Afghanistan: U.S. Rule of Law and Justice Sector Assistance

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From one of USAID's earlier reports 31 , for example, it is clear that they are aware of the relevance of customary systems used for resolving disputes, cases of reconciliation or compensation have. This exclusion of serious studies on the connection between custom and judicial practice is a reflection of the dichotomous opposition between 'formal justice' and 'informal justice' 32 that dominates the discourse of legal pluralism in Afghanistan.

This contrasting vision is expressed on both a legal and political level, and is often represented by a rigid juxtaposition of central and local authorities. As I have pointed out in my research, the judges continue to make recourse to certain customary practices when carrying out their duties. They continue to pay attention to 'traditional' authorities, and they consider family and interfamily conciliation a useful means of maintaining social equilibrium. As a matter of fact, one of the 'recommendations' regarding the implementation of future projects is to create dialogue between the 'formal' and the 'informal' reinforcing this inappropriate terminology system of justice:.

Focus groups and interviews reveal an almost total lack of understanding on the part of judges of the primary court of the informal system and vice versa. In order to establish an effective relationship and appropriate allocation of responsibilities between the two systems of justice in Afghanistan, actors within both systems ought to know the basic legal principles of both. One could easily object to these statements by pointing out that judges already reference certain customary practices used for dispute resolution.

But more importantly we should note the contradiction in terms of rhetoric that emerges from a comparison between the report of MPIL, or from conversations with UN and IDLO workers who espoused a legal doctrine aimed at the internationalization of justice through the overcoming of customary practices which they considered to be disrespectful of human rights, and the 'advice' expressed in the more 'dialogic' report of USAID, that also should not be considered an organization close to the customary structures. Such contradictions between the entities that share control over the training process of the judges are not uncommon in a context of reconstruction like that of Afghanistan, where a plurality of political figures are involved - often without any real coordination between them - in the political, legal, economic, and social life of the country.

The influence of international organizations in Afghanistan goes beyond the realm of the Supreme Court, which is economically dependent on external aid. By creating a body of judges it can use as a vehicle for their own international standards, they are also exercising their influence on a more daily level in the justice system. The same 'promotion' of dialogue between legal systems 34 takes place on a political and dialectical level and is the result of an increasing awareness of the resistance of many Afghans in relation to an externally imposed justice system that they feel has little to do with their daily life.

The judges, caught between the demands of a social structure which is coping badly with foreign interference and the controlling position of international institutions to whom the government must answer , practice a sort of negotiated justice which does not fulfill the needs of the citizens. The USAID report takes an analytical approach to the Afghan legal system in order to understand the uniqueness of its form of justice which is built on a multiplicity of sources all of which are interconnected.

As I have already mentioned, such an approach, attentive to the customary substratum, might be the result of the increasing resistance expressed by Afghan citizens with regard to the interference of interventionist political agendas and foreign models. Regardless, the 'suggestions' expressed in the USAID report have had little actual confirmation in the projects realized throughout the country.

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All this of course just repeats the typical gap between a rhetoric of cooperation and the actual political praxis of implementing projects. In my opinion it is also extremely important to note that when these reports mention customary practices it is exclusively in relation to actions of social institutions like the Jirgas or Shuras In doing so they completely ignore the fact that most conflicts and problems are dealt within the family structure. Institutions like the Jirgas and Shuras are tied to the collective dynamics of the community.

This means that their actions are related to an entire context of social ties, neighborhoods, authorities, and determined values often even determined resources.

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In a city like Kabul, where the demographic boom, the mass influx of people, housing politics, and poverty have created a break in social ties, recourse to customary practices tends to be the preferred method for settling disputes within and amongst families. In many cases this is accompanied by recourse to judicial institutions as well. The failure of the community network provokes a detachment between the value system which individuals follow and the practices which are implemented in the name of those values.

A possible consequence of this could be the tightening of certain customary practices, in response to an environment in which hierarchies and traditional values encounter other social phenomena like unemployment, scant housing, and poverty. In Kabul, everyday life shows all the complexity of a multifaceted normative system based on custom, state law, and Islamic principles under which 'upholding justice' cannot happen without a continuous process of negotiation that sees each individual case confronted from multiple contexts: family mediation, intervention on the part of international organizations, meetings with attorneys, court hearings, decisions of the Jirgas , etc.

There is, however, a notable difference between customary practices initiated by individuals and families and customary practices 'judged' by social institutions like the Jirgas and Shuras. In the case of a Jirga , for example, we are talking about a traditionally recognized social institution, whose political influence can be seen in the procedures of legitimation of political instances at national level i.

