Legal aid might not seem the first priority for a humanitarian assistance organisation in a situation where peoples physical needs for food, shelter, security and basic healthcare have not been met. Nonetheless, its practical value in post-conflict situations is being increasingly recognised. Until the rule of law has been re-established, most attempts to tackle other social problems are likely to be little more than short-term palliatives.
Afghanistan is a prime example. The central governments writ barely extends beyond the capital Kabul. Much of the country remains lawless and, even in the areas that they control, the police and courts are unable to protect basic human rights. Corruption is rife and popular alienation from the government is, in some ways, similar to the situation which first swept the Taliban to power. It is no coincidence that this force has now re-emerged as a credible threat. For donors and the international community, restoring the rule of law in Afghanistan is seen as a vital part of the process of disarmament, political reform and social reintegration.
NRCs legal aid programme
The Norwegian Refugee Council (NRC) first began legal aid and information projects in the Balkans in the mid-1990s. Thousands of refugees and internally displaced people were helped throughout the region. Often working in the absence of a properly functioning legal system, it was an innovative programme that other agencies have since copied.
NRC established a number of legal aid centres in Pakistan in 2002, and opened three more in Afghanistan in 2003. These are currently the only centres of their kind in the country. The programme is expanding during 2004, with another four centres opening in the north and west. The centres provide free assistance, including direct legal representation by local Afghan lawyers, to people who have been forced to flee their homes or who have recently returned. They also provide information and advice about the current situation in places of origin so that people can make an informed decision about whether to return. The centres work closely with protection staff of the UN High Commissioner for Refugees (UNHCR), the UN Assistance Mission to Afghanistan (UNAMA) and the Afghan Independent Human Rights Commission (AIHRC). In their first six months, NRCs information and legal aid centres had registered over 300 cases, and had achieved a number of notable settlements.
Land rights and the justice system
Two issues in particular need to be tackled. The first concerns land rights, which remains the biggest single source of conflict in Afghanistan. The second concerns the shape of the justice system, and how formal institutions should be developed alongside traditional, informal ones.
The vast majority of cases handled by the NRCs legal aid programme are related to land disputes. Land rights are a sensitive and deeply controversial subject in Afghanistan. A mismanaged attempt at land reform was one of the major causes of the revolt against the Communist regime in 1978. Since then, successive governments have used land policy as a way of rewarding their own supporters. Land ownership is starkly inequitable, and a significant proportion of the rural population is landless.
Complex social relationships determine rights to ownership and usage, and these can vary considerably in different areas. Few people possess official title deeds, and most use customary documents to prove ownership. Missing deeds, widespread forgery and the fact that disputed land has often been sold many times over make it difficult to determine who owns what. A quarter of a century of conflict, population growth and the rapid return of so many refugees have added to these problems. Prices have risen sharply, particularly in urban areas, and returnees often find themselves entangled in property disputes, or simply fall victim to extortion rackets run by local commanders.
Discontent over the land issue is one of the factors behind growing disenchantment with President Mohammed Karzais Western-backed government. One of Karzais first acts was to ban further land distribution, in recognition of the fact that the warlords would simply grab it for themselves. This freeze is thawing in many areas further undermining the presidents authority. A Special Land Court has been established to address the property concerns of returnees, but it is overburdened, politicised and subject to intimidation and widespread corruption. A Special Commission for City Development has been instructed to arbitrate disputes over urban property and a number of presidential decrees have been issued on land rights, but these have created as many problems as they were intended to solve.
The absence of rule of law in much of the country means that, even where the courts issue fair judgments on land and housing disputes, there is no guarantee that these will be enforced. Many Afghans are understandably cynical about their prospects of obtaining justice through the official system, and around half of the land and property cases registered by the NRCs legal aid centre in Kabul concern people who have become dissatisfied with the progress of the courts.
In September 2003, a government Special Commission was established to look at the issue of land rights following the high-profile demolition of houses in the Shirpur district of Kabul to make room for private homes for a number of government ministers. The residents had been occupying their houses, which were located on government-owned land, for over 20 years. NGOs and the AIHRC publicly condemned the demolition, and it was also criticised by the UN Special Rapporteur on the Right to Adequate Housing. The municipal chief of police was forced to resign, although the Commissions report, which is believed to have contained damning criticism of other high-ranking public officials, has not been published.
