Nexuses of knowledge and power in Afghanistan: the rise and fall of the informal justice assemblage

Abstract

This article explores Western attempts to strengthen mechanisms of informal justice in Afghanistan. It traces the origins and evolution of an ‘informal justice assemblage’: the constellation of specific expert discourses, institutional practices, and strategic considerations that made it possible and plausible that Western actors should promote and work with informal processes of justice. The article problematizes expert statements that posit that working with informal justice is somehow more ‘Afghan-led’ and less of an outside imposition than supporting the country's formal justice system. To the contrary, this article details how – discursively and institutionally – academic authority about what is locally appropriate in practice served to foreclose national debate and scrutiny about the organization and administration of justice. This amounted to a net erosion of accountability, reinforced by the subsequent militarization of the justice sector and governance more broadly. In conclusion, the article calls for greater attention to the broader fields of power in which claims of sensitivity to the local sentiments and reality in Afghanistan are made.

Keywords:

• Afghanistan
• informal justice
• expert rule
• justice reform
• militarization

Notes

1. The material on which this article is based was collected during my Ph.D. fieldwork on gender violence in Afghanistan, mainly between 2009 and 2011, funded by the Research Council of Norway. My probing into the processes that I describe was not part of my initial research design but prompted by angry complaints of Afghan women's rights advocates over a proposed government policy that would bestow formal recognition on informal justice mechanisms. I eventually decided to explore the backdrop to the proposed policy in further detail: how the idea of such a framework had gained traction and what was becoming of the initiative. I carried out interviews with actors who had been involved in the process, and received permission to observe the meetings of the Ministry of Justice working group set up to develop the initiative.

2. Pasthunwali can be translated as ‘Pasthun-ness’ or ‘the way of the Pasthuns’.

3. Shura means council or consultative process. Whilst jirga is a Pashtu word that refers more specifically to an ad hoc gathering to resolve a particular issue, shura is of Arabic origin and used in the languages of both Dari and Pashtu.

4. Such as in the Afghan National Development Framework (Islamic Republic of Afghanistan 2008a), the National Justice Sector Strategy (Islamic Republic of Afghanistan 2008b), and the communiqué of the 2010 Kabul donor conference (Islamic Republic of Aghanistan 2010).

5. http://www.usip.org/programs/projects/relations-between-state-and-non-state-justice-systems-afghanistan.USIP website, accessed 29th March 2011.

6. Support to the Informal Justice Sector in Helmand, April 2009. Internal DFID note. On file with the author.

7. Author's interview with an Afghan human rights official, Kabul, June 2010.

8. Draft National Policy on Relations Between the Formal Justice System and Dispute Resolution Councils, 10 November 2009. On file with author.

9. Law on Dispute Resolution Shuras and Jirgas. Draft 1. September 2010, Article 1. Unpublished document on file with author.

10. The 2007 Human Development Report (UNDP 2007) states that the percentages in its 20/80 circle are ‘drawn from Asia Foundation (2006) and “Justice for All” (2005)’.

11. Described as a political anthropologist and traditional-justice specialist, and a lawyer and senior rule of law adviser, respectively.

12. Author's interview with member of the working group, Kabul, October 2009.

13. Other ‘mappers’ were the Cooperation of Peace and Afghan Unity (CPAU), WADAN, the Center for Afghan Policy Studies (CAPS), and the Peace Training and Research Organisation (PTRO). During parts of my Ph.D. fieldwork I was based at two of these institutions; CPAU and PTRO, although as a guest researcher I was not engaged to work on any of their projects.

14. Author's interview with DFID official, Kabul, July 2010.

15. Most notably through the establishment of Provincial Reconstruction Teams (PRTs).

16. This argument was also used by those who opposed COIN – who declared that with the present Afghan government COIN would never work.

17. This formulation is from a lecture by Antonio Giustozzi (2011).

18. Request for Task Order Proposal (RFTOP), Rule of Law Stabilization Program (RLS) Informal Component, United States Mission to Afghanistan. Attachment I: Statement of Work. US government tender document. On file with the author.

19. Request for Task Order Proposal (RFTOP), Rule of Law Stabilization Program (RLS) Informal Component.

20. Support to the Informal Justice Sector in Helmand, April 2009. Internal DFID Note. On file with the author.

21. http://www.helmandprt.com/delivering-justice.html Accessed 18th April 2011.

22. Request for Task Order Proposal (RFTOP), Rule of Law Stabilization Program (RLS) Informal Component.

23. During a trip to Kabul in May 2011, I visited the USIP's Kabul office for an update on their informal-justice work. I also asked if they had any suggestions about how to reach the relevant people within the US military who were working on this topic, as my attempts to set up a meeting had not led anywhere. Staff at the USIP generously invited me to join them at a panel at one of the NATO military bases a few days later, where various ‘experts’ would speak about the ‘best tactics, techniques and procedures’ through which the international military could best relate to traditional dispute mechanisms. Excited by the opportunity to do some participatory observation, I took part in this panel by making a few comments in response to the other presentations.

24. Author's observation, ISAF Traditional Justice panel, Kabul, May 2011.

25. International aid official in the working group, Ministry of Justice, Kabul, May 2010.