About the Report

This report argues that the assumed formal–informal dichotomy 

between justice systems in Afghanistan misdescribes the 

way in which most cases in the country are resolved. In fact, 

analysis in late 2010 of data from ongoing research and pilot 

projects sponsored by the United States Institute of Peace 

shows that most disputes have been handled by a combination 

of the two justice systems, with actors in each assuming 

different roles depending on the location and context of the 

dispute as well as on the parties involved, which has serious 

implications for many of the international programs recently 

created to engage the informal sector.1 Furthermore, this 

report suggests that the greatest barrier to local dispute 

resolution in Afghanistan is the current lack of security and 

political stability, which has made it more difficult for those 

involved in either formal or informal dispute-resolution systems 

to interact effectively. 

About the Author

Noah Coburn is a political anthropologist at Skidmore College 

who has been conducting research in Afghanistan since 2005. 

His doctoral research at Boston University focused on conflict 

and political structures in the Shomali Plain north of Kabul. 

In 2009 and 2010 Coburn led USIP’s informal justice work in 

Afghanistan. He is the author of Bazaar Politics: Power and 

Pottery in an Afghan Market Town. 

2301 Constitution Ave., NW • Washington, DC 20037 • 202.457.1700 • fax 202.429.6063

Special Report 285 August 2011

© 2011 by the United States Institute of Peace. 

All rights reserved.

Noah Coburn

The Politics of Dispute 

Resolution and 

Continued Instability in 

Afghanistan

Summary

•	 There are numerous sources of local conflict in Afghanistan today, but the majority cluster 

around a few issues: disputes over land and water rights; family disputes, particularly 

inheritance; and disputes over control of local positions of authority. 

•	 Lack of capacity or resources in the formal justice systems has been blamed for the lack 

of effective dispute resolution. But the fact that disputes were resolved more regularly in 

Afghanistan before the war years, when the formal justice system had even fewer resources, 

indicates that other causes are involved.

•	 Lack of political and personal security of dispute-resolution practitioners and the increased 

power of local commanders, whose authority is not community-based, have undermined 

the traditional dispute-resolution system. At the same time, corruption and inefficiency 

have delegitimized the formal justice system in the eyes of many disputants.

•	 Afghans and foreign donors alike note that Afghanistan has both state (court-based) and 

nonstate (based upon a combination of customary and religious law) justice sectors, and it 

is often assumed that these systems solely compete with each other for dispute-resolution 

authority.

•	 USIP research shows that, contrary to assumptions, successfully resolved disputes rely on 

a combination of formal and informal actors. Indeed, it is common for disputes to move 

between formal and informal venues and to be considered by a series of local elders and, 

more rarely, government officials. 

United States Institute of Peace www.usip.org

SPECIAL REPORT

Contents

Introduction 2

Sources of Local Conflict 3

Actors in Local Dispute Resolution 3

Strategic Choices in Resolving Cases 3

Challenges to Resolving Localized Disputes 8

Conclusion 11
2

Introduction

As the international community increasingly talks about transfer of governance and security 

responsibility to Afghans and about the sustainability of both, it is important to have an 

accurate understanding of disputes that drive local instability. While most local disputes 

in the areas researched do not have their roots in the insurgency, the instability they 

create and the ability of the Taliban and other government actors to manipulate the situation ultimately have a deep impact on the political and security contexts of the ongoing 

insurgency. A broad understanding of the disputes, that are the roots of local instability, 

will undoubtedly lead to a better understanding of the instability on a more national level 

across Afghanistan.

This report describes trends in local disputes in Afghanistan based on pilot projects and 

research conducted by the United States Institute of Peace (USIP) throughout Afghanistan 

in 2009 and 2010. It draws on qualitative and quantitative data describing ways in which 

communities tend to address these disputes and some of the shortcomings of these mechanisms. USIP has been working on informal justice in Afghanistan since 2002, and in 2009 

began a series of pilot projects aimed at testing linkages between the formal and informal 

sectors. The Institute’s Traditional Dispute Resolution project relied on local implementing 

partners to analyze and encourage linkages between the formal and informal justice sectors 

in thirteen districts in Helmand, Nimroz, Uruzgun, Herat, Paktya, Nangarhar, Kunduz, and 

Takhar provinces. These partners, which included The Liaison Office (TLO), Cooperation for 

Peace and Unity, and the Norwegian Refugee Council, gathered data on local disputes while 

testing various approaches that encouraged cooperation between the formal and informal 

actors. The work of these implementers focused on disputes at the village and district 

levels—first, attempting to understand how disputes were being resolved within the communities and then testing various ways of strengthening the linkages between the formal 

and informal justice sectors.2

The district-level data demonstrate the range of issues involved in local disputes and 

local dispute resolution. USIP’s research shows that dispute resolution is currently taking 

place in Afghanistan using an ad hoc array of government officials, and local leaders, who 

often resolve low-level disputes based on community consensus. However, these community-based mechanisms have often been undermined by corrupt officials, local strongmen, 

and general instability. Arms and access to illicit funds from sources such as the opium trade 

allow strongmen to manipulate local political structures without being responsive to community needs as leaders have been in the past. 

USIP researchers also conducted additional research in the provinces of Parwan and Kabul, 

particularly focusing within the Kabul court system on how the formal court system takes 

advantage of informal mechanisms. This research demonstrates the deep reliance that the formal sector continues to have on local leaders—even in the most urban parts of the country.

