommunal pressure on parties to settle disputes inunfavorable terms, proximity is viewed asfavorable to distant state bureaucracies.

76 This

could be the case in Afghanistan where the statesystem has been seen as the locus of abuse andcorruption.

Customary legal systems also have thebenefit of operating in the mother tongue of theparties.

77Afghanistan is home to 34 languages.

78It

is unlikely that a state judicial system will

immediately be able to accommodate suchlinguistic diversity. Due process and public trustdemand linguistic-sensitive proceedings.

In addition, when a post-conflict statesnational judicial system is as crippled asAfghanistans,

79 traditions that do not require

courthouses are able to function where the statecannot.

80 Moreover, as discussed earlier, some

elements of customary law are more restorativethan those of the state. Retributive state sentences

By relying on existingcustomary courts todispense justice in

rural areas on issuesrelated to property and

minor crime,Afghanistan can f il l t he

post-conflict rul e of lawvacuum while it buildsa formal state judiciary


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will be difficult to enforce at the local level givendistance and lack of infrastructure.

81

Of course, one should not minimize thedisadvantages associated with recognizingcustomary law in any reform process, particularlyone that takes place in a post-conflict setting. Theunwritten nature of Afghan customary law rendersit open to arbitrary application and abuse. Indeed,the current domination of shuras in the north bycommanders is ample proof of the susceptibility ofcustomary legal institutions.

82 In addition,

customary legal decisions are arguablyundemocratic in that they rely largely on thejudgment of a few male elders.

83Some methods of

adjudication and remedies may also be arcane andunsuited to the evolving Afghan state.

84The lack of

codified procedure can lead to unfairness incustomary decisions

85 and Afghanistan lacks the

civil society and state capacity to monitor suchlapses. Without clear, written procedure, customary

law can and has been open to abuse and thus maynot be a legitimate partner in the reform process.

However, while the challenges to recognizingcustomary legal institutions in a manner whichminimizes its weaknesses and maximizes itsstrengths are formidable, such results can beachieved through reforms that bring traditionalpractices into line with recognized human rightsnorms and foster clear relationships between stateand tradition. By virtue of its chthonic nature,Afghan customary law can be affected by itsinclusion in the reform process. Moreover, failedreform processes in other post-conflict statesillustrate that top-down, state-centric reconstruction

frameworks lack the bottom-up means to besustainable because they neglect the populationsserved by these institutions. Judicial reform inAfghanistan may best take root in its customarysystems. Key strategies for the reform process areoutlined below.

Bring Customary Law into Line with International

Human Rights Norms

Many customary practices violateinternational human rights norms. From theextreme example of poar of girls in exchange for

murder

86

to procedural concerns about the right tocross-examine witnesses,87

customary practiceraises doubts about its ability to preserveindividual human rights.

Human rights concerns have divided theAfghan legal community over the role customarylaw should play in the new national legal order.

88

However, given the pertinence of the customarysystem to the majority of Afghans and its role inpromoting sustainable reform, Afghanistan should

consider integration as an opportunity to bring theexisting traditional system into line withinternational human rights norms. Customarylaws chthonic nature renders it particularly opento influence from such cooperation. TheConstitutions recognition of Afghanistansobligations under international human rights

treaties can forestall abuse at the local level byproviding grounds to appeal abusive customarypractices in the state system.

89 Therefore, mindful

of its legal obligations to uphold internationalhuman rights, Afghanistan can embark uponinitiatives that marry the customary and formaljudicial systems.

Recognition Through Formal Legislation

There are a number of ways in whichcountries have recognized customary law throughformal legislation, including recognition by

exclusion or incorporation, general codification,incorporation, adjustment and accommodation.90

While all of these models are instructive forAfghanistan, they subordinate the customary legalsystem to that of the state. However, a functionalrecognition of customary law would draw uponelements of each of these models in a manner thatmeets the host systemsneeds.

91 Afghanistan

should thus tailor afunctional recognition ofits customary legalsystems to suit the self-determination needs of its

many ethnic groups.92

Anexample of this method ofrecognition follows.

At the outset of thereform process, the MOJshould incorporatecustomary law. Aconstitutional amendmentcan give generalrecognition to customarylaw while reserving theright of the legislatureand courts to interpret thatrecognition at a later

date.93Additional legislation should set minimumstandards for procedure in customary courts, suchas the right to counsel and the weighing ofevidence. This strategy establishes a stopgapmeasure for the dispensation of justice which, whilenot guaranteeing the full panoply of human rights,comports with basic principles of fair procedure.However, because it tables rights, this strategyshould not end the process by which customarylaws relationship to the state system is codified.

