Časopis pro politiku a mezinárodní vztahy

Global Politics

Časopis pro politiku a mezinárodní vztahy

The Flaws of Transitional Justice in Afghanistan

Before the 9/11 events, Afghanistan was virtually unknown to the public. A country in the middle of nowhere, close to the Himalayas, someone more informed would have said say in the Hindu Kush Mountains. The country was known only as a geographically strategic area for the world superpowers, but deeper knowledge about its society was scarce. Millions of Afghanis were trying to make ends meet at the same time when Europe was thriving. Back then, Afghanistan was a medieval society and not so much has changed so far, especially in the rural and remote areas. People are living their simple lives fighting with the powers of nature to survive with the scarce resources while the central government strives to explain that they should follow its ruling and since lately, that they should also obey some centralized social development efforts.

The locals question the fact that they should follow something so unimportant and intangible. Afghan population consists of plenty of ethnic groups and each of them has a very different idea of how to establish a common society under one rule. If this rule is not based on ethnicity, it should be based on religious ground represented by the two branches of Islam. For about ten years, this society hosted an organization that waged an attack against the sole superpower in the world while the majority of the Afghan society was unaware of its presence in their country. The rest of the world, on the other hand, was unaware of the daily challenges this medieval society was facing. Nowadays, Afghanistan has become a daily feed for cover pages of the world’s magazines because of the response to the 9/11 attack. The response led by the world community in accordance with the universal values was an unprecedented attempt to persuade a particular country to follow certain values at all costs. This response also caused a significant change within the rural areas in Afghanistan. How should those people who are fighting for their survival react to such a change? Should they start studying Political Sciences to understand all the upcoming consequences?

This article discusses the possibility of Transitional Justice (TJ) in Afghanistan in the environment sketched above using a wide analysis of consequences instead of a deep analysis of the present TJ agenda. In this article, Transitional Justice is understood as a process driven to address committed atrocities, human rights abuses and war crimes in order to reach the final reconciliation between the antagonized enemy groups. Such process should result in a stable society prepared for future development, cooperation and shared government despite the committed atrocities. The grievances entailed upon the adversaries should be resolved during the transitional process into a solid forgiveness.

The Transitional Justice process in such an ethnically diverse country was an intelligible next step after the Bonn conference. However, as will be explained below, there was a lack of shared motivation among the Afghan representatives. The diversity of local ethnic groups can be understood as a multiplier of huge atrocities committed among them. There is no other country in the world that could be “proud” of a number exceeding 8 concerning warring dyads during the decades of wars. Hence, the idea of reconciliation between all those injured groups is simply an unachievable dream. Nevertheless, there is no bright future for the country without achieving the first step of shaking hands between these ethnic groups. However, the opportunity has been lost simply because the local people focus on the achievable short term objectives instead and are therefore not willing to participate in too intangible and difficult long-term processes of reconciliation covering the whole country.

Nevertheless, the opportunity has not been ignored completely. What is it that has happened during the years? The aim of this article is to provide the reader with the background of failed steps towards a future peace and reconciliation with an explanation of why the ambitious agenda has mostly failed and an outline of what should be addressed during the future reconciliation attempts. There are several reasons explaining why the local people will primarily take care of what they consider essential to survive and will not care much about the agenda of the central government. One’s personal security is of the utmost importance.

The article is divided into several parts. The first one outlines some important points in the Afghan history, which are vital for the following explanation; those familiar with the country’s history can skip this part.

The second part discusses the Afghan social structure and emphasises the analysis of the tribal tradition, vast amount of ethnic groups and the role of Pashtuns in such a complex ethnic rainbow. This part also explains the reasons of inability of the central government to govern the remote areas, as well as the discrepancy between the world community and Afghan government in the question of remote governance; especially with focus on the National Solidarity Programme, its successes and burdens based on the social specifics. The social structure is a crucial analytical point of view because it provides the reader with the ability to understand why the society is so insensible to external influence. The most important reason for that is the traditional patron-driven network and the subsequent personal security matrix.

The third part continuously follows the topic of social structure with focus on traditional law and Pashtun code of honor and analyses the influence of dignity in the decision-making.