NRC provided legal advice to residents in the Shirpur case, and has a number of similar cases where people feel threatened by evictions. The organisation is sometimes able to use its international status to obtain leverage with commanders or senior officials (the two are not mutually exclusive) in order to obtain justice in individual cases. Commanders have been persuaded to hand back houses to their rightful owners after interventions by NRC counsellors. In one case, NRC successfully mediated a settlement with an official who had cut off the water supply to over 1,000 returnees, some of whom had been assaulted, imprisoned and shot at when they objected.
Such initiatives may help individuals, and may even have a role to play in strengthening civil society and holding the authorities to account, but they are no substitute for an effective justice system based on respect for the rule of law and human rights. Many of NRCs clients have still not obtained justice, and managing peoples expectations is becoming an increasing problem. Conversely, the organisations successes may attract more cases than the centres can handle. Staff safety is also another potential problem, for which there are no easy answers in such a dangerous society.
The shape of the justice system
The second pressing problem concerns the relationship between formal systems of justice and informal, traditional mechanisms. As much as 90% of all cases are settled using these methods, and few cases that NRC has resolved are officially registered as such because there is no official mechanism to acknowledge them or monitor their implementation. While the community itself can be relied upon to enforce rulings that it considers fair, such settlements do not always accord with principles of human rights and natural justice.
The two key mechanisms of traditional justice in Afghanistan are the shura and the jirga. These entities are products of the countrys patriarchal tribal society, which lays strong emphasis on solving conflicts privately, within the family, village or clan. A jirga is a decision-making forum at which, theoretically, all adult males can participate. A shura is restricted to the elders of a particular community. Both have a long history of resolving land disputes.
Shuras and jirgas derive their legitimacy from their perceived ability to settle disputes. At their best, they are the closest thing to democratic institutions in Afghanistan today. They can reach decisions much faster than the official courts, are virtually cost-free, are less susceptible to bribery and are accessible to illiterate Afghans (the vast majority). Since they reach decisions by consensus, they tend to try to settle disputes through compromise. This makes them an effective mechanism for conflict resolution. However, they do not always offer the best method of upholding individual rights. Women rarely have any say in their deliberations, and may find their own rights being violated by the settlement reached. It is not uncommon for a family to be required to give a young girl to another family as part of a compensation package.
Sexual slavery, of course, violates Afghanistans state law and Islamic law, on which the countrys formal justice system is also based. This dual basis was confirmed at the Special Loya Jirga which approved Afghanistans new constitution in December 2003. However, there remains a widespread misunderstanding about many principles of Islamic law, and it is frequently cited to justify practices based on Afghan tribal traditions. No in-depth analysis has been conducted into the strengths and weaknesses of Afghanistans informal justice system; this is clearly an issue that would benefit from closer study.
NRCs legal counsellors have represented women before informal dispute resolution bodies, and have successfully mediated divorces and custody battles. Like most Afghan lawyers, NRCs counsellors believe it is best to try and exhaust domestic remedies, using informal mechanisms, before a case is brought to court. For NRC, the issue is not whether informal mechanisms are better or worse than the formal system, but how best to obtain justice for our clients in whatever forum can be used. One important lesson from the legal aid programmes admittedly limited Afghan experience will be whether such principled pragmatism has a wider application, and what the rest of the world can learn from Afghanistans system of justice.
Conor Foley is the Programme Manager of NRCs Legal and Information Project in Afghanistan. His e-mail address is firstname.lastname@example.org.
References and further reading
David Turton and Peter Marsden, Taking Refugees for a Ride: The Politics of Refugee Return to Afghanistan, Afghanistan Research and Evaluation Unit, December 2002.
Liz Wily, Land Rights in Crisis: Restoring Tenure Security in Afghanistan, Afghanistan Research and Evaluation Unit, March 2003.
Oliver Roy, Afghanistan: Internal Politics and Socioeconomic Dynamics and Groupings, WriteNet/UNHCR Emergency & Security Service, March 2003.
Peacebuilding in Afghanistan, International Crisis Group, September 2003.
Conor Foley, Afghanistan: The Search for Peace, Minority Rights Group International, November 2003.