- 1 -

Nikola Schmidt

Department of International Relations Faculty of Social Sciences

Charles University Prague, Czech Republic

nikola.schmidt@gmail.com

The Flaws of Transitional Justice in Afghanistan

1. Introduction

Afghanistan was virtually unknown to the public before the 9/11 events. A country in the

middle of nowhere, close to the Himalayas, someone more informed would say in the Hindu

Kush Mountains. The country was known only as a geographically strategic area for the world

superpowers, but deeper knowledge about its society was scarce. Millions of Afghanis were

fighting for sole survival at the same time when Europe was thriving. Afghanistan was a

completely medieval country back then and not so much has changed since then, especially in

the rural and remote areas. People are living their simple lives and fighting with the powers of

nature to survive with their scarce resources, while the central government strives to explain

them that they should follow its ruling. And very recently, to follow some imposed centralized

social development efforts.

Local people ask why they have to follow something so unimportant and intangible to

them. Afghan population consists of plenty of ethnic groups and each of them has a very

different idea of how to establish a common society under one rule. If this rule is not based on

ethnicity, it would be based on religious ground, represented by the two branches of Islam. More

than ten years ago, this society hosted an organization that waged an attack against the sole

superpower in the world, while the majority of the Afghan society was unaware of the presence

of such organization in their country. The rest of the world, on the other hand, was unaware of

the daily challenges this medieval society was facing. Nowadays, Afghanistan has become a

- 2 -

daily feed for cover pages of the world magazines, because of the response to the 9/11 attack.

The response led by the world community in accordance with the universal values was an

unprecedented attempt to persuade a particular country to follow certain values at all costs. This

response caused a significant change within the rural areas in Afghanistan, too. How should

those people, who are fighting for their survival, react to such a change? Should they start

studying Political Sciences to understand all the upcoming consequences?

This article discusses the possibility of Transitional Justice (TJ) in Afghanistan in the

environment sketched above, using a wide analysis of consequences instead of a deep analysis of

the present TJ agenda. In this article, Transitional Justice is understood as a process driven to

address committed atrocities, human rights abuses and war crimes in order to reach the final

reconciliation between the antagonized enemy groups. Such process should result in a stable

society prepared for future development, cooperation and shared government despite the

committed atrocities. The grievances entailed upon the adversaries should be resolved during the

process into a solid forgiveness.

Nevertheless, the Transitional Justice process in such an ethnically diverse country was

an intelligible next step after the Bonn conference, but there was a lack of shared motivation

among the Afghan representatives as explained below. The diversity of local ethnicity can be

understood as a multiplier of huge atrocities committed among these ethnic groups. There is no

other country in the world that could be “proud” of a number exceeding 8, as to the warring

dyads during the decades of wars. Hence, the idea of reconciliation between all those injured

groups is simply an unachievable dream. Nevertheless, this country does not have any bright

future without shaking hands between these ethnic groups, but the opportunity has been missed

simply because local people focus on their achievable short term objectives and are not willing to

participate in too intangible and difficult long-term processes of reconciliation covering the

whole country.

However, the opportunity was not ignored completely, so what happened? The aim of

this article is to provide the reader with the background of failed steps towards a future peace and

reconciliation, with an explanation of why the ambitious agenda has mostly failed and what

- 3 -

should be addressed during the future reconciliation attempts. There are several reasons why the

local people will primarily take care of their field to survive and will not take care about the

agenda of the central government; one’s personal security is of the utmost importance.

The article is divided into several parts. The first one draws some important points in the

Afghan history for the following explanation; those familiar with the country’s history can skip

this part.

The second part discusses the Afghan social structure and puts an emphasis on the

analysis of the tribal tradition, vast amount of ethnics and the role of Pashtuns in such a complex

ethnic rainbow. This part also explains the reasons why the central government is so unable to

govern the remote areas, as well as the discrepancy between the world community and Afghan

government in the question of remote governance; especially with focus on the National

Solidarity Programme, its successes and burdens based on the social specifics. The social

structure is a crucial analytical point of view, because it provides the reader with the ability to

understand why the society is so insensible to external influence. The most important reason for

that are the traditional patron-driven network and the subsequent personal security matrix.

The third part continuously follows the topic of social structure with focus on traditional

law, Pashtun code of honour and analyses the influence of dignity in the decision-making.

The fourth part deals with Bonn conference and its most serious flaws; those varies from

ignorance of existing irreconcilable groups during the creation of Bonn agreement and refusal of

Taliban presence, to the conviction that democratic elections may solve all disputes between

illiterate people. The author comes with a contention that the lack of understanding of possible

governmental models within local people led to a huge misunderstanding during the election

process. However, this part firstly addresses the problem of TJ, as it discusses the first

misunderstanding in the topics linked to universalistic values; particularly the definition of war

crime. This part also outlines reasons why the contemporary situation is somehow frozen in a

state of empowered patron networks that emerged from former warlords and their minions.