Given the pertinence othe customary system

to the majority ofAfghans and it s role in

promoting sustainablereform, Afghanistan

should fosterintegration as an

opportunity to bringthe existing traditionalsystem into line withinternational human

rights norms


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A long-range plan should allow for morefunctional recognition of customary law withinAfghanistans judicial sector as a whole. The LoyaJirgashould pass legislation that delegates specificareas of law to customary jurisdiction and reservesall other areas for the state. For example, given thatmany Afghan traditions have been successfully

adjudicating minor crimes and property disputesfor centuries, the state should formalize itsjurisdiction over those matters. The legislation caninclude leave to appeal customary decisions to thestate system or choice of venue for the parties.Moreover, given the human rights concerns andpatriarchal nature of the customary legal system,serious and gender-based crimes should bereserved for the state system as well as issues ofnational interest such as inter-provincial commerceand foreign affairs.

The above strategy provides proceduralguarantees of fairness in the short-term whileopening the door to a preservation of human rightsin the long-term. Additionally, this initial relianceon customary law could serve as the basis for long-term cooperation by building trust between thestate and traditional sectors as well as identifyingstrengths and weaknesses in each. The legislativechannel between the customary and state sectorsalso leaves room for the chthonic tradition to meetand ultimately internalize human rightsbenchmarks set by the state. Lastly, a nationallegislative structure which posits traditional courtsas those of first instance while allowing forexceptions in cases of serious crime (includinggender-based violence) or a choice of venue forparties would lighten the caseload on the statesystem, preserve cultural autonomy and maintainrestorative justice in the regions.

Institution Building

While customary legal systems often do notpossess their own buildings and law reports, theyserve as legal institutions in that they promotesocial order.

94 Therefore, Afghanistans judicial

reconstruction effort should dedicate resources tobuilding the institutions of its customary system.This is not to suggest that the government anddonors should construct courthouses for the

customary system as it has for the state but rather torecommend that Afghanistan locate the customarysystem within the countrys overall judicialframework. It can accomplish this by permittingthe application of customary norms in state courtsor establishing formal customary courts subject tostate control.

95 However, these approaches divest

customary law of its very strengthits roots intradition and communityand subordinate it to

that of the state, which could provoke resistanceamong traditional leaders.

Perhaps the most viable option is to developAfghanistans existing customary courts.

96

Admittedly, this approach requires the drafting oflegislation regarding jurisdiction as mentionedabove.

97However, the heart of this reform strategy

lies in projects that build the capacity of existingtraditional courts.

The MOJ identified several strategies bywhich the government can cooperate withtraditional justice institutions in order to eliminateits unacceptable elements and maximize itspositive features, such as training elders inadherence to humanrights norms, incentivesto follow the bestapproaches and links tothe formal state system.

98

The Ministry advocated

the use of traditionalinstitutions in promotingthe development ofalternative disputeresolution (ADR). ADRcan alleviate the burdenon a burgeoning formalstate system by mediatingand arbitrating civil andminor criminal cases.

99

This reform is particularly suited to customary lawsince local shuras and jirgas have been providingthis service to villages for centuries.

Specifically, customary ADR can supplant

formal trials in areas of land dispute and minorcrimes. This is especially true considering that statecourts are not yet constructed, many laws are notyet written and most judges are not yet trained. Toavert the potential legal vacuum that results at theclose of active hostilities in many post-conflictstates, it is in Afghanistans interest to supportcustomary legal institutions as a means ofmaintaining peace and order, particularly in ruralareas.

In addition to elder training and formal linksbetween customary and state institutions,customary law practitioners should be allottedseats on the JRC and other national reform

commissions. The number of various systemsthroughout the country suggests that this strategywill be difficult. However, this challenge can bemet by rotating seats on a regional basis orestablishing a national customary law organizationthat can elect representatives to variouscommissions.

Local civic groups will also be essential in theinstitutionalization of the customary legal system.Village groups inclusive of women, minorities and

Village groupsinclusive of women,

minorities and young

people can serve as acheck on traditionalinstitutions by

monitoring theircompliance with

human rights norms


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young people can serve as a check on traditionalinstitutions by monitoring their compliance withhuman rights norms. This strategy would onlyrequire small provincial offices to receivecomplaints and conduct investigations whileempowering local communities to play an evengreater role in the restoration of justice. Such

groups can be created as a follow-up to UNDPsAccess to Justice program.

Political Considerations

Any analysis of Afghanistans judicial futurenecessitates some discussion of the countryspolitical past and present. Afghanistan is currentlybeing pulled in various directions by elite migrs,Islamists and foreign donors, each with their ownvision of what shape the Afghan state shouldtake.100 Each of these parties will view the potentialintegration of customary law into the national

judicial system with suspicion as it could beperceived as a threat to their own state constructs.Islamist parties, for example, who hold great

sway in present-day Afghanistan, have a vision ofan Afghan judiciary that is in some waysdiametrically opposed to the inclusive dialoguebetween local and national legal authorityexplored here. Islamists seek a nation-wide legalsystem based on shariah law, which wouldcircumscribe the space in which traditionalcustomary law can operate.

