12.2007 - Source: UN High Commissioner for Refugees

Shuras and Jirgas, traditional dispute resolution mechanisms, have a longstanding tradition in Afghan social structures; detriments for women and children; state often unable to intervene ("UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Afghan Asylum-Seekers") [ID 22291]

"Customary law prevails in Afghanistan where traditional dispute resolution mechanisms such as Shuras and Jirgas are often used in place of formal court systems in criminal and civil cases, including in disputes over marriage and land. Shuras and Jirgas are longstanding features of Afghan social structures. Traditional dispute resolution mechanisms, especially in rural areas, remain dominant and often to the detriment of women and children’s rights.  Almost without exception, members of a Jirga are all men. Decisions of a Jirga are binding and sanctions for non-compliance are harsh, including arson of the trespasser’s house, isolation or expulsion from the community and forced removal from the settlement.

A particular issue of concern is the practice of bad pursuant to which girls as young as seven years of age are exchanged to settle feuds and murder cases. The inability of the State to intervene in such cases is illustrated in the reply of the Supreme Court to a letter by the Women and Children Legal Research Foundation, an Afghan NGO, enquiring about the Court’s policy with regard to bad. In explaining its reluctance to intervene in bad cases, the Supreme Court writes:

“It would be premature to take action against local traditional practices in provinces where women do not enjoy civil and political rights. The reason is that tradition has replaced the official law of the country in those areas. It will take a long time.”"

Document(s): Open document

11.2007 - Source: Austrian Centre for Country of Origin and Asylum Research and Documentation

Jirgas and shuras: Judgements are most often made at the expense of the rights of individuals; rights of women and children unrecognised ("11th European Country of Origin Information Seminar; Vienna, 21 - 22 June 2007; Country Report; Afghanistan") [ID 21953]

"Estimated 80-90% of Afghans seek justice in the traditional jirgas and shuras because formal justice institutions are either non-existent, non-functional or lack legitimacy in the eyes of the people. Although the informal mechanisms of dispute resolution can function fairly well in many civil cases, they lack all due process guarantees when it comes to criminal cases. Their judgements are most often based on restoring the harmony of the community at the expense of the rights of the individuals. Women and children are especially vulnerable in this regard: Rights of women and children are virtually unrecognised in the informal justice mechanisms and women are most often not represented in the jirgas or shuras."

Document(s): Open document

14.09.2007 - Source: US Department of State

In many cases conflicts are resolved by Shuras which are based on interpretations of Shari'a law and often do not respect constitutional rights of citizens ("International Religious Freedom Report 2007") [ID 21531]

"Societal disputes are often resolved by informal judicial committees, "shuras," comprised of tribal and religious leaders often with no formal legal training based on interpretations of Shari'a law. Some estimates suggested that 80 percent of all civil and criminal cases went through shuras. This left many vulnerable to violation of their legal rights, as customary shuras or "jirgas" did not adhere to the constitutional rights of citizens and often violated the rights of religious minorities."

Document(s): Open document

09.2004 - Source: International Legal Foundation

Study of traditional law in Hazarajat, Nuristan as well as Northern, Southern and Eastern Provinces ("The Customary Laws of Afghanistan") [#30615],  [ID 771]

Document(s): Open document
Open document

29.09.2003 - Source: International Crisis Group

Traditional mechanisms – the shura and jirga – to solve problems ("Peacebuilding in Afghanistan") [#16299],  [ID 772]

"In the absence of functioning formal systems, many people have turned to traditional mechanisms – the shura and jirga – to solve problems. These can exist at provincial, district, tribal or village level, although not all areas have village level institutions. Their form and history differ from place to place. Traditionally they were gatherings called as and when needed, rather than fixed membership groups."

Document(s): Open document

29.09.2003 - Source: International Crisis Group

Generally those shura that operate at village or urban district level have more chance of being free of interference by commanders than those at higher levels ("Peacebuilding in Afghanistan") [#16299],  [ID 773]

"Generally those shura that operate at village or urban district level have more chance of being free of interference by commanders than those at higher levels. Provincial level shura are often councils of commanders, and even when a civilian shura exists it can be entirely under factional influence.