Although the Loya Jirga 36 has little to do with the local Jirgas , its symbolic and historical value is deeply rooted in the customary substrate which the Jirgas embody. The customary assembly, then, is an influential political subject acting at a community level, being fully involved in the reconstruction process. For example, the so called Provincial Shuras represent a point of contact between Government, international agencies, and local communities, and have an important role in facing issues of public interest.

If recourse to the practice of bad 37 as the result of a family decision represents an injustice which can be faced on a legal level, when decided by a Jirga it produces an injustice whose effects are also political. In other words, where customary negotiations carried out on a family or interfamily level stress the socio-legal repercussions, on the level of the Jirgas and Shuras they stress the political implications.

To reiterate, this distinction is subtle; in both cases, the normative and political implications are relevant and interconnected. What I would like to underline in making this subtle distinction, however, is that in the process of reconstruction, the subjective political forms which the customary assemblies embody are defined by a type of political-legal negotiating which do not take into consideration those people who must take justice into their own hands because they are without access to judicial institutions or customary ones.

In the end, then, that which is generally described as legal pluralism becomes an inaccessible normative pluralism in which both the rhetoric of the reconstruction and that in favor of reaffirming the customary institutions Jirga, Shura overshadow the daily praxis of a multitude of individuals who are excluded from the dominant antagonism that symbolically oppose the rule of law and the Jirgas.

Obviously legal and judicial reconstruction is complicated and cannot be explained through one perspective alone. In addition to the shadiness which hides itself behind the flag of the rule of law, we must also recognize the multitude of other ways in which the powers and interests that take advantage of Afghanistan in the name of justice and democracy carry out their actions, often giving rise to evident contradictions.

Yet, despite the variety and the at least presumed lack of coherency of the rhetoric, the underlying logic behind the international organizations in Afghanistan remains the same. These organizations continue to be vehicles for a transnational order that is only marginally interested in rectifying the injustices suffered by people on a daily basis. Afghanistan continues to be a terrain where battles are waged whose implications go far beyond the borders of the country.

How can we evaluate the work of the Italian Justice Project without considering the interests of the Italian government in the international alliances?

Why many Afghans distrust their judicial system

How should we consider the various and intermingled aspects of warlordism 38 , the drug trafficking network, and the policies of a pro-western government when analyzing the reconstruction process now underway? What complexity of relationships is behind the increased number of attacks in the capital, security policies, control over energy resources, and opportunities regarding neighboring countries Iran, Pakistan Although these issues seem distant from the daily injustices suffered by individuals, they actually allow for their perpetration by fostering the continuation of mechanisms of violence and domination.

Carolyn Nordstrom 39 uses the term 'global fault lines' to explain the connection between the events in an individual's life and phenomena of global proportions.

In the story she tells of her encounter with a war orphan who sold cigarettes, Nordstrom considers the networks and profits tied to this illegal trade: half of the world's cigarettes are contraband; cigarettes are rarely moved alone, usually transported together with arms, drugs, human beings, pharmaceuticals, cars, software, etc. The money moved, which ends up in financial markets, currency exchanges, and bonds markets, is capable of causing a national currency to crash.

For Nordstrom, the war orphan is a critical aspect within the sphere of global finances.

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The tragedy of the child represents a 'tremor'. In the context of war and institutionalized violence, the fault lines are determined by certain political, economic, and ethical relationships established according to the flow of goods, services, money, and people who create unstable inequalities, unequal access to power, and an inequality in the distribution of resources.

It is not difficult to imagine how international politics, private profit, and internal instability in Afghanistan have forced the post 40 reconstruction process to follow a logic which is poorly suited to fighting injustice. The standards of international law are certainly pronounced loudly in Kabul, not loudly enough however to drown out the many victims of violence and poverty. To use another metaphor of Nordstrom, we can think of the Afghan justice system as a 'fracture zone,' a line of "instability that radiates out from specific and discernible crises.

What reasons are used to legitimate interventions in the Afghan justice system? What ideological foundation supports this fragile 'fault line' that we call a justice system? After sentencing a young boy named Ali, arrested with 6 kilos of heroin in a suitcase 43 , to 6 years of imprisonment, judge Ajmal 44 of Kabul's Second District sat down to have a long conversation with me and my friend Basir The judge spent a long time talking about the problem of drug trafficking in Afghanistan and the repercussions it has on the lives of Afghanistan's young people.

He then went on to talk about the role of judges in Afghanistan today. For Ajmal 46 , "the courts are a place where one can put the country in the right direction after many years of war and deprivation. Ajmal finished by expressing his idea of a nationally shared legal awareness: "We should all be able to give the same response to the question: which justice are we talking about? Judge Ajmal's incites us to consider how justice, even before referring to law, is tied to the concepts of 'right' and 'wrong', and how it presents itself as the oppressor of the latter in favor of the former.