The fourth part deals with the Bonn conference and its most serious flaws; those vary from ignoring the existence of irreconcilable groups during the creation of the Bonn agreement and the refusal of the presence of the Taliban on the negotiations, to the conviction that democratic elections may solve all disputes between the illiterate people. The author comes with a contention that the lack of understanding of possible governmental models in the local environment led to a huge misunderstanding during the election process. However, this part firstly addresses the problem of TJ, as it discusses the first misunderstanding in the topics linked to universalistic values; particularly the definition of war crime. This part also outlines reasons why the contemporary situation is somehow frozen in a state of empowered patron networks that emerged from former warlords and their minions.

The fifth, pivotal part discusses the core reasons why the TJ agenda has been so weak and mostly failed in its traditional mission. The most important flaw was the announcement of a huge amnesty that involved serious criminal gangs instead of focusing on a comprehensive transitional justice process. The results along with the naïve idea of a united Afghan nation freed from prosecution and past atrocities, combined with the implementation of the universalistic legal system eventually obstructed any possible TJ efforts. The reasons, dynamics and outcomes of such a weird situation are explained herein.

The sixth and final part presents two contradictory approaches to the solution and outlines the idea of Social Sensitive Approach on particular examples. This part explains the role of dignity, culture differences and a concept of group responsibility.

Brief History of Afghanistan before 9/11

This paper is not devoted to a complex historical analysis, thus it uses only carefully selected events from the Afghan history and their reflection in academia to describe social relations within the Afghan society. It is necessary to view Afghanistan not as a nation state, but rather as an area of buffer space for neighbouring powers, inhabited by many diverse tribes. These characteristics can be easily found throughout its whole history. In the 19th century, the British wanted to secure the country to preserve possible Russian invasion into their Indian Empire. These interests led directly to three Anglo-Afghan wars during the 19th century. Later in 1919, when Afghanistan acquired independence, the Afghan representatives found themselves in an advantageous position and opted for a neutral status, acquiring all the related benefits. This course of foreign policy continued until the Saur Revolt in 1978. The communist revolution led by Muhammad Daud plunged the country into the age of chaos. New administrators of the country knew nothing about their responsibilities and the complete subjugation to the Soviet Union hindered possible political development of the country. Despite all the attempts to settle a bargain addressing long lasting peace, the chaos that followed sparked decades of atrocities between the major ethnic groups that have persisted in the mountainous areas to date (Clements, 2003).

Since the establishment of the state in 1747 and despite the existence of tribal confederation as a formal system of government, the country has been divided into regions reflecting deep ethnic and religious differences (Olesen, 1995). Disputes between tribes have been frequent during the last centuries and are visible on two levels. On one level, there have been disputes between the local authorities; on the other level, the local authorities and the central government contest each other. Only particular extraordinary situations, especially those where the locals opposed the central government, unified different tribes or religious groups against a common enemy. “The mujahideen were split between Sunni Muslim and Shi’a Muslim groups, Islamic radicals, and moderates: the only unifying factor was their opposition to the government of Babrak Karmal and the Soviet presence." (Clements, 2003, p. 25). Kabul has traditionally been a seat of the central government, however endowed only with a limited influence in the countryside and remote areas.

While the government or the external powers fight for ideological reasons, the locals fight for their passion for freedom and religious values. The uniqueness of the Taliban emergence lies in the fact that the group arises from a network of locally oriented religious leaders. They were simply accepted by the locals as a cohesion power for all the disputes between various tribes, but this voluntary acceptance of an authority soon changed into restrictive policies which were brutally punished upon violation (Borchgrevink & Harpviken, 2008).

The subsequent development is well known. The Taliban offered a safe haven to bin Laden’s al-Qaeda and its headquarters in the border regions between Afghanistan and Pakistan even though the United States seriously suspected him of the 9/11 terrorist attacks. Such decision was a prerequisite to the fall of the Taliban’s rule, but the focal point of this paper is to discuss why the emerged political situation might not result in decades of democratic settlement in a contemporary shape.

