Most civilian rule-of-law development projects are based on a flawed assumption that
there is a legitimate government in the host country seeking to improve governance and
quell violence. In many cases of extreme violence, governments rule for self-interest,
not the good of their citizens, creating a populace that views the state as illegitimate. …
International efforts also assume that most of the local population is uncommitted rather
than supportive of insurgents. But citizens in disaffected communities often back violent
groups, not just against the state but also toward goals inimical to rule-of-law values.
(Kleinfeld, p. 1.)
… in rural areas [of Afghanistan], where about 77% of the population reside,
functioning courts, police and prisons are often non-existent. Therefore, the majority of
Afghans rely on a more traditional, “informal” justice system. Disputes are settled,
if at all, at the local level by village elders, district governors, clerics and police chiefs. …
The term “informal” generally includes shuras, a Dari word referring to permanent and
quasi-permanent local councils, and jirgas, a Pashto term typically used for more ad-hoc
meetings intended to address a specific dispute. … The jirga is a traditional institution
that is more strongly bound up with the tribal economy and society of the Pashtuns of
Afghanistan. It is therefore more commonly and effectively used as a mechanism of
conflict resolution among the Pashtuns. However … the jirga, or its equivalents, are
used as “informal” mechanisms of conflict resolution in rural or less urbanized areas
where Afghan Tajiks, Hazaras and Uzbeks are the majority of the population. … A shura
is primarily an advisory council that does not have decision-making powers. It is a group
of individuals which meets only in response to a specific need in order to decide how to
meet the need. In most cases, this need is to resolve a conflict between individuals,
families, groups of families, or whole tribe. … In the context of the resolution of disputes
and crimes, jirgas and shuras are more often an ad-hoc body rather than a standing
institution with fixed membership or, in some cases, a combination of these two forms –
a standing body with additional members chosen according to the issue at hand. Both
jirgas and shuras involve groups of community leaders, respected elders, landowners
and religious leaders, generally, but not always, men, who discuss disputes and other
political issues with the communities. The fact that members of the jirga/shura are
respected community members with established social status and a reputation for piety
and fairness is cited as one of the reasons why the Afghan population is turning to
this system for dispute resolution and justice. (CFC, pp. 2-3.)
One of the principal ways the Taliban were able to attack and undermine the Afghan
Government was their ability to deliver justice quickly and effectively and it became
an important way in which to win the support of the people. In simple terms our aspira-
tions and ambitions were too ambitious and failed to recognize how important the
provision of this basic facility was to people – they needed justice today not in five
or ten years. (Kuhar, p. 47.)
Through much of the first decade of the ISAF counterinsurgency campaign, Afghans
would give up on [seeing] timely, fair justice disbursed by their government officials and
resort to the harsh justice dealt by the Taliban. Once again the Afghan government had
failed and left the door wide open for parallel governance by the Taliban who gladly took
the initiative. The ISAF counterinsurgency campaign was no winner either and the notion
of protecting the people and providing a safe and secure environment was something
that regrettably the Taliban seemed more capable of delivering. (Kuhar, p. 88.)
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