On a provincial level, USIP created Dispute Resolution Councils (DRCs) that bring tribal 

leaders and government officials together to resolve disputes in Nangarhar and Kunar. 

These are usually larger in scale than USIP’s village and district level work and often involve 

multiple tribes. Cases from these provinces demonstrate some of the challenges created by 

local instability and tensions between local groups and the international military. They also 

suggest that networks of legitimate, local leaders can do much to contribute to local stability when they are relied upon to help facilitate dispute resolution. 

Taken together, USIP’s interrelated case studies on dispute resolution at district and 

provincial levels and in urban court systems paint a holistic picture of the dispute-resolution 

landscape in Afghanistan and help to identify broader trends. Other reports tend to focus 

on specific regions, which means they occasionally miss some of the significance of deeper, 

The views expressed in this report do not necessarily 

reflect the views of the United States Institute of Peace, 

which does not advocate specific policy positions.

To request permission to photocopy or reprint materials, 

e-mail: permissions@usip.org

About the Institute

The United States Institute of Peace is an independent, 

nonpartisan institution established and funded by Congress. 

Its goals are to help prevent and resolve violent conflicts, 

promote postconflict peacebuilding, and increase conflict 

management tools, capacity, and intellectual capital worldwide. The Institute does this by empowering others with 

knowledge, skills, and resources, as well as by its direct 

involvement in conflict zones around the globe.

Board of Directors

J. Robinson West (Chair), Chairman, PFC Energy •

George E. Moose (Vice Chairman), Adjunct Professor of 

Practice, The George Washington University • Judy Ansley,

Former Assistant to the President and Deputy Security 

Adviser under President George W. Bush • Anne H. Cahn,

Former Scholar in Residence, American University 

• Chester A. Crocker, James R. Schlesinger Professor of 

Strategic Studies, School of Foreign Service, Georgetown 

University • Kerry Kennedy, President, Robert F. Kennedy 

Center for Justice and Human Rights • Ikram U. Khan,

President, Quality Care Consultants, LLC • Stephen D. Krasner,

Graham H. Stuart Professor of International Relations, 

Stanford University • John A. Lancaster, Former Executive 

Director of the National Council on Independent Living 

• Jeremy A. Rabkin, Professor, George Mason School of Law 

• Judy Van Rest, Executive Vice President, International 

Republican Institute • Nancy Zirkin, Executive Vice 

President, Leadership Conference on Civil Rights

Members Ex Officio

Michael H. Posner, Assistant Secretary of State for 

Democracy, Human Rights, and Labor • James N. Miller, 

Principal Deputy Under Secretary of Defense for Policy •

Ann E. Rondeau, Vice Admiral, U.S. Navy; President, 

National Defense University • Richard H. Solomon, 

President, United States Institute of Peace (nonvoting) 
3

countrywide trends3 or only focus on narrow issue areas, such as land disputes.4 Instead, 

the USIP work described here conceptualizes the entire spectrum of local disputes and the 

ways in which various types of disputes fuel each other. It does not attempt to provide a 

precise analysis of local conflicts in Afghanistan; rather, it points to some trends drawn from 

both quantitative and qualitative studies to better inform programs going forward.5

Sources of Local Conflict 

Dispute types vary widely in Afghanistan, but a few types—including land, water, family, and 

criminal disputes—tend to predominate in the districts where USIP worked. Many disputes 

fall into more than one of these categories. For example, in one major dispute in which USIP’s 

DRC was involved in Nangarhar, a disagreement over the inheritance of land between an uncle 

and a nephew led to a feud in which four family members were killed. By the time the dispute 

was brought to the DRC, the most salient issue had become the murder of the family members, 

making it simultaneously a dispute over land, inheritance, and murder. 

In almost all areas where data were collected, however, land disputes were the most 

prevalent. In 120 cases considered by DRCs in Nangarhar and Kunar, for example, 55 percent 

involved land issues. The importance of land issues is found in cases brought to the courts 

as well, and out of 48 cases studied from the fourth district of Kabul’s primary civil court, 

39 involved land-related issues (81 percent). Returning refugees, local strongmen grabbing 

both private and government land, unclear boundary markers, and poorly maintained, conflicting records all exacerbate this situation.6

Dispute types also vary over time. Several of those interviewed in Qara Bagh, in Kabul 

Province, for example, noted that during the civil war and the Taliban periods there were significantly more disputes over criminal matters, such as robbery. Now, though, people are more 

concerned with civil cases, particularly those involving land and the distribution of development aid. Interestingly, several respondents argued that the decrease in criminal issues was 

not due to an increase in the rule of law. Instead, they said, it was because so many resources 

were pouring into the country that local strongmen were spending more time working on 

securing these funds than trying to secure resources by fighting against each other.

Certain types of disputes tend to remain more localized, while others have the tendency 

to spiral upward and involve an increasing number of actors, creating wider tension. Since 

they involve issues of honor and privacy, for example, there is great pressure to resolve family disputes within the family—particularly disputes involving marriage, divorce, or inheritance. This is true of cases involving women and marriage, and those involving inheritance, 

where there is an added desire to keep the dispute out of sight from government authorities, 

who might attempt to extract a share of the money. As a result, the director of Women’s 

Affairs in Paktya pointed out to a TLO researcher that it had been years since the last divorce 

case in the formal justice system in Paktya.7 Thus it is not surprising that field-research data 

demonstrate a higher percentage of family cases being resolved at the village level versus at 

district or provincial levels. In cases collected by TLO among elders in Jalalabad city and the 

district of Bati Kot, the ratio of land to family disputes was almost 1 to 1 (45 to 41), while 

in cases registered by the DRC in Nangarhar and Kunar the ratio was 5 to 1 (55 percent of 

cases involved land, 11 percent involved family issues). 