Ethnicity in Afghanistan and Its Differences

To properly understand following conclusions it is crucial to understand the local ethnic situation. The geographical characteristic of a highly mountainous country is the reason for the local society´s high diversification. Mountains with neither tunnels nor means of fast and easy transportation make an insurmountable obstacle of communication. Similarity of obstacles leading to a high variety of languages and cultures only few kilometers away from each other can be found in Europe as well. For instance Switzerland, divided by impenetrable mountains into different cantons with different dialects. Afghanistan is similar, but on a much larger scale with a larger mountain range. In addition to that, the country is surrounded by four different “civilizations”: the Uzbeks, the Turkmens and the Tajiks to the north, the Chinese through the valley to the north-east, Pakistan and further India to the east and Iran to the west. Each of those “civilizations” varies in terms of religion, language and history. Afghan ethnic groups consist of those surrounding ethnical influences such as the Tajiks, the Turkmens, the Chinese, but also of specific minorities like the nomadic Kuchis, the Shia Hazaras supported by Iran, the Nuristani, which are completely different compared to the others, or the Baluch etc. There is also proved genetic kinship in the Pashai ethnicity (whose members usually have blue eyes, bright hair and fair skin) to Alexander the Great who conquered the area in 4th century BC (Vogelsang, 2010). The biggest ethnic group in Afghanistan are the Pashtuns (44%) who inhabit the southern part of the country and also the northern part of the neighboring Pakistan, followed by the Tajiks (25%), the Hazara (10%) and the Uzbeks (8%) (Simonsen, 2004). Those numbers are only estimates, for Afghanistan conducted its first census in 1979, covering just about 5 percent of the estimated population, and since then censuses have been unsuccessful (2003–2005) or cancelled (2008) (ICG, 2012, p. 15).

Tensions between the Pashtuns and other ethnic groups have been parlous during the 23-years civil war before the allied invasion in 2001. Northern Alliance consisted of the Tajiks, the Uzbeks, the Turkmens and the Hazaras, while the Hazaras are Shia as their “stakeholders”. Despite this fact the negative sentiments for the Pashtuns were broadly shared during the Taliban reign (Clements, 2003; Sharan, 2011; Vogelsang, 2010). The Pashtuns despised the central government already during the Soviet occupation which was entirely anti-Pashtun oriented (Borchgrevink & Harpviken, 2008; Riphenburg, 2005). This widespread unfocussed animosity is demonstrated by cases of cruelties such as the massacre of Hazaras in 1997 in Mazare Sharif or in 1994 in Kabul by the Taliban (Simonsen, 2004). This kind of tensions can be also found on a local level during the resolution of some banal disputes preceding the development projects (Montgomery & Rondinelli, 2004) or during a successful set-up of the new governmental structures by the biggest development project National Solidarity Programme (NSP). These examples of success seem to be unstable due to pre-existing governmental patterns (Nixon, 2008). The problem is critical because the reports of the NSP tend to confirm the recurrence of the previous governmental patterns. The result is evaluated as a partial success, not as a partial failure, even though it simply neglects the principal problem, which is the risk of sustainability of such structures in the sense of local long-term inter-ethnically shared government (Richardson, 2011). We could say that this switch of perception from “the partial fail” to “the partial success” is one of the most alarming perils which may lead to a complete fall of these newly established governmental rural structures. Once the allied army quits the country, the NSP loses its funding and the central government definitely refuses to incorporate local governmental structures built by the NSP into the country governmental system.

Traditional Law

The tribal confederation of Afghanistan was established in 1747 by Pashtun tribes, so it has to be kept in mind that the state emerged from the Pashtun confederation and their view of the ideal society. This consequence gave the Afghan society an expected inspiration for further law development in the traditional Islamic Law Shari’a. Especially the Pashtun code of honor played a crucial role among the Pashtun tribes (Ghani, 1978) and has been playing it up to the present day. “…Pashtuns have evolved these values, norms, customs and habits into a strong set of rules to a higher degree than most other ethnic groups of that region." (Rzehak, 2011). Their perception of honor and dignity is a part of fundamental values the society stands on. We have to take into account the specifics of such society and its structure, mainly the family or patrimonial relations. The traditional law emerged from the needs of the society in a sense of its stabilization and subsequent development. On the other hand, the conservative and solid character of such kind of law hampers, or at least slows down any attempt to modernize the society.

Modernization of the judicial system has been a centuries-long task in Afghanistan. “The foundation of the state in 1747 brought with it the establishment of Shari'a courts in the urban centers. But as the Afghan state rapidly expanded into a vast tribal empire, declined into many petty chieftaincies, and finally emerged as a unified monarchy in 1863, the importance of the judicial power of the state varied tremendously from region to region." (Ghani, 1978). Since the society in rural areas is geographically and also ideologically separated from the central government, it is cumbersome for the government to import the statutory law to these areas, especially when the traditional Islamic law is under jurisdiction of religious scholars. This situation has not changed dramatically. “The local judges have operated up to date because of the nature of the traditional Islamic Law. The local population mostly prefers using traditional Alternative Dispute Resolution Mechanisms (ADRM) because of their speed, cost-effectiveness and capacity to offer quick compensations. Generally, a case is brought before a state court only if it is deemed particularly significant and cannot be settled otherwise through jirgas shuras." (Tondini, 2010). Traditions are heavily integrated in the society, for example the right to own an asset could not be overridden by the statutory law, because of the supremacy of the traditional custom. “In many places, it is unimaginable and, therefore, de facto almost impossible to sell land to a person who does not belong to the community which traditionally has held rights to it" (Rzehak, 2011).