In the north, shuras at the provincial and district levels were often seen as totally under factional control and no more than a device for legitimating the decisions of commanders. Local level shuras, at either a gozar or village level, were perceived as more democratic, and some, it was said, were very good. However, their power was generally seen as limited. If the dispute was at the local level and did not threaten factional interests, they could solve it, but if it were bigger any decision had to be ratified by the commander, who simply rejected what did not suit his interests.

In Pashtun areas, particularly in the southeast, the jirga can often have virtually total jurisdiction, resolving even the most serious crimes and leaving nothing outside its jurisdiction."

Document(s): Open document

01.09.2003 - Source: UN High Commissioner for Refugees

Strong and evident lack of faith in the effectiveness of the existing judicial system; the parties continue to largely rely on the informal and tribal dispute resolution mechanisms ("Land Issues Within the Repatriation Process of Afghan Refugees") [#47197],  [ID 774]

"There is a strong and evident lack of faith in the effectiveness of the existing judicial system. As such, returnees, similar to other Afghans, hardly resort to the local courts when exploring solutions to land disputes. The following interview report with a returnee in Qaysar district of Faryab province is rather indicative. The returnee stated that he had 5 jeribs of irrigated land, which had been occupied by a commander from a nearby village during his absence. He apparently did not feel confident enough to reclaim it He said that he did not think as a result that the district judge would give him a fair hearing but that if disarmament took place he would be able to.
In the few cases where returnees have accessed the legal channel, they have had to wait for many years before their cases were processed. In Kandahar province, UNHCR was informed that a large number of cases relating to land ownership/occupation registered in the district and the provincial courts have been pending for a long time. Interestingly enough, representatives of the justice system admitted to the various problems they were encountering in fulfilling their duties. In an interview with a member of a court in a province, he stated that the judges were receiving calls from the governor and from other commanders, urging them to take the “appropriate decision” on certain land cases. The pressure they were subjected to was real and substantial, forcing them to deviate or keep cases pending if it was too sensitive.
Even fewer returnees refer their cases to the recently established property court in Kabul. Though the property court is mandated to examine all property issues nation-wide, the president of the court indicated that the number of cases from the provinces was relatively low. Members of the justice department in the provinces confirmed this. For example, according to the administrator of the provincial courts in Maimana, despite the fact that the Supreme Court had sent a letter informing it of the role of the property court, the court did not have an impact on the way disputes were addressed at the provincial level.
Given the lack of faith in the legal channel, the parties continue to largely rely on the informal and tribal dispute resolution mechanisms. Most villages establish councils of representatives or elders, otherwise known as “shuras” in order to tackle various kinds of disputes that arise at the village level. The effectiveness of these informal mechanisms has been mixed, and is also affected by the power structure in the village or district. It has however managed to solve many disputes and conflicts among individuals in a peaceful manner that is acceptable to both parties.In Pir Zada in Ghazni, a returnee while in Pakistan, found out that someone was occupying his house and informed his relatives in his village that he was coming back. He asked the occupier to vacate the premises and was able to recover them immediately without problems."

Document(s): Open document

14.08.2003 - Source: Amnesty International

At present, the jirga and the shura are the only accessible justice mechanisms available to certain communities ("Afghanistan: Re-establishing the rule of law") [#15047],  [ID 775]

"There is a heavy reliance on informal justice mechanisms in Afghanistan. The informal justice mechanisms are known as the jirga and the shura and they are extremely heterogeneous. 82 There is also great regional variation in the emphasis placed upon informal justice systems by local populations living in different regions of Afghanistan. The jirga and the shura can be broadly described as non-judicial alternative dispute resolution mechanisms. The jirga and the shura are comprised of prominent male members of the community and they convene to resolve community problems, including those related to land, property, the family and crime. In the process of decision making the jirga and shura apply different sources of law, including Sharia law and Afghan custom.
The emphasis on informal, non-judicial dispute resolution mechanisms is partly a reaction to the imposition of foreign models of justice that were perceived by Afghans as being unable to properly serve the interests of justice. The pre-existing lack of confidence in formal justice mechanisms, compounded with recent delays in rebuilding the formal judicial system, means that there is currently a strong reliance on informal justice systems in many areas. The geographical isolation of many Afghan communities and the absence of courts means that, at present, the jirga and the shura are the only accessible justice mechanisms available to certain communities.