101 This need not rule

out the inclusion of customary practitioners in thejudicial reform process. Instead, it suggests that theintegration of customary law can be part of the

negotiation process among proponents of variousvisions of Afghanistans judicial system.It is important to remember that many of

Afghanistans current troubles arise from the factthat its composition as a state was imposed byforeign powers.102 It has thus been proposed thatthe international community should refrain fromdictating a modern secular structure forAfghanistan and instead support a looseconfederation of provinces headed by a mediationcommittee.103 This committee will ensure that theminimal conditions for medieval civilization aremet, specifically: the prevention of war,maintenance of trade routes and security of

Kabul.104

Such a confederation is well suited to theproposed integration of customary law. Customarylaw can provide a stopgap measure for dispute

resolution of minor crimes and land disputes at thelocal level while Afghanistan decides its nationalpersonality. It can therefore assist in thepreservation of minimal conditions as theAfghan people decide how to move forward as astate or federation and what shape their judiciarywill assume.

Without prescribing legal substance, there is asignificant role for customary law withinAfghanistans reconstruction. Given that Afghanshave embarked on a judicial reform program,donors should assist them in creating space forcustomary law within that process. Therecommendations above suggest how that spacemay be created in the short and long term.

Conclusion

Afghanistan faces innumerable challenges asit creates some semblance of the rule of law. Part of

its effort will include the reconstruction of itsjudicial system, a formidable task in light of thelack of human resources and physical and legalinfrastructure. However, if Afghanistan turns to itscustomary legal system, which has maintained amodicum of justice in rural areas during decades ofinstability, it may soon be able to provide aminimum of procedural fairness while it weighsmore expansive, long-term reform, including thepreservation of human rights.

Without romanticizing the current or futurerole of customary law in post-conflict Afghanistan,it seems that the system has earned the trust ofmany citizens and is currently the only institution

at work in many rural areas. Afghan andinternational actors should seize upon thestrengths of Afghanistans customary legal systemin the process of reconstructing the state judiciary.If successful, this approach may hold lessons forother post-conflict states. Reformers shouldacknowledge the vital role of customary law inAfghanistan as both a reality and an opportunity.

The views and opinions expressed in articles are strictlythe authors own, and do not necessarily represent thoseof Al Nakhlah, its Advisory and Editorial Boards, or the

Program for Southwest Asia and Islamic Civilization(SWAIC) at The Fletcher School.


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1J. Alexander Thier, Reestablishing the Judicial System in Afghanistan(Stanford, CA: Center on Democracy,

Development and Rule of Law, Stanford Institute for International Studies, 2004), 4.2Thier, 4.

3Special Report: Establishing the Rule of Law in Afghanistan (Washington, D.C: United States Institute of Peace,

2004), 3.4Afghanistan: Judicial Reform and TransitionalJustice(Brussels: International Crisis Group, 2003),i.5Ibid.

6Special Report: Establishing the Rule of Law in Afghanistan , 1.

7Afghanistan: Judicial Reform and Transitional Justice, 20.



10While reconstruction and reform have different meanings, they will be used interchangeably throughout

this document to refer to the process by which the Afghan and international communities are rebuildingthe rule of law.11

Special Report: Establishing the Rule of Law in Afghanistan , 5-13.12

Afghanistan: Judicial Reform and TransitionalJustice, 3.13

Ibid., 58.14

J. Alexander Thier, Reestablishing the Judicial System in Afghanistan(Stanford, CA: Center on Democracy,Development and Rule of Law, Stanford Institute for International Studies, 2004), 5.15

Ibid; 6.16


Ibid.18

Ibid, 5.19

Willem Vogelsang, The Afghans(Oxford: Blackwell, 2002), 4.20

Afghanistan: Country Background (London: Economist Intelligence Unit, 2004), 3.21


Ibid., i. and Special Report: Establishing the Rule of Law in Afghanistan, 1.23

Afghanistan: Country Report, 3.24

Vogelsang, 16.25

The Customary Laws of Afghanistan(New York, Kabul: International Law Foundation, 2004).26Ibid, 7.27

Ibid, 52.28

Ibid, 37.29

Ibid, 10.30

Ibid, 11.31

Ibid.32

For example, Article 5(a) of the Convention to Eliminate All Discrimination Against Womenstates that partieswill modify the social and cultural patterns of conduct of men and women, with a view to achieving theelimination of prejudices and customary and all other practices which are based on the idea of the inferiorityor the superiority of either of the sexes or on stereotyped roles for men and women.33

Justice For All: A Comprehensive Needs Analysis for Justice in Afghanistan(Kabul: Ministry of Justice, 2005), 4.34

The Customary Laws of Afghanistan, 38-9.35

Justice For All, 12.36Ibid.