These examples of traditional perceptions should be taken into consideration when implementing any non-local ideas through any, peaceful or not, means. Implementation of the so-called ‘universal human rights principles’ is simply refused in the same way as it has been during the last centuries. People are keen to express their grievances at conferences and share stories about the atrocities which happened to their relatives; e.g. during the National Conference on Victims’ Coordination and Networking on March 2011 (Kouvo & Mazoori, 2011), but this does not represent a universal cure for such an incredibly complex society, nor for grievances that have been done in the last three decades. The Afghan society has fundamental focal points in dichotomy of honor and shame. To behave in accordance with expectations of the Pashtun society means doing Pashto. The society patron-oriented and operates as a strong and solid social network (Sharan, 2011). The statutory law cannot override the way how local people perceive one’s behavior because for majority of the population this traditional law is the only certainty of justice and social survival if not survival per se. It is the core of the local security. This principal core of the local social structure and dynamics is being continuously ignored by the western peace building agenda.

The Bonn Conference

Afghanistan, as mentioned in the chapter about ethnicity, is a country completely built on the principle of patron-client relations. Pashtuns have their own father of the Pashtun tribe, Qais, who is responsible for their social values which are not negotiable (Rzehak, 2011). The others are highly influenced, though sufficiently independent to follow their own leaders. The Bonn conference was a unique opportunity to settle a peaceful agreement and divide the power between all ethnic groups within the country. This claim was partly fulfilled (Simonsen, 2004), but predictably, the leading faction has been working on safeguarding their own interests during the last decade (Sharan, 2011). The international society was mainly unfamiliar with the real social dynamics in the country and did not spend enough time to understand it clearly. Karzai was not a unifying person for the future nation. Furthermore, the idea that the local people would understand democratic elections the same way we do, especially in a country where about 90 percent of inhabitants are illiterate, was quite naïve.

During the last thirty years, there have been plenty of adversaries fighting each other (Harbom, Melander, & Walensteen, 2008). Those adversaries made coalitions during some particular events or against the shared enemy like those formed under the flag of the Northern Alliance before the fall of the Taliban. However, those parties caused enormous atrocities to each other, too; hence it is not a simple task to sit all of them around one table. The Bonn agreement dated December 5th, 2001 was achieved too quickly. A big fault was that the Taliban had not been invited, even though some of the Taliban members insisted on their personal participation and presence for further talks. The mood in the international community just after 9/11 was too emotional and did not provide it with necessary vigilance which could allow such providence. The result did not bring a peaceful settlement as it usually happens after such conferences, but poured fuel into the fire of those who were not in consent of bin Laden’s Al-Qaeda. International community did not distinguish between its resentment or the American will for revenge and the social or political reality that has created the warring parties during the last decades in Afghanistan. At last, only the Northern Alliance was present, none of the others who fought the Taliban as well (Rubin, 2003). That was a complete failure which came back as a boomerang effect during the future negotiation talks with the Taliban.

The result completely missed the point that transitional justice should carry. The Bonn agreement focused mainly on the interim administration and on the process of transition to the democratic elections that were completely wasted due to misunderstanding between the international interim administration and the local population. The only point which Lakhdar Brahimi put emphasis on was a decree considering no amnesty for war crimes or crimes against humanity covering all 25 war years retrospectively (Rubin, 2003). That was a problematic point, because those who fought for freedom were excluded from the amnesties this way and the expression of war crimes and acceptable war practices were not clarified between the Western societies and the Afghans. “The phrase ‘war crime’, ‘janayat-i jangi’, might be interpreted there to mean the crime of waging war, implying that all those who had taken up arms in the ‘jihad’ could be tried." (Rubin, 2003).

