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United States Institute of Peace

Conference on the Relationship Between State and Non-State Justice Systems in Afghanistan

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December 10-14, 2006 | Kabul, Afghanistan

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Introduction

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.

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Background 

In Afghanistan today, the formal justice system, which is struggling to stand on its feet after three decades of war and turmoil, co-exists with a diverse and robust informal system of dispute resolution. The new government in Kabul, with international assistance, is attempting to rebuild Afghanistan's formal justice system as a critical pillar in an effort to establish the rule of law there: a new constitution and new laws are being put in place; courthouses are being built or refurbished; judges and prosecutors are being trained; and teaching curriculums revised. However, non-state dispute resolution mechanisms remain dominant in the countryside and are utilized by many in urban centers. Most Afghans do not have access to state-run justice institutions. Those who do have access rarely choose to use it. Rather, they rely on a mixture of tradition, Islamic law, and current power relations to resolve disputes. The outcomes produced by the informal system are far from ideal, but they remain both more available, and in many cases more legitimate, than what the state system has to offer.

According to the "Justice for All" strategy, the government of Afghanistan "sees positive elements in traditional mechanisms, including their role in community cohesion and locally accessible dispute resolution," while also recognizing serious concerns about their impact on the authority of the state system and human rights. The government's strategy calls for a program to assess the relationship between the formal and informal sectors, to conduct dialogue at the local and national level, and to develop policies that will create a more cohesive, competent, and accountable future.

Alex Thier with Afghan participants

The multi-year USIP project on the Role of Non-State Justice Systems in Fostering the Rule of Law in Post-Conflict Societiesdirectly responds to each of these imperatives. First, USIP commissioned a study of traditional/customary practices in Afghanistan, their evolution and relation to the formal system of justice. This research was conducted by Professor Thomas Barfield, Department of Anthropology, Boston University; Neamat Nojumi, Center for World Religions, Diplomacy and Conflict Resolution at George Mason University; and Alexander Thier, Rule of Law program, U.S. Institute of Peace.

Second, 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 gauge their status, their interactions and attitudes toward each other, and to begin a process of dialogue. USIP conducted discussions with community leaders and local officials from over 20 provinces, providing the most comprehensive picture to date of contemporary Afghan dispute resolution practices.

The conference in Kabul brought the results of this research and dialogue into the national level policymaking process. Bringing together actors from the state, the informal system, civil society, and the aid community in a process of facilitated dialogue helped the process of devising policy approaches and practical solutions pertaining to the interaction between the formal and informal sectors.

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Description of the Conference

Roundtable discussion with conference participants The conference consisted of a two-day preparatory workshop, a two-day conference, and a follow-up technical working group meeting. The conference had over 100 participants. Participants included non-state actors prominent in non-state dispute resolution practices from around Afghanistan, local level (provincial and sub-provincial) officials such as prosecutors and police, and officials from the courts and the Ministry of Justice. There were also numerous high-level Afghan government officials from the justice sector, including representatives from the Ministry of Justice, the Supreme Court, the Office of the Attorney General, and the Ministry of the Interior. Parliamentary representatives from relevant committees also attended. Members of the international community--donors and implementers--who have an ongoing commitment to and interest in the sector also participated.

The preparatory workshop consisted of approximately 50 participants. The workshop served (1) to continue the facilitated dialogue conducted during the second phase of the project by creating "inter-regional" interactions between and among state and non-state actors; and (2) to prepare participants to present cases studies during the conference.

The conference brought together representatives of the four communities most responsible for dispute resolution in Afghanistan to exchange perspectives and contemplate policy options for the future. The conference was a mixture of presentation of information and perspectives, plenary discussion, and small-group interaction. The conference served to build consensus about the way forward in establishing a relationship between the formal and informal justice systems.

The technical working group meting, hosted by the Ministry of Justice, discussed a concrete plan of action to begin the process of positive transformation of the sector.

Conference Schedule

December 10: Workshop Day 1

December 11: Workshop Day 2

December 12: Conference Day 1

December 13: Conference Day 2

December 14: Technical Working Group

Conference Papers

Relations Between State and Non-State Justice Systems in Afghanistan