Actors in Local Dispute Resolution

An array of mechanisms is currently being used across the country to address the range of disputes in local communities in Afghanistan. These mechanisms include jirgas, gatherings of elders 

that are used primarily in Pashtun areas and are generally formed temporarily to solve a specific 

Certain types of disputes tend 

to remain more localized, while 

others have the tendency to 

spiral upward and involve an 

increasing number of actors, 

creating wider tension.
4

case. Each community also typically has more-permanent councils of elders, called shuras, which 

can range from local mosque shuras to district- and provincial-level shuras.8 In addition, a range 

of respected individuals, including religious and tribal leaders, may act as mediators in a given 

case. Mediators may also include government officials, such as the district governor or district 

police chief, if they happen to have local legitimacy. Finally, government bodies like the Ministry 

of Justice Huqooq Department (civil affairs department) can serve as mediators or as referring 

agents to one of the above sources of dispute-resolution authority. 

Each of these mechanisms is historical, in the sense that they have long been a means 

for local communities to maintain their autonomy from the Afghan state whose influence 

generally did not extend far beyond major cities. But they are simultaneously modern in 

their ability to adapt to current circumstances, such as the presence of large amounts of 

development aid and coalition forces. In particular, dispute-resolution mechanisms do not 

break down neatly into formal and informal categories. Tribal elders, for example, may work 

with local government officials to bring NGO funds to certain communities.

In some areas the range of forums is greater than in others. For example, in urban Jalalabad, each mosque and nahia, or neighborhood, generally has a shura to resolve neighborhood disputes involving land or family issues. In addition, there are development shuras set 

up by NGOs distributing aid as well as other tejarati (commercial) councils. Tejarati councils 

of merchants were originally set up under the Soviets, but they continue to be key players 

in organizing commerce in urban areas and resolving disputes between businesses. Other 

shuras are not geographically bound and may represent a specific tribe or ethnic group. 

Within the formal system in Jalalabad, the police are occasionally involved in the resolution 

of cases that do not get brought into the court system. Even within the court system, confusion and a lack of transparency sometimes mean that it is not always clear to participants 

which court should be involved in the resolution of a case. 

The end result of this diverse dispute-resolution landscape is that urban residents can 

and do “forum shop,” taking their cases into one system or another based upon the case and 

their personal relationships with those that sit on cases. In one sense, this means access to 

justice forums in Jalalabad is better than in other parts of the country. At the same time, 

though, this system sometimes weakens dispute-resolution mechanisms since disputants 

can undermine each other by seeking different venues. In some cases, such an array of 

mechanisms may allow disputants to approach the body they feel most comfortable with, 

increasing access to justice for women, who might not be as likely to approach the formal 

system. At the same time, however, the personal connections of disputants to influential 

figures, such as commanders, and their ability to bring these figures into the process can 

decrease the likelihood that the dispute will be resolved justly. 

Informal dispute resolution often relies on bodies of elders whose collective reputations 

give the resolution legitimacy and create collective social pressure on the community to 

respect the decision. Individuals can also be respected as dispute resolvers on their own, 

particularly in lower-level cases and cases involving close family members. Government 

officials, including judges, prosecutors, members of the Huqooq Department, and district 

governors are also involved in the resolution of some cases. In many areas, the district 

governor is also a key figure in shaping the political and security conditions in an area, in 

turn, shaping the context in which local disputes take place. In two districts north of Kabul, 

district governors often sit in on district shura meetings, although their influence on these 

shuras varies. Many of those interviewed pointed out that one district governor was particularly weak and followed the ruling of the shura on most cases. They compared him with 

his predecessor who, they claimed, determined the composition of the shura and shaped its 

rulings. In each district, however, it was clear that the district governor was making decisions with at least some consultation with the district shura.

The end result of this diverse 

dispute-resolution landscape is 

that urban residents can and do 

“forum shop,” taking their cases 

into one system or another 

based upon the case and their 

personal relationships with 

those that sit on cases. 
5

Notably, judicial officials usually have significantly less influence than the district governor’s office over local disputes. The situation in Injil in Herat Province is typical, where the 

one judge and one prosecutor have tiny, barely furnished rooms in the district governor’s 

compound, while the district governor welcomes guests in his sprawling office. In such a 

setting it was clear that the majority of local concerns went first to the district governor’s 

office, and only when he saw fit did he send them to the prosecutor next door. 

Even in areas close to Kabul, where one would expect formal institutions to have more 

power, the judiciary has limited influence. In one district, only an hour outside of Kabul, 

for example, there is one prosecutor and no judge. When interviewed by a USIP researcher, 

the prosecutor stated that he had only dealt with one case in the past twelve months 

and that he wished to be transferred back to Kabul since there was no work for him at his 

current post. 

In addition to the informal and formal venues, in much of the country the Taliban have 

set up a shadow government, whose rules are being observed in an increasing number of 

provinces. Due to the insecurity in these areas, no systematic research has been done on 

these courts. However, discussions with individuals living in these areas suggest that the 

Taliban system rarely exists in isolation from other forms of dispute resolution. As a result, 

district governors in insurgent areas often have contact with the Taliban justice system. 