In fact, Bonn agreement was not a conference of peace settlement as mentioned earlier, but rather a conference dividing power, a conference of “international coercion which shaped the process and led to a formal agreement which was all set to be undermined by the fully and partially excluded factions and interest groups." (Sharan, 2011). Those who signed the agreement were the factions relied on Karzai while every warlord “took responsibility” over a particular province to make it secure. In fact it was a “grand bargain between an externally driven division of the spoils among a hand-picked group of stakeholders who were on the right side of the War on Terror." (Goodhand & Sedra, 2010, p. 582). Based on this argument, it is possible to claim that only naïve idealists could have expected a peaceful future for the country: the Bonn agreement was fuelled by hate filled with 9/11 emotions.

Nevertheless, Bonn agreement represents a clear division of Afghanistan. On one side there is the Western powers´ will and on the other stand the Afghan local elites who fought against the Taliban. It could be seen as “the most recent example of an internationally mediated and highly flawed elite pact." (Sharan, 2011).

Lack of Transitional Justice and Justice Reform

“I hear from a lot of people that if a case goes to the (government) court, then the person with the most money will win that case. We trust our system because Shari’a law is more respectable for us than government law.” Afghan Tribal Group Leader, Kabul Province, April 2006 (Tondini, 2007).

Afghanistan is a good example of a country where the West had to close its eyes to secure its own interests in toppling down the Taliban and securing the country by the Taliban’s belli­gerents who would be willing to follow the Western ideas of the rebuilding of the country. The decision about a constitution was based on the will to keep Islam as a source of law side by side with the statutory law; this decision was based on the previous experiences of constitutional processes in the 20th century (Tondini, 2007). This principle would enable the state reform with Western-oriented institutions without threatening the core social values based on Islam. Persons responsible for a new Afghan government were chosen at the Bonn Conference 2001, and according to the traditional social habits those people picked up their very close relatives as colleagues (Sharan, 2011). We call this behaviour “clientelism”; they call it necessity or respect to honor. The only decision related to transitional justice during the Bonn Conference was the foundation of the Human Rights Commission, the responsibilities of which include “human rights monitoring, investigation of violations of human rights, and development of domestic human rights institutions." (Chesterman, 2002). The Commission was later transformed into a broader institution. “The great demand for justice demonstrated during the three days of the national human rights workshop resulted in a mandate to the Afghan Independent Human Rights Commission (AIHRC) to ‘undertake national consultations and propose a national strategy for transitional justice and for addressing the abuses of the past’." (Nadery, 2007). The Human rights workshop was held in Kabul in March 2002, by the time when efforts to devise a phase regarding transitional justice were commenced.

As usual, the reality is complicated in Afghanistan. AIHRC, in cooperation with UNAMA, prepared an action plan for reconciliation, but they have not been successful due to a lack of interest within the local population. The country was in a deep struggle where different parties were causing huge atrocities to each other. Until now, Afghanistan is still one of the countries with the highest numbers of internal belligerents. There were conflicts of up to eight dyads at the same time during various periods of Afghan history. This number does not take into consideration isolated conflicts where some remote ethnic groups are fighting for their limited living area in the mountains (Harbom et al., 2008). The society is incomparably more complex in the sense of ethnicity and historical consequences as mentioned in the other parts of this article concerning the history and ethnicity of Afghanistan. Nevertheless, “the action plan included five key actions: (i) facilitating the acknowledgement of the suffering of Afghan people; (ii) vetting human rights abusers from positions of power within state institutions; (iii) truth-seeking; (iv) promoting reconciliation and national unity; and (v) establishing a task force to recommend additional accountability mechanisms." (Tondini, 2010, p. 23).

The ability to cope with any human rights abuses has been very low in the Afghan history. First, the locals tend to defend their relatives very strongly because a family is a ground for personal security ranging from physical aspects to food security. Second, those who could be judged for apparent breaches of law are also enrooted into the governmental structures. Sometimes the security of local areas is completely dependent on their will. Government officials constantly play a similar role to the role of warlords as they know how to govern from the previous decades when most of them were warlords (Rubin, 2003). Third, it is highly problematic whom to judge. All the parties of the conflict have done tremendous atrocities to each other and additionally, the Afghan government passed a resolution that grants amnesty to all abusers ranging from drug traffickers, criminal gangs, warlords and commanders involved in contemporary political influence, to gross abusers of human rights (Walsh, 2007). The amnesty was granted in this extent despite the fact that Brahimi unequivocally stood against it (Rubin, 2003). Fourth, as already mentioned, Afghanis do not understand the concept of war crimes in the same way as it is stipulated in the Western tradition. War is war and Geneva Conventions are very distant to the Afghan war culture. Fifth, promoting national unity within Afghan borders was simply a naïve idea. There is no other society in the world that is so much divided into coherent and solid ethnic groups which view each other so differently, even though we can see some strong tensions from the younger generation to unite the nation. These tensions are coming from Kabul and that fact must be taken into consideration if we want to evaluate the country as a whole. Cooperation on simple ordinary projects such as reconstruction of roads steadily faces basic questions of who is going to benefit from their use; this is not a problem in Kabul as the roads there belong obviously to all and form a system of city streets. But the mountains usually have one critical road used by several ethnic groups. Sixth, penal code does not have its equivalence within Shari’a. Islam copes with criminal law infringements in a different manner. Collecting the evidence has a lower reasoning significance in comparison to the institution of witness which is the highest authority during the session, in addition to that, the weight of the testimony varies according to the status of the witness (Tondini, 2007). Therefore, the attempts to incorporate the criminal law into the Afghan society norms are clumsy, because the Shari’a is considered to be of higher importance and respect. The criminal code is formally implemented, but clumsily compelled. The authorities, their positions and the whole future of Afghanistan are completely dependent on foreign aid, therefore the Afghan officials did not refuse the implementation of the statutory law and criminal code. Therefore, the consequences are easily predictable.

The Afghani Penal Code was prepared by Giuseppe di Gennaro. The Code has been a source of controversy because the involvement of the Afghan institutions was very limited. The Code was adopted under strong external political pressure (USIP, 2004). The provincial or district authorities could not accept this kind of behaviour of the central government without any reaction. However, such a reaction may be silent; with no visible behavior. If the reaction is silent, the central government can be assured that it is losing its authority. Those silent consequences can lead to visible political outcomes.

However, this kind of arrogance is the second sin expressed by Lakhdar Brahimi in his short paper on the “seven sins of mediators” (Brahimi & Ahmed, 2008), an issue of which all the people allocated should be at least aware. In addition, The Code imposes methods of obtaining evidence which clearly contradict traditional Islamic rules as already mentioned above (Tondini, 2007). This failure of international assistance, locally considered rather as an international coercion, is the exemplary failure of cooperation between international agencies and their projects. For example, the NSP project aims to build local infrastructure and we can see its success everywhere from TV documentaries, through articles in world’s top newspapers, to academic articles, but the most important part of the project – the development of local governments that are dependent, responsible and incorporated to the central one – still wobbles (Barakat, 2006; Richardson, 2011). This is a highly irresponsible failure, because the above-mentioned point no. 5 – national reconciliation – may be commenced only when people respect the authority that drives the reconciliation process. It must be the local authority which is responsible and respected by the central government in their village. The locals simply do not care about distant authorities, the authority must be at arm’s length. Only then we can experience a significant movement in the reconciliation process.

Due to such failures, the Taliban has gained higher authority and respect during the last decade. That is the reason why the locals believe and prefer their own judicial institutions rather than the central ones (Nadery, 2007). One of the most problematic and constantly mentioned issues is the cohabitation of the statutory law and the Islamic law. “In order to tackle this lack of legitimate central authority, it has been recommended that the Islamic legitimacy of the state authorities should be strengthened. This could be achieved by means of a Supreme Court composed of members with a recognized Islamic educational background, capable of opposing the Taliban’s claims to be the sole legitimate religious authority." (Thier 2006). But there is still a solution concerning the legitimacy of the central government.

Lakhdar Brahimi originally proposed the idea of ‘peace first, justice later’ (Nadery, 2007). Later on, he changed his mind and condemned his own decision as mentioned above in the explanation of the amnesty. It seems legitimate in the environment where choosing from the priorities is vital. On the other hand, peace is unreachable when nobody can trust the justice system. „A state at peace is one where people have a reasonable expectation that justice may be done. Justice cannot be done in a state of war and collapse of institutions. Peace and justice are interdependent, not contradictory.” (Rubin, 2003). This is indeed a confusing situation because lack of will for reconciliation and justice reform at the beginning causes abandonment of new opportunities. Former warlords who have been involved in the governmental structures for a decade cannot be simply toppled down and judged, because there are too many of them; for that reason, they will now block the justice reform as long as possible, possessing power too strong and solid. Indeed, a recent research has found that as of late 2005, religious leaders and warlords and tribal elders were viewed by the population as wielding more power and influence than the elected officials (Ponzio 2007: 264). In addition, the proposition of ‘peace first, justice later’ “…discouraged the development of any foundation for justice efforts in Afghanistan.“ (Nadery, 2007) and strengthened the power of those who possess the combination of traditional power mix and newly acquired power from the central government. This can be considered a real stalemate.

The Ideas to Preserve Peace

The solution for Afghanistan is tremendously complex and the ideas about the issue can be divided into two main categories. First, it is the ideas of those who promote stronger nation-building agenda arguing that the locals are not sufficiently responsible for their own lives and their minds must be changed in accordance with the universal human rights to promote peace. Second, the ideas of those trying to find more complex solutions of mutual understanding with more social sensitive approach equipped with patience.

Switching to the Western style of law is a huge and complex process, which cannot be overlooked, especially because of the continual nation building process taking place in Afghanistan without any pivotal strategy. The external donors, whatever subject they are responsible for, have to settle concrete contracts and create a link between the different interpretations of social reality. The effect depends on the sensitivity of their approach and patience combined with long-term commitment. Implementation of foreign code determining the behaviour of locals is a sensitive topic. It cannot be imposed as a set of universal human rights values, but should be offered instead as a model, which has already worked in particular countries. If the code is offered to the society sensitively and with respect to the original informal relations, the society members would be interested in reformulation of such universal values in accordance with their tradition. “In addition, to be successfully ‚transplanted‘ into the legal order concerned, the new body of law should adapt to the local conditions or contain principles already familiar to the local population." (Berkowitz, Pistor, & Richard, 2003). This approach was omitted during the rushed Afghan nation building efforts and it remains a huge argument today for those who stood apart during the last decade. Unfortunately, this argument is completely legitimate. This approach has been promoted since the beginning by Lakhdar Brahimi, but with different results. We have to train ourselves in social sensitive approach if we want to be successful in assistance to local people. The sensitive approach may be also expressed as follows: “according to the local ownership principle, the theory of peace-building, as applied to law reforms, should indeed shift its focus away from the ‚supply of justice‘ onto an effective ‚demand for justice‘." (Tondini, 2010).

It is certainly very questionable whether condemnation of a society for infringing universal values is legitimate or not. Such indictment is usually posed from a certain cultural point of view. We can observe three principal axes of conflict in Afghanistan. The first axis represents disputes over two branches of Islam; the second axis represents disputes between ethnic groups and the third axis represents their ascribed social status stemming from their family membership. Each of these axes puts particular responsibility on a person based on their social identity and does not need to be compatible with the rest which makes the whole issue very remote to the Western concepts. We have to take into consideration the fact – that has been already mentioned – that these three axes are the core of one’s security.

The idea of Westernization of local constitution lies in a conviction that the values reflecting individual human security and fundamental rights are universal and should be accepted by the rest of the world. However, the character of social relations in a very tough environment such as Afghanistan entails a different strategy of survival. Local people are extremely dependent on each other and above all on their family. It is unacceptable to lose dignity and honor in the eyes of one’s relatives. “For it is almost inevitable that conflicts will arise between the constitution's ac­ceptance of international human rights standards and embrace of male-female legal equality, on the one hand, and the requirement that no law may contradict the „beliefs and provisions“ of Islam, on the other. When that happens, one may safely predict that political rather than purely interpretive considerations will shape the outcome." (Rubin, 2004). On the face of it, the situation seems to be irresolvable, but on the if we have a closer look, it manifests the possible reaction when such universal values are imposed. When the society is capable of making such progress using its own intellectual resources, the results are more acceptable, implementable and suitable. That points to the approach of non-intervention. There are different solutions; some of them are really simple.

There are several reasons why to leave Afghanistan. Foreign Service officer Matthew Hoh resigned to his position, saying: “I believe that the people we are fighting there are fighting us because we are occupying them… Not for any ideological reasons, not because of any links to Al-Qaeda, not because of any fundamental hatred towards the West…" (RADDATZ, KHAN, & PARKINSON, 2009). Those who cooperate on the state reconstruction see their new opportunity or simply follow their pragmatic needs which they developed during hard times of hard realities (Paris & Sisk, 2009). The fact is that all the reconstruction efforts could have good reasoning at the beginning, but the same efforts could harm the society in other ways. The author of this article calls that effect “the unintended impacts of peacebuilding enterprise” and calls for more “social sensitive approach”.


