New Report Highlights Traditional Courts in Afghanistan

A recent Afghanistan Human Development Report sponsored by the United Nations Development Programme recommends that the country's justice system be rebuilt by creating a hybrid system blending traditional conflict resolution structures and the formal justice system. It argues that this would not only improve access to justice, it would also build public confidence in justice institutions. Following is a summary and a link to the full report.

According to the Afghanistan Human Development Report 2007: Bridging Modernity and Tradition: Rule of Law and the Search for Justice, only 20% of disputes in the country are handled through the formal system. Distrust of the formal system is based on two factors: a backlog of 6,000 cases (there is one judge for every 21,317 citizens) and corruption. As a result, 80% of disputes in the country are resolved through traditional mechanisms known as as jirga or shura depending on the region and ethnic group involved.

The report writers note that jirgas/shuras incorporate many of the goals of restorative justice. They bodies consist of respected community leaders and elders who meet, often in a circle, to discuss community issues and problems. They use customary law and rituals to find a resolution that is morally binding on the parties in conflict and the community. In some areas, these are standing bodies of specific individuals. In others, they may be created in response to specific issues or disputes. This latter system is most often used in response to conflicts and crimes.

The jirgas/shuras hear cases ranging from minor bodily harm to murder. However a survey of 2,000 respondents indicated that the majority of cases concern property disputes, with murder only occasionally being heard by these bodies.

In finding a resolution, the jirgas/shuras have four basic options:

sohl or peacemaking and reconciliation between disputants
rotal or communal boycott of the wrongdoer
compensation for the victim
baad or the marriage of a woman from the side of the accused to the victim’s close relative.

75% of respondents surveyed reported that peacemaking and compensation are the most commonly used mechanisms. Another ritual called nanawate also seeks to bring together the parties in conflict for a public ceremony of accountability and forgiveness. The ritual involves a public request for forgiveness on the part of the offender and a response of forgiveness from the victim. It eases the reintegration of the offender into the community with him/her being treated with respect as a fellow community member and kinsman.

According to the report, "Qualitative data suggests that Afghans see jirgas and shuras as more accessible, more effective in the delivery of justice, less corrupt, and more trustworthy than formal state courts. (p. 95)” However, it also notes that certain aspects of these traditional dispute resolution bodies cause serious concern from a human rights perspective. These include:

exclusion of women and young people from participation in decisionmaking
outcomes that can be harmful to women (including the marriage of a women from the offender’s family to someone in the victim’s family)
unregulated use of force by groups of young, unmarried men known as arbakian deployed by the jigas/shuras to coerce compliance with decisions.

While taking these negative aspects seriously, the report recommends that these traditional mechanisms be used alongside the formal system. The proposed hybrid model calls for the creation of “Alternative Dispute Resolution (ADR) and Human Rights Units” to work alongside state systems. These units would identify the proper mechanisms for resolving issues outside of the court system.

In general, the formal system would be responsible for all serious criminal offences while minor crimes and all civil disputes would be resolved through traditional processes. However, the parties in the cases would also have the opportunity to choose between the two systems.

Cases could be appealed to the formal courts if both parties did not accept the decision of the jirga/shura. The ADR and Human Rights Units would also be responsible for addressing deficiencies in the traditional system to ensure they meet human rights standards especially relating to women and young people. This hybrid model is proposed as a way of responding to the challenges to improvement of the rule of law in Afghanistan.

The Afghan Development Report 2007 Building Modernity and Tradition: Rule of Law and the Search for Justice is available online from UNDP.

May 2008

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Navigation Previous Editions 2008 May 2008 Edition New Report Highlights Traditional Courts in Afghanistan	Info New Report Highlights Traditional Courts in Afghanistan A recent Afghanistan Human Development Report sponsored by the United Nations Development Programme recommends that the country's justice system be rebuilt by creating a hybrid system blending traditional conflict resolution structures and the formal justice system. It argues that this would not only improve access to justice, it would also build public confidence in justice institutions. Following is a summary and a link to the full report. According to the Afghanistan Human Development Report 2007: Bridging Modernity and Tradition: Rule of Law and the Search for Justice, only 20% of disputes in the country are handled through the formal system. Distrust of the formal system is based on two factors: a backlog of 6,000 cases (there is one judge for every 21,317 citizens) and corruption. As a result, 80% of disputes in the country are resolved through traditional mechanisms known as as jirga or shura depending on the region and ethnic group involved. The report writers note that jirgas/shuras incorporate many of the goals of restorative justice. They bodies consist of respected community leaders and elders who meet, often in a circle, to discuss community issues and problems. They use customary law and rituals to find a resolution that is morally binding on the parties in conflict and the community. In some areas, these are standing bodies of specific individuals. In others, they may be created in response to specific issues or disputes. This latter system is most often used in response to conflicts and crimes. The jirgas/shuras hear cases ranging from minor bodily harm to murder. However a survey of 2,000 respondents indicated that the majority of cases concern property disputes, with murder only occasionally being heard by these bodies. In finding a resolution, the jirgas/shuras have four basic options: sohl or peacemaking and reconciliation between disputants rotal or communal boycott of the wrongdoer compensation for the victim baad or the marriage of a woman from the side of the accused to the victim’s close relative. 75% of respondents surveyed reported that peacemaking and compensation are the most commonly used mechanisms. Another ritual called nanawate also seeks to bring together the parties in conflict for a public ceremony of accountability and forgiveness. The ritual involves a public request for forgiveness on the part of the offender and a response of forgiveness from the victim. It eases the reintegration of the offender into the community with him/her being treated with respect as a fellow community member and kinsman. According to the report, "Qualitative data suggests that Afghans see jirgas and shuras as more accessible, more effective in the delivery of justice, less corrupt, and more trustworthy than formal state courts. (p. 95)” However, it also notes that certain aspects of these traditional dispute resolution bodies cause serious concern from a human rights perspective. These include: exclusion of women and young people from participation in decisionmaking outcomes that can be harmful to women (including the marriage of a women from the offender’s family to someone in the victim’s family) unregulated use of force by groups of young, unmarried men known as arbakian deployed by the jigas/shuras to coerce compliance with decisions. While taking these negative aspects seriously, the report recommends that these traditional mechanisms be used alongside the formal system. The proposed hybrid model calls for the creation of “Alternative Dispute Resolution (ADR) and Human Rights Units” to work alongside state systems. These units would identify the proper mechanisms for resolving issues outside of the court system. In general, the formal system would be responsible for all serious criminal offences while minor crimes and all civil disputes would be resolved through traditional processes. However, the parties in the cases would also have the opportunity to choose between the two systems. Cases could be appealed to the formal courts if both parties did not accept the decision of the jirga/shura. The ADR and Human Rights Units would also be responsible for addressing deficiencies in the traditional system to ensure they meet human rights standards especially relating to women and young people. This hybrid model is proposed as a way of responding to the challenges to improvement of the rule of law in Afghanistan. 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