Traditional Dispute Resolution Mechanisms in Afghanistan and their Relationship to the National Justice Sector

Abstract

[Since the collapse of the Taliban regime in Afghanistan, the international community supports the Afghan government in building the rule of law in Afghanistan. The country faces the challenge of legal pluralism and the weakness of state authority in many areas. Hence, the non-state justice institutions still are more popular and reliable for most Afghans than the state justice institutions. The reasons for the bad reputation or rejection are inter alia corruption, long-lasting and expensive proceedings or lack of access to the public sector. Non-state dispute resolution mechanisms on the other hand mainly aim at reconciliation and restoration of peace and harmony within the community in order to maintain stability. They are thus considered fairer and are more accepted by the majority of the population. Non-state justice itself however varies between the different regions of the country, making it difficult to provide a comprehensive overview. The applied rules in the non-state sector are inter alia different customs and traditions of the various Afghan ethnic groups. Nearly every group has its own way to handle disputes, on the basis of own customs. Since Afghan customs and traditions in some cases violate statutory law, the Shari'a or international human rights standards and the popularity of non-state justice weakens the influence of the state, this issue got more and more into the focus of the actors being involved in the state-building mission conducted in Afghanistan. New attempts for strengthening the rule of law aim at the creation of a linkage between the state and nonstate sectors and at a clearer attribution of competencies between the particular dispute resolution institutions. Therefore, a "Draft National Policy on Relations between the Formal Justice System and Dispute Resolution Councils" has been written, ruling on these topics. The discussion about the policy's implementation into national law is however still ongoing. The following paper provides a short overview over customs and dispute resolution mechanisms in the Pashtun areas and in Bamyian province. It furthermore discusses the relationship between the state and non-state justice sectors in Afghanistan, their historical development and the contemporary situation.]