Based upon informal surveys conducted by TLO, district governors were in contact with their 

Taliban counterparts or other members of the Taliban shadow government in three out of the 

five districts surveyed in Nangarhar and Paktya.9

Based upon anecdotal evidence from the districts in which USIP is currently working, 

the Taliban justice system itself primarily takes two forms: roaming judges and local elders. 

Often educated in or imported from Pakistan, roaming judges travel to different areas to 

resolve cases; the verdicts in those cases are then enforced by local Taliban commanders. 

Of the districts where USIP worked, it is only in Helmand where roaming judges are at the 

center of dispute resolution. More common appears to be the co-option of local elders by 

the Taliban, who essentially demand that these elders resolve certain cases using the Taliban 

interpretation of shariah (Islamic law). The Taliban then leave the elders to resolve other 

cases as they see fit, leaving a system that resembles the informal system in other less 

Taliban-influenced parts of the country.10

Strategic Choices in Resolving Cases

In most cases, local actors in Afghanistan are faced with a series of options about who to take 

their dispute to and how best to approach a resolution that favors their side. Should the dispute be kept within the family? Should the disputant first approach an elder from the family 

or a local religious figure? If the disputant plans to use state institutions, which of the local 

officials will be most likely to resolve the case effectively with a minimum paid in bribes? 

These are not always simple questions and the disputant must weigh the costs and benefits 

of their potential approaches. The disputant must also contend with significant social and 

political pressure from opponents and allies to approach the case in a specific manner. 

Furthermore, while informants may even describe the justice system as divided between 

formal and informal, a deeper examination of the role different actors play in successfully 

resolved disputes often reveals a more complicated picture. For example, district governors 

and other officials frequently sit on shuras, on which they have no official capacity. But the 

fact that they are employed by the government ensures that others on the shura afford them 

more respect. Thus authority does not reside solely in the informal or formal systems. 

Cases are rarely confined to one venue and routinely move between bodies. So, for 

example, in Qara Bagh, when two brothers fought over their inheritance from their father, 

Cases are rarely confined to 

one venue and routinely move 

between bodies.
6

one of the men brought the case to the primary court in Qara Bagh. Since the dispute 

was primarily over land, the court investigated briefly and then referred the case to the 

district shura, which had local knowledge about land issues. Since the amount of land in 

question was not significant and since it was a family issue, the district shura referred the 

case to a village shura composed of four elders. Once these elders had divided the land, 

the resolution was then brought back to the district shura, which formally approved it 

(see diagram 1). 

While the drawback to this approach was that the process took more than a year to 

resolve, the resolution to the dispute gained legitimacy and enforceability because both formal and informal bodies were included. The outcome was that both men accepted less than 

they had originally demanded. If the four elders on the village shura had simply resolved 

the dispute initially, there would have been less social pressure for all members of the community to adhere to the result. And the involvement of stronger, district-level actors who 

reconfirmed the resolution added more political weight to the decision than if the process 

had remained strictly at the village level. In this case, the movement of the case between 

bodies gave their resolution more legitimacy and ensured that the most knowledgeable 

figures about the land in question actually resolved the dispute.

Analysis of hundreds of cases recorded by USIP partners indicates that the path a case 

takes is significantly influenced by the details of the case and the relationship between 

those involved in the dispute. However, there are some patterns in the study areas. In both 

Nangarhar and Paktya, for example, it is common for cases to move from the formal to the 

informal sides of the dispute-resolution spectrum. In Paktya, this is even true for major 

criminal cases, with the district governor and prosecutor both claiming that the local preference for the use of jirgas led to this practice. Other informants claimed it was because the 

prosecutor was overburdened and lazy.11

Even within the court system, there is a significant reliance on informal mechanisms. 

Judges will often send cases out to groups of informal reconcilers, often related to the 

families of the disputants, to determine compensation. The reconcilers will reach a decision, 

which is then recorded and certified by the judge—in most cases, with minimal review. In 

one typical case in a northern suburb of Kabul, there was a dispute over land ownership after 

one man found another living on land that he owned. The man living on the land claimed 

he had purchased the land from a third man, but had been given no title. When the case 

went to court, the judge suggested that the men refer the case to a group of local elders. 

The elders decided that the man living on the property should pay the man who owned the 

property some 600,000 Afs, which was less than the value of the property but enough to 

compensate the owner. Once the decision was reached, the men brought the case back to 

the court and the judge stamped it (see diagram 2). 

Diagram 1. Path of a Land Dispute in Qara Bagh

Inheritance dispute

within a family

Primary Court District Shura

Village Shura

Bodies participating in the resolution

Bodies potentially with overlapping 

membership

Body actually resolving 

the case

Judges will often send cases out 

to groups of informal reconcilers 

. . . to determine compensation. 

The reconcilers will reach a 

decision, which is then recorded 

and certified by a judge. 
7

Such cases are common in the Kabul courts; over the course of four months in one 

primary court, for example, 11 of 27 civil cases and 7 of 23 criminal cases involved such 

mediation.12 For criminal cases at the court covering the same nahias, informal intervention 

was most common in robbery cases, but it also occurred in more serious cases. In some 

cases, other informal actors, such as religious leaders, would also become involved in court 

proceedings as character witnesses.

In serious criminal cases, particularly murder cases, the court also distinguishes between 

haq-ullah and haq-ulabd, or the rights of God and the rights of the community—a distinction outlined in the Quran. The rights of the community apply to the so-called “forgivable” 

offenses—usually lower-level offenses, such as theft, that can be dealt with by the local 

community. The rights of God apply to serious offenses, such as murder, that require punishment carried out by the state. 

