In December 2001, the U.S.-led offensive forced the Taliban to scatter over the mountains into Pakistan and the international community rushed into Kabul with the best of intentions.
One of their primary goals was to reform the Afghan justice sector. And they waded in with a confidence bordering on arrogance, combined with a troubling disregard for the legal structures, however precarious, that were already in place.
In just a little over two years, Afghanistan had a new Constitution; there were training programs for judges and lawyers, and international organizations were making millions providing services to the U.S. government in its quest to make sense of the muddle.
Ten years later, these efforts have become a nearly $1 billion “Rule of Law industry,” as one international legal specialist, who has spent several years in Afghanistan, dubbed the enterprise.
Exact figures are difficult to come by since there are multiple actors and programs involved in the “industry.” But a report by the U.S. Congressional Research Service in November 2010 stated that total funding for “Rule of Law” from fiscal year 2002 through fiscal year 2010 was $904 million. That would mean more than $110 million per year on average has been spent in the last eight years on attempts to improve the justice system.
And it has largely been a failed effort, according to legal experts and human rights advocates in Afghanistan. The U.S. did its best to prop up a justice system from the central government in Kabul but has more recently realized that the levels of corruption and incompetence in this national criminal justice system have made it nearly impossible to reform. And so the U.S. has shifted its sights to the local tribal courts where the vast majority of criminal and civil cases are heard. This fiscal year about $15 million will go into efforts to work with these local structures.
But the effort is not without its problems: These tribal courts are all too often stacked against women, and persist in using traditional practices such as ba’ad, the bartering of women and girls as a way to resolve disputes among families.
Some of the beneficiaries of the “Rule of Law” industry largesse were Tetra Tech DPK Consulting and Checchi and Company Consulting, two companies that specialize in providing legal education services in the developing world. Both companies were contacted for this series, but declined to comment saying USAID discourages contractors from speaking with the media.
These companies have a great deal of expertise in working with developing societies, and both have sought to put the best face on what is, undoubtedly, a very difficult assignment.
Tetra Tech DPK Consulting, a company based in San Francisco, works with the formal (state) sector. According to its website, Tetra Tech DPK “furthers the rule of law in Afghanistan … by raising the legal awareness of citizens through its public outreach activities. Through carefully designed programs that promote human rights and access to justice, outdated attitudes and perceptions that in the past have hindered the development of a more open and just society are now slowly changing.”
Checchi, which is based in Washington, D.C., was given the task of working with the informal sector. It is similarly upbeat in its official materials. Its website proudly proclaims:
“As implementing partner for this key component of USAID/Afghanistan’s new Rule of Law Stabilization Program, Checchi is working with the Afghan Government and Afghan NGOs to enable immediate access to justice through community-based dispute resolution mechanisms in districts in the southern and eastern parts of the country. Among other activities, Checchi advisors are working with community elders and relevant state actors to strengthen or re-establish the jirga and shura system for dispute resolution, as well as assisting with providing access to formal justice systems when appropriate.”
Despite the millions that have been disbursed, critics say corruption has persisted, and there is little hard evidence that substantive improvement is taking place. But with so many contractors making a profit, it seems to these critics that there is little incentive to measure what, if any, real advancement is being made.
“It has been a tremendously embarrassing waste of money,” said Rebecca Gang, who worked for two years as a consultant on Justice and Rule of Law at the Afghanistan Research and Evaluation Unit (AREU), an independent research institute based in Kabul. “Rule of law issues have been captured by the industry. The way the system has been designed, there is a negative incentive to improvement.”
As the years passed, and corruption became an ever more prevalent factor in any evaluation of the Afghan government, it became apparent to many that the reform of the justice system had failed.
Transparency International ranks Afghanistan as one of the most corrupt countries on earth, tied with Burma for second to last place. Only Somalia and North Korea place lower.
The courts are widely seen by the Afghan people as the embodiment of this corruption.
“There is a perception that justice is available to the highest bidder,” acknowledged one Western official, speaking on condition of anonymity.
The Afghan populace has responded by boycotting the state system almost entirely, falling back on centuries-old traditions. They settle disputes by turning to tribal elders, the “white beards” who are still widely respected in the country. They may be illiterate, and have very little understanding of the law, but their word is final.
The Liaison Office (TLO), a non-governmental research organization based in Kabul, maintains that the vast majority of cases still bypass the state system.
“According to our research, non-state justice systems predominate throughout the country,” said Peyton Cooke, a Program officer for TLO’s Justice Program. “Upwards of 90 percent of cases go through the informal system.”
