Home / Programs / Rule of Law / The Role of Non-State Justice Systems in Fostering the Rule of Law in Post-Conflict Societies / Relations Between State and Non-State Justice Systems in Afghanistan

Relations Between State and Non-State Justice Systems in Afghanistan

part of the Rule of Law, The Role of Non-State Justice Systems in Fostering the Rule of Law in Post-Conflict Societies
Women selling handmade wool carpets at the market

Featured

PDF Between the Jirga and Judge: Alternative Dispute Resolution in Afghanistan
The Tribal Liason Office, March 2009 

The U.S. Institute of Peace is currently funding the Commission on Conflict Mediation program in Khost and Paktia Provinces through the Tribal Liason Office. Created in 2003 with a mission to facilitate the formal integration of communities and their traditional governance structures within Afghanistan’s newly emerging governance, security and reconstruction framework, the Tribal Liaison Office (TLO) maps, researches, and analyzes ongoing conflicts in the Pashtun tribal areas, and provides expertise and logistical support to community-based conflict resolution. Read the latest report on their efforts to link state and non-state justice mechanism in Afghanistan here.

transcript December 2006: Conference on the Relationship Between State and Non-State Justice Systems in Afghanistan

The Ministry of Justice of Afghanistan and the United States Institute of Peace, together with its partners the Fletcher School at Tufts University and the Afghanistan Research and Evaluation Unit (AREU) convened a conference on the relationship between state and non-state justice systems in Afghanistan on December 10-14, 2006. The conference brought together actors from the informal system, civil society, and the aid community, including representatives from 20 of Afghanistan's provinces.

 

 

Project Chairs

Alex Thier

 J Alexander Thier

Most legal disputes, both criminal and civil, are resolved outside of Afghanistan’s formal State justice system.  Parties to disputes generally prefer to have their cases resolved by traditional community dispute resolution mechanisms, which are viewed by most Afghans as more accessible, cheaper, less corrupt and more legitimate than the formal courts.  Studies show that most Afghans who have interacted with both the State and non-State systems of justice in the country find the latter more in tune with local customs, including the promotion of consensus, reconciliation and the reintegration of criminals into society.  

That said, the non-State systems of justice in Afghanistan face a number of deficiencies as well.  For instance, the exclusion of women from participating in decision-making (especially when a woman may be party to a dispute) can have serious consequences for women’s rights.  Also, some decisions rendered by customary dispute resolution bodies have been shown to violate the law—for example, when a woman is forced into marriage to settle a dispute.  While such practices are not the norm, they raise serious concerns. Other problems include the lack of proper record-keeping of decisions issued in the non-State system, which may contribute to disputes resurfacing.

Thus, while the non-State systems of justice serve the country’s dispute resolution needs fairly and successfully in most cases, the formal State system has an important role to play in ensuring that cases are resolved equitably and in accordance with the law.
Recognizing this, USIP’s program on the relationship between state and non-state justice systems is exploring policy options for potentially linking the two. A series of workshops in four provinces in late 2005 and early 2006 brought together local actors from the non-state and state systems to discuss potential linkages in the areas of criminal law, property adjudication and treatment of women. These workshops culminated in a high-level conference in Kabul in December 2006, aimed at identifying and building consensus on policy options.

Throughout 2007 and 2008 USIP worked closely with the Afghan government, UN, and international partners to advocate for an effective policy for the National Justice Sector Strategy (NJSS) that would recognize the importance of the non-state justice sector and the need for the state to develop ties with it. The NJSS was adopted in spring of 2008 and obligates the State to develop an official policy toward its relations with customary dispute resolution systems and to conduct activities that will strengthen these systems so that fair and effective access to justice for all Afghans is achieved. USIP continues to work closely with the Ministry of Justice to draft a policy on state relations with non-state justice systems. Over the next year, USIP is spearheading efforts on the policy development and will lead a core group of interested international partners in the assistance of technical advice to the Ministry of Justice and other Afghan institutions as the policy is developed.

In January of 2009 USIP and two implementing partners launched pilot projects in four districts of Afghanistan with a focus on establishing concrete relationships between the formal and informal systems. The program will help develop models for collaboration between the two systems to improve the delivery of justice, resolve disputes, and protect rights. Overall, linking community dispute resolution with the state justice system will improve the quality and sustainability of community-based practices, while helping to build trust between the two systems as the state confers legitimacy on decisions of the non-state mechanisms. USIP will continue to oversee the pilot projects and conduct an overall assessment to determine whether sound linkages between the two systems have been developed, how such beneficial linkages might be continued in their respective areas, and how they may be expanded into other areas of the country.

 

transcript More on the Role of Non-State Justice Systems in Fostering the Rule of Law in Post-Conflict Societies project

USIP Documents on Non-State Justice in Afghanistan:

Related Documents on Non-State Justice in Afghanistan: