Legal Reconstruction in Afghanistan
Rule of law, Injustice, and Judicial Mediation
Antonio De Lauri
1. Rule of law in Afghanistan; 2. Kabul's judges; 2.1 Judicial training; 3. The common good; 4. Mediation within the courtrooms of Kabul; 4.1 Kidnapping and mediation; 5. The administration of court cases.
The present article is based on field research carried out in Afghanistan between 2005 and 2008. For the most part, the research was conducted at the Second District Court of Kabul, the Provincial Office and the Prosecutor's Office of District 11. During my fieldwork I directly observed twenty court cases (both criminal and civil), in order to examine the ordinary daily practice of law. Thus, by the means of an ethnographic analysis of "Afghan justice", I have tried to investigate the daily implications of a "legal expansion" conveyed by the international agencies. I also conducted several interviews with judges and prosecutors, whose point of view emerged as being crucial to understanding the "life" of judiciary institutions. In addition, the ethnographic analysis was prompted by a series of interviews carried out with aid workers, administrative officials, international organizations experts, and members of the customary assemblies.
My thoughts and observations are a critical reflection on the legal reconstruction which the international community and the Afghan government initiated in 2001. In particular, my aim is to highlight some of the more controversial factors that accompany the implementation of a foreign model of justice inspired by the ideology of the rule of law. By giving particular attention to the work carried out by Afghan judges, I will discuss some of the more important mechanisms of imposition, resistance, and absorption which are taking place within the Afghan Justice system.
1. Rule of law in Afghanistan
In Afghanistan, following operation Enduring Freedom and the consequent arrival of various international companies on Afghan soil, the 'international community' (lead by the United States) has decided it would like to give political stability and democracy to the country. The endeavor has evolved into a more extensive, and rather controversial, process of reconstruction which calls into question the 'democratize and modernize' mantra that has become the ideological justification for a (by now) well-established form of geopolitics. In spite of the criticism which has been leveled at the seemingly obsolete 'theory of modernization', the paradigm continues to fuel international policies and actions.
The extent to which this policy of 'modernization' is at the base of the current redefinition of the Afghan legal and judicial system becomes quite clear. Within a geopolitical context of expansion and control that still seems to be guiding this delicate historical moment marked by the ideo-logic of the reconstruction and various forms of 'humanitarian fundamentalism' (1), this policy of modernization has also led to the development of a state-centric vision of social transformation. Of course, encounters between different political and legal systems and principles are bound to result in forms of syncretism. The criticism of my paper is more concerned, however, with the enormous role which this 'modernizing vision' (2) has played in supporting political/economic projects of expansion which have often transformed Afghanistan into a battlefield (3). This vision has rewritten the historical narrative of events in Afghanistan giving emphasis to what analysts and politicians have interpreted as the 'need for modernization', or, more precisely, 'democratization' (4). Within this same vision, there has been a tendency (5) to legitimize all social transformations in the name of an external process of modernization while painting the picture of an afghan society rooted in its own traditions and resistant to (imposed) 'improvements'.
During the various international conferences and meetings, the legal reconstruction has appeared as the crux of discussions concerning the future of Afghanistan, and more generally Asia. On an ideological-symbolic level, this reconstruction has been legitimized by evoking the principle of the rule of law as a key category for the larger project of democratization being carried out by the international community.
The underlying logic is that a global rule of law becomes valid for national administrations giving citizens the possibility of making recourse to it in order to have their rights upheld. State governments, in turn, are also subjected to these global rights (6). As Cassese notes, the global expansion of law as an endeavor is still precarious, and the system of 'the same rules for everyone' is still anything but stable.
According to which criteria should these equal rules for everyone be established?
The document endorsed by the London Conference on Afghanistan (2006) was explicit about the desire to "respect the pluralistic culture, values, and history of Afghanistan, based on Islam." The objective was to unite the rule of law ideology (tied to the western legal system) with a system of law founded on its own principles and rooted in Islamic tradition. In this context, the insistence on instituting the rule of law was tightly intertwined with the initiatives for "economic development" and "creating stability" in Afghanistan (7). Nevertheless, the convergence of the rule of law and Islamic law has not resulted in a well defined set of judicial procedures nor have the discrepancies between the 2004 constitution and the law in force been resolved. And this is not all. The present plans for the justice system have avoided incorporating practices and values which are part of the customs of the Afghan people, and in doing so have impeded the formation of an acceptable and recognized system that reflects the social fabric of the country. As I have learned over the course of my research, these plans have been in direct conflict with the work of many judges who continue to uphold a series of customary practices by adopting an approach of contamination, an approach that is determined by a plurality of normative reference systems ranging from custom and state law to international law and the principles of Islam.
From 2005-2008 I had the opportunity of meeting many United Nations workers (above all from UNIFEM and UNODC), various members from the International Development Law Organization (IDLO) and other organizations involved in the legal sphere in Afghanistan. From my conversations with them (8) it emerged that many of these 'protagonists' of the reconstruction have a general attitude of refusal in regard to the customary practices used to settle disputes and make decisions, which they consider to be inconstant, violent, and sexist. There are certainly many such cases to be found. Indeed, many international agencies gather (and in some cases try to resolve) dramatic examples of human rights violations. It is important, however, to point out how this 'cataloging' of offences has at least two main effects: 1) it reproduces determined political identities (9) within a context of contrapositions which are often violent; 2) it leads to an attitude of condemnation in regard to an entire system of customary practices and values, to delegitimizing that system in favor of one imposed from without. The tendency is similar to what Chatterjee (10) recognized in colonial regimes: a tendency that was functional for colonialism's project of 'civilizing' and which, in this case, is being employed by projects of 'modernization and democratization'.
Moreover, the reconstruction process in Afghanistan involves an enormous quantity of aid, cooperation, and development projects which are having an enormous effect on the social and political life of the country. These projects, whether they are initiated by governments, or intergovernmental and non-governmental agencies, seek to legitimize their endeavors symbolically, for example through the rule of law. But there is a vast difference between the academic conception of the rule of law and the intentions and the effects of the actions carried out in its name. Generally speaking: "In an increasing number of places, promoting the rule of law has become a fundamentally imperialist enterprise, in which foreign administrators backed by large armies govern societies that have been pronounced unready to take on the task of governing themselves." (11)
The idea that Afghanistan is not capable of creating a stable political system on its own is a typical perspective of international interventionism, which condones one country exercising control over another if it is not considered ready to govern itself. Such a perspective reinforces the hegemonic nature of this form of interventionism capable of obscuring the transnational historical processes which are actually at the base of the internal political unrest in Afghanistan, and attributes it to an inability to give oneself democracy.
Today Afghanistan is essentially led by the United States, the United Nations, the European Community, and a dozen or so NGOs. The International policies of these entities have made the rule of law a mantra through which determined political and legal models are assimilated. This is clearer if one considers that the rule of law is not something which exists outside of culture and can easily be imposed through the creation of formal structures, through the rewriting of constitutions and statutes (12). In Afghanistan today, the rule of law constitutes a key category in the lexicon of international interventionism, a category with which functionaries of the Afghan government, judges, attorneys, and local administrators must measure themselves. It is within the culture of the rule of law that one must interpret the importation/exportation of political wills which, in the rhetoric of international politics, make themselves the guarantors of values such as social justice and human rights. The theory of the rule of law is presumed to be 'good for everyone' (13). Indeed, it has become inextricably tied to the concept of democracy and often to the idea of the struggle for democracy.
Nevertheless, it may well have become impossible to disguise the enormous interests behind the various actions legitimated by the rule of law. During the war in Afghanistan, in addition to the well known interest in extracting energy resources, conspicuous earnings have been made in the sectors of privatized security and in relation to the creation of new fiscal paradises (14). From the point of view of those countries involved in the reconstruction process, the connection between legal expansion and economic penetration is thus crucial.
2. Kabul's Judges
The apparatus of the rule of law moves on multiple levels and affects the judges of Kabul in various ways. The judge's discretion is not immune or indifferent to legal instruments derived from discussions about human rights and the standards of international rights. Presently within the Afghan justice system, we are witnessing a series of cause and effect phases in which the rule of law appears as an unavoidable form of contamination in the bringing together of different models of justice. From another perspective, one could read it as evidence of the expansion of power and domination which seek legitimization in the legal system. The use of rule of law to bestow legitimacy on various political and economic interests is observable on more than just the level of imposition, or at least not exclusively in these terms. Under the influence of external force (following for example a military intervention), complex mechanisms of resistance and assimilation are triggered. The force of foreign models of justice permeates the Afghan legal system in various manners through indoctrination, persuasion, and contamination across both political and humanitarian lines. If dominant countries have exercised their influence in an explicit and ostentatious manner in the past, these days they do so through a tactic of moral suasion (15). However, Afghanistan's case is peculiar. The institutional changes which have been introduced from without were anticipated by a moment of violent transition: the war. The tactic of moral suasion was implemented in a second moment, in the form of a programmatic promotion of determined economic models and humanitarian propaganda.
In any case, the various international conferences, treaties, and agreements which have taken place since 2001 have resulted in plans of action to be carried out from the top down, but also in phases of acquisitions and resistance. For the perspective of the judges of Kabul the rule of law cannot simply be understood as an externally imposed order. On one hand, the judges themselves embody the affirmation of foreign influence while on the other they reinforce their own way of understanding justice which is rooted in Afghanistan's legal network and culture. Within the body of judges, then, contrasting initiatives and forces compete with one another. Such motivations initiatives or forces are often the result of the influences of religious figures or international agencies. As unlikely as it may seem, the fundamentalist intentions of some powerful judges of the Supreme Court might even come about in contexts which are heavily influenced by the policies of organizations like the United States Agency for Development (USAID).
2.1 Judicial Training
The training which Afghan judges receive is undoubtedly a crucial factor for the entire judicial system, and one which highlights the role that international agencies play in all of this.
Although small in number, the present make up of the body of judges is rather heterogeneous, though only around 4% of them are women.
As the following diagram shows (16), Afghanistan's present judges were nominated in various political contexts (though within a short span of time), and each of which was marked by a different concept of the role of justice (consider for example the difference between the Communist and Taliban regimes).
Also from the point of view of their training there is a relevant amount of heterogeneity (17):
Looking at these charts, it is easy to imagine how difficult it is to achieve uniformity in Afghan judicial practices; there is little uniformity in the judges training backgrounds, and some of them are not even officially qualified to cover their positions (18).
After the fall of the Taliban regime, the judicial system has been increasingly affected by its relationship with international agencies. Their effect even extends to the realm of training.
A recent report by the Max Plank Institute for Comparative Public Law and International Law (19) states that even those judges who have gone through the conventional program of studies might not be capable of carrying out their job. This is because it is necessary to have a profound knowledge of Islamic and state law, both of which are essential elements of the Afghan legal system. Moreover, the particular preparation of students who have studied in the Madrasa further complicates the situation. With the goal of providing all the necessary tools for the various legal professions, the University of Kabul created a common curriculum for the Law and Shari'a Faculties that included a series of seminars for the students (20). The report of the MPIL also pointed out how according to law all of the judges should have completed and passed a stage in order to practice the profession. Yet only half of them had fulfilled this requirement. However, this trend seems to have turned around since then. In 2007 the majority of the nominated judges had completed the stage required. In 2005 the Supreme Court began a three-week vocational training program called Foundation Training which was intended for judges who had not completed the judicial stage (21). The latter lasted a year and included a first phase of around 8 months of courses, followed by an exam, and finally an "internship". According to a regulation enacted by the Supreme Court, core elements of the courses are: 1. Holy Qur'an and Hadiths; 2. Judicial terminology; 3. The Constitution; 4. Law of Organization and Jurisdiction of Courts; 5. Civil Code (4 Volumes); 6. Criminal Code; 7. Criminal Procedure Code; 8. Criminal Investigation Code and its respective amendments; 9. Civil Procedure Code; and 10. Commercial and Commercial Procedure Code. The courses are organized in trimesters, the first conducted by IDLO and the second by the German MPIL and the French Institut International Pour les Etudes Comparatives (IIPEC) and the third by USAID (22).
In addition to having an active role in the formation of the judges, these organizations are responsible for financing the stage project. Specifically, the MPIL organizes the seminar section of the training: 1. Constitution I; State Organization (2 weeks); 2. Constitution II: Human and Fundamental Rights (1 week); 3. Criminal Law (General Part) (2 weeks); 4. Court Organization Law (1 week); 5. Fair Trial Training (2 weeks); 6. Judicial Ethics (1 week) (23).
These last two points merit particular attention. In regard to judicial ethics, the MPIL report states:
For centuries, the ethical rules of conduct for the Afghan judiciary were derived from Islamic sources. Muslim scholars defined ethical rules for judges as early as the late 8th century. About two hundred years later, these texts merged into a genre of legal literature of its own called "adab al-qadi" (conduct of the judge). In May 2007, this tradition came to an end when the Supreme Court of Afghanistan enacted a Regulation of Judicial Conduct which set forth abstract rules. In this respect, it is different from the Islamic texts which are composed of reports from concrete examples such as the Prophet and his successors (24).
To be precise, we should note that even though the rules of conduct for judges drew inspiration from Islamic law and tradition, they have always worked to the advantage of those in power. In 1886, Abdur Rahman had a conduct code written for his judges which was inspired by the law treatises of the Hanafi School. The code did not bring about enormous changes to the rulings of the judges despite the fact that it meant they were obliged then to adhere to the procedural guidelines established by the powerful emir. Abur Rahman's reforms were a sort of restoration of the Shari'a which showed a total disregard for local customs. Before Abdur Rahman, judges only exercised influence, albeit minor, in urban centers while in rural and periphery areas official legal offices were still a sort of apanage of customary legal structures. With the objective of reinforcing his centralized authority, the emir attempted to extend this islamicized legal system to the rest of the country in hopes of being able to implement the Shari'a. Abdur Rahman tried to carry out his centralizing goal with the use of force, but he also attempted to legitimize his actions; for this he was known as the 'protector and champion of Islamic faith'. Rahman formally distinguished between sources of law: Islamic law, customary law, and state law (civil and administrative laws, qanun). He also established three types of courts: the Islamic court that judged civil and religious cases, the criminal court that was administered by the heads of police and the religious judges and which applied Islamic law, and the board of commerce for commercial disputes, a judicial structure which was similar to that which was in place after 1964 (25). From a comparative point of view, it is interesting to note how "the enactment of the Regulation of Judicial Conduct can be seen against the background of a world-wide movement." (26) The report, however, reads, "the question of the enforcement of the Afghan regulation is especially difficult in Afghanistan, as the new Regulation of Judicial Conduct does not fully comply with the pre-existing enforcement mechanisms." Nevertheless, "by means of careful interpretation of the existing norms, the institute is able to provide a coherent, workable system based on the existing regulations. The comments on contemporary Afghan law are explained in the wider context of international development in the field of judicial ethics." (27)
The Max Plank manual and seminars are dedicated to these points (28). The manual states that the "basic prerequisite for a fair trial is that proceedings are conducted by a competent, independent, and impartial tribunal." (29) But the manual specifies another important point: "the term law is to be understood in the strict sense of a parliamentary statute or an equivalent unwritten norm of common law." (30) This becomes an important specification in the context of Afghanistan, a country where the normative substratum is not only shaped by a state law system but by customary practices and values too.
From this brief overview of the Max Plank Institute we have seen how custom is not taken into consideration during the training of the judges. This does not mean, however, that the international organizations involved are not aware of the political and legal relevance of the customary assemblies or that they do not understand the diffusion and significance of socio-normative practices which have been consolidated over time. From one of USAID's earlier reports (31), for example, it is clear that they are aware of the relevance of customary systems used for resolving disputes, cases of reconciliation or compensation have. This exclusion of serious studies on the connection between custom and judicial practice is a reflection of the dichotomous opposition between 'formal justice' and 'informal justice' (32) that dominates the discourse of legal pluralism in Afghanistan. This contrasting vision is expressed on both a legal and political level, and is often represented by a rigid juxtaposition of central and local authorities.
As I have pointed out in my research, the judges continue to make recourse to certain customary practices when carrying out their duties. They continue to pay attention to 'traditional' authorities, and they consider family and interfamily conciliation a useful means of maintaining social equilibrium.
The USAID report does not contain hostile language in regard to customary institutions. As a matter of fact, one of the 'recommendations' regarding the implementation of future projects is to create dialogue between the 'formal' and the 'informal' (reinforcing this inappropriate terminology) system of justice:
Focus groups and interviews reveal an almost total lack of understanding on the part of judges of the primary court of the informal system and vice versa. (...) In order to establish an effective relationship and appropriate allocation of responsibilities between the two systems of justice in Afghanistan, actors within both systems ought to know the basic legal principles of both. (33)
One could easily object to these statements by pointing out that judges already reference certain customary practices used for dispute resolution. But more importantly we should note the contradiction in terms of rhetoric that emerges from a comparison between the report of MPIL, or from conversations with UN and IDLO workers who espoused a legal doctrine aimed at the internationalization of justice through the overcoming of customary practices which they considered to be disrespectful of human rights, and the 'advice' expressed in the more 'dialogic' report of USAID, that also should not be considered an organization close to the customary structures. Such contradictions between the entities that share control over the training process of the judges are not uncommon in a context of reconstruction like that of Afghanistan, where a plurality of political figures are involved - often without any real coordination between them - in the political, legal, economic, and social life of the country.
The influence of international organizations in Afghanistan goes beyond the realm of the Supreme Court, which is economically dependent on external aid. By creating a body of judges it can use as a vehicle for their own international standards, they are also exercising their influence on a more daily level in the justice system. The same 'promotion' of dialogue between legal systems (34) takes place on a political and dialectical level and is the result of an increasing awareness of the resistance of many Afghans in relation to an externally imposed justice system that they feel has little to do with their daily life. The judges, caught between the demands of a social structure which is coping badly with foreign interference and the controlling position of international institutions (to whom the government must answer), practice a sort of negotiated justice which does not fulfill the needs of the citizens.
The USAID report takes an analytical approach to the Afghan legal system in order to understand the uniqueness of its form of justice which is built on a multiplicity of sources all of which are interconnected. As I have already mentioned, such an approach, attentive to the customary substratum, might be the result of the increasing resistance expressed by Afghan citizens with regard to the interference of interventionist political agendas and foreign models. Regardless, the 'suggestions' expressed in the USAID report have had little actual confirmation in the projects realized throughout the country. All this of course just repeats the typical gap between a rhetoric of cooperation and the actual political praxis of implementing projects. In my opinion it is also extremely important to note that when these reports mention customary practices it is exclusively in relation to actions of social institutions like the Jirgas or Shuras (35). In doing so they completely ignore the fact that most conflicts and problems are dealt within the family structure. Institutions like the Jirgas and Shuras are tied to the collective dynamics of the community. This means that their actions are related to an entire context of social ties, neighborhoods, authorities, and determined values (often even determined resources). In a city like Kabul, where the demographic boom, the mass influx of people, housing politics, and poverty have created a break in social ties, recourse to customary practices tends to be the preferred method for settling disputes within and amongst families. In many cases this is accompanied by recourse to judicial institutions as well. The failure of the community network provokes a detachment between the value system which individuals follow and the practices which are implemented in the name of those values. A possible consequence of this could be the tightening of certain customary practices, in response to an environment in which hierarchies and traditional values encounter other social phenomena like unemployment, scant housing, and poverty. In Kabul, everyday life shows all the complexity of a multifaceted normative system (based on custom, state law, and Islamic principles) under which 'upholding justice' cannot happen without a continuous process of negotiation that sees each individual case confronted from multiple contexts: family mediation, intervention on the part of international organizations, meetings with attorneys, court hearings, decisions of the Jirgas, etc.
There is, however, a notable difference between customary practices initiated by individuals and families and customary practices 'judged' by social institutions like the Jirgas and Shuras. In the case of a Jirga, for example, we are talking about a traditionally recognized social institution, whose political influence can be seen in the procedures of legitimation of political instances at national level (i.e. the Loya Jirga, the Grand Assembly of Leaders). Although the Loya Jirga (36) has little to do with the local Jirgas, its symbolic and historical value is deeply rooted in the customary substrate which the Jirgas embody. The customary assembly, then, is an influential political subject acting at a community level, being fully involved in the reconstruction process. For example, the so called Provincial Shuras represent a point of contact between Government, international agencies, and local communities, and have an important role in facing issues of public interest.
If recourse to the practice of bad (37) as the result of a family decision represents an injustice which can be faced on a legal level, when decided by a Jirga it produces an injustice whose effects are also political. In other words, where customary negotiations carried out on a family or interfamily level stress the socio-legal repercussions, on the level of the Jirgas and Shuras they stress the political implications. To reiterate, this distinction is subtle; in both cases, the normative and political implications are relevant and interconnected. What I would like to underline in making this subtle distinction, however, is that in the process of reconstruction, the subjective political forms which the customary assemblies embody are defined by a type of political-legal negotiating which do not take into consideration those people who must take justice into their own hands because they are without access to judicial institutions or customary ones. In the end, then, that which is generally described as legal pluralism becomes an inaccessible normative pluralism in which both the rhetoric of the reconstruction and that in favor of reaffirming the customary institutions (Jirga, Shura) overshadow the daily praxis of a multitude of individuals who are excluded from the dominant antagonism that symbolically oppose the rule of law and the Jirgas.
Obviously legal and judicial reconstruction is complicated and cannot be explained through one perspective alone. In addition to the shadiness which hides itself behind the flag of the rule of law, we must also recognize the multitude of other ways in which the powers and interests that take advantage of Afghanistan in the name of justice and democracy carry out their actions, often giving rise to evident contradictions. Yet, despite the variety and the (at least presumed) lack of coherency of the rhetoric, the underlying logic behind the international organizations in Afghanistan remains the same. These organizations continue to be vehicles for a transnational order that is only marginally interested in rectifying the injustices suffered by people on a daily basis.
Afghanistan continues to be a terrain where battles are waged whose implications go far beyond the borders of the country. How do we discern between the work of USAID from the affairs of Enduring Freedom? How can we evaluate the work of the Italian Justice Project without considering the interests of the Italian government in the international alliances? How should we consider the various and intermingled aspects of warlordism (38), the drug trafficking network, and the policies of a pro-western government when analyzing the reconstruction process now underway? What complexity of relationships is behind the increased number of attacks in the capital, security policies, control over energy resources, and opportunities regarding neighboring countries (Iran, Pakistan...)?
Although these issues seem distant from the daily injustices suffered by individuals, they actually allow for their perpetration by fostering the continuation of mechanisms of violence and domination. Carolyn Nordstrom (39) uses the term 'global fault lines' to explain the connection between the events in an individual's life and phenomena of global proportions. In the story she tells of her encounter with a war orphan who sold cigarettes, Nordstrom considers the networks and profits tied to this illegal trade: half of the world's cigarettes are contraband; cigarettes are rarely moved alone, usually transported together with arms, drugs, human beings, pharmaceuticals, cars, software, etc. The money moved, which ends up in financial markets, currency exchanges, and bonds markets, is capable of causing a national currency to crash. For Nordstrom, the war orphan is a critical aspect within the sphere of global finances. The tragedy of the child represents a 'tremor'. In the context of war and institutionalized violence, the fault lines are determined by certain political, economic, and ethical relationships established according to the flow of goods, services, money, and people who create unstable inequalities, unequal access to power, and an inequality in the distribution of resources.
It is not difficult to imagine how international politics, private profit, and internal instability in Afghanistan have forced the post-2001 (40) reconstruction process to follow a logic which is poorly suited to fighting injustice.
During a meeting with some workers from the IJPO, I came across a brochure entitled 'No Progress Without Justice'. (41) Justice and the protection of human rights are presented by the Afghan government and the international organizations as the foundations for a 'better future' for the country. The standards of international law are certainly pronounced loudly in Kabul, not loudly enough however to drown out the many victims of violence and poverty.
To use another metaphor of Nordstrom, we can think of the Afghan justice system as a 'fracture zone,' a line of "instability that radiates out from specific and discernible crises." (42) These zones are fragile; they collapse under the slightest stress.
3. The Common Good
What reasons are used to legitimate interventions in the Afghan justice system? What ideological foundation supports this fragile 'fault line' that we call a justice system?
After sentencing a young boy named Ali, arrested with 6 kilos of heroin in a suitcase (43), to 6 years of imprisonment, judge Ajmal (44) of Kabul's Second District sat down to have a long conversation with me and my friend Basir (45). The judge spent a long time talking about the problem of drug trafficking in Afghanistan and the repercussions it has on the lives of Afghanistan's young people. He then went on to talk about the role of judges in Afghanistan today. For Ajmal (46), "the courts are a place where one can put the country in the right direction after many years of war and deprivation." With the expression 'in the right direction', the judge was referring to the "need to follow the road to justice." When I pushed Ajmal to clarify the significance of the word 'justice', he described two distinct qualities: the need for institutional reorganization, and the creation of a shared value system. Ajmal finished by expressing his idea of a nationally shared legal awareness: "We should all be able to give the same response to the question: which justice are we talking about?"
Judge Ajmal's incites us to consider how justice, even before referring to law, is tied to the concepts of 'right' and 'wrong', and how it presents itself as the oppressor of the latter in favor of the former. These are socially constructed categories that although apparently stable, are continuously subject to reformulations caused by contamination from the spheres of culture, religion, and law as well as by events and social transformations. The same opinions and convictions which cause an event (an action, punishment, or demand) to be considered right, also contribute to the identification of its opposite, to an event being considered wrong. Every individual has his or her own definition of what is right and what is wrong that he or she creates both rationally and unconsciously. Through this process of incorporation and re-elaboration, an individual learns to delineate the borders of 'right' and 'wrong' (what is 'good' and what is 'bad') on the basis of beliefs, social experience, and dynamics of power. The justice system should be then founded on a collectively elaborated concept of justice. In other words, the ideal should support the institutional sphere of justice, even if a certain distance between the two is inevitable.
In the last decade, there have been an increased number of debates regarding innovations to the justice systems of common law and civil law countries. These debates have emphasized the ideal dimension and have pointed out its distance from praxis. In these debates, restorative justice has received more and more attention and has been proposed as a possible evolution of 'making justice' (47). Restorative justice may be defined in relation to three of its main elements: reparation, reconciliation, and community conflict management. Generally speaking, restorative justice seeks out resolutions -- following an event in which established norms have been broken - with the aim of promoting reparation for injury, reconciliation between the parties involved, and the reinforcement of community/collective equilibrium and cohesion.
When these reformulations of judicial codes and the Western concept of law are resituated in a context like Afghanistan, they assume a different legal and historical perspective and move one to reflect on some aspects of particular interest from a comparative point of view (48), such as the use of mediation in courtrooms or mechanisms that legitimate authority in the name of maintaining a community equilibrium.
In reference to the Pashtun concept of justice, many scholars have noted (49) that the norms of the Pashtunwali (50) often refer to a restorative rather than a retributive model of justice. When a norm is violated, the offender is forced to ask forgiveness to the family of the victim and to pay 'blood money' instead of going to prison. The meaning of the concept of blood money varies, however. In some cases it means that the family of the perpetrator must give a daughter in marriage to the family of the victim. The need for reestablishing equilibrium after an illicit act is evident in this case (51).
Such a concept of justice understands a transgression of a consolidated norm as something which has repercussions beyond the single individual, something that affects the equilibrium of an entire community. In such a system, the repercussions for the victim and the community are just as important as those for the offender. In this sense, reconciliation and the preservation of a certain 'order' within the community may be considered structural conditions of the customary normative system.
The decisions made by customary institutions like the Jirgas seem to be tied in some ways to this 'restorative spirit' and the promotion of reconciliation. (In mediation, one of the principle goals is to limit the possible repercussions of a transgression, such as feuds or vendettas.) When the practice of bad is implemented by a Jirga (sometimes with the support of the Mullah and/or members of state or provincial institutions), it can be associated with this socio-normative idea of reconciliation. A report issued in 2003 by the Women and Children Legal Research Foundation speaks of the bad as a practice used for resolving disputes and problems, when in reality "through this practice women and children are used as slaves." (52) However, an aprioristic affirmation of the sort (although one might share its aims) cannot be considered exhaustive. Such an affirmation tends to set up a rigid opposition between 'tradition' (identified with the customary system) and 'modernity' (recognized in state and international law), the same dichotomy at the base of international interventionism. There are many elements to take into consideration when one looks at the mechanisms of customary dispute resolution, such as transformations to the social body, the reformulation of family roles, resistance to externally imposed models of justice, and the tension present amongst various forms of authority. In this sense, the idea of the 'common good' (53) (the equilibrium of the community) behind certain practices and decisions should be considered in relation to the present conditions of the Afghan justice system which has often been the outlet for a reconstruction policy that does not look out for the interests of the population.
Therefore, that which might elsewhere be considered an 'innovative' model of justice when analyzed in the context of Afghanistan poses a series of questions in regard to its dedication to maintaining the equilibrium of the community and not just repressing criminals: What are the conditions and the limits of reconciliation? At what cost must the equilibrium of the community be persevered? Within a context of legal transplanting, according to which criteria is this equilibrium defined?
I include this brief digression on restorative justice and the formulation of the questions above to underline my criticism of the theoretical assumption that the forced implementation of a model of justice (the rule of law) is a viable way of protecting citizens and improving living conditions.
My position in regard to the expression common good, in the use to which I am referring here, is of course critical. If a certain understanding of the common good is associated with community life and may serve to legitimate certain forms of authority - and also of violence (like in the case of the bad) --, it can just as easily be used to support the establishment of a rule of law project in the form intended by the international community. This is a sort of degradation of the concept of the common good and the collective interest in favor of determined objectives. Within the customary sphere, community equilibrium is presented as a common good, a 'good' which involves the consolidation of social hierarchies and reestablishes a sort of economy of connections and reciprocal relationships. In the reconstruction process, the governmental and international rhetoric presents the rule of law as an essential element for the 'development' of the country, necessary for the 'good of all'. The words of one USAID worker in regard are important: "Without the establishment of the rule of law it is impossible to build the foundations necessary for social justice and solid democracy in Afghanistan [...]. We have a fundamental role in seeing this process through." (54) The comments of a researcher for IDLO were similar: "Reforming the justice system is a primary objective of the international community, for the good of Afghanistan and for all of us." (55)
When certain positions in the name of the collective become absolute, they often result in the forced imposition of instruments, models, and ideas that are assumed to be indispensible in the pursuit of a common good for which certain people (or States) become the guarantors.
Todorov's remark, "Whenever we see the dawn of an eternal good, the blood of old people and children is always shed," (56) suggests that perhaps we should give up on the idea of a definitive and incontestable 'good'. Counter to this idea, "the fight against evil should be conducted without falling into illusory dogmatisms, with awareness of the limits of our condition." (57) In the current political-legal context of Afghanistan, instead of systematic examples of fighting injustice, of 'righting wrongs' (58), one finds ideological oppositions which tend toward dogmatisms. In brief, the international community's contribution often becomes more of a forced interference accompanied by the promotion of models and principles that ignore the social context of Afghanistan, an interference which often hides various objectives and interests. On the other hand, certain political leaders, mullah, ulama, faction leaders, and government officials provoke a type of antagonism which, when imbued with political importance, escalates into violence and attempts to root itself in a 'essentialized custom' as a constructed symbol of dissidence towards external interferences. As a result, it is difficult for Afghan citizens to access the various normative institutions. Certainly, the interconnections between different normative models (customary, human rights, Islamic law, state law), as well as the coexistence of customary assemblies and judiciary institutions, are already a part of the normative panorama in Afghanistan. Nevertheless, this coexistence is characterized by tension rather than collaboration. Thus, normative interconnections result from processes of negotiation (often initiated by judges) that have the aim of maintaining equilibrium amongst the various forms of power and mechanisms of social legitimization. With respect to this point, it is interesting to examine the action of mediation carried out by Kabul's judges in greater detail. This action of mediation should not be understood as a simple 'judicial tool'; it must be considered within a wider perspective.
4. Mediation within the courtrooms of Kabul
The mediation role which judges carry out in the courtrooms of Kabul can be seen in both civil and criminal cases, although in different ways. However, the cases I have seen have spurred me to question statements such as the following which attempt to explain what restorative justice is 'in practice':
In practice this means the affected parties are directly involved in the justice process, dealing with the injustice through interaction and mutual understanding. They are given voice to vent their feelings, present their side of the story, and ideally come to an agreement about the hurt the offense has caused, the offender's responsibility, and what can be done to restore a sense of justice. (59)
Though such an affirmation comes out of good intentions, it implies that mediation merely entails exercising one's judicial tasks and forgets the fact that the judges carry out their work in a much more articulated context. For this reason I feel that it is appropriate to speak of a sort of mediation at various levels that involves the mediating role of the judge in facing specific cases, but also negotiation between legal systems and different forms of authority (traditional, state, religious).
Subject to the pressures and circumstances of the present justice system, the judges of Kabul practice a form of mediation which does not simply conclude with an agreement or (presumed) reconciliation but reflects the drifts of a negotiated justice which most often favors the strongest party over the weakest.
When examined in practice, in concrete circumstances, the 'myth of mediation' upheld by supporters of restorative justice assumes a different value and can no longer be accepted as a technical juridical concept capable of resolving all problems. The myth surrounding mediation is fueled by abstractness and is often based on unrealistic notions of harmony and reconciliation. Indeed, "an uncritical celebration of harmony is at base acceptance of philosophies that have more to do with ideological belief than with social justice". (60) Moreover, this abstractness has the capacity to function dialectically as an implicit stamp of universality. (61)
4.1 Kidnapping and Mediation
I discussed the following case with judge Abdul (who presided it) of the Second District Court of Kabul. (62)
The story begins one afternoon when Homaira, an eighteen-year-old girl, was approached by a car as she was beginning to make her way home from the bazaar where she had done some shopping. The driver of the car, a twenty-year-old boy named Hossain, offered to give her a ride home. Since she knew the boy, who was from her own neighborhood, she accepted the ride and sat down in the back seat of the car. According to the girl, Hossain immediately became aggressive and threatened to kill her if she resisted him. After threatening her, Hossain drove out of town. Troubled by the fact that Homaira had not returned home, the father called the police, not to report that she was missing but that she had run away from home. As Homaira's mother explained (63), within the house her father was evidently worried about the girl but in public he had to appear angry with his daughter for the insult she was bringing upon their family (64). In the meantime, Hossain was taking Homaira toward the Pakistani border where he planned to sell her for profit. However, Hossain, not having any experience or the right contacts in Pakistan, almost immediately gave up on the criminal venture after some initial difficulties. Three days after her disappearance, Homaira returned home. She immediately recounted what had happened and gave Hossain's name. Despite this, a day later, she was put into jail and no measures were taken by the police against Hossain. The report of the prosecutor who sentenced the girl stated that she had run away from home with a man. While she was in detention, a meeting between her father, Hossain, his father, and other male members of the two families was organized. During the meeting Hossain was asked if he was willing to marry Homaira, to which he replied yes. Homaira was still in detention when they gave her this news, but she refused the compromise. After a few weeks, Hossain was also interrogated by the prosecutor, who did not charge him with kidnapping, but did obligate him to appear in court. During the first session, everyone involved was heard. Homaira remained in detention while Hossain returned home. In the second session, judge Abdul dropped the charged against Homaira after having read all the papers and testimonies regarding her case. However, no measures were taken by the judge against Hossain. The following is the judge's explanation for this decision:
Judge: Homaira was detained for many months. From the testimonies and the documents it seems that her version of the facts was what actually happened. This is also demonstrated by the fact that she refused the marriage proposal of the boy. For her father and for the community, it did not matter what happened afterwards. The girl was wrong in accepting a ride from the boy. She should not have gotten into the car of a boy who was not her husband or one of her brothers. For Homaira's father this was a disgrace. These stories can end up even worse.
Antonio: Why did Homaira remain in detention for so long?
Judge: This question has two answers: At the beginning the prosecutor thought there was a possibility she might run away again. In the first court session I did not order her release for her own protection. If she had returned home before everything had been cleared up she might have been beaten or threatened.
Antonio: Was it dangerous for her to decline the marriage proposal of the man who had kidnapped her.
Judge: Certainly. If she had accepted the proposal, the entire affair would have been resolved. Instead, her responsibility in the affair and that of the boy still had to be determined. Judging by the facts, it is improbable that the two ran away together. But in regard to the abduction, it is her word against his.
Antonio: After she was released and her testimony was deemed true, was it not implied that he had abducted her.
Judge: In certain cases the objective is not to condemn someone. The trial would have been long. Had Hossain been arrested problems would have surely arisen between his family and hers.
Antonio: The objective then was to avoid any further problems.
Judge: And also to protect her. But I don't think that all of Homaira's problems have been resolved. Her father will be stricter with her and most likely he will not allow her to leave the house for a long time. Or he will try to organize a marriage as soon as possible.
This brief exchange shows us how the mediation conducted by judges is inevitably conditioned by the context in which it takes place, by customs, and by preexisting social hierarchies. One might object that this is not the type of mediation that jurists have in mind. We should, however, observe how the judge here does not stress the sentence. On the contrary, his main aim is to make sure that the parties involved, as well as those connected or behind them are pleased by the settlement. In the end, this aim turns out to be an attempt at pacification, of assuring the problem does not escalates or have grave repercussions. Sure, this might not be an ideal example of mediation, but when is one ever ideal? Is there a real context in which legal models find their perfect correspondence? In the courtroom, mediation can lead to the reparation of a wrong, to reconciliation, but also to the violation of the victim's rights and the reification of determined forms of inequality. Homaira was forced to pay for an 'acceptable' settlement, which might have, as the judge believed, saved her life. The example of Homaira raises a few important questions: Who has the power to mediate? In which ways is this power conditioned? How are the weakest individuals protected through judicial mediation?
Within the judicial context of Kabul, mediation is the result of a legal praxis oriented at reparation and reconciliation, and is a response to the current circumstances of the judicial system which are difficult to work in and which often pushes judges to make compromises.
In March of 2008, thanks to my friend Shahim (65), I was able to participate in some classes held by the IDLO at the University of Kabul. During one of the last lessons, the teacher gave students documentation of some court cases and asked them to describe the procedure they would have used to resolve each one. Having been present at many actual court cases, I was struck by the gap between the judicial praxis which one witnesses in the courtrooms of Kabul, whose settlements are aimed at finding an accord between the parties involved in an effort to avoid disturbing preexisting social stability, and the settlements laid out by the IDLO teacher, which were aimed at identifying legislative provisions that will support the judges unilateral decision. The gap between judicial praxis (influenced by custom and external pressures) and the abstraction common to the classes was reflected in the objectives of the class itself, one of which was to promote standard legal models, in line with Afghan law and respectful of international agreements.
As we have noted, those who work in the courtroom would be remiss in underestimating the social context behind the hearings, in ignoring its "specific social weight" (66).
It is almost impossible for the judges in Kabul not to 'look around'. Judge Abdul stressed this exact point: "If I were to talk about a court settlement in a classroom, it would be different from the decisions I make every day. Sometimes, the point is to avoid the worst. This is what is difficult. Because it is not like everyone imagines, it is not enough to just apply the law."
Judge Abdul's statement raises fundamental questions: Should judges be responsible for the consequences which their judgments bring about? If the consequences are grave or dangerous for a person, should the judge go ahead with his application of the law's provisions? In so-called 'modern democracies', the discretion of judges in this sense seems rather limited; the judges possess an undisputed power to judge that must always be symbolically founded on the law. Even if it exists, their discretion is concealed behind the ideology of legalism. On the other hand, the mediation model (which continues to have more and more supporters in the West) explicitly stresses not only the judgment but the social dynamics related to the case. This being said, as we have seen in the case of Homaira, this does not necessarily imply that all parties involved will obtain justice, or that the injustice suffered will be righted. This is the price which is paid in order to avoid the escalation of a conflict and its subsequent consequences.
Judicial mediation, then, rests on the fence between a professionalized system of justice (despite the numerous attacks on Kabul's judges for their lack of professionalism) and notions of justice rooted in the customary substratum. (For example, the proposal of marriage to Homaira is a common conciliation practice.) In this way, the judges adopt a judicial praxis of contamination in response to the existence of multiple normative models, even if this praxis is over-determined by a policy in favor of centralizing justice. An implicit negotiation between 'principles of justice' is born, which in the present process of reconstruction assumes the semblance of a form of resistance towards the affirmation of the Western rule of law as the exclusive model of justice for resolving problems. A close look at judicial mediation understood in these terms should lead us to a reexamination of the present mechanisms behind the establishment of standard judicial models. These mechanisms take little account of the common space available for re-elaborating the tools and rethinking the institutions whose task it is to rectify the injustices suffered by citizens.
5. The Administration of court cases
The power and responsibility assigned to judges have traditionally been seen in relation to their symbolic, ritual, and moral characteristics to the point of considering the trial as the first moment in which law takes root in ordinary life (67). Following Simon Roberts' reflections on the changing role of courts, we may more thoroughly examine some aspects of the role of judges and the power which they embody. According to Roberts:
The 'court' has already long provided symbolic cover for more than trial and judgment. With their officially sanctioned move to constitute primarily arenas for bilateral negotiation the dislocation between form and substance increases. The judges now appear increasingly as 'exemplary', ceremonial figures, presiding over, -- or rather legitimating -- other people's decision-making. Arguably, with this decline in the importance of command, the decay of an operational/practical role, the ceremonial, ritual dimension increases in importance. (68)
Although Robert's reflections regard a very different legal and social context from Kabul, namely that of the United Kingdom, it is possible to note how legal systems centered around mediation and the consequent redefining of the role of the court are a contemporary phenomenon of transnational interest, particularly in light of the present process of legal transplanting or, as some might prefer to call it, legal imperialism.
In the Court Houses of civil and common law countries, the 'ceremonial dimension' has always been connected to legal symbolism, under the logic of a judicial ritual which carries out its tasks according to its own rules. According to Garapon, then, the first gesture of justice is neither intellectual nor moral, but architectonic and symbolic (69). Certainly, Kabul's courts have little to do with the "gothic pomp of Victorian courtrooms" (70) or with the "judicial stage designs" (71) of the Parisian courtrooms. The crumbling and peeling walls of Kabul's courts make one think of wars, not the grandeur of judicial power, and the lack of iconography connected to justice there reaffirms the Islamic concept of the latter. Besides this (considering the influence exercised by foreign models of justice, in particular that of the United States), the ceremonial function that the judges of Kabul fulfill rests in the relation between the legal ideology which they embody and the attempt to nationalize justice. Indeed, the ideology of legalism is always concomitant to centralization (72). In this sense, the judges of Kabul come to embody the symbolism of a state power that is attempting to affirm itself by making use of the momentum of transnational forces which are moving forward in the name of the rule of law.
Claiming that the decline in the operative/practical role of the court is accompanied by an expansion of the ceremonial dimension of judges, Roberts stresses that courtrooms are increasingly becoming places in which requests, whose management is entrusted not only to judges, are legitimated. This phenomenon is observable in the courts of Kabul. It would be incorrect to talk about judicial pluralism within Afghanistan's justice system, at least not at this point. However, the dynamics in the courtroom invite one to question the exclusive and controversial task of 'judging' that in theory belongs to the judges alone. Their authority is continuously questioned by the interference of political factions and international actors. Moreover, judges have to face the discontent of those who turn to state justice and are left unsatisfied. In fact, for the majority of Afghan citizens, the state justice system is not seen as an indispensable normative reference system, or at least is not seen as the only one possible.
Judicial mechanisms and customary principles are often at work together in the settlements of judges, not as the implementation of a policy but as a 'handhold' for judges who seek to further legitimize their verdicts and to remain afloat in such an unstable environment. Mediation at various levels is a product of this instability, one that does not involve the protection of the weakest parties involved.
The judges seem to carry out their work according to 'rules' which do not correspond to the official rules of the Afghan government and the international organizations. This is because during the externally supported project of centralization the state justice system has tended to take on forms that try to keep distance from traditionally respected forms of authority and customary norms. In the end, contamination is absent in the dominant rhetoric on justice reconstruction but finds in the judicial and investigative practices (i.e. the work of the prosecutors) a badly managed possibility for re-elaboration.
If, on the other hand, international agencies and state institutions worked to promote a justice system that recognized the permeation of various normative reference systems and forms of authority, how would the role of judges change? This question calls for a more general discussion about the power to judge that judges embody.
By accepting the idea that the judicial ritual is a "necessary evil" (73), one implicitly recognizes the inviolability of the law, where the judge corresponds to the orchestrator of the ritual, who has the task of imposing "respect for the symbols of power" (74). Carrying out a ritual translates into doing something with one's power (75), something that is in the hands of the judge but which tends to escape him or her. The trial represents a social event where the power of justice is ritualized and confined to the judicial praxis, which must continuously reinforce its exclusive right (power) to judge. For this reason, the trial may be understood as a domestication of violence by means of rite (76). Although Kabul courts lie in dramatic circumstances, it is possible to catch sight of a judicial mechanism that could potentially lead to a questioning of the acceptance of judging as a 'necessary evil'. At present, Afghan judges do not have undisputed authority; they cannot exercise their power to judge without regard to various other social concerns. That judges must submit to 'greater' powers (commanders, religious figures, politicians, etc.) is not what interests me at present. Instead, I would like to underline the importance and influence of customary values and practices of conducting negotiations inside courtrooms, something of which judges are well aware. The picture is of course complex, and making a paradigm out of only a sample of the work of judges (those with whom I interacted) would be questionable. My aim instead is to reflect on certain observations, to see what these points of view may suggest. For example, in relation to my argument above, I will recall one episode from a case I witnessed. The judge, not having sufficient evidence to determine whether the three defendants were actually guilty of the charge of corruption against them, decided to call two old men, acquaintances of the defendants, to the stand. The two men had no direct involvement in the facts of the case but were deemed "respectful and honest" (77). As such, they were in a position to help the judge determine the trustworthiness of the defendants. The old men confirmed that they had known the defendants and their families for many years and assured the judge of their "good reputation" in the neighborhood.
According to Garapon,
in the act of judging, will and refusal, tension toward the outside, and mistrust of ourselves alternate. "Judging well" involves the temptation to act and to abstain. To judge means to separate from oneself, from the world, and from the impressions matured in the courtroom. Ritual becomes a necessary condition for this to happen; by placing limits, it thrashes the senses, conferring sense. To heighten the ability to judge, an auto-mutilation of the senses is necessary. The judge must hear everything, but nothing else other than what he has heard, see everything, but nothing else other than that which he has seen. It is as if the act of judging brings about the death of a certain part of one's self and the world. Without this indispensable caesura justice could not exist (78).
Despite its subtlety, Garapon's analysis tends to reinforce a dominant discourse that does not allow for alternatives in the face of a universalistic ideology of legalism which states attempt to instill in their judges. A symbolic affection, which when applied to the reconstruction in Afghanistan, fits well with the modality through which centralization of the judicial system becomes a form of standardization of justice, a standardization which unites with the language of modernization transmitted by the international community and ends up corresponding to an a priori established system of law (the rule of law).
In the present historical conjuncture in Afghanistan, justice continues to be a fertile ground for absolutism and conflict rather than an occasion for rethinking the pluralistic normative system now in place. It is in relation to this that judge Abdul's approach of 'avoiding the worst' must be understood. From his perspective, the practice of judging becomes a practice of compromise:
Denouncing is not enough. It does not resolve the problem. Let's not confuse the end with the means. The objective is to resolve the problem; the means might be denouncing and then a trial, or a meeting between families, or both (...) Certain problems could be resolved by applying the law, but the right conditions for doing so have to exist, otherwise you risk causing more harm than good. It's necessary to individuate the best way of resolving the problem, even if this involves some sacrifices.
If the Afghan judicial system is too structurally weak to offer a foundation for finding a socially shared sense of justice, part of this is due to the reconstruction policies which we can justly say have continued on the road of injustice all the while wearing the guise of law.
1. Danilo Zolo, Fondamentalismo umanitario, in Una Ragionevole apologia dei diritti umani (Michael Ignatieff, 2003). Unless otherwise indicated, all translations to English are mine.
2. On the historical roots of this 'dominant paradigm' in Afghanistan, see James Caron, Afghanistan Historiography and Pashtun Islam: Modernization Theory's Afterimage, History Compass, Vol. 5,2 (2007); Nick Cullather, Damming Afghanistan: Modernization in a Buffer State, The Journal of American History, Vol. 89, 2 (2002).
3. In the case of Afghanistan there is a clear tie between military intervention (e.g. Enduring Freedom) and the conspicuous outpouring of international agencies involved in the process of reconstruction and democratization.
4. For a comparative analysis on transnational processes of modernization/democratization, see John H. Hamer, Money, Modernization and Ambivalence Among the Sidama of Northeastern Africa, History and Anthropology, Vol. 22, 1 (2009); David Hunt, Dirty Wars: Counterinsurgency in Vietnam and Today, Politics and Society, Vol. 38, 1 (2010); Junan Lee, Primary Causes of Asian Democratization, Asian Survey, Vol. 42, 6 (2002); Edward D. Mansfield, Jack Snyder, Democratization and War, Foreign Affairs, Vol. 74, 3 (1995); Hans. P. Schmitz, Domestic and Transnational Perspectives on Democratization, International Studies Review, Vol. 6, 3 (2004); Ilana Shapiro, Beyond Modernization: Conflict Resolution in Central and Eastern Europe, Annals of the American Academy of Political and Social Science, Vol 552 (1997).
5. A tendency that is tied to aid policies and the myth of 'development' as well as a certain political-academic perspective that saw the establishment of western legal institutions in Afghanistan as a clear 'sign of progress'. The perverse effect of these positions is that Afghanistan has been considered a country 'eternally in need of help.' They have also distorted history and obscured the roots (the responsibility of certain countries) of the internal instability, poverty, and conflicts in the country. The idea itself of 'reconstruction' has remained tied to these assumptions. Noncritical reflections, then, tend to bring about (directly or indirectly) the perpetuation of a discourse of political interventionism, based on a particular geopolitical structure in reference to Afghanistan and the rest of that part of Asia.
6. Sabino Cassese, Oltre lo Stato (2006): 4.
7. See the document The Afghanistan Compact, United Nations Assistance Mission in Afghanistan, unama.unmission.org (2006).
8. These took the form of both semi-structured interviews and informal conversations.
9. For a comparative analysis, see Mahmood Mamdani, Beyond Settler and Native as Political Identities: Overcoming the Political Legacy of Colonialism, Comparative Studies in Society and History, Vol. 43, 4 (2001).
10. Colonialism, Nationalism, and Colonialized Women: The Contest in India, American Ethnologist, Vol. 16, 4 (1989).
11. Rosa Ehrenreich Brooks, The New Imperialism: Violence, Norms, and the "Rule of Law", Michigan Law Review, Vol. 101, 7 (2003): 2228.
12. Rosa Ehrenreich Brooks, supra note 11.
13. See e.g. Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (2004).
14. See Ugo Mattei, Laura Nader, Plunder. When the Rule of Law is Illegal (2008).
15. See e.g. Orsetta Giolo, Le concezioni della giustizia nell'islam contemporaneo. Le "retoriche" governative e le rivendicazioni delle società civili, Antropologia, 11 (2008).
16. Livingstone Armytage, Justice in Afghanistan. Rebuilding Judicial Competence After the Generation of War, ZaöRV, 67 (2007): 189.
17. Armytage, supra note 16: 191.
18. In relation to the Law on Judicial Organization, the supreme court has the duty of selecting the judges, who are then nominated by the President. Among other things, the law establishes that judges must complete a degree in the departments of Law and Shari'a, or that they have to have graduated from a madrasa. A fourth of the judges currently practicing have not satisfied these requisites; see Max Plank Institute for Comparative Public Law and International Law (MPIL), Support to the Judicial Stage of the Supreme Court of the Islamic Republic of Afghanistan (2006-2008) (2009).
19. MPIL, supra note 18.
20. MPIL, supra note 18: 5.
21. MPIL, supra note 18: 6.
22. MPIL, supra note 18: 7.
23. MPIL, supra note 18: 7.
24. MPIL, supra note 18: 10.
25. See Robert L. Canfied, Nazif M. Shahrani, eds, Revolutions and Rebellions: Anthropological Perspectives, (1984); Vartan Gragorian, The Emergence of Modern Afghanistan: Politics of Reform and Modernization (1969).
26. MPIL, supra note 18: 10.
27. MPIL, supra note 18: 10.
28. Max Plank Institute for Comparative Public Law and International Law (MPIL), Max Plank Manual on Fair Trial Standards (2009).
29. MPIL, supra note 28: 56.
30. MPIL, supra note 28.
31. United States Agency for International Development, Afghanistan Rule of Law Project. Field Study of Informal and Customary Justice in Afghanistan and Recommendations on Improving Access to Justice and Relations Between Formal Courts and Informal Bodies (2005).
32. In regards to Afghanistan, the dichotomy between 'informal' and 'formal' (or 'unofficial' and 'official') does not seem appropriate. Although some governmental officials and some employees within the state justice system have been influenced by the categories of international political and legal protagonists, the majority of Afghans do not refer to costume and customary institutions in terms of 'informal justice'. It is misleading to refer to structures like the Jirga as 'informal'. Every system is characterized by a continuous tension between abstract ideals and its concrete application, which the dichotomy between 'formal' and 'informal' is unable to capture. The association of formality with governmental institutions and informality with customary organizations is poorly suited to the situation in Afghanistan. However, the majority of the reports, accounts, and articles dealing with the Afghan legal sphere use these expressions, which in my opinion are not suitable for describing the various articulations and complexity of its legal network. Such expressions can be found in the contributions of scholars in the field as well as in the documents of various international organizations. See, Thomas Barfield, Afghan Customary Law and Its Relationship to Formal Judicial Institutions, The United States Institute of Peace (2003); Thomas Barfield, Informal Dispute Resolution and the Formal Legal System in Contemporary Northern Afghanistan, The Rule of Law Program (2006); Neamatollah Nojumi, Dyan Mazurana, Elizabeth Stites, Afghanistan's System of Justice: Formal, Traditional, and Customary, Feinstein International Center (2004); Norwegian Refugee Council, An Assessment of the durability and Enforcement of Decisions in the Informal and the Formal Justice Systems in Kabul (2007); USAID, supra note 28; Alexander Thier, Reestablishing the Judicial System in Afghanistan, Center on Democracy, Development, and the Rule of Law, Stanford Institute for International Studies (2004); Ali Wardak, Building a Post-War Justice System in Afghanistan, Crime, Law and Social Change, Vol. 41, 4 (2004).
33. USAID, supra note 31: 13.
34. Afghanistan's legislative provisions allow for the use of various legal models, although as part of a hierarchical legal system which is detached from the daily praxis. The civil code states that when there are provisions relating to the qanoon (state law) one should not turn to the system of justice provided by the Shari'a in order to resolve the case. If there are no articles relating to the qanoon, the court should apply hanafi law; while if Shari'a law is insufficient for resolving the case, the court can judge on the basis of custom, as long as it does not go against the Shari'a and the law.
35. Social institutions throughout the country, which are made up of important local figures. These assemblies are not permanent but are established when there are important community decisions to be made or conflicts to be resolved between families. In addition to the role which they carry out in resolving disputes, the assemblies also function as powerful communication networks for the Afghans. The assemblies have an important role in regard to public consensus as well, in times of peace and war. At a local level, the opinions of the Jirga and Shura members regarding the construction of community infrastructures are considered important. They are also often responsible for mobilizing protests or negotiating with international entities. There are various 'levels' and types of assemblies; see Akbars S. Ahmed, Pukhtun Economy and Society: Traditional Structure and Economic Development in a Tribal Society (1980); Ibrahim M Atayee, A Dictionary of the Terminology of the Pashtun Tribal Customary Law and Usages (1979); Fredrik Barth, Political Leadership Among Swat Pathans (1959); Jamil M. Hanifi, Jerga, Encyclopedia Iranica (2009); Ali Wardak, Structure of Authority and Local Dispute Settlement in Afghanistan, in Conflicts and Conflict Resolution in Middle Eastern Societies (Hans-Jorg Albrecht et. al. Eds. 2006).
36. On the loya jirga, see Jamil M. Hanifi, Editing the Past: Colonial Production of Hegemony Through the "Loya Jerga" in Afghanistan, Iranian Studies, Vol. 37, 2 (2004).
37. A practice which entails giving a woman (as a form of compensation) of the family of an individual who has wronged another family to the family who has undergone the injury.
38. See Rainer Glassner, Massod Karokhail, Conrad Schetter, Beyond Warlordism. The Local Security Architecture in Afghanistan, Internationale Politik Gesellschaft (2007).
39. Interpretazioni in conflitto, in Pratiche e politiche dell'etnografia (Antonio De Lauri et. al., eds., 2005).
40. On the problems associated with the reconstruction, see Sultan Barakat, Setting the Scene for Afghanistan's Reconstruction: The Challenges and Critical Dilemmas, Third World Quarterly, Vol. 23, 5 (2002); Jonathan Goodhand, Aiding Violence or Building Peace? The Role of International Aid in Afghanistan, Third world quarterly, Vol. 23, 5 (2002); Kristian B. Harpviken, Arne Strand, Astri Suhrke, After Bonn: Conflictual Peace Building, Third World Quarterly, Vol. 23, 5 (2002); Christina Jones-Pauly, Neamatollah Nojumi, Balancing Relations between Society and State: Legal Steps toward National Reconciliation and Reconstruction of Afghanistan, The American Journal of Comparative Law, Vol. 52, 4 (2004); Sven G. Simonsen, Ethnicising Afghanistan? Inclusion and Exclusion in Post-Bonn Institution Building, Third World Quarterly, Vol. 25, 4 (2004).
41. Printed by the Italian Justice Project Office (IJPO) and the International Development Law Organization (IDLO), Kabul (2006).
42. Global Fractures, Social Analysis, Vol. 52, 2 (2008): 72.
43. Ali had been arrested at the Kabul airport. His case was one of the rare cases in which I was able to see a defendant defended by a lawyer (in the majority of civil and criminal cases there is no defending attorney present). Ali stated that he was carrying the bag for a friend and didn't know its contents. During the trial, however, he refused to give the name of the people who had asked him to transport the bag and those who were suppose to receive it.
44. I was giving access to the courtrooms in Kabul after getting to know the judges. Only then was I allowed in, and only to the cases that these particular judges were presiding over. Even though almost all trials are public, it is difficult to find outsiders in the audience. My presence was not preceded by a formal authorization from the Supreme Court or a request by the Italian Embassy. (Such a permission would have rendered my purpose there ambiguous.) It was the fruit of contacts I developed over the course of months. For these reason I have decided to protect the identity of the judges by using invented names.
45. Basir received an education in law from the University of Kabul. His help has been crucial during my field work in Afghanistan.
46. Conversation of 3/11/08, Kabul.
47. See e.g. Gerry Johnston, Restrorative Justice: Ideas, Values, Debates (2002); Tyler G. Okimoto, Michael Wenzel, Norman T. Feather, Beyond Retribution: Conceptualizing Restorative Justice and Exploring its Determinants, Social Justice Research, 22 (2009); John Braithwaite, Heather Strang, Restorative Justice: Philosophy to Practice (2000).
48. This comparative view is predicated on the assumption that the politics of colonialism and imperialism had long lasting effects (and continue to) on the make-up of national legal systems. As John R. Schmidhauser states: "Most modern commentators such as David and Brierly refer to the widespread utilization of the two major European families of law as part of a 'received' tradition-a designation which suggests willing acceptance of an external legal culture. The historic record of colonial expansion contradicts such benign explanations despite the tendency of most conventional law commentators to treat families of law such as the British common law or continental civil law as objective conflict resolution systems rather than manifestations of the cultural imperialism of powerful colonial nations." Legal Imperialism: Its Enduring Impact on Colonial and Post-Colonial Judicial Systems, International Political Science Review, Vol. 13, 3 (1992): 321.
49. See e.g. Nadjima Yassari, Legal Pluralism and Family Law: An Assessment of the Current Situation in Afghanistan, in The Shari'a in the Constitutions of Afghanisan, Iran and Egypt. Implications For Private Law (Nadjima Yassari, eds., 2005): 50.
50. The Pashtunwali is the behavioral/value code of the Pashtun. It is an oral code which covers various aspects of the social life within the Pashtun communities: honor, dispute resolution, hospitality. The Code has a conspicuous political-ideological character and can be understood as a collective identity mechanism. On Pashtunwali see Akbar S. Ahmed, supra note 35; Ibrahim M. Atayee, supra note 35; Fredrik Barth, supra note 35.
51. See also Pierre Centlivres, Violence in the Afghan Conflict, Summer School, Slovenija (1997/1998).
52. Bad, Painful Sedative, Research Report, Kabul.
53. Here the idea of the 'common good' refers to a conversation I had 10/3/06 with Daud Popal, a member of the Shura of Langhar (Kabul province). The 'old mujaheddin', as he referred to himself, claimed the Shura "is necessary for the good of the community," adding that "if the village people have problems, they go to the Shura, not to the courts; they would not resolve the problem there because, in court, there is no honesty, no safety. The judges do not honor and respect the Quran in their work (...) the Shura keeps the village united."
54. Conversation of 9/13/06, Kabul.
55. Conversation of 9/26/06, Kabul.
56. Cit. in Franco Crespi, Il Male e La Ricerca Del Bene (2006): 90. See also Tzvetan Todorov, Right to Intervene or Duty to Assist?, in Human Rights, Human Wrongs (Nicholas J. Owen, eds., 2002). Here Todorov notes that forcefully imposed 'good' is never an indisputable advantage. If it is necessary to conquer a country in order to put it on the right path, its inhabitants are not likely to be grateful.
57. Crespi, supra note 55: 91.
58. See Gayatri C. Spivak, Righting Wrongs, in Nicholas J. Owen, supra note 55.
59. Tyler G. Okimoto, Michael Wenzel, Norman T. Feather, supra note 47: 157.
60. Laura Nader, The Words We Use: Justice, Human Rights, and the Sense of Injustice, in Mirrors of Justice (Kamari M. Clarke, Mark Goodale, eds, 2010).
61. Mario Ricca, Oltre Babele. Codici Per Una Democrazia Interculturale (2008): 101.
62. My conversations with the judge took place between March and April of 2008.
63. Here I am referring to the documentation of the case and what the judge told me.
64. The expression 'family' refers here to the group of relatives that share the same habitation. In regard to the case at hand, the behavior of the father might be attributed to reverence for an honor code that requires the man to protect the honor of the entire family. Honor is often talked about as one of the most important things for Afghans. However, we cannot really quantify honor. It is a principle that is closely tied to the social dynamics between individuals and groups. One must know how to 'play the honor game'; i.e. to know the implicit and explicit rules that govern the rhetoric and behavior tied honor. This is tied to public recognition since honor is felt in relation to others. It is part of one's reputation, their public appearance. In a system in which honor is of great importance, the private/intimate sphere must be particularly protected. In this sense, the private sphere has a normative importance. Indeed, its normative importance extends along many social levels (family, relatives, community). The main objective is to protect the private sphere; internal conflicts, shortcomings and failures that should not be exhibited to outsiders. The head of the family is responsible for dealing with problems involving the honor of the family. But in doing so, he must maintain his image within the community. In the case of Homaira, the father had to demonstrate to his neighbor his indignation in regard to his daughter. In other words, he had to show the sense of shame which was 'suggested' to him from without. On honor, see Pierre Bourdieu, Esquisse D'une Theorie de la Pratique (2000); Unni Wikan, in Honor of Fadime: Murder and Shame (2008).
65. A senior student at the Faculty of Political Sciences (Kabul) at the time.
66. Antoine Garapon, Del Giudicare. Saggio Sul Rituale Giudiziario (2007): 260.
67. Antoine Garapon, supra note 66: 3.
68. Simon Roberts, Un tribunale civile inglese secondo una prospettiva antropologica, Antropologia, 11 (2008): 54. See also Marc Galanter, The vanishing Trial: An Examination of Trials and Related Matters in the Federal and State Courts, Journal of Empirical Legal Studies, Vol. 1, 3; Michael Palmer, Simon Roberts, Dispute Processes: ADR and the Primary Forms of Decision Making (2005).
69. Antoine Garapon, supra note 66: 3.
70. Simon Roberts, supra note 68: 53.
71. Antoine Garapon, supra note 66: 11.
72. Simon Roberts, supra note 68.
73. Daniela Bifulco, Prefazione, in Del Giudicare, supra note 66: XVI.
74. Daniela Bifulco, supra note 73: XXIII.
75. Antoine Garapon, supra note 66: 8.
76. Antoine Garapon, supra note 66: 230.
77. Second District Court of Kabul, hearing from 3/25/08.
78. Antoine Garapon, supra note 66: 272.