In practice, there is some flexibility in this division even within the courts. In one case 

that blended both formal and informal elements, an Australian contractor was found guilty 

in Kabul court of murdering an Afghan colleague. After the verdict was handed down, the 

judge recommended that the victim’s kin and the guilty man reconcile the civil aspect of 

the case. Since the victim’s heirs were minors and the Australian contractor had no kin 

in Afghanistan, both groups used proxies. A distant relative of the victim and a couple 

of the Australian’s colleagues met to informally determine compensation for the victim’s 

family. The group determined that the contractor should pay the family 460,000 Afs, or 

approximately US$100,000. Once this haq-ulabd aspect of the case had been addressed, the 

judge reduced the contractor’s sentence from death to imprisonment. Thus, while the civil 

and criminal, and informal and formal aspects of this case were conceptually distinct, the 

resolution of the civil aspect impacted the final sentence. This case also demonstrates that 

informal mechanisms are so flexible that they not only often enter court proceedings but 

even adapt to the international presence in the country.

USIP’s research across thirteen districts in Afghanistan demonstrates that communities 

generally choose mechanisms that will resolve disputes quickly and at the lowest level. 

In part, this is the result of a high number of local councils and other bodies, but it also 

reflects the general understanding that escalation of conflict invariably increases the cost 

of resolution. Of 200 cases reported by TLO in both rural and urban Nangarhar, 72 involved a 

village-level shura, whereas only 21 involved a district shura. Disputants consider involving 

the formal judicial system even more costly, and of the same 200 recorded cases in Nangarhar, only 2 involved the court system. In other districts in Kabul, informants estimated that 

some 70 percent of cases are resolved at the village level, while only 30 percent eventually 

involve the district shura. 

Communities generally choose 

mechanisms that will resolve 

disputes quickly and at the 

lowest level. This reflects the 

general understanding that 

escalation of conflict invariably 

increases the cost of resolution.

Diagram 2. Dispute Resolved Officially by the Kabul Court

Kabul Court

Land Dispute

Informal

Reconcilers

Final 

Decision
8

The choice of forum also affects the type of resolution a party can expect. Resolutions 

of cases brought before local elders often emphasize long-term stability and restorative 

justice more than individual rights. In a case in Mohmand Dara, for example, a woman was 

engaged to a man who died while fighting for the Afghan National Army. The family of the 

man wanted the woman to marry his brother instead. But, since the brother already had a 

wife, the woman and her family refused, threatening to retaliate with violence. The case was 

eventually brought before a group of local elders. These men determined that the family of 

the woman had to return the bride-price to the brother of the dead man. The woman’s family also had to promise that she would not marry anyone in the dead man’s tribe or within 

her own tribe. This resolution ensured that whatever political alliances were formed by the 

future marriage would be less likely to revive the enmity between the two groups.

At times, attempts to eliminate the potential of a return to conflict were more extreme. 

In several cases involving USIP’s DRCs, communities acknowledged that the fear of increased 

bloodshed led them to involve both government officials and local elders in an attempt to 

make the resolution of the cases as final as possible. In the resolution of the murder involving the uncle and nephew described above, all parties signed a pact stating that anyone 

violating the agreement would have their homes burned down and their properties looted.

Challenges to Resolving Localized Disputes

Many have written extensively on the issues surrounding the court system in Afghanistan, 

often claiming that it is slow and corrupt and that its decisions are rarely enforced.13 The 

ineffectiveness of state-justice mechanisms is not isolated from other challenges to resolving local conflicts, however. Indeed, bad governance not only hurts the formal sector, but it 

undermines the effectiveness of informal actors as well. Corrupt officials, for example, can 

hinder the dispute-resolution process among community leaders by attempting to undermine decisions by informal bodies. In one case in a town north of Kabul, officials working 

for the municipality had taken land from an individual six years earlier. The owner of the 

land, with the support of local elders, went to the Huqooq Department office, where he was 

given a letter stating that the municipality should return the land to him. Municipal officials 

refused to do so. The owner went to the primary court where he was similarly successful in 

winning the case. But the town still refused to turn over the land, and the court had no 

means for enforcing its decision. Outcomes like this delegitimize the state institutions that 

are not complying with the law. Such outcomes also cause the informal actors that broker 

the agreements to lose social capital; no longer are they considered to be individuals who 

can successfully resolve disputes within the community. 

In an ideal setting, informal mechanisms present effective alternatives to a slow and 

corrupt state court system—yet many Afghans complain that the informal system has 

also been corrupted. It is clear that the current economic and security contexts have both 

increased the number of disputes and made resolving them more difficult. The insurgency, 

uncertain economic times, and also funds from NGOs and coalition forces have promoted 

the types of instability that make both state and informal mechanisms less effective. 

Under these unstable and economically volatile conditions, it is clear that there are certain 

circumstances where informal mechanisms are more effective than they are in other more 

stable areas. 

