At the request of International Security Assistance Force (ISAF) Commander General Stanley A. McChrystal, USIP led a half-day workshop on November 27 for nearly 60 ISAF commanders and soldiers on traditional justice in Afghanistan. Representatives from the U.S. and foreign embassies and the United Nations also participated. In his opening remarks to the event, General McChrystal thanked USIP for its rule of law work in Afghanistan, saying that improving access to fair justice in the country is a key ingredient in the overall effort to defeat the insurgency.

John Dempsey, USIP Kabul-based senior rule of law adviser, moderated the event and delivered the day's first presentation.  Dempsey discussed the overall legal/judicial framework in the country, the role of traditional or community-based dispute resolution and the importance of linking the traditional and state justice systems.  Shahmahmood Miakhel, USIP's chief of party in Afghanistan, then presented an in-depth analysis of local level governance structures and the importance of engaging tribal leaders, religious leaders and district officials when designing and implementing projects to improve subnational governance.   Susanne Schmeidl and Shafiqullah Ziai of The Liaison Office, an organization that implements USIP traditional law projects in Afghanistan, led the day's third discussion. They focused largely on how ISAF and others can best engage local community leaders in areas which have been cleared of insurgents -- both to assess their demands and needs for justice as well as to deliver services in the area. Finally, a senior advisor to the Ministry of Rural Rehabilitation and Development, Dr. Patrick Donley, spoke about Community Development Councils and their role in the resolution of local disputes.

The speakers noted that the state justice sector is not present in many parts of the country and often does not function well in places where it does exist.  Most Afghans continue to rely on community-based traditional justice mechanisms to settle legal disputes. Thus, when ISAF is clearing particular districts or other areas of insurgents, there will most likely be no state justice institutions there providing services to the population---yet one of the key demands in cleared areas is for justice and fair and transparent means to resolve their disputes. Addressing justice needs is critical to the sustainable stabilization of the cleared areas.  Traditional, community-based justice usually provides the best means to address legal disputes.  ISAF and civilians (e.g., the U.S. Agency for International Development and the U.K. Department for International Development) who are helping to facilitate the re-emergence of traditional structures need to understand the peculiar context each area presents.   Paramount to this facilitation, of course, is providing sustainable security -- i.e., giving space to communities to conduct their own affairs without the fear of an insurgent attack.

Of course, there may be other obstacles to traditional justice mechanisms from working in such an environment. For example, it may be that criminal actors and other powerful individuals are able to exert undue influence over such traditional structures. Also, elders and other community leaders may be fearful that the "space" and security provided by ISAF and Afghanistan National Security Forces (ANSF) in a cleared area is fleeting and that the Taliban will someday return and exact revenge.  Moreover, some government and international-led programs -- while well-intentioned -- may be counterproductive if seen as being forced on a community. They may also undermine traditional structures if not designed well. For example, pouring money into the traditional justice sector (for example, by paying shuras to settle disputes) may, in fact, provide perverse incentives and do harm to community-based structures. Thus, it was generally agreed that a bottom-up approach is needed, where communities organically create or recreate mechanisms to resolve disputes in line with their traditions. At the same time, state justice institutions are needed to handle the punitive aspects of criminal disputes, to interact with community-based dispute resolution mechanisms in a systematic manner and to address the culture of impunity that looms over many Afghan communities.

Working with credible Afghan partners is essential--there is little likelihood that ISAF troops or expatriate civilian specialists are going to be able to judge with any degree of certainty as to which leaders to engage. As in the past, coalition and ISAF troops may feel assured that they are talking with the correct local Afghan leaders when in fact, they may be unwittingly drawn into one side of an ongoing dispute. To avoid such pitfalls, it is critical that credible Afghan civil society partners be engaged after proper due diligence and investigation. These partners can then work in the communities where they have strong networks to identify the key leaders, facilitate discussions and listen to the needs of the communities.  Results of these meetings can then be communicated back to ISAF, civilian experts and the Afghan government, who can decide how to design programs accordingly.

Detention policy was singled out as key to ISAF operations in the country. Currently, when suspected combatants are picked up on or near the battlefield and held for up to 96 hours by ISAF, it is often necessary to engage local leaders in determining a person's level of involvement (if any) with the insurgency. Knowing which leaders to consult is obviously important. And such leaders can often decide what sort of measures to take against suspects, depending on their potential threat to the communities and/or to the local security forces (international or Afghan). If deemed an ongoing threat, suspects can be handed over to provincial authorities (or district authorities if they are present) for prosecution.  Often, however, community guarantees may provide some level of assurance that a suspect can be "reconciled" or "reintegrated" without the need to punish or press criminal charges through the state system. To ease overcrowding in the country's prisons, ISAF and the Ministry of Justice may also want to link with traditional community mechanisms like shuras and jirgas to gain their guarantees that parolees will not join the insurgency or engage in criminal activities. Procuring such community guarantees is a way for the state to link to informal mechanisms, ease prison over-crowding and gain the trust of the communities.

To ease overcrowding in the country's prisons, ISAF and the Ministry of Justice may also want to link with traditional community mechanisms like shuras and jirgas to gain their guarantees that parolees will not join the insurgency or become a recidivist for the crimes they may have committed in the past. Linking to such community guarantees is a way for the state to link to informal mechanisms, ease prison over-crowding and gain the trust of the communities.

Finally, it was noted that ISAF needs to consider the various types of disputes not related to the insurgency that it might encounter in Afghanistan. At one end of the spectrum are ordinary legal disputes--for example, a land dispute between neighbors or petty theft. At the other end of the spectrum are cross-communal disputes--perhaps between tribes or neighboring villages over land or other natural resources. Somewhere in the middle of the spectrum lie organized criminal networks who act with impunity.  The manner in which disputes along this spectrum are resolved will differ, and ISAF and its civilian partners need to consider that when conducting clear, hold and build operations.

USIP is currently conducting pilot projects to resolve disputes at both ends of the spectrum (Dempsey explained how these pilot projects work to the ISAF audience). With respect to the inter-communal conflicts, it is Important to note that the Taliban and other insurgents will sometimes try to exploit these conflicts, some of which may be decades old, for their own purposes. For example, Taliban fighters may try to confuse ISAF or others into conflating these inter-tribal disputes into insurgent-related conflict, which they are not -- but may, in certain circumstances, become so if ISAF gets involved. The need for sound intelligence and contextual understanding is thus essential to successful clearing and holding. And, it was noted by all of the speakers, ISAF too needs to recognize its own limitations and only try to address things within its ability to influence positively.

Following the four presentations was a vibrant and lively discussion, with ISAF officers, enlisted personnel, and representatives from various embassies and UN agencies debating the best manner in which to engage community leaders in resolving local disputes.  While differences of opinion certainly exist, there was general consensus on some of the key recommendations made above.  Going forward, USIP hopes to convene a small working group of Afghan organizations, ISAF officers and representatives of the donor community to develop a checklist that ISAF can use as it shapes operations before the clearing begins.  It is hoped such a checklist will provide guidance both on what to do--and what not to do--after an area has been cleared. As General McChrystal said, sustainable security requires that justice needs are met.

This workshop highlighted this point repeatedly.  It is expected that periodic similar workshops and discussions on the subject will continue as long as the counter-insurgency (COIN) efforts are ongoing. USIP will continue to be a leading voice on this subject.