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As violence against women in Afghanistan spikes to its highest levels since the fall of the Taliban government, the US has become an investor in the country's informal—tribal—justice system. In this 'Special Report,' GlobalPost tells the painful stories of women who have been subjected to the tribal courts' brand of 'justice': unfairly imprisoned, traded like property and often abused every step of the way. 

Afghan women and the Rule of Law conundrum

Part Three: American money supports an antiquated and abuse-ridden system.

Faced with the general scorn of the formal justice sector, the United States government has recently developed a program to engage the informal sector. If mentors were sent into the countryside to work with the elders, if education was provided to counter some of the more negative practices employed by the tribal courts — such as ba’ad — then perhaps some real progress could be made.

US diplomats say that one of the reasons for engaging with the informal sector was a desire to combat the predominance of Taliban courts in areas where active fighting was going on, and the state system could not penetrate.

“We wanted to remove the Taliban monopoly on justice in kinetic centers,” said the diplomat cited above.

“Kinetic” is shorthand for “combat” — a kinetic center would be an area where there is so much fighting going on that state institutions are all but inoperative, and assistance programs absent.

Noorjahan Akbar, far right, leads a group discussion at a Women For Change organization meeting, which she co-founded with her female friends in Kabul, Afghanistan, Dec. 19, 2011.
(Erin Trieb/VII)

The US government also hoped to foster links between the formal and the informal systems. In many places, the state will refer a particularly thorny land or inheritance case to tribal courts, trusting that mediation could accomplish what standard law could not. Tribal courts, in turn, would be encouraged to send criminal cases to the state court system, where they could be handled according to the formal legal code.

“Our support for rule of law in Afghanistan strengthens the linkages between traditional dispute resolution and the formal judicial institutions in a manner that incorporates human rights norms but does not violate the Afghan constitution or Afghan Law,” said Mark Wilson, USAID’s Rule of Law advisor at the US Embassy in Kabul.

In addition, the US government sought to provide training to a largely illiterate body of local leaders, who are the main authorities in the informal system.

The $15 million that the US government will provide to the “Rule of Law – Informal” sector this year is a fraction of the entire financial commitment in the justice portfolio, US officials emphasize. But opponents of the initiative argue that it is enough to undermine efforts to reform the state system.

“US backing creates tremendous problems,” said Shamsullah Ahmadzai, head of the regional office of the Afghanistan Independent Human Rights Commission. “It creates parallel organizations, and empowers uneducated persons to make decisions.”

And, Ahmadzai adds, the US effort has done little to improve the lot of women.

“Ba’ad is the worst thing,” said Ahmadzai. “When a girl is given or received in ba’ad, she is not really human anymore. According to EVAW (the law on Eliminating Violence Against Women, which came into effect in August 2009), anyone who does this should be prosecuted. But they never are. Now people are afraid — they do not talk about ba’ad so much. It does not mean that the number of cases has declined, just the number of reported cases.”

“Ba’ad is an issue, but it is the cost of doing business,” said one US official engaged in the justice sector in Afghanistan, speaking on condition of anonymity. “It should not keep us from expanding our involvement with the informal sector.”

Proponents of engagement argue that these structures exist anyway; why not work with them?

Rationales like this make practitioners like Mohammad Eshaq Faizi furious.

“How can justice be ‘informal?’” said Faizi, program officer for Global Rights, a Washington-based non-governmental organization specializing in advocacy. “The United States is legitimizing the decisions of jirgas and shuras. Who can guarantee that local jirgas and shuras know about the law? How can we believe that those without any formal legal knowledge can ensure justice?”

The treatment of women is just one of the many issues surrounding the US government’s engagement with the informal sector, but it is a major one, he insisted.

“Women are not involved in the informal justice system,” he said. “All of the members are male. This policy of working with the informal sector is not beneficial to women.”

As flawed as the state system is, the United States should direct its efforts toward making it whole, he argues.

“We cannot expect to do everything at once,” said Faizi. “But compared to six or seven years ago, the formal justice system is doing better. We need to expand to remote areas. Yes, corruption is a very serious issue. It is the main problem, and must be taken out at the root. Once this is stopped, we will have a very strong formal system.”

But efforts to combat corruption have amounted to little, as witnessed by the Transparency International rankings.

TLO’s Peyton Cooke is not optimistic about the reform of the state system.

“The capacity of the state is very low,” he said. “We went to a new courthouse in Wardak. We were there all day and no one came. If we wait for the formal system to catch up to the informal sector, we will be waiting a long, long time.”

The informal sector has its problems as well, he acknowledged.

“Women have very little access to informal justice,” he said. “And if we empower the wrong people, we could easily make things worse instead of better.”

Tim Luccarro, a program specialist with the United States Institute of Peace (USIP), understands that tribal jirgas are, to put it mildly, detrimental to women’s interests.

“There is no doubt that the tribal system is repressive, that it disenfranchises women,” he said.

Still, USIP is one of the foremost advocates of engagement with the informal sector.

“The state system is also repressive,” added Luccarro. He cited recent cases such as that of Gulnaz, a rape victim who was imprisoned until she agreed to marry her tormentor, as evidence for his thesis.

“The popular perception is that the informal system is better,” he explained. “It is a form of mediation, which is based on a desire for harmony and compromise. The adversarial system (as practiced in the courts) does not get Afghans what they want; the informal system does. The adversarial system punishes offenders, but it does not provide compensation for loss of honor. The informal system is better adapted for this.”

But women’s rights advocates maintain that the restoration of honor all too often involves the further victimization of women. In many areas of Afghanistan, even today, the ba’ad system is used to settle disputes up to and including murder, with one family awarding the other one or more female members, some girls as young as three or four.