Family disputes, for example, are often resolved quickly and quietly at the local level—

often by close kin. However, when family disputes involve more than one family, they are 

more likely to become public because the honor of both families is involved. This appears 

to be even more likely when families are distantly related or from different communities. A 

case in point is that of the aforementioned woman who did not want to marry the brother 

Informal mechanisms present 

effective alternatives to a 

slow and corrupt state court 

system—yet many Afghans 

complain that the informal 

system has also been corrupted. 
9

of her deceased fiancé. Even in such cases, in which local elders convene to resolve disputes 

between families, disputants and their kin still attempt to keep the matter as private as 

possible. In one case where a woman ran away from a tyrannical mother-in-law, a local elder 

from a different family described how he had been brought in to help. He spoke with each 

woman from behind a curtain in order to encourage them to resolve their differences. In his 

description of the case, he made it clear that he emphasized to each woman the importance 

of resolving the dispute in order to minimize the damage already done to their family’s 

honor. In cases like this, the greater the social distance between the actors, the less likely 

that the dispute will be resolved locally.

Similarly, when land-related issues are involved, the number of parties in a case generally relates to the social distance between the disputants. Thus, two disputants who are 

closely related to each other or are from the same tribe are more likely to resolve a case 

among themselves or use relatives as mediators than are disputants who are not related. A 

comparison of land disputes in the districts of Istalif and Qara Bagh brings this point into 

focus. In Istalif, which is fairly ethnically homogenous and where most groups are at least 

distantly related to each other, land disputes are rarely brought before the district council. 

On the other hand, in Qara Bagh, which is larger and more ethnically diverse, it is common 

for the district council to consider land issues between neighbors. This also suggests that 

people in urban areas turn to the formal system not because it is a particularly effective 

means of resolving disputes but because the social distance between neighbors is likely to 

be much greater than it is in rural areas. 

Some cases appear more likely to be resolved quickly. For example, to resolve commercial 

disputes, businesses often set up effective mediating bodies, such as the tejarati councils 

discussed above. As a result, among thirty-six local elders in Nangarhar, only one claimed to 

have resolved a commercial dispute. Much of this may stem from the fact that in many commercial cases the costs for both sides increase the longer a case drags on because disputes 

tend to lower profits. Understandably, there is pressure to reach a resolution quickly. This is 

opposed to blood feuds where the victim’s family and the murderer’s family may not want 

to appear weak by attempting to settle the dispute, but they also may not have the desire 

to continue killing.14 As these cases demonstrate, dispute-resolution mechanisms tend to 

be most effective when the majority in the community are invested in a quick resolution. 

Thus there is pressure to resolve family disputes and commercial disputes since discord may 

disrupt social and economic lives in the community.

In many cases, disputes have deep political implications, particularly given the fact 

that instability means that the political authority of both government officials and elders 

is often contested at a local level. This contestation then spills into the effectiveness of 

dispute resolution. The ability to resolve a dispute demonstrates political strength, whereas 

the inability to resolve a dispute can significantly damage a leader’s reputation. 

In a village in the Behsud district of Nangarhar, there was a significant dispute over local 

leadership, and an informal election was held to select the malik (an informal representative 

to the government) for the area. After the selection of one man over another, a large dispute 

over land arose between two of the supporters of the men—with the elder, who had lost the 

election, clearly exacerbating the conflict. To pave the way for a resolution to the situation, 

a jirga was formed to address the issue of leadership in the village. The land being argued 

over was of secondary importance, and, after the leadership issue was fully addressed, the 

land dispute was resolved fairly easily. 

Local dispute resolution in Afghanistan has become more difficult due to the instability 

of the past three decades and the fact that in many areas the fighting and rapidly shifting 

economic conditions have eroded historical checks on power. Part of what has made local 

dispute resolution effective outside of state regulation is that, on a local level, Afghan 

Dispute-resolution mechanisms 

tend to be most effective when 

the majority in the community 

are invested in a quick 

resolution. 
10

leaders are historically beholden to the communities they belong to because their power 

derived from local consent. Leadership among almost all groups in Afghanistan tends to be 

hereditary, but this often is the norm and not the rule. This means that local leaders, as 

well as religious leaders such as mullahs, are forced to respond to community pressures and 

demands. They lead by cajoling, not commanding, and due to the fierce individualism found 

among most groups in Afghanistan, leaders tend to be primus inter pares, or first among 

equals.15 Relying on marriage alliances, with a relatively limited gap in wealth between 

leaders and followers, local communities were often able to keep leaders accountable with 

the constant threat of their replacement. 

The entrance of sizable political and economic resources from external sources has 

altered this system in the past thirty years. Starting during the war against the Soviets, 

local leaders acquired guns and money that they could use to purchase support instead of 

relying on traditional patterns. The threat of violence and the limited provision of services 

meant that communities were unable to prevent and thus simply turned a blind eye to 

local commanders who grabbed land or favored one particular side in disputes. In the case 

of one commander involved in multiple case studies, people praised the fact that during 

the end of the Soviet period and in the early years of the Taliban he provided people in 

his community with security and basic services. Since then, however, his reputation has 

deteriorated, primarily as his close allies have been accused of grabbing land or committing 

other offenses against the community. The commander is still involved in the resolution of 

numerous disputes in the area, but his ability to resolve disputes now seems to stem more 

from his ability to threaten violence. The disputes may appear resolved, but the situation is 

clearly creating resentment in the community. Land disputes previously resolved now seem 

likely to reappear once the political balance of power shifts again.

Elsewhere, former roles have been refigured by the presence of new resources. In districts in the Shomali Plain, for example, a local elder known as the mir aw was responsible 

for organizing the distribution of water from various irrigations channels. In some of these 

communities where USIP had researchers, this model continued, but in another, a local 

commander seized the position of mir aw and during the civil war began to charge for the 

right to use the water (historically, only a small maintenance fee was expected). Following 

2001, the commander pulled back from this blatant extortion but continued to distribute 

the water in ways perceived by many as inequitable. Eventually, one man complained and 

was killed by the commander.