- 4 -

The fifth, pivotal part discusses the core reasons why the TJ agenda has been so weak and

mostly failed in its traditional mission. The most important flaw was the announcement of a huge

amnesty that involved serious criminal gangs instead of focusing on a comprehensive transitional

justice process. The results along with the naïve idea of a future united Afghan nation freed from

prosecution and past atrocities, combined with the implementation of the universalistic legal

system, eventually obstructed any possible TJ efforts. The reasons, dynamics and outcomes from

such a weird situation are explained herein.

The sixth and final part presents two contradictory approaches to the solution and

presents the idea of Social Sensitive Approach on particular examples. This part explains the role

of dignity, culture differences and concept of group responsibility.

2. Brief History of Afghanistan before 9/11

This paper is not devoted to a complex historical analysis thus it uses only carefully

selected events from the Afghan history and their reflection in academia to describe social

relations within the Afghan society. It is necessary to view Afghanistan not as a nation state, but

rather as an area of buffer space for neighbouring powers, inhabited by many diverse tribes.

These characteristics can be easily found throughout its whole history. In the 19th century, the

British wanted to secure the country to preserve possible Russian invasion into their Indian

Empire. This interest led directly to three Anglo-Afghan wars during the 19th century. Later in

1919, when Afghanistan acquired independence, the Afghan representatives found themselves in

an advantageous position and decided for a neutral status, using all the related benefits. This

course of foreign policy continued until the Saur Revolt in 1978. The communist revolution led

by Muhammad Daud plunged the country into the age of chaos. New administrators of the

country knew nothing about their responsibilities and the complete subjugation to Soviet Union

hindered the country in its possible political development. The following chaos sparked decades

of atrocities between the major ethnic groups that have persisted in the mountainous areas to date

despite all the attempts to settle a bargain addressing long lasting peace (Clements, 2003).

- 5 -

Since the establishment of the state in 1747, the country has been divided into regions

reflecting deep ethnic and religious differences despite the fact that formal establishment was a

tribal confederation (Olesen, 1995). Disputes between tribes have been frequent during last

centuries at two levels. At one level, there have been disputes between the local authorities; at

the other level, between the local authorities and the central government. Only particular

extraordinary situations, especially those where the locals opposed the central government,

unified different tribes or religious groups against a common enemy. “The mujahideen were split

between Sunni Muslim and Shi’a Muslim groups, Islamic radicals, and moderates: the only

unifying factor was their opposition to the government of Babrak Karmal and the Soviet

presence (Clements, 2003, p. 25).” Kabul has been traditionally a place of central government

but only with a limited influence in countryside and remote areas.

While the government or the external powers fight for ideological reasons, the locals fight

for their passion for freedom and religious values. The uniqueness of the Taliban emergence lies

in the fact that the Taliban arises from a network of locally oriented religious leaders. They were

simply accepted by the locals as a cohesion power for all the disputes between different tribes,

but this voluntary acceptance of authority soon changed into restrictive policies which were

punished brutally upon violation (Borchgrevink & Harpviken, 2008).

The subsequent history is well known. The Taliban offered a safe haven to bin Ladin’s al-

Qaeda and its headquarters in the border regions between Afghanistan and Pakistan even though

the United States seriously suspected bin Ladin of the 9/11 terrorist attacks. Such decision was a

prerequisite to the fall of the Taliban’s rule, but the focal point of this paper is to discuss why the

emerged political situation might not result in decades of democratic settlement in a

contemporary shape.

3. Ethnicity in Afghanistan and Its Differences

It is crucial to understand the local ethnicity for proper understanding of the following

explanations. The local geographical characteristic of a highly mountainous country is the reason

for the local society´s high diversification. Mountains with no tunnels nor means of fast and easy

- 6 -

transportation are an insurmountable obstacle in communication. Similarity of obstacles leading

to a high variety of languages and cultures only few kilometers away from each other can be

found in Europe as well. It is Switzerland, divided by impenetrable mountains into different

cantons with different dialects. Afghanistan is similar, but on a larger scale with a larger

mountain range. In addition to that, the country is surrounded by four different “civilizations”:

the Uzbeks, the Turkmens and the Tajiks to the north, the Chinese through the valley to the

north-east, Pakistan and further India to the east and Iran to the west. Each of those

“civilizations” varies in terms of religion, language and history. Afghan ethnic groups consist of

those surrounding ethnical influences such as the Tajiks, the Turkmens, the Chinese, but also of

specific minorities like the nomadic Kuchis, the Shia Hazaras supported by Iran, the Nuristani

which are completely different compared to the others, or the Baluch etc. There is also proved

genetic kinship in the Pashai ethnicity (whose members usually have blue eyes, bright hair and

fair skin) to Alexander the Great who conquered the area in 4th century BC (Vogelsang, 2010).

The biggest ethnic group in Afghanistan are the Pashtuns (44%) who inhabit the southern part of

the country and also the northern part of the neighboring Pakistan, followed by the Tajiks (25%),

the Hazara (10%) and the Uzbeks (8%) (Simonsen, 2004). Those numbers are only estimates, as

Afghanistan conducted its first census in 1979, covering just about 5 percent of the estimated

population, and since then censuses have been unsuccessful (2003-2005) or cancelled (2008)

(ICG, 2012, p. 15).

Tensions between the Pashtuns and the other ethnic groups have been parlous during the

23-years civil war before the allied invasion in 2001. Northern Alliance consisted of the Tajiks,

the Uzbeks, the Turkmens and the Hazaras, while the Hazaras are Shia as their “stakeholders.”

Despite this fact the negative sentiments for the Pashtuns were broadly shared during Taliban

reign (Clements, 2003; Sharan, 2011; Vogelsang, 2010). The Pashtuns also despised the central

government already during the Soviet occupation that was entirely anti-Pashtun oriented

(Borchgrevink & Harpviken, 2008; Riphenburg, 2005). This widespread unfocussed animosity is

demonstrated by cases of cruelties such as the massacre of Hazaras in 1997 in Mazare Sharif or

in 1994 in Kabul by the Taliban (Simonsen, 2004). This kind of tensions can be also found on a

local level during the resolution of some banal disputes preceding the development projects

- 7 -

(Montgomery & Rondinelli, 2004) or during a successful set-up of new governmental structures

by the biggest development project National Solidarity Programme (NSP). These examples of

success seem to be unstable due to pre-existing governmental patterns (Nixon, 2008). The

problem is critical because the reports of NSP tend to confirm the return of the previous

governmental patterns. The result is evaluated as a partial success, not as a partial failure, even

though it simply neglects the principal problem which is the risk of sustainability of such

structures in sense of local long-term inter-ethnically shared government (Richardson, 2011). We

would say that this switch of perception from “the partial fail” to “the partial success” is one of

the most alarming perils which may lead to a complete fall of these newly established

governmental rural structures, once the allied army quits the country, NSP losses funding and

central government definitely refuses to incorporate local governmental structures built by NSP

into the country governmental system.

4. Traditional Law

The tribal confederation of Afghanistan was established in 1747 by Pashtun tribes, so it

has to be kept in mind that the state emerged from Pashtun confederation and their view of ideal

society. This consequence gave the Afghan society an expected inspiration for further law

development in the traditional Islamic Law Shari’a. Especially the Pashtun code of honor played

a crucial role among the Pashtun tribes (Ghani, 1978) and has been playing it up to the present

day. “…Pashtuns have evolved these values, norms, customs and habits into a strong set of rules

to a higher degree than most other ethnic groups of that region (Rzehak, 2011).” Their

perception of honor and dignity is a part of fundamental values the society stands on. We have to

take into account the specifics of such society and its structure, mainly the family or patrimonial

relations. The traditional law emerged from the needs of the society in a sense of its stabilization

and subsequent development. On the other hand, the conservative and solid character of such

kind of law hampers, or at least slows down any attempt to modernization of the society.

Modernization of the judicial system has been a centuries-long task in Afghanistan. “The

foundation of the State in 1747 brought with it the establishment of Shari'a courts in the urban

centers. But as the Afghan State rapidly expanded into a vast tribal empire, to decline as rapidly

- 8 -

into many petty chieftaincies, and finally emerge into a unified monarchy in 1863, the

importance of the judicial power of the State varied tremendously from region to region (Ghani,

1978).” As the society in rural areas is geographically and also ideologically separated from the

central government, it is cumbersome for the government to import the statutory law to these

areas, especially when the traditional Islamic law is under jurisdiction of religious scholars. This

situation has not changed dramatically. “The local judges have operated up to date, because of

the nature of the traditional Islamic Law. The local population most times prefers to use

traditional Alternative Dispute Resolution Mechanisms (ADRM) because of their speed, cost-

effectiveness and capacity of offering quick compensations. Generally, a case is brought before a

state court only if it is deemed particularly significant and cannot be settled otherwise through

jirgas shuras (Tondini, 2010).” Traditions are heavily integrated in the society, for example the

right to own an asset could not be overridden by statutory law, because of the supremacy of

traditional custom. “In many places, it is unimaginable and, therefore, de facto almost impossible

to sell land to a person who does not belong to the community which traditionally has held rights

to it (Rzehak, 2011).”

These examples of traditional perceptions should be taken into consideration when

implementing any non-local ideas through any, peaceful or not, means. Implementation of the

so-called ‘universal human rights principles’ is simply refused as it has been during last

centuries. People are keen to express their grievances at conferences and tell about the atrocities

which happened to their relatives; e.g. during the National Conference on Victims’ Coordination

and Networking on March 2011 (Kouvo & Mazoori, 2011), but this does not represent a

universal cure for such an incredibly complex society, nor for grievances that have been done in

the last three decades. Afghan society has fundamental focal points in dichotomy of honor and

shame. To behave in accordance with expectations of the Pashtun society means doing Pashto.

The society is structured completely on patron-oriented nods within a strong and solid social

network (Sharan, 2011). Statutory law cannot override the way how local people perceive one’s

behavior, because for majority of the population, this traditional law is the only certainty of

justice and social survival if not survival per se. It is the core of the local security. This principal

- 9 -

core of local social structure and dynamics is being continuously ignored by the western

peacebuilding agenda.

5. Bonn Conference

Afghanistan, as mentioned in the chapter about ethnicity, is a country completely built on

the principle of patron-client relations. Pashtuns have their own father of the Pashtun tribe, Qais,

who is responsible for their social values which are not negotiable (Rzehak, 2011). The others

are highly influenced, but sufficiently independent to follow their own leaders. The Bonn

conference was a unique opportunity to settle a peaceful agreement and divide the power

between all ethnic groups within the country. This claim was partly fulfilled (Simonsen, 2004),

but predictably, the leading faction has been working during last decade on safeguarding their

own interests (Sharan, 2011). At last, the international society was mainly unfamiliar with the

real social dynamics in the country and did not spend enough time to understand it clearly.

Karzai was not a perfect unifying person for the future nation. Furthermore, the idea that local

people will understand democratic elections the same way we do, especially in a country where

about 90 percent of inhabitants are illiterate, is quite naïve.

During the last thirty years, there have been plenty of adversaries fighting each other

(Harbom, Melander, & Walensteen, 2008). Those adversaries made coalitions during some

particular events or against shared enemy as those formed under the flag of the Northern

Alliance before the fall of the Taliban. However, those parties caused enormous atrocities to each

other, too; hence it is not a simple task to sit all of them around one table. Bonn agreement from

December 5th, 2001 was achieved too quickly. A big fault was that Taliban had not been invited,

even though some of the Taliban members insisted on their personal participation and presence

for further talks. The mood within the international community just after 9/11 was too emotional

and did not provide the international community with necessary vigilance, which could allow

such providence. The result did not bring a peaceful settlement as it usually happens after such

conferences, but poured fuel into the fire of those who were not in consent of bin Ladin’s Al-

Qaeda. International community did not distinguish between their resentment or the American

will for revenge and the social or political reality that has created the warring parties during the

- 10 -

last decades in Afghanistan. At last, only Northern Alliance was present, none of the others who

fought the Taliban as well (Rubin, 2003). That was a complete failure, which will come back as a

boomerang effect during future negotiation talks with the Taliban.

The result completely missed the point of transitional justice. Bonn agreement was

mainly about the interim administration and about the process of transition to the democratic

elections that were e.g. completely wasted due to the misunderstanding between the international

interim administration and the local population. The only point which Lakhdar Brahimi put

emphasis on was a decree considering no amnesty for war crimes or crimes against humanity

covering all 25 war years retrospectively (Rubin, 2003). That was a problematic point, because

those who fought for freedom were then excluded from the amnesties and the expression of war

crimes and acceptable war practices were not clarified between the Western societies and the

Afghans. “The phrase ‘war crime’, ‘janayat-i jangi’, might be interpreted there to mean the

crime of waging war, implying that all those who had taken up arms in the ‘jihad’ could be tried

(Rubin, 2003).”

In fact, Bonn agreement was not a conference of peace settlement as mentioned before,

but rather a power divisional conference of “international coercion which shaped the process

and led to a formal agreement which was all set to be undermined by the fully and partially

excluded factions and interest groups (Sharan, 2011).” Those who signed the agreement were the

factions relied on Karzai while every warlord “took responsibility” over a particular province to

make it secure. In fact it was a “grand bargain, between an externally driven division of the

spoils among a hand-picked group of stakeholders who were on the right side of the War on

Terror (Goodhand & Sedra, 2010, p. 582).” Based on this argument, it is possible to claim that

only naïve idealists could have expected a peaceful future for the country: the Bonn agreement

was fueled by hate filled with 9/11 emotions.

Nevertheless, Bonn agreement was a clear division of Afghanistan by the means of

Western powers´ will and the Afghan framework of local elites who fought against the Taliban.

It could be seen in the light of “the most recent example of an internationally mediated and

highly flawed elite pact (Sharan, 2011).”

- 11 -

6. Lack of Transitional Justice and Justice Reform

“I hear from a lot of people that if a case goes to the (government) court, then the person

with the most money will win that case. We trust our system because sharia law is more

respectable for us than government law.” Afghan Tribal Group Leader, Kabul Province, April

2006 (Tondini, 2007).

Afghanistan is a good example of a country where the West had to close its eyes to secure

its own interests in toppling down Taliban and securing the country by Taliban’s belligerents

who would be willing to follow the Western ideas of country rebuilding. The decision about a

constitution was to keep Islam as a source of law side by side with the statutory law; this

decision was based on the previous experiences of constitutional processes in the 20th century

(Tondini, 2007). This principle would enable the state reform into a shape of Western-oriented

institutions without threatening core social values based on Islam. Persons responsible for a new

Afghan government were chosen at the Bonn Conference 2001, and because of the traditional

social habits, those people picked up their very close relatives as colleagues (Sharan, 2011). We

call this behaviour clientelism; they call it necessity or respect to honour. The only decision

related to transitional justice during the Bonn Conference was foundation of Human Rights

Commission, the responsibilities of which include “human rights monitoring, investigation of

violations of human rights, and development of domestic human rights institutions (Chesterman,

2002).” The Commission was later transformed into a broader institution. “The great demand for

justice demonstrated during the three days of the national human rights workshop resulted in a

mandate to the Afghan Independent Human Rights Commission (AIHRC) to ‘undertake national

consultations and propose a national strategy for transitional justice and for addressing the

abuses of the past (Nadery, 2007).” Human rights workshop was held in Kabul in March 2002,

by the time when efforts to devise a phase regarding transitional justice were commenced.

