What is Informal Justice in Afghanistan?
Informal justice is an often debated yet poorly understood concept in Afghanistan. Generally, it refers to a series of mechanisms that are outside of the state's direct control-though not necessarily beyond its influence-and that are used to resolve disputes and conflicts in a manner perceived as legitimate by local communities. hese mechanisms include ad hoc or standing local councils (both jirgas in Pashtun areas and the more institutionalized shuras in Pashtun and non-Pashtun areas), as well as opportunities for appeal to respected elders, religious leaders, or informal mediators who may act with disputants' consent to facilitate a resolution. hey may also be highly localized commercial shuras that deal with specific business disputes, ulema councils (councils of religious scholars), and a range of other potential groups and figures that resolve disputes in a locally legitimate manner.
here is often an assumption that in more urban areas courts are more likely to deal with serious crimes, but even within the Kabul court system, informal bodies are often used to address issues such as compensation in criminal cases.2
Informal justice mechanisms tend to apply restorative justice, as opposed to the retributive or punitive justice decisions obtained through most formal court proceedings. hey also tend to focus on community reconciliation over individual rights (see box 1). It is important to emphasize that these mechanisms are not static, centuries-old traditions but dynamic processes that continue to evolve based upon shifting social, political, and economic conditions. Since they are embedded within communities, these mechanisms are highly reflective of local cultural norms. Similarly, they are often shaped by local political structures, where groups and figures who have the most local political influence, such as military commanders or ethnically based political parties, are most able to influence the selection, composition, and deliberations of informal mechanisms.
Research suggests that a large majority of Afghans use informal mechanisms as their primary means of resolving disputes.3 Anecdotal evidence and qualitative research methodologies reveal significant complaints that the formal justice system is corrupt, expensive, time consuming, and difficult to access. his report begins with some basic definitions and descriptions of these mechanisms in their ideal type but then looks at some of the ways that history has reshaped and altered them, creating the complex justice landscape seen in Afghanistan today.4
Justice in Afghanistan today is inherently linked to the ways in which political power is used and abused. A number of studies based on interviews with Afghans across the country began to establish a clear link between the lack of justice, or the corrupt provision of "rule-of-law" services, and support for the insurgency.5 hese findings led to an attempt by the international community to begin to deal more seriously with the justice