Given the political and economic instability of the past thirty years, there is often an 

incentive for many to ensure that disputes remain unresolved. Thus, in the case of the 

murder described above, the dispute between the nephew and uncle’s families remained 

unresolved initially because one of the men had moved to Iran as a refugee. Later, after 

he returned and was arrested, community members put pressure on officials to have the 

families resolve the dispute and release the man. In Afghanistan, there is a good deal of 

political uncertainty and a lack of consensus over who will be in power in the future on both 

the national and local levels. The resolution of disputes generates political capital, and, 

given the current political uncertainty and lack of security, such capital may be considered 

a valuable resource in other political struggles. In an example of this, when a new irrigation 

project increased the water flow into Qara Bagh, one local elder was widely regarded as the 

primary mediator in resolving how the new water would be supplied to various farmers. 

Even though most credited several others with actually securing the funds for the project, 

the elder who had resolved the water-sharing disputes handily won a seat when he ran 

for provincial council in 2009—despite the fact that he was not an incumbent. In more 

unstable conditions and in areas where there is more antigovernment activity, leaders are 

less inclined to demonstrate their influence publicly, and local elders actually work to mask 

The resolution of disputes 

generates political capital, 

and, given the current political 

uncertainty and lack of security, 

such capital may be considered 

a valuable resource in other 

political struggles.
11

their influence from both antigovernment forces and from the government and coalition 

forces, fearing reprisals from both sides.

Some of these issues are exacerbated when the international military is involved. For 

example, in Kunar, an elder who was a member of the DRC helped negotiate the release 

of several local, young men who the community claimed had been falsely detained by the 

international military in the area. The elder, who was respected in the area and known by 

some in the local U.S. military Provincial Reconstruction Team (PRT), was able to negotiate between the community and the PRT. The success of this case, however, demonstrates 

some of the challenges in other cases. Community members, in particular, claimed it was 

very difficult to access the internationals working at the PRT and felt they could only do so 

through the elder. Furthermore, the active Taliban presence in the area meant that everyone 

involved feared reprisals from antigovernment forces. The elder worked hard to ensure that 

few people knew about his involvement—a striking contrast with the idealized version of 

the informal dispute-resolution system in which the negotiator gains political capital from 

his fame as a conciliator. 

While the reach of the coalition forces and development projects into the Afghan countryside is limited in much of the country, the resources these groups bring are still clearly 

important drivers of local conflict. In cases registered by the DRCs, for example, 8 percent 

included issues having to do with coalition forces or with the distribution of international 

aid. Such complaints demonstrate how excessive international funds meant to stabilize 

areas can create more incentives for conflict.

Conclusion: Promoting the Resolution of Local Disputes

As the examples highlighted suggest, the current issues with informal mechanisms of dispute resolution in Afghanistan have little to do with the mechanisms themselves—and a 

great deal to do with the current political, social, and economic contexts that are undermining them.16 As the international community has switched its approach in the country to 

increasingly focus on counterinsurgency, there have been attempts by coalition forces, the 

U.S. and British embassies, and other international organizations to engage directly with 

informal systems. As this report suggests, however, the elders and councils that constitute 

the informal sector do not need to be strengthened (and they certainly do not need training in dispute resolution—an art they are already skilled at), as much as they need to be 

provided secure space in which to operate. Corrupt local officials, the continued presence 

of commanders and other strongmen, and insurgents all erode the traditional mechanisms 

that resolve local disputes and provide accountable local governance. Furthermore, in some 

instances, the very presence of international funds and military forces further encourage 

disputes, as opposed to their resolution.

International efforts should instead focus on providing security and more predictable 

access to political and economic resources in order to promote the historical space between 

local elders and government officials in which disputes can be resolved. Local disputes are 

not generally the cause of local insurgency, but they can create instability and violence that 

contribute significantly to conditions that facilitate insurgency. It is important for the international community to support the formal judiciary in setting up legitimate, transparent 

processes in places—cities, in particular—where there is demand for such mechanisms. It 

also means putting more emphasis on ensuring that local leaders are appointed based upon 

merit and ability, as opposed to supporting local strongmen who provide short-term stability 

but ultimately undermine the legitimacy of the government, the international presence, and 

the historical relationship between elders and communities.

Local disputes are not generally 

the cause of local insurgency, 

but they can create instability 

and violence that contribute 

significantly to conditions that 

facilitate insurgency.
Notes

1. An often-cited UNDP report claims that approximately 80 percent of all disputes in Afghanistan are resolved 

by the informal justice system as opposed to the state justice system. This has led to a series of aid programs 

aimed at working with the informal system to complement those building capacity in the formal system. See 

Afghanistan Human Development Report 2007: Bridging Modernity and Tradition—The Rule of Law and the Search 

for Justice (Kabul: Center for Policy and Human Development [CPHD], 2007). According to an unpublished report 

published by TLO, in Paktya, between 5 and 10 percent of cases are being resolved by the formal system.