As usual, the reality is complicated in Afghanistan. AIHRC, in cooperation with

UNAMA, prepared an action plan for reconciliation, but they have not been successful due to a

lack of interest within the local population. The country was in a deep struggle where different

parties were causing huge atrocities to each other. Until now, Afghanistan is still one of the

- 12 -

countries with the highest numbers of internal belligerents. There were conflicts of up to eight

dyads at the same time during various periods of Afghan history. This number does not take into

consideration isolated conflicts where some remote ethnic groups are fighting for their limited

living area in the mountains (Harbom et al., 2008). The society is incomparably more complex in

the sense of ethnicity and historical consequences as mentioned in the other parts of this article

concerning the history and ethnicity of Afghanistan. Nevertheless, “the action plan included five

key actions: (i) facilitating the acknowledgement of the suffering of Afghan people; (ii) vetting

human rights abusers from positions of power within state institutions; (iii) truth-seeking; (iv)

promoting reconciliation and national unity; and (v) establishing a task force to recommend

additional accountability mechanisms (Tondini, 2010, p. 23).”

The ability to cope with any human rights abuses has been very low in the Afghan

history. First, the locals tend to defend their relatives very strongly, because family is a ground

for personal security from physical aspects to food security. Second, those who could be judged

for apparent breaches of law are also enrooted into the governmental structures. Sometimes the

security of local areas is completely dependent on their will. Government officials constantly

play a similar role to the role of warlords as they know how to govern from the previous decades

when most of them were warlords (Rubin, 2003). Third, it is highly problematic whom to judge.

All the parties of the conflict have done tremendous atrocities to each other and additionally, the

Afghan government passed a resolution that grants amnesty to all abusers ranging from drug

traffickers, criminal gangs, warlords and commanders involved in contemporary political

influence, to gross abusers of human rights (Walsh, 2007). The amnesty was granted in this

extent despite the fact that Brahimi unequivocally stood against it (Rubin, 2003). Fourth, as

already mentioned, Afghanis do not understand the concept of war crimes in the same way as it

is stipulated in the Western tradition. War is war and Geneva Conventions are very distant

commitments to the Afghan war culture. Fifth, promoting national unity within Afghan borders

was simply a naïve idea. There is no other society in the world that is so much divided into

coherent and solid ethnic groups that view each other so differently, even though we can see

some strong tensions from younger generation to unite the nation. These tensions are coming

from Kabul and that fact must be taken into consideration, if we want to evaluate the country as a

- 13 -

whole. Cooperation on simple ordinary projects such as reconstruction of roads steadily faces

basic questions of who is going to benefit from their use; this is not a problem in Kabul as the

roads there belong obviously to all and form a system of city streets. But the mountains usually

have one critical road used by several ethnical groups. Sixth, penal code does not have its

equivalence within Shari’a. Islam copes with criminal law infringements in a different manner.

Collecting the evidence has a lower reasoning significance in comparison to the institution of

witness that is the highest authority during the session, in addition to that, the weight of the

testimony varies with the status of the witness (Tondini, 2007). Therefore, the attempts to

incorporate the criminal law into the Afghan society norms are clumsy, because the Shari’a is

considered to be of higher importance and respect. The criminal code is formally implemented,

but clumsily compelled. The authorities, their positions and the whole future of Afghanistan are

completely dependent on foreign aid, therefore the Afghan officials did not refuse the

implementation of statutory law and criminal code. However, the consequences are easily

predictable.

The Afghani Penal Code was prepared by Giuseppe di Gennaro. The Code has been

source of controversy, because the input of Afghan institutions was very limited. The Code was

adopted under strong external political pressure (USIP, 2004). The provincial or district

authorities could not accept this kind of behaviour of the central government without any

reaction. However, such a reaction may be silent; with no visible behaviour. If the reaction is

silent, the central government can be ensured that the reaction is losing its authority. Those silent

consequences can lead to visible political outcomes.

However, this kind of arrogance is the second sin expressed by Lakhdar Brahimi in his

short paper on the “seven sins of mediators” (Brahimi & Ahmed, 2008), an issue of which all the

people allocated should be at least aware of. In addition, The Code imposes methods for

obtaining evidence which clearly contradicts traditional Islamic rules of evidence as already

mentioned before (Tondini, 2007). This fail of international assistance, locally rather considered

an international coercion, is the exemplary failure of cooperation between international agencies

and their projects. For example, the NSP project aims to build local infrastructure and we can see

its success everywhere, from TV documentaries, through articles in world’s top newspapers, to

- 14 -

academic articles, but the most important part of the project – the development of local

governments that are dependent, responsible and incorporated to the central one – still wobbles

(Barakat, 2006; Richardson, 2011). This is a highly irresponsible failure, because the above-

mentioned point no. 5 – national reconciliation – may be commenced only when the people

respect the authority that drives the reconciliation process. It must be the local authority that is

responsible and respectful to the central government in their village, because the local people

simply do not care far away, the authority must be at arm’s length. Only the local authority may

be respectful, and the central government must accept these local representatives and incorporate

them to the central government. Thereafter we can experience a significant movement in the

reconciliation process.

Due to such failures, Taliban has gained higher authority and respect during the last

decade. That is the reason why the locals believe and prefer their own judicial institutions rather

than the central ones (Nadery, 2007). One of the most problematic and constantly mentioned

parts is the cohabitation of statutory law and the Islamic law. “In order to tackle this lack of

legitimate central authority, it has been recommended that the Islamic legitimacy of the state

authorities should be strengthened. This could be achieved by means of a Supreme Court

composed of members with a recognized Islamic educational background, capable of opposing

the Taliban’s claims to be the sole legitimate religious authority (Thier 2006).” But there is still

a solution for the legitimacy of the central government.

Lakhdar Brahimi originally proposed the idea of ‘peace first, justice later’ (Nadery,

2007). Later on, he changed his mind and condemned his own decision as mentioned above in

the explanation of the amnesty. It seems legitimate while choosing from the priorities. On the

other hand, peace is unreachable when nobody can trust the justice system. "A state at peace is

one where people have a reasonable expectation that justice may be done. Justice cannot be

done in a state of war and collapse of institutions. Peace and justice are interdependent, not

contradictory (Rubin, 2003).” This is indeed a confusing situation, because lack of will for

reconciliation and justice reform at the beginning causes defection of chances that have not been

restarted until date. Former warlords involved in the governmental structures for a decade cannot

be simply toppled down and judged, because there are too many of them; for that reason, they

- 15 -

will now block the justice reform as long as possible, possesing power too strong and solid.

Indeed, a recent research has found that as of late 2005, religious leaders and warlords and tribal

elders were viewed by the population as wielding more power and influence than elected

officials (Ponzio 2007: 264). In addition, the proposition of ‘peace first, justice later’

“…discouraged the development of any foundation for justice efforts in Afghanistan (Nadery,

2007)” and strengthened the power of those who possess the combination of traditional power

mix and newly acquired power from the central government. This can be considered as a real

stalemate.

7. The Ideas to Preserve Peace

The solution for Afghanistan is tremendously complex. The ideas can be divided into two

main categories. First, those who promote stronger nation-building agenda on the arguments that

the locals are not sufficiently responsible for their own lives and their minds must be changed in

accordance with the universal human rights to promote peace. Second, ideas trying to find more

complex solutions of mutual understanding with more social sensitive approach equipped with

patience.

Switching to the Western style law is a huge and complex process, which cannot be

overlooked, especially because of the continual nation building process taking place in

Afghanistan without any pivotal strategy. The external donors, whatever subject they are

responsible for, have to settle concrete contracts and create a link between the different

interpretations of social reality. The effect depends on the sensitivity of their approach and

patience combined with long-term commitment. Implementation of foreign code entangling the

behaviour of locals is a sensitive topic. It cannot be imposed as a set of universal human rights

values, but should be offered instead as a model, which works in some particular countries. If the

code is offered to the society sensitively and with respect to original informal relations, the

society members would be interested in reformulation of such universal values in accordance

with their tradition. “In addition, to be successfully 'transplanted' into the legal order concerned,

the new body of law should adapt to the local conditions or contain principles already familiar

to the local population (Berkowitz, Pistor, & Richard, 2003).” This approach was omitted during

- 16 -

the rushed Afghan nation building efforts and it remains a huge argument today for those who

stood apart during the last decade. In addition and unfortunately, this argument is completely

legitimate. This approach has been promoted since the beginning by Lakhdar Brahimi, but with

different results. We have to train ourselves in social sensitive approach if we want to be

successful in assistance to local people. The sensitive approach may be also expressed as

follows: “according to the local ownership principle, the theory of peace-building, as applied to

law reforms, should indeed shift its focus away from the 'supply of justice' onto an effective

'demand for justice' (Tondini, 2010).”

It is certainly very questionable whether condemnation of a society for infringing

universal values is legitimate or not. Such indictment is usually posed from a certain cultural

point of view. We can observe three principal axes of conflict in Afghanistan. The first axis

represents disputes over two branches of Islam; the second axis represents disputes between

ethnics and the third axis their ascribed social status by their family membership. Each of these

axes puts particular responsibility on a person based on social identity belonging, which does not

need to be compatible with the rest, so far from the Western concepts. We have to take into

consideration the fact – that has been already mentioned – that these three axes are the core of

one’s security.

The idea of Westernization of local constitution lies on a conviction that the values

reflecting individual human security and fundamental rights are universal and should be accepted

by the rest of the world. However, the character of social relations in a very tough environment

such as the environment in Afghanistan entails a different strategy of survival. Local people are

extremely dependent on each other and on their family above all. It is unacceptable to lose

dignity and honour in the eyes of one’s relatives, ever. “For it is almost inevitable that conflicts

will arise between the constitution's acceptance of international human rights standards and

embrace of male-female legal equality, on the one hand, and the requirement that no law may

contradict the "beliefs and provisions" of Islam, on the other. When that happens, one may safely

predict that political rather than purely interpretive considerations will shape the outcome

(Rubin, 2004).” The situation seems to be unresolvable, but on the other hand, it manifests the

reaction when such values are imposed. When the society is capable of making such progress

- 17 -

using its own intellectual resources, the results are more acceptable, implementable and suitable.

However, that points to the approach of non-intervention. There are different solutions; some of

them are really simple.

There are several reasons why to leave Afghanistan. Foreign Service officer Matthew

Hoh resigned to his position, saying: “I believe that the people we are fighting there are fighting

us because we are occupying them… Not for any ideological reasons, not because of any links to

Al-Qaeda, not because of any fundamental hatred towards the West… (RADDATZ, KHAN, &

PARKINSON, 2009)" Those who cooperate on state reconstruction see their new opportunity or

simply follow their pragmatic needs which they developed during hard times of hard realities

(Paris & Sisk, 2009). The fact is that all the reconstruction efforts could have good reasoning at

the beginning, but the same efforts could harm the society in other ways. The author of this

article calls that effect “the unintended impacts of peacebuilding enterprise” and calls for more

“social sensitive approach”.

8. Conclusion

Rubin proposes to be more realistic with less idealistic ideas: “Rather than proclaim

objectives limited only by the audacity of our imaginations (an Islamic democratic, stable,

gender-sensitive and prosperous Afghanistan) and the paucity of our means (fewer resources per

capita than any other such operation), we need to align objectives with reality, and means with

objectives.” In light of victim-oriented approach in the society already described above, it seems

that the TJCG (Transitional Justice Coordination Group) is another part of audacity of our

imaginations (Rubin, Saikal, & Lindley-French, 2009). Especially while the approach of TJCG is

victim-oriented from a particular point of view that causes partiality, another sin introduced by

Brahimi – arrogance (Kouvo & Mazoori, 2011). The present situation can be assessed as a failed

one, but it does not mean to give up completely. Most of the steps that have been already

accomplished in the shadow of ignorance to the local social specifics have done irrecoverable

negative impacts. Examples mentioned above such as the imposition of Penal Code, laid down a

new system that is strongly incompatible with local traditions in spite of the initial determination

that it should be.

- 18 -

When Brahimi put an emphasis on tangibility of newly introduced Penal Code, he

stressed that the approach will be sensitive to the local traditional system, hence, the newly

adapted system would improve existing custom law and habits. The reason to follow custom law

is so understandable that the significantly different approach of Giuseppe di Gennaro is so

inconceivable.

The three above-mentioned axes: Islam, ethnicity and family relatives are at the core of

one’s personal security; hence nobody should ignore such important prerequisites for security

just to follow intangible universal values in form of an imposed Penal Code, or any kind of

reconciliation process that can hamper the existing security basis. Explanation why local

population still uses traditional local courts lies not only in the speed of provincial courts, but

also in its fear of deconstruction of the existing and reliable justice system based on the custom

law. Additionally, the explanation why local people should follow the principles of Transitional

Justice was direly insufficient in such legal chaos. The astounding misunderstanding of Islamic

principles and different explanations of war crimes can underscore this chaos. And if we put the

final example of the amnesty to the top of this legal and comprehension chaos, we can see a

brand-new shape of a fallen state. This situation can easily lead to another civil war of warlords

who are not participating on the central power; and we have seen their rise since 2006 in the

shape of Taliban insurgency.

The War on Terror must be ended, because the present war in Afghanistan is far away

from the reasons why U.S. President Bush started it. Thereafter, the regional Taliban sponsors

might be prepared to listen to the state-building policies promoted by the central government, if

the central government does not follow its specific interests and incorporated local governmental

structures into the central one. The government should be more credible to reintegrate insurgents,

and then Transitional Justice can be discussed again. This is a crucial point in future possible TJ

agenda (!). State building should be preserved, but it should be more socially sensitive and full of

patience rather than full of haste. It should be more socially-oriented and support motivation of

the people to strengthen their responsibility, instead of quick implementations of huge

construction projects that people may be able to use, but actually cannot or do not want to

manage and keep without external support.

- 19 -

The situation in Afghanistan is more complex than in any other country in today’s world

and is even more complex than before the invasion and during the following state reconstruction.

The agenda beginning 2014 must take into consideration the fact that people have their dignity

whatever culture they come from. Imposition of any universalistic values has to indulge the

traditional values in the first place, as well as the traditional culture that is the core of the social

identity. Transitional Justice agenda has to follow the traditional values and legal system.

Sensitive approach brings motivation and will to the local society to participate on

internationally-led projects. The offer for participation evokes feelings of their own

responsibility and belonging. This has been successfully implemented by the NSP, but has

wobbled due to the lack of will on the side of the central government. It was possible to address

such frozen mistakes at the national level, but they have been simply ignored since the Bonn

conference. All this mix of mistakes hampers such an important project of Transitional Justice,

as it lost its credibility on several levels.

The fail of TJ agenda in Afghanistan can be explained by large number of warring

parties, ignored religion specifics, omitted ethnical variety, important political background of

9/11 and consequent emotions, failures of the past such as the first Bonn conference,

decentralized state-building policies, inconsistent evaluation of implemented projects and also

warlords enjoying amnesty but governing victims from the past.

The society is uneducated, the country deforested and people obedient to fate. The

present conditions are more intricate than they used to be before, and the chance of broad

forgiveness and bright social development is lost in the past.

9. Bibliography

Barakat, S. (2006). Mid-term Evaluation Report of the National Solidarity Programme

(NSP), Afghanistan Post-war Reconstruction & Development Unit (PRDU): The

University of York.

- 20 -

Berkowitz, D., Pistor, K., & Richard, J.-F. (2003). The Transplant Effect. The American

Journal of Comparative Law, 51(1), 163-203.

Borchgrevink, K., & Harpviken, K. B. (2008). Afghan Civil Society: Caught in

Conflicting Agendas. [Article]. Conference Papers -- International Studies Association,

1-30.

Brahimi, L., & Ahmed, S. (2008). In Pursuit of Sustainable Peace The Seven Deadly Sins

of Mediation. New York: Center on International Cooperation, New York University.

Chesterman, S. (2002). Justice Under International Administration: Kosovo, East Timor

and Afghanistan. United Nations Plaza, New York, NY 10 01: International Peace

Academy.

Clements, F. (2003). Conflict in Afghanistan: a historical encyclopedia: ABC-CLIO.

Ghani, A. (1978). Islam and State-Building in a Tribal Society Afghanistan: 1880-1901.

Modern Asian Studies, 12(2), 269-284.

Goodhand, J., & Sedra, M. (2010). Who owns the peace? Aid, reconstruction, and

peacebuilding in Afghanistan. [Article]. Disasters, 34, S78-S102. doi: 10.1111/j.1467-

7717.2009.01100.x

Harbom, L., Melander, E., & Walensteen, P. (2008). Dyadic Dimensions of Armed

Conflict, 1946-2007. [Article]. Journal of Peace Research, 45(5), 697-710.

ICG. (2012). Afghanistan: The Long, Hard Road to the 2014 Transition Asia Report:

International Crisis Group.

Kouvo, S., & Mazoori, D. (2011). Reconciliation, Justice and Mobilization of War

Victims in Afghanistan. International Journal of Transitional Justice, 5(3), 492-503.

Montgomery, J. D., & Rondinelli, D. A. (2004). Beyond reconstruction in Afghanistan:

lessons from development experience: Palgrave Macmillan.

Nadery, A. N. (2007). Peace or Justice? Transitional Justice in Afghanistan. International

Journal of Transitional Justice, 1(1), 173-179. doi: 10.1093/ijtj/ijm005

Nixon, H. (2008). Subnational State-Building in Afghanistan Synthesis Paper Series:

Afghanistan Research and Evaluation Unit.

Paris, R., & Sisk, T. D. (2009). The dilemmas of statebuilding: confronting the

contradictions of postwar peace operations: Routledge.

- 21 -

RADDATZ, M., KHAN, H., & PARKINSON, J. (2009, Oct. 27, 2009). Matthew Hoh, a

Senior Civilian Official in Afghanistan, Resigns Over U.S. Strategy. ABC NEWS

Retrieved 14.4.2012, from http://abcnews.go.com/Politics/matthew-hoh-resigns-us-

strategy-afghanistan/story?id=8924500

Richardson, H. (2011). Afghanistan’s National Solidarity Program Has Reached

Thousands of Afghan Communities, but Faces Challenges that Could Limit Outcomes

SIGAR Audit-11-8 Economic and Social Development / NSP: OFFICE OF THE

SPECIAL INSPECTOR GENERAL FOR AFGHANISTAN RECONSTRUCTION.

Riphenburg, C. J. (2005). Ethnicity and Civil Society in Contemporary Afghanistan. The

Middle East Journal, 59(1), 31-51.

Rubin, B. R. (2003). Transitional justice and human rights in Afghanistan. International

Affairs, 79(3), 567-581. doi: 10.1111/1468-2346.00323

Rubin, B. R. (2004). CRAFTING A CONSTITUTION FOR AFGHANISTAN. Journal

of Democracy, 15(3), 5-19.

Rubin, B. R., Saikal, A., & Lindley-French, J. (2009). The Way Forward in Afghanistan:

Three Views. [Article]. Survival (00396338), 51(1), 83-96. doi:

10.1080/00396330902749707

Rzehak, L. (2011). Doing Pashto. Afghanistan Analysts Network. Retrieved from

http://aan-afghanistan.com/uploads/20110321LR-Pashtunwali-FINAL.pdf

Sharan, T. (2011). The Dynamics of Elite Networks and Patron-Client Relations in

Afghanistan (Vol. 63, pp. 1109-1127).

Simonsen, S. G. (2004). Ethnicising Afghanistan?: inclusion and exclusion in post-Bonn

institution building. [Article]. Third World Quarterly, 25(4), 707-729. doi:

10.1080/01436590410001678942

Tondini, M. (2007). Rebuilding the System of Justice in Afghanistan: A Preliminary

Assessment. [Article]. Journal of Intervention & Statebuilding, 1(3), 333-354. doi:

10.1080/17502970701592272

Tondini, M. (2010). Statebuilding and justice reform: post-conflict reconstruction in

Afghanistan: Routledge.

Vogelsang, W. (2010). Dějiny Afghánistánu: Grada.