Rule of Law in Afghanistan

The United States Institute of Peace (USIP) has been working since 2002 to strengthen the rule of law in Afghanistan by identifying peaceful means of dispute resolution, developing partnerships between state and community actors, and improving access to justice. USIP’s work has included learning through research and pilot projects, grant-making, and technical support to the Afghan government, Afghan communities, and international partners. With a Kabul-based field office, USIP has conducted rule of law-related research and pilot projects across all regions of Afghanistan, with active projects or research ongoing in more than 18 provinces.


Photo credit: Scott Worden

USIP’s current Rule of Law work in Afghanistan is focused on six thematic areas:

  • Dispute Resolution & Informal Justice
  • Land conflict resolution
  • Constitutional interpretation
  • Women’s access to justice
  • Legal awareness & legal education
  • Islamic law

Past projects have also engaged civil society in transitional justice and supported other grantees and partners in their documentation efforts.

Dispute Resolution & Informal Justice

Despite progress in strengthening formal justice institutions since 2002, as much as 80 percent of disputes are still resolved outside the formal justice system, typically by shuras, jirgas, mullahs, and other community-based actors.

Since 2002, USIP has been a leader in exploring how these community-based dispute resolution practices might contribute to justice provision and a more stable rule of law environment in Afghanistan. Beginning in 2004, USIP research and analytic pieces have mapped these informal pathways to justice, their relationship with state justice provision, and how they have been affected by conflict and political dynamics. In late 2005 and early 2006, USIP conducted a series of consultations in four different regions of Afghanistan among formal and informal justice system actors to begin a process of dialogue. These processes, together with the initiative of USIP’s governmental and non-governmental partners, led to a policy dialogue process in 2007 through 2009 that attempted to frame the relationship between state and nonstate justice mechanisms.

In provinces across Afghanistan, USIP has tested ways to improve rights protection and expand access to justice within these community-based mechanisms. Pilot projects have also explored ways to improve the durability and sustainability of disputes that are resolved within these community mechanisms, and to increase their ability to tackle disputes that cross district and ethnic lines, among other objectives.

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For a complete list of publications on this topic see our Dispute Resolution & Informal Justice in Afghanistan page.

Land Conflict Resolution

Disputes over land and land grabbing have risen in the last decade, with increasingly few options to sustainably resolve them. If left unresolved, disagreements over land ownership can quickly escalate from a civil dispute to acute acts of violence and criminality and can feed inter-generational conflict.

Through its pilot projects, USIP has sought to identify more sustainable ways of resolving land disputes within community-based dispute resolution by strengthening traditional recording procedures and encouraging linkages with formal titling processes. In 2013, USIP began partnering with land management authorities in the Afghan government to develop and test administrative reforms that might increase land registration and improve land management, but also allowing room for customary dispute resolution or community input to help establish title and resolve ownership disputes.
              
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Women’s Access to Justice

In the wake of and amidst violent conflict, ensuring women’s access to justice and protection of their rights is a central component to ensuring a stable transition and building a lasting peace.  Yet despite tremendous gains in women’s rights since the fall of the Taliban in 2002, Afghan women still face enormous obstacles in asserting and defending their rights and interests.

Following its research into this area, USIP commenced five pilot projects across six provinces to explore ways for legal aid and justice practitioners to expand outreach to women and help unpack the barriers. USIP is also engaged in support for women’s legal practitioners by bringing together Afghan and Iraqi women leaders to discuss women’s efforts toward peacebuilding in countries in transition.

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Islamic Law

Despite the widespread acceptance of Islamic law in Afghanistan, traditional practices are not always consistent with Islamic law. There remains a profound lack of understanding and agreement among Afghan religious leaders regarding what Islamic law actually says about a number of legal matters including, but not limited to, the rights of women, criminal law and procedure, the binding effect of rights enumerated under international law, and the larger body of fundamental rights. 

USIP research has examined the interplay between Islamic Law and customary norms in the resolution of disputes within local justice forums. A specific focus of this research has been how current discourse on Islamic law and its nexus with customary justice is affecting the delivery of justice for women and other vulnerable groups in Afghanistan. USIP has been working to broaden the current understanding of Islamic law and to leverage positive change in communities.

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Legal awareness & legal education

Rule of law in Afghanistan would be greatly strengthened and better positioned to prevent and mitigate conflict if supported by a backbone of well-educated, informed legal professionals in dialogue with communities that have some level of awareness and appreciation for the rights vested in Afghan law.

USIP has developed pilot projects for youth volunteer networks to provide community-based legal education. Such community-based awareness programs are complemented by USIP’s media portfolio, including media and social networking for the youth volunteers, and a multi-year rule of law radio drama produced with partners Equal Access. Finally, USIP’s International Network to Promote the Rule of Law (INPROL) provides both Afghan rule of law practitioners and more than 2500 practitioners worldwide the tools and research with which to design and implement innovative rule of law reforms.

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Constitutional Interpretation

One of the key areas for USIP consultation and engagement since 2002 has been constitutional development and interpretation in Afghanistan. Early USIP work provided recommendations on how Afghanistan’s constitutional infrastructure and judicial system would enable or prevent greater stability on the ground. In September 2011, USIP organized a National Conference on Constitutional Discussion. Participating stakeholders, including USIP and partners from the government of Afghanistan, civil society, and academic institutions. The conference highlighted continued ambiguity over critical constitutional and legal issues in Afghanistan, including such fundamental questions as which organ of the Afghan government has authority to interpret the Constitution.

To this end, USIP, through a partnership with the Afghanistan Research and Evaluation Unit (AREU), has commissioned a series of articles examining some of core areas identified, including electoral issues, checks and balances, and enforcement of rights. 

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