By Tom A. Peter
Paktika Province, Afghanistan – Ahmad Jan lives just a few miles from the capital of this restive province and its government-sanctioned court.
Even so, if he or his neighbors have a legal matter, they prefer to go to the Taliban or tribal elders for a ruling.
"The Taliban courts don't disturb people and tell them to wait for a long time before hearing a case, or demand bribes," says Jan, an out-of-work laborer. "When you go to the Taliban and ask them for help, they tell you that they need a certain amount of time to study your case, and then they will tell you to come on a special day."
NATO and Afghan forces have had success this past year pushing Taliban forces out of rural areas, especially in southern Afghanistan. These military wins are considered key milestones on the long and daunting road out of Afghanistan — with a targeted withdrawal of U.S. combat forces by the end of 2013.
But the reluctance of everyday Afghans like Jan to embrace a pillar of the Western-backed government — its judiciary — shows the limits of a decade of U.S. nation-building efforts in a country with deeply rooted traditions and a citizenry with fluid allegiances.
"The limited, unresponsive, and unreliable nature of the Afghan justice system is a central source of Afghans' grievances with their government and has opened the door to Taliban shadow governance," according to the U.S. State Department's Afghanistan and Pakistan Regional Stabilization Strategy. "As long as the population views the government as weak or predatory, Taliban approaches to security and justice will continue to be accepted."
Establishing effective, impartial courts and other government services in rural areas like Paktika is considered critical to shifting Afghan loyalty to the U.S.-backed government of President Hamid Karzai. Coupled with the buildup of Afghan army and police forces, the Obama administration hopes that Afghans will be able to maintain security in regions cleared of Taliban by NATO troops in time for the U.S. exit.
But the uneven court system is just one of the many obstacles facing allied forces. Taliban loyalists remain in hide-outs and might be simply waiting out the U.S. withdrawal. Pakistan's military has not moved against militant groups, such as the Haqqani network, which is based on its soil and causing chaos south of Kabul. Doubts have risen about the vetting of Afghan security forces, some of whom killed NATO troops following the accidental burning of some Qurans that led to violent protests over the past couple of weeks.
Yet the justice system is still held out as perhaps the best hope for stabilizing the Afghanistan government while depriving the Taliban of a necessary road back to power.
The Taliban's way
Pakistanis Witness Public Execution Ordered by Taliban Court, in the North Waziristan tribal region, which borders Afghanistan. (Photo: All Voices)
Afghanistan's court system had for centuries consisted of tribal elders hearing complaints and making swift decisions. The rulings were based partly in Islamic law and also Pashtunwali, a code of conduct developed by the indigenous people of Afghanistan known as the Pashtuns. The law became much harsher in the mid-1990s after a group of Pashtun clerics trained in fundamentalist Islamic schools in Pakistan emerged as victors in a civil war following the collapse of a Marxist government in Kabul. Known as the Taliban, the clerics brought order to strife-ridden parts of the country but under a mix of Pashtunwali and strict Islamic law, or sharia.
"We cannot change the Taliban," says Sami Yusufzai, an independent analyst in Islamabad, Pakistan. "The Taliban is a really religious force. They don't believe they can adjust with society."
The world first learned of the harshness of the Taliban's sharia system when a secret video was smuggled out of the country in 1999 showing a woman dragged before 30,000 people at a soccer match and shot in the head for adultery. Reports from Amnesty International and others said children were being forced to testify against their parents for moral crimes, and then made to witness their executions.
"Administration of justice was swift and harsh," according to the International Crisis Group, an independent organization that advises the United Nations on conflict resolution.
New crimes included not wearing a full burqa or a full beard, listening to music, sending girls to school and having sex outside of marriage — the penalty for which could be death by stoning.
Rights groups — having documented these abuses for years — saw the overthrow of the Taliban as an opportunity for an impartial and fair justice system. Indeed, the U.S. military's counterinsurgency doctrine called for the creation of institutions that would address people's grievances and thus turn their allegiance to the pro-Western government of Afghanistan.
Since the regime overthrow in 2001, the United States has spent $70 billion on the reconstruction of Afghanistan and developing government institutions. Hundreds of millions of dollars have gone toward establishing provisional courts in cities and providing training for lawyers and judges. The fiscal year 2011 request alone set aside $250 million to improve the justice system, but problems persist.
