Access to Justice and Human Rights in Afghanistan

Norwegian Centre for Humanitarian Studies, 2023

This NCHS paper examines the use of the term legal pluralism in Afghanistan and argues that where access to justice is particularly difficult or neglected, social actors face an absence rather than a plurality of legal orders. The paper was originally developed as a contribution to the report Afghanistan and the Rule of Law after 2021: Legal and Social Developments by the Max Planck Foundation for International Peace and the Rule of Law.

This paper revisits the concept of critical legal pluralism, which treats the individual as a site of normativity with the capacity to create legal knowledge. To help operationalize the usage of critical legal pluralism, I propose a methodological approach that places the individual's ability to makes choices along a continuum. On one side of continuum, legal pluralism can be viewed as facilitating fully discrete choices that ascribe to one legal order or another. On the other side, the ability to make individual choices is curtailed because of the presence of a hegemonic legal order. This simple continuum helps to shed light on the complex considerations that affect individual choices, which in turn affect how various legal orders are legitimated. The paper then considers how critical legal pluralism can enrich the discussion on the legal system of Afghanistan, focusing on interviews with two Afghan justice actors: a former judge and an active defence lawyer.

Sharia Incorporated, 2010

Legal pluralism is the hallmark of Afghan legal reality. Afghan law is a combination of Islamic law, state legislation, and local customary law. This chapter traces the origins of that plurality and shows that the lack of clarity regarding the relationship between these different sources of law and the absence of guidelines as how to resolve conflicts between them is still causing many problems in Afghanistan today. Despite the existence of official law, i.e. the formal legal system established under the provisions of a constitution, the socio-legal reality is not reflected by it, and the law in the books does not represent the norms that actually govern the lives of the majority of the population. For ordinary people and villagers, who form the majority of the populace, tribal/customary and Islamic law are more significant and actually better known than any state legislation. As a result, in Afghanistan it is not the implications of sharia or sharia-based law that, at least for the moment, prevents the application and implementation of international legal and human rights standards, but the lack of a system by which the rule of law may be established so that the legal system is capablepractically, socially, politicallyof guaranteeing and enforcing laws effectively. Although the Government of Afghanistan is committed to carrying out its duties imposed not only by Afghanistan's domestic laws but also by the country's international obligations, the greatest challenge to action is the lack of security and the fragile peace balance in the country.

A basic human rights textbook developed for Afghan legal professionals/academics.

http://www.criticalglobalisation.com/, 2013

This article provides a critical reflection on the efforts at legal reconstruction initiated in 2001 by the international community and the Afghan government. Its aim is to highlight some of the more controversial factors that accompany the implementation of a foreign model of justice inspired by the ideology of the rule of law. Following Operation Enduring Freedom and the consequent arrival of various international agencies on Afghan soil, the international community (led by the United States) has attempted to bring political stability and democracy to Afghanistan. This endeavor has evolved into a more extensive, and rather controversial, process of reconstruction, which has called into question the mantra of democratization and modernization used to ideologically justify the US-led coalition control of a pro-Western Afghan government. By introducing a reflection on restorative justice and judicial mediation, I argue that the standardization and global circulation of specific models of justice present a series of problems often hidden behind legalistic interpretations. While in Western countries jurists and legal practitioners promote the industry of 'alternative dispute resolution' (ADR) and emphasize the recourse to mediation and conciliation, in Afghanistan governments and international agencies implement the rule of law, thus condemning and marginalizing customary practices in the resolution of disputes. Once taken away from the rules of the judicial order, judicial mediation becomes caught in a logic of compromise and deteriorates.

The issues of Human Rights violations have always been of grave concern to the Human Right Defenders. The cases of human right violations ignite fury and anguish and pose challenge for the world. This paper here forth brings forward the odious crime of ‘Bacha Bazi’, and explains how the organized crime takes place in the country, it reflects on the plight of the victim, questions the responsibility of the government to act and pushes for humanitarian intervention. It states that though the crime is restricted to one country but the onus of demolishing this traditional practice lies on the international community as a whole. The world should therefore come together and join hands to save the future of the Afghan Boys.

Sri Lanka Guardian, 2023

The Taliban regime will not stop, it will keep on pushing the Afghan society and people into the dungeons of violence, ignorance, brutality, and poverty. The obsession with establishing their interpretation of Sharia-based law and a puritan society has completely undone the little progress made by Afghanistan over the two decades preceding the Taliban’s return to power. In its present avatar, the Taliban is more deadly and more organised to impose its will, at the cost of common Afghans.

2013

This article critically examines Afghan and international efforts aimed at promoting transitional justice initiatives following the United States-led intervention in 2001. By mid-decade these efforts had culminated in an officially supported action plan, however the plan was timid and prosecutions were at any rate neutralised by a subsequent amnesty law promulgated by the Afghan Parliament. Throughout, loose but enduring coalitions of national and international actors formed on both sides of the issue. This ensured that the question did not go away, but also that nothing was resolved. As chronicled in the ethnographic and process-oriented narrative in this article, the nascent institutions of the Afghan state itself became the arena for the negotiations and contestations in this struggle.