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UNITED STATES INSTITUTE OF PEACE

© USIP 2010 • All rights reserved.

“[S]tabilizing Afghanistan 

requires an approach that 

looks beyond just the provision of physical security and 

the reform of military and 

police forces to one that 

enables local communities and the government 

to resolve local confl icts. 

Without stable, trusted justice 

mechanisms, local disputes 

will continue to spiral into 

additional sources of violence 

and discord that insurgents 

can effectively exploit.”

February 16, 2010 

Traditional Dispute Resolution and 

Stability in Afghanistan

Summary

• Stability in Afghanistan will remain elusive unless disputes between individuals and among 

communities can be resolved through peaceful and equitable means.

• However, state justice institutions are barely functioning in much of the country and are 

incapable of meeting many justice and dispute resolution needs of Afghans.

• Instead, the majority of Afghans turn to traditional justice mechanisms—including tribal 

councils and village and religious leaders—to address both civil and criminal disputes.

• In many parts of the country, including areas recently cleared of insurgents, the best way to 

make signi cant, visible, short-term (12 to 18 months) gains in peacefully resolving disputes 

is to work with community-based structures.

• USIP has drawn important lessons from its work with Afghan partners to implement pilot 

programs exploring links between the state and traditional justice systems in four provinces 

across the country (in Nangarhar, Khost, Paktia and Herat). 

• Programs designed to create or strengthen existing links between traditional justice bodies 

and state institutions can build mutual trust and harness the strengths of each.

• Donor-funded traditional justice programs need to involve the Afghan government while also 

accounting for the practical needs of communities to settle disputes in line with their own 

traditions and procedures, as well as Afghanistan’s laws and human rights norms.

Security and Justice: The Chicken or the Egg? 

In Afghanistan, as elsewhere, security and justice are closely linked. Commander of the International Security Assistance Force (ISAF), General Stanley A. McChrystal, has noted that improving 

access to fair justice mechanisms is a key ingredient in defeating the insurgency in the country.1

Indeed, as ISAF soldiers clear and hold districts, the populations being protected need peaceful, 

lawful means of resolving disputes—including crimes and civil cases—as well as larger con icts 

between villages or tribes over natural resources. 

A sound rule of law system must be functioning for the country’s long-term security needs 

to be met, and accountable and stronger security institutions are required if the rule of law is to 

 ourish. Therefore, stabilizing Afghanistan requires an approach that looks beyond just the provision of physical security and the reform of military and police forces to one that enables local 

communities and the government to resolve local con icts. Without stable, trusted justice 

JOHN DEMPSEY

E-mail: jdempsey@usip.org

Phone: +93.799.321.349

NOAH COBURN

E-mail: ncoburn@usip.org

Phone: +93.798.268.166

PEACEBRIEF10
© USIP 2010 • All rights reserved.

mechanisms, local disputes will continue to spiral into additional sources of violence and discord 

that insurgents can e ectively exploit. 

Why Traditional Justice?

Building the Afghan state justice sector’s ability to resolve legal disputes is both necessary and 

critical. In urban areas, many Afghans access the formal justice system, and the state must retain 

the exclusive right to mete out punishments in criminal matters. The e ort to combat the massive 

opium trade and other forms of organized crime also requires substantial donor assistance to the 

state justice sector. 

In the short term, however, the formal justice institutions of the Afghan state, including courts, 

do not function in most rural areas and will not have the capacity to e ectively administer justice 

there for many years to come. State institutions are often seen to be expensive, corrupt and 

inaccessible, and many judges and other legal professionals lack proper training, resources and 

security to perform their jobs e ectively. There are simply not enough quali ed prosecutors, 

lawyers, or judges to sta all of the required state justice institutions at the moment.

Instead, the majority of civil and criminal disputes in Afghanistan are resolved locally through 

traditional means, including tribal and community councils that have operated in local communities for centuries. These councils (often called shuras or jirgas) generally consist of community 

elders and other respected individuals sitting together to reach equitable resolutions of disputes 

and to reconcile the disputants, their families and the community as a whole. While not occurring 

in a government forum, such processes often proceed with or at the behest of Afghan government 

o cials. Submitting a dispute to a group of elders is always voluntary (although family or social 

pressure to do so is often strong), and both parties must consent to accept the result.

Traditional justice mechanisms have the advantage of being familiar to the population and are 

less costly and more accessible than courts. Decisions made by local shuras and jirgas are generally 

consensual, and therefore reach a  nal resolution much faster than state courts. They focus more 

on making the parties whole through equitable outcomes rather than adversarial courtroom processes that have winners and losers or that punish wrongdoers. Also, traditional justice resolutions 

are also more likely to be enforced than those of state institutions because disregarding decisions 

of respected local leaders can be disruptive to social harmony. 