"Despite the significant resources devoted to the security sector and a greater focus on the police in recent years, the U.S. and its NATO allies have failed to help build a functioning justice system that can enforce the rule of law," according to a 2011 report by the International Crisis Group. "Strengthening formal judicial institutions is at least if not even more vital to restoring state legitimacy as building the national security forces."
Where the U.S. can't lead
Paktika has fewer than 10 judges when it needs closer to 70, according to the International Security Assistance Force, the U.S.-led command that oversees military operations in Afghanistan. Efforts are underway to bring in more, but in their absence even locals not loyal to the Taliban will use its expedient but controversial courts.
"They've got to come up with a way that's acceptable to them to resolve conflict," said U.S. Army Maj. Eric Noble, the 172nd Infantry Brigade's judge advocate in Paktika province. "We're not looking for the U.S. solution to Afghan conflict resolution and rule of law. We're looking at what do they find as acceptable."
Many people in rural areas like Paktika have shunned government justice because they consider it unfair and corrupt. According to the State Department's strategy report, the Karzai government needs to create "predictable and fair dispute resolution mechanisms to eliminate the vacuum that the Taliban have exploited with their own brutal form of justice."
But half the Afghan population sees courts as the most corrupt government institution in the country, according to a 2010 Integrity Watch survey of Afghan perceptions of corruption. Only two-thirds of Afghans said they have access to courts, and a full quarter said they "felt deprived of justice" because of corruption and a system fed by bribes.
Mohammed Wali, a student in Kabul, says he wound up in the court system after he got into a fight with a cousin. He said his cousin took his case to the district courts and bribed the police to have Wali, his father, and one of his uncles arrested. The men then had to pay a $250 bribe to be released, an enormous amount considering per capita income is $502 per year.
"We cannot say that there is no corruption in the courts and justice system," said Abdul Wakail Omari, the head of public affairs for the Afghan Supreme Court. "We cannot deny it, but the problems are not as much as people are saying."
Over the past 10 years, Omari says, 50 to 60 judges have been arrested and disbarred for taking bribes, along with dozens of other court employees, prompting the formation of a special commission to investigate corruption.
The State Department agrees that courts in the capitals of many Afghanistan provinces have improved, with better-trained judges and lawyers who do not demand bribes.
But most of Afghan justice takes place not in the cities but in the hinterlands, where tribal elders oversee laws and where Taliban insurgents continue to mete out sentences in villages where Afghan and U.S. troops lack a strong presence. So the State Department has been focusing on improving these informal courts convened by tribal elders.
Even the most optimistic analysts won't dispute that after more than a decade in Afghanistan, the allied-directed court system is at best a work in progress. At worst, experts say, it's a serious impediment to the survival of the current government.
"You would not find any other example in Afghan history of a court system that is as corrupt and untrustworthy as the courts are right now," said Hassan Walasmal, an independent analyst in Kabul.
One obstacle to improving rural justice, though, is that well-educated lawyers and judges are seldom interested in moving to rural areas where Taliban justice has held sway. The pay is poor; running water and smooth dirt roads are rare. Lawyers who take the postings must often work with illiterate government officials and, in a place like Paktika, insecurity and violence.
Informal justice has often arisen as a concern for human rights groups. The United States Institute for Peace points out that judges sometimes settle matters by awarding women as compensation or forcing them to marry. Women are also excluded from decision-making. And justice is often not final, as shoddy record-keeping means the same disputes can resurface.
"Traditions control life in Afghanistan more than the laws or rules," says Rohullah Qarizada, head of Afghanistan's Bar Association. But locals say tribal justice is improving.
"There is a change in their decisions, and now tribal courts mostly fine people money," said Nadir Khan Katawazai, a member of parliament from Paktika province. "These tribal justice systems get good results, and it doesn't create problems that could last well into the future."
Amnesty International's Asia Pacific director, Sam Zarifi, said the Taliban is already taking advantage of power vacuums in areas like Kunduz province, with disturbing results.
A cellphone video last year in Kunduz showed a woman standing in a 4-foot hole in the ground, her face hidden by a blue burqa. A Taliban leader read off the charge of adultery, and men then rushed forward and pelted her with rocks. After a large rock hit her head she fell over, her burqa red with blood. A man then walked up and shot her with an AK-47.
"Anyone who knows about Islam knows that stoning is in the Quran, and that it is Islamic law," Taliban spokesman Zabiullah Mujahid explained at the time. "There are people who call it inhuman, but in doing so they insult the prophet. They want to bring foreign thinking to this country."