2. Within USIP’s work with various organizations in Afghanistan on informal dispute resolution, a template was 

created for gathering data on disputes. It allowed comparison of quantitative data from certain areas. Despite 

this, it is important to make clear that even when serious attempts were made to standardize data-collection 

methods there was still significant variation based upon the way the data were collected, but more importantly, 

the way that disputes manifested themselves in different regions across Afghanistan. To describe this diversity, 

researchers also conducted follow-up research on a series of case studies from each district. The downside to 

this case study–oriented approach is that many of the statistics in this report should be thought of as signpost 

indicators, rather than precise indicators, of the types of disputes in a certain area. On the other hand, the fact 

that disputes were deeply shaped by their political, economic, and social contexts means that studies about local 

context in Afghanistan do not simply describe how small-scale disputes were resolved in a certain area; they 

reveal much more about the individual lived experience of the political context of each area studied, particularly 

in relation to justice, instability, and many of the other drivers of the insurgency.

3. Deborah Smith, Community Based Dispute Resolution Processes in Nangarhar Province (Kabul: Afghanistan 

Research and Evaluation Unit [AREU], 2009); Deborah Smith and Shelly Manalan, Community Based Dispute 

Resolution Processes in Bamiyan Province (Kabul: AREU, 2009); The International Legal Foundation, “The 

Customary Laws of Afghanistan,” 2004, www.theilf.org; Sarah Ladbury, Helmand Justice Mapping Study, Final 

Report for the Department of International Development Afghanistan (Coffey International Development Limited, 

July 2010); Rebecca Gang, Community Based Dispute Resolution Processes in Balkh Province (Kabul: AREU, 2010); 

Rebecca Gang, Community Based Dispute Resolution Processes in Kabul City (Kabul: AREU, 2011).

4. For a study on land issues, see Liz Alden Wily, Land Rights in Crisis: Restoring Tenure Security in Afghanistan, 

Issue Paper (Kabul: AREU, March 2003); for a report focusing on dispute resolution in Helmand, particularly in 

instances brought before Prisoner Review Shuras, see Sarah Ladbury, Helmand Justice Mapping Study, Final Report 

for the Department of International Development Afghanistan (Coffey International Development Ltd, July 2010). 

For specific case studies analyzing the relationship between instability and conflict, see Coburn, Bazaar Politics: 

Pottery and Power in an Afghan Market Town (Palo Alto, CA: Stanford University Press, 2011) and for a more 

general overview see Coburn and John Dempsey, Informal Dispute Resolution in Afghanistan (Washington, DC: 

USIP, 2010). 

5. Previous work on what is sometimes referred to as informal justice systems often focuses first on the bodies that 

resolve disputes (often councils known as shuras) or more ad hoc bodies, usually referred to using the Pashtu term 

jirgas. This approach, however, tends to be overly structural and ignores the more important issues in shaping 

these bodies: the disputes themselves and the relationships of those involved. Shuras, jirgas, and other bodies 

in Afghanistan are primarily mechanisms; they exist in order to resolve disputes or address some other local 

concern. Furthermore, it can be argued that this focus on dispute-resolution bodies, as opposed to a focus on the 

disputes themselves, has led to much of the debate over terminology—which includes informal justice, traditional 

justice, the nonstate sector, or community-based dispute resolution. All of these terms have shortcomings (e.g., 

state actors are often involved in nonstate justice, the system itself is highly formalized in some places, and 

community-based dispute resolution often involves religious figures from outside the community). With these 

flaws in mind, this report tends to use the term informal justice with the understanding that there is no strict 

dichotomy between the informal and state justice sectors and that aspects the informal sector can be highly 

formalized. 

6. While some in the development community have promoted increased work on a national land registry due to the 

lack of written records, it is interesting to note that in almost all areas where USIP has conducted research, even 

among highly illiterate communities, it is normal to find some sort of written deeds outlining ownership. The 

real problem concerns the standardization of these documents, something that coalition forces have complained 

about when multiple “owners” demanding rent have brought deeds to troops who have set up bases on private 

land. As a result, international groups are likely to encounter resistance to such a system by the ruling elite, many 

of whom have profited from the haphazard grabbing of land over the past 30 years.

7. TLO, unpublished report.

8. The definitions of these bodies vary from community to community, and other terms, such as jalasa, are 

occasionally used as well. This flexibility makes informal mechanisms more difficult to analyze but also allows 

them to be adapted to fit a great variety of issues.

9. TLO, unpublished report.

10. This system extends far beyond remote, Taliban-controlled areas. Rumors abound that Taliban courts are currently 

issuing subpoenas for land cases, and that these are being delivered in urban Kandahar city.

11. See Peyton Cooke, TLO, forthcoming.

12. For the use of informal conciliators in the Kabul court system, see Karima Tawfik and Zuhal Nesari, (Washington 

D.C.: USIP, Peace Brief 101). 

13. See, in particular, Integrity Watch Afghanistan, Afghan Perceptions and Experiences of Corruption: A National Survey 

(2010), and Stephen Carter and Kate Clark, ‘Snakes and Scorpions’; Justice and Stability in Afghanistan (Kabul: 

Report prepared for the Office of the High Commissioner for Human Rights, 2010).

14. As a result of this, there are rumors of several high-ranking government officials who refuse to sit in the same 

room together because their families are involved in feuds. To acknowledge the other would damage their 

reputations, but they also clearly have little interest in actually fulfilling the blood debt.

15. For more on this, see chapter 2 in Thomas Barfield, Afghanistan: A Cultural and Political History (Princeton, NJ: 

Princeton University Press, 2010) or Noah Coburn, Bazaar Politics.

16. A similar argument can be made about the issue of women’s rights in informal justice, a topic that cannot 

be covered here due to inadequate space. For more on how informal justice mechanisms are not the cause of 

discrimination against women as much as the current social context in which these mechanisms is embedded, 

see Coburn and Dempsey, 2010.

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