37Thomas Carothers,Aiding Democracy Abroad: The Learning Curve(Washington, D.C.: Carnegie

Endowment for International Peace, 1999), 181.38

Ibid, 165.39

Ibid, 204.40

Carothers, 177.41

Carothers, 205.


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42H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law. (Oxford: Oxford University

Press, 2000), 58.43

Ibid, 65.44

Ibid, 70.45

Ibid, 66.46

Ibid, 72.47The Customary Laws of Afghanistan, 52.

48Chris Cunneen and Melanie Schwartz, Customary Law, Human Rights and International Law: Some

Conceptual Issues. (Perth, Australia: Law Reform Commission of Western Australia, 2005), 7.49

Ibid, 9.50

Ibid, 11.51

Ibid.52

Ibid, 26.53

Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War(Cambridge: Polity Press, 2002), 36.54

Ibid, 37.55

Ibid.56

Ibid.57

Rebuilding the Justice Sector of Afghanistan(Kabul: Judicial Reform Commission, 2003), 3.58Ibid.59

Constitution of Afghanistan (2004) Ch. 1, art 3.60

Mark A. Drumbl, Rights, Culture and Crime: The Role of Rule of Law for the Women of Afghanistan,Columbia Journal of Transnational Law, no. 42 (2004), 381.61

In November 2002 President Karzai named the JRC to replace the Judicial Commission, a similar bodycreated under art. 11(2) of the Bonn Agreement but which was dissolved in August 2002 due to lack ofeffectiveness.Afghanistan: Judicial Reform and TransitionalJustice, 12.62

List of Priorities Identified by the Judicial Commission(Kabul: Judicial Commission, 2003).63

Justice for All, 4.64

Ibid.65

Special Report: Establishing the Rule of Law in Afghanistan , 10.66

Ibid, 5.67

Rebuilding the Justice Sector of Afghanistan, 6-10.68"Afghanistan: Efforts To Improve Justice in Rural Areas." United Nations Integrated RegionalInformation Networks. February 15, 2005.69

Rebuilding the Justice Sector of Afghanistan, 8.70


The Customary Laws of Afghanistan.72

UNICEFHumanitarian Action Afghanistan: Donor Update(New York: UNICEF, 2004), 4.73

Christian Ranheim, Legal Pluralism in East Timor: The Formal Judicial System and Community-BasedCustomary Law (draft paper,The Role of Informal Justice Systems in Fostering the Rule of Law in Post-Conflict Societies, Fletcher/USIP, 2005), 18.74

Ibid.75

Rebuilding the Justice Sector of Afghanistan, 14.76

Ibid.77

Ibid.78

Central Intelligence Agency World Factbook: Afghanistan(Accessed October 25, 2005); available fromhttp://www.cia.gov/cia/publications/factbook/geos/af.html#People.79


Ranheim, Legal Pluralism in East Timor, 19.81

Ibid.82

Ibid.83

Ibid.84

Ibid.


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85Ibid.

86Violates art. 5(a) of the Convention to Eliminate All Discrimination Against Women.

87Violates art. 13, 3(e) of the International Covenant on Civil and Political Rights.

88Afghan Legal Reform: Challenges and Opportunities. (Cambridge, MA: Harvard Program on Humanitarian

Policy and Conflict Research, 2003), 6-7.89

Constitution of Afghanistan. 2004. Ch. 1, art. 7. Relevant conventions and treaties include: InternationalCovenant on Economic, Social and Cultural Rights; International Covenant on Civil and Political Rights;Convention on the Elimination of Discrimination Against Women; International Convention Against Torture .90

Ranheim, Legal Pluralism in East Timor, 23-25.91

Ibid, 24.92

Ibid.93

For example, South Africas Constitution Act 108 of 1996, Ch. 12 recognizes the role of traditional leaderssubject to the constitution.94

Berman, Greiner, and Saliba, The Nature and Functions of Law,6.95

Ibid, 25-6.96

Ibid, 27.97

Ibid, 27-8.98

Justice for All,12.99Ibid.100

Marina Ottaway and Anatol Lieven, Rebuilding Afghanistan: Fantasy versus Reality, Washington, DC:Carnegie Endowment for International Peace, 2002.101

Dan Morrison, Karzai Weathers Power Struggle, But at a Price, Christian Science Monitor,December 26,2003: 1.102

Anatol Lieven, Afghan Statecraft, Prospect 70; 2002.103

Ottaway and Lieven, 5.104

Ibid., 6.

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