82 Jirga is a Pashto word meaning the gathering of people for consultation. Shura is the equivalent in Dari. Both words are commonly used to refer to councils of tribal elders."

Document(s): Open document

14.08.2003 - Source: Amnesty International

Relationship between informal and formal justice systems is regionally diverse ("Afghanistan: Re-establishing the rule of law") [#15047],  [ID 776]

"The relationship between informal and formal justice systems is also regionally diverse. In some areas, there is a strong relationship between the formal and informal justice systems. For example, in Nangarhar province, eastern Afghanistan, Amnesty International found that primary courts would refuse to deal with some criminal and civil cases that had not been initially referred to the local jirga and that they would send such cases to the jirga for resolution. However, in other areas, the organisation found that no relationship existed between the courts and the jirga or the shura. For example, in Herat, judges stated that they would never refer cases to the jirga or the shura and that there was no interaction between the two systems. At the present time, the relationship between the formal and informal justice systems and the competence of the informal system is largely unregulated. However, the law does set out that Afghan courts have exclusive jurisdiction. There is a noticeable lack of consensus among the JRC, Afghan judicial institutions and the international community over the envisaged future role of informal, non-judicial mechanisms. The JRC has stated that it believes that once the formal judicial system is established, there will be no need for the jirga and shura. However, many senior judges indicated that the jirga and shura must continue to play a key role in administering justice in Afghanistan. UNAMA’s position on informal justice systems was far from clear."

Document(s): Open document

07.03.2003 - Source: Danish Immigration Service

Jirgas - tribal councils - also decide on legal disputes ("The Political, Security and Human Rights Situation in Afghanistan: Report on fact-finding mission to Kabul and Mazar-i-Sharif, Afghanistan and Islamabad, Pakistan; 22 September - 5 October 2002") [#11326],  [ID 778]

"Sources indicated that the Jirga – the tribal council – also decides on legal disputes and that its decisions must be carried out. Councils of elders rule on many cases involving property disputes and sexual matters. One example quoted was the case of a married woman who had been raped, where it was ruled that the offender’s family should give the victim’s family a young woman as compensation. According to the sources, this decision was an infringement of the young woman’s human rights, but they thought it would take a long time to build up a system that protects girls against such injustices."

Document(s): Open document

05.03.2003 - Source: Medica Mondiale

Traditional justice system comprises Shuras (or village level councils) usually made up of male elders ("Trapped by Tradition - Women & Girls in Detention in Kabul Welayat") [#14380],  [ID 777]

"The traditional justice system comprises Shuras (or village level councils) usually made up of male elders. In some communities women also have Shuras. In the post-Taliban era these Shuras have predominantly dealt with land disputes. Additionally in many communities the Islamic clergy play a role in conflict resolution and settlement of disputes. They also perform marriages, which are considered official if there are four (male) witnesses. These traditional systems are largely informed by the men in different tribal and ethnic groups and their understanding of what constitutes justice, according to different customs and different interpretations of Islamic Sharia law. Currently in Afghanistan, penalties are not enacted according to Sharia, so officially there are no lashings or stonings (both severe Sharia penalties for sexual offences in particular). Executions can only take place with the President’s approval, but there were unconfirmed reports in 2002 of executions including of women, in Darwaz, Balakhstan province."

