The Washington Post
By Ernesto Londono
April 20, 2011
MEHTAR LAM, Afghanistan — Much about Maamour Jilani’s death in this eastern Afghan city six months ago is in dispute.
Relatives called it a murder, saying a beating brought on the 52-year-old’s heart attack. Family members of the man charged in the case, however, said a preexisting condition made it an accidental death.
But all agree on one key issue: Tribal elders, not the courts, should be the arbiters.
“We don’t have any faith in the legal system,” said Rabani Gul, Jilani’s son. “Its decisions are not impartial. There will be no justice.”
That vote of no confidence reflects a much broader sense of concern in Afghanistan as the United States and its allies struggle to leave behind a viable justice system.
After the U.S.-led invasion of Afghanistan that helped topple the Taliban in 2001, Western powers attempted to create a more modern justice system, building courthouses and training judges, prosecutors, police and defense lawyers. But the efforts, which cost billions of dollars, have yielded a system that many Afghans deride as corrupt, arbitrary and subject to political interference.
Now the United States and other international donors have begun to spend millions of dollars on projects that aim to better understand and legitimize Afghanistan’s traditional justice system, known as “informal justice.”
“For a long time, the international community thought, ‘We want nothing to do with informal justice,’ ” said Sylvana Sinha, an expert on traditional justice at the Kabul office of the U.S. Institute of Peace. “They’ve now realized the formal system does not have the capacity, and they are starting to find ways to work with the informal one.”
Country’s main arbiters
For decades, councils of elders have acted as the supreme authority in Afghan districts and villages that have had little support from, or access to, the state. The almost exclusively male-run bodies have served as arbiters for everything from land disputes to killings.
Afghanistan’s informal justice system handles an estimated 95 percent of disputes in the country. Some are settled with money, others with a handshake. When it comes to criminal cases, rather than simply punishing an individual, elders aim to find arrangements that restore harmony in communities beset by discord. Sometimes this is achieved through “blood money” payments. In other cases, the tribe or family of a suspect must settle a score by providing the aggrieved party one of its young women.
U.S. officials say they have not abandoned the goal of building a robust court system. But they say they have begun paying greater attention to ways in which they can support the informal system, because it will almost certainly be the only viable dispute resolution system available to most Afghans for years.
Some Western officials in Afghanistan “want to build Switzerland, and they want to do it fast,” said Lt. Gen. David M. Rodriguez, the operational commander of NATO troops in Afghanistan. “What the Afghan people want is security, justice and representation. They need to get back to traditional dispute resolutions. To get that, you need to provide sufficient security for those organizations to get back up.”
Building a viable court system is not a foolhardy goal, he said, “but it’s a 20-year plan.”
The U.S. Agency for International Development launched a $14.5 million pilot program last year to support the informal justice sector. Its aim is to provide legal training to elders, seek ways to link informal bodies to the court system and find opportunities to give women a greater voice.
The price tag is a fraction of what the United States is spending on initiatives to support the formal justice system. Last year, for example, USAID and other American agencies spent $429 million on justice projects.
But the growing interest in traditional justice has upset some Afghan officials, including supreme court justices and members of parliament. They have argued that recognition of the informal system is a tacit acknowledgment that the formal one is doomed.
“I think there is a rush by the international community,” said Fauzia Kofi, a member of parliament who heads its human rights committee. “They want to leave and they don’t want to leave projects unfinished, so they’re turning to quick fixes.”
The Justice Ministry has drafted a proposed policy to link the formal and informal sectors, but Afghan officials and rule-of-law experts say a compromise is years away. Among the most contentious issues are the marginalization of women in the informal sector and how much authority, if any, councils of elders should have over criminal cases.
The elders decide
In Jilani’s case, his family and the relatives of the suspect, Abdul Hudood, agreed to let a council, or jirga, broker a resolution.
“We reached a resolution based on traditions from the old days,” said Qari Mirhatam Tarakhel, the head of the jirga.
After meeting with both families for hours, 40 elders led by Tarakhel reached the following deal: Jilani’s family would have to forgive the suspect.
Hudood’s family, however, would have to leave the village for at least 10 years. “It should serve as a lesson to others,” Tarakhel said.
Despite having given the jirga authority to settle the case, some of the suspect’s relatives reneged once they learned the punishment.
“Jilani had a heart problem,” said Jafar, the suspect’s brother-in-law, who goes by only one name. “He was not killed. He died from his heart problem. So why should we all be punished by that?” Jafar said his family has faith that the elders will broker a better resolution, sooner or later.
The province’s chief investigative prosecutor acknowledged that the court system was ill-equipped to handle the dispute. But the criminal case was not dismissed, and prosecutors are keeping the matter on hold while the elders continue to prod both sides.
Gul, Jilani’s son, said his family will give the jirga some additional time but wants nothing to do with the court system.
“If the jirga hadn’t stepped in,” he said, “we would have taken revenge already.”