The State Department has long been aware of this fact; in 2008 it issued a report on Rule of Law programs in Afghanistan citing similar statistics.
TLO’s research shows that little has changed.
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.
U.S. 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.
The U.S. 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 U.S. Embassy in Kabul.
In addition, the U.S. 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 U.S. government will provide to the “Rule of Law – Informal” sector this year is a fraction of the entire financial commitment in the justice portfolio, U.S. officials emphasize. But opponents of the initiative argue that it is enough to undermine efforts to reform the state system.
“U.S. 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 U.S. 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 U.S. 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 U.S. 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.
Roshan Sirran, a women’s rights activist who heads the Training Human Rights Association for Afghan Women (THRA), sees the persistence of ba’ad as evidence that tribal courts are inherently inimical to women’s interests.
Sirran had just returned from a visit to her native Nangarhar, and acknowledged that ba’ad was still strong in many areas.
“The number of cases of ba’ad will not decline without a revitalized court system,” she said.
The U.S. officials interviewed in Afghanistan seem quick to brush away such critiques.
“The practice of ba’ad has been overstated,” said a U.S. official who works with the informal sector. “We have anecdotal evidence that it is decreasing all over the country.”
This “anecdotal evidence” is cited by many who believe in the U.S. engagement with the tribal courts. But there is very little hard data to back up the claim.
“We do not know whether ba’ad is actually declining, or whether people are reporting it less, because they know the international community frowns upon it,” acknowledged the U.S. official.
There is certainly anecdotal evidence to support this latter hypothesis – that ba’ad is being practiced, but concealed, to keep the aid dollars flowing.
One program administrator for an NGO admitted, on condition of anonymity, that cases of ba’ad were routinely deleted from project reports submitted to donors.
“We tell our project officers that USAID wants to hear about human rights, not abuses,” said the manager.
According to internal reports of this NGO, as recently as July 2011, in Nangarhar province, in eastern Afghanistan, a tribal council heard the case of two men — Sayed Rahim and Mohammad Ayaz, who quarreled over a land deal gone sour. Two men were killed in the ensuing conflict, and the tribal elders intervened.
As compensation, Ayaz received the land and three girls in ba’ad. This, in the opinion of the elder describing the incident, was a satisfactory outcome to the problem.
The incident did not figure in the NGO’s report to USAID for the time period, according to documents made available to GlobalPost.
Nangarhar is not an exception. A local leader in Ghazni province had similar experiences.
“Ba’ad still exists in our area,” said Dur Mohammad Sardazai, who lives in Ghazni city, the provincial capital. Sadarzai is a malik, or local leader, and is often called upon to help resolve disputes. “It is a long-standing tradition. We are trying to change, we tell people it is against human rights, but it is difficult. It will take a long time to stop this practice.”
How long is a question that the United States government would prefer not to ask. USAID programs have very short timelines — one to three years in most cases.
“Once we have peace and security, then ba’ad will disappear,” said Roshan Sirran, the women’s rights activist from THRA. “But not until then.”
Judging by the past ten years, peace and security are a long way off. But the problem is cultural, and will take decades of education and development to eradicate.
“This will take generations,” said Noorjahan Akbar, co-founder of Young Women for Change, an organization that seeks to raise awareness of women’s problems among Afghan youth.
In the meantime, what can women expect?
Sirran is skeptical of fine words and fulsome promises advanced by both her won government and the international community.
Interviewed at a roundtable on human rights in Kabul, sponsored by USAID, she smiled gently when asked about the condition of women.
“Look at these man who speak so eloquently about women,” she said in a sidebar interview with GlobalPost, glancing around the room at a collection of deputy ministers, heads of NGOs, and other luminaries.
“They are very much in favor of women’s rights — for their neighbors’ wives and daughters. But go to their homes, and see how they treat their own women.”
TLO’s Peyton Cooke adds his own note of caution:
“We need to work with both systems,” he said. “And the ideas must come from the Afghans themselves. We cannot force them.”
But, Cooke pointed out, the United States must also avoid giving power and legitimacy to the most retrograde of local leaders, who could use their authority to prey on the local population.
This will be all the more crucial as the United States begins to withdraw its combat troops in the coming months, leaving security in the hands of the Afghans themselves. By 2014, when the transition is due to be completed, local leaders will be fully in control. This may create some rather murky dynamics if not adequately managed, adds Cooke.
“If this is not done correctly, if we empower the wrong people, then engagement with the informal sector could be pregnant with very real danger,” he said. “But some engagement is probably better than none.”