Rubin proposes to be more realistic with less idealistic ideas: “Rather than proclaim objectives limited only by the audacity of our imaginations (an Islamic democratic, stable, gender-sensitive and prosperous Afghanistan) and the paucity of our means (fewer resources per capita than any other such operation), we need to align objectives with reality, and means with objectives”. In light of victim-oriented approach in the society already described above, it seems that the TJCG (Transitional Justice Coordination Group) is another part of audacity of our imaginations (Rubin, Saikal, & Lindley-French, 2009). Especially while the approach of TJCG is victim-oriented from a particular point of view that causes partiality, another sin introduced by Brahimi – arrogance (Kouvo & Mazoori, 2011). The present situation can be assessed as a failed one, but it does not mean the international community should give up completely. Most of the steps that have been already accomplished in the shadow of ignorance to the local social specifics have had irrecoverable negative impacts. Despite the initial determination, examples mentioned above such as the imposition of Penal Code, laid down a new system that is strongly incompatible with local traditions in spite of the initial determination that it should be so.

When Brahimi put an emphasis on tangibility of newly introduced Penal Code, he stressed that the approach should be sensitive to the local traditional system, hence the newly adapted system would improve existing custom law and habits. The reason for following custom law is so understandable that the significantly different approach of Giuseppe di Gennaro is inconceivable.

The three above-mentioned axes: Islam, ethnicity and family relatives are at the core of one’s personal security; hence nobody should ignore such important prerequisites for security just to follow intangible universal values in form of an imposed Penal Code, or any kind of reconciliation process that can hamper the existing security basis. The explanation why local population still uses traditional local courts lies not only in the speed of provincial courts, but also in its fear of deconstruction of the existing and reliable justice system based on the custom law. Additionally, the explanation why local people should follow the principles of Transitional Justice was direly insufficient in such legal chaos. The astounding misunderstanding of Islamic principles and different explanations of war crimes can underscore this chaos. And if we put the final example of the amnesty to the top of this legal and comprehension chaos, we can see a brand-new shape of a fallen state. This situation can easily lead to another civil war of warlords who are not participating on the central power; and we have seen their rise since 2006 in the shape of the Taliban insurgency.

The War on Terror must be come to an end, all in all the present war in Afghanistan is far away from the reasons why the U.S. President Bush started it in the first place. Thereafter, the regional Taliban sponsors might be prepared to listen to the state-building policies promoted by the central government, if the central government does not follow its specific interests and incorporates local governmental structures into the central one. The government should be more credible to reintegrate insurgents, and then Transitional Justice can be discussed again. This is a crucial point in future possible TJ agenda (!). Statebuilding should be preserved, but it should be more socially sensitive and full of patience rather than full of haste. It should be more socially-oriented and support motivation of the people to strengthen their responsibility, instead of quick implementations of huge construction projects that people may be able to use, but actually cannot or do not want to manage and keep without external support.

The situation in Afghanistan is more complex than in any other country in today’s world and is even more complex than before the invasion and during the following state reconstruction. The agenda beginning 2014 must take into consideration the fact that people have their dignity whatever culture they come from. Imposition of any universalistic values has to indulge the traditional values in the first place, as well as the traditional culture that is the core of the social identity. The Transitional Justice agenda has to follow the traditional values and legal system.

Sensitive approach brings motivation and will to the local society to participate on the internationally-led projects. The offer to participate evokes feelings of their own responsibility and belonging. This has been successfully implemented by the NSP, but has wobbled due to the lack of will on the side of the central government. It was possible to address such frozen mistakes at the national level, but they have been simply ignored since the Bonn conference. This mix of mistakes hampers such an important project which the Transitional Justice surely is.

The failure of the TJ agenda in Afghanistan can be explained by the large number of warring parties, ignored religion specifics, omitted ethnical variety, important political background of the 9/11 and consequent emotions, failures of the past such as the first Bonn conference, decentralized state-building policies, inconsistent evaluation of implemented projects and also warlords enjoying amnesty but governing victims from the past.

The society is uneducated, the country deforested and people obedient to fate. The present conditions are more intricate than they used to be, and the chance of broad forgiveness and bright social development is lost in the past.


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Author is a Ph.D. candidate in the Faculty of Social Sciences at Charles University in Prague.

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Nikola Schmidt
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3. 2. 2013