Document(s): Open document

28.01.2003 - Source: International Crisis Group

Relationship between local institutions and urban-based formal legal institutions is not necessarily oppositional ("Afghanistan: Judicial Reform and Transitional Justice") [#10512],  [ID 779]

"Throughout the country such institutions are commonly called jirgas , a Turkic word meaning circle, or shuras , which comes from the Arabic mashwara meaning to discuss. When two parties seek to have a dispute resolved, including such crimes as murder and theft, they must first agree to abide by the decision of the jirga . If they subsequently fail to do so, they risk being cast out of the tribe or village.
Central government courts are generally not permitted to interfere in tribal disputes but the relationship between local institutions and urban-based formal legal institutions is not necessarily oppositional. In some cases, deciding which should adjudicate a particular dispute depended on whether the parties believed they stood to benefit more from one than the other. However, particularly in tribal areas, the blood feud has remained "the main institution for the enforcement of justice"."

Document(s): Open document
02430afgh.pdf

01.2003 - Source: Overseas Development Institute

Article on the traditional mechanisms of dispute settlement ("Afghanistan’s political and constitutional development (Authors: Chris Johnson, William Maley, Alexander Thier and Ali Wardak)") [#11961],  [ID 780]

"The role of the central government and its formal agencies in maintaining social order in Afghanistan has always been limited, particularly in rural areas. Despite this, there existed a reasonable degree of social order in these areas, mainly due to the operation of traditional systems of dispute settlement in villages and tribes: the aforementioned jirga among the Pashtuns, and its equivalent among non- Pashtuns, the shura. These institutions incorporate the prevalent local customary `laws', institutionalised rituals and a body of village elders whose collective decisions about the resolution of disputes are binding on the parties involved. The authority of these institutions varies from region to region. They are at their strongest and most institutionalised in the Pashtun tribal areas, where they often have virtually total jurisdiction, resolving even the most serious crimes. In other areas they solve only minor disputes, referring more serious or more complex issues to the courts, or in their absence to the local commander. Elsewhere the two systems work in tandem, with the majority of disputes resolved by jirga/shura; at times a judge will refer cases lodged with the court to the jirga/shura. At present, the main functions of the court often involve only the certification of legal documents, the issuing of certificates and other similar activities.
In traditional justice, the process of mediation and reconciliation between disputants commonly involves seeking forgiveness or pardon, and the obligatory acceptance of a truce offer. It is against the tribal code of behaviour to reject such an offer. A victim's relatives thus pardon the offender and the two parties are reconciled. People often prefer jirga/shura to formal justice institutions because they are conducted by respected elders with established social status and a reputation for piety and fairness. In many cases, disputants personally know and trust local elders. In addition, elders reach decisions in accordance with accepted local traditions and values that are deeply present in the collective conscience of the village or tribe. Also unlike state courts, jirga/shura settle disputes without long delays and without financial costs. Illiteracy also discourages people from using courts ­ the overwhelming majority of Afghans are unable to make applications, read or understand the laws or do the paperwork. Furthermore, while the state justice system criminalises and excludes offenders, the traditional system largely aims at the reconciliation of disputants and the reintegration of offenders into the village or tribe. However, in Pashtun areas the jirga may recommend, in some cases of murder, direct vengeance or the marriage of a woman from the offender's tribe to one of the victim's close relatives. While the first punishment is in direct conflict with state law, the second is a clear violation of human rights. A further problem with the traditional system is that these institutions are generally men-only.
Senior judges at the Supreme Court, prominent lawyers and ordinary people all felt that jirga/shura must become an integral part of any future justice system. Supreme Court judges said that this would significantly reduce the workload of the courts. Academic lawyers agreed with the idea in principle, but cautioned that this may reduce the authority of the judge. Key officials at the Ministry of Interior, on the other hand, rejected the idea of incorporating jirga/ shura into a future justice system as trivialising justice and the legal order. They stressed that the formal justice system alone should deal with disputes, and were unaware that most are currently resolved outside the courtroom.
The incorporation of jirga/shura is unlikely to result in the trivialisation of the formal justice system; on the contrary, it is likely to strengthen it by making it more widely accessible, cost-effective and quick. Moreover, the state simply does not have the resources to establish an adequate formal justice system in all parts of the country."

Document(s): Open document