On the other hand, judgments issued by local bodies are sometimes not recorded, may favor the 

powerful, and occasionally discriminate against vulnerable groups, including women. Additionally, 

particularly in less secure areas, traditional mechanisms may have been co-opted by local strongmen, thus losing their legitimacy in the community. In areas under insurgent in uence where 

neither the state nor the traditional systems are able or allowed to operate, Taliban “justice”—

which can be far harsher than traditional mechanisms—may provide the only alternative for 

dispute resolution.

Pros and Cons of the State and Traditional Justice Systems

Benefi ts of State Justice

• Has exclusive authority to prosecute and punish crimes

• Constitution and legal codes set clear guidelines for resolving disputes, appeals, judicial 

quali cations, etc.

Traditional Dispute Resolution and Stability in Afghanistan

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© USIP 2010 • All rights reserved.

• Only state is capable of addressing complex crimes, and holding powerful criminals 

accountable

• Handles cases where the state is a party (including state land disputes, tax cases, etc.)

• Proper record keeping (e.g., in land cases) can lead to more sustainable enforcement 

Benefi ts of Traditional Justice

• Culturally familiar

• Relatively corruption-free

• Quick resolution

• Inexpensive

• Locally accessible and resourced

• Enforceable (in intact communities)

• Trusted

• Focuses on restorative justice rather than retribution—preserving harmony within the 

community

Drawbacks of State Justice

• Inaccessible

• Unfamiliar/not in line with Afghan traditions

• Widespread corruption

• Untrained/nonrespected judges, lawyers

• Time consuming and expensive

• Unenforceable where state lacks credibility/resources

• Justice professionals lack security and resources

• Human rights concerns and lack of due process

• Focus on punishment more than reconciliation

Drawbacks of Traditional Justice

• Human rights concerns and other violations of the law

• Lack of female participation

• Sometimes not recorded and can’t be referenced later

• Sometimes addresses crimes in violation of the law

• Unable to hold commanders and other powerful individuals accountable

• Sometimes ‘captured’ by illegitimate local strongmen

• Challenges of address inter-ethnic or cross-communal disputes

To address justice reform e ectively in Afghanistan, a method is needed to capitalize on the 

bene ts of traditional justice mechanisms to resolve local disputes while eliminating its bad 

practices. At the same time, developing the formal justice system remains necessary and should 

receive appropriate donor attention. As part of the reform e orts, promoting links and strengthening existing relations between the state and traditional systems can help to harness the strengths 

of each, recognize the respective competencies of each and help build trust among communities 

in state justice institutions. Achieving these goals, however, will take many years. 

Traditional Dispute Resolution and Stability in Afghanistan

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© USIP 2010 • All rights reserved.

In the meantime, as work to meet these longer-term goals continues, e orts to assist with 

immediate dispute resolution should unfold. The justice sector landscape di ers greatly throughout the country, and many in the Afghan government, ISAF and other international partners have 

highlighted the need to focus immediate attention on the more volatile, insurgent-a ected areas 

of Afghanistan as part of the overall counterinsurgency operations. 

USIP has worked with local partners to implement pilot programs exploring links between the 

state and traditional justice systems in four provinces across the country (in Nangarhar, Khost, 

Paktia and Herat). The following recommendations represent preliminary  ndings from its work, 

and provide some guidance for work in areas cleared of insurgents. 

Importantly, however, work needs to continue in the rest of the country on justice reform—both 

to prevent districts from being taken by insurgents, as well as to ensure that dispute resolution 

needs are met in more stable areas where it is easier to operate. 

Recommendations for Traditional Justice Programming in 

Insurgent-Affected Areas of Afghanistan 

As the international military and civilian presence shapes operations and expands into areas 

cleared of insurgents, certain key principles should be considered, including some of the following: 

Good practices to follow:

• Identify local trusted actors (e.g., nongovernmental organizations with local on-the-ground 

implementation experience) who can help with program design during “shape” phase (i.e., 

before military operations), and then tailor it and begin implementation during hold phase.

• Encourage relationship-building (e.g., hours drinking tea) among programming implementers, local leaders and community members.

• As much as possible, conduct thorough research to ensure proper understanding of the 

local power dynamics and dispute resolution context. Speaking to displaced populations 

from insurgent-held areas during the operational shaping phase can be a valuable source 

of information.

• Identify primary challenges to stabilizing cleared areas (e.g., local land disputes) and encourage formation of specialized commissions to address these concerns. Membership and 

duties of such commissions should be determined after initial research conducted.

• Secure government buy-in to traditional justice programs—while also allowing communities to decide who sits on shuras or jirgas and how decisions will be reached (i.e., a bottomup approach with government endorsement, if not involvement).

• Encourage respectful, regular dialogue on justice needs between state and traditional 

actors (but not Kabul-appointed state o cials lecturing local leaders on, for example, their 

proper role in society). 

• Recognize that clearing or holding may allow communities to have breathing space to begin