Rule of Law

These are socially constructed categories that although apparently stable, are continuously subject to reformulations caused by contamination from the spheres of culture, religion, and law as well as by events and social transformations. The same opinions and convictions which cause an event an action, punishment, or demand to be considered right, also contribute to the identification of its opposite, to an event being considered wrong. Every individual has his or her own definition of what is right and what is wrong that he or she creates both rationally and unconsciously.

Through this process of incorporation and re-elaboration, an individual learns to delineate the borders of 'right' and 'wrong' what is 'good' and what is 'bad' on the basis of beliefs, social experience, and dynamics of power. The justice system should be then founded on a collectively elaborated concept of justice.

In other words, the ideal should support the institutional sphere of justice, even if a certain distance between the two is inevitable. In the last decade, there have been an increased number of debates regarding innovations to the justice systems of common law and civil law countries. These debates have emphasized the ideal dimension and have pointed out its distance from praxis. In these debates, restorative justice has received more and more attention and has been proposed as a possible evolution of 'making justice' Restorative justice may be defined in relation to three of its main elements: reparation, reconciliation, and community conflict management.

When these reformulations of judicial codes and the Western concept of law are resituated in a context like Afghanistan, they assume a different legal and historical perspective and move one to reflect on some aspects of particular interest from a comparative point of view 48 , such as the use of mediation in courtrooms or mechanisms that legitimate authority in the name of maintaining a community equilibrium. In reference to the Pashtun concept of justice, many scholars have noted 49 that the norms of the Pashtunwali 50 often refer to a restorative rather than a retributive model of justice.

When a norm is violated, the offender is forced to ask forgiveness to the family of the victim and to pay 'blood money' instead of going to prison. The meaning of the concept of blood money varies, however. In some cases it means that the family of the perpetrator must give a daughter in marriage to the family of the victim.

The need for reestablishing equilibrium after an illicit act is evident in this case Such a concept of justice understands a transgression of a consolidated norm as something which has repercussions beyond the single individual, something that affects the equilibrium of an entire community. In such a system, the repercussions for the victim and the community are just as important as those for the offender.

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In this sense, reconciliation and the preservation of a certain 'order' within the community may be considered structural conditions of the customary normative system. The decisions made by customary institutions like the Jirgas seem to be tied in some ways to this 'restorative spirit' and the promotion of reconciliation. In mediation, one of the principle goals is to limit the possible repercussions of a transgression, such as feuds or vendettas.

A report issued in by the Women and Children Legal Research Foundation speaks of the bad as a practice used for resolving disputes and problems, when in reality "through this practice women and children are used as slaves. Such an affirmation tends to set up a rigid opposition between 'tradition' identified with the customary system and 'modernity' recognized in state and international law , the same dichotomy at the base of international interventionism.

There are many elements to take into consideration when one looks at the mechanisms of customary dispute resolution, such as transformations to the social body, the reformulation of family roles, resistance to externally imposed models of justice, and the tension present amongst various forms of authority.

Rule of Law | U.S. Agency for International Development

In this sense, the idea of the 'common good' 53 the equilibrium of the community behind certain practices and decisions should be considered in relation to the present conditions of the Afghan justice system which has often been the outlet for a reconstruction policy that does not look out for the interests of the population.

Therefore, that which might elsewhere be considered an 'innovative' model of justice when analyzed in the context of Afghanistan poses a series of questions in regard to its dedication to maintaining the equilibrium of the community and not just repressing criminals: What are the conditions and the limits of reconciliation? At what cost must the equilibrium of the community be persevered? Within a context of legal transplanting, according to which criteria is this equilibrium defined?

I include this brief digression on restorative justice and the formulation of the questions above to underline my criticism of the theoretical assumption that the forced implementation of a model of justice the rule of law is a viable way of protecting citizens and improving living conditions. My position in regard to the expression common good, in the use to which I am referring here, is of course critical.

If a certain understanding of the common good is associated with community life and may serve to legitimate certain forms of authority - and also of violence like in the case of the bad --, it can just as easily be used to support the establishment of a rule of law project in the form intended by the international community.

This is a sort of degradation of the concept of the common good and the collective interest in favor of determined objectives. Within the customary sphere, community equilibrium is presented as a common good, a 'good' which involves the consolidation of social hierarchies and reestablishes a sort of economy of connections and reciprocal relationships.

In the reconstruction process, the governmental and international rhetoric presents the rule of law as an essential element for the 'development' of the country, necessary for the 'good of all'. The words of one USAID worker in regard are important: "Without the establishment of the rule of law it is impossible to build the foundations necessary for social justice and solid democracy in Afghanistan [ We have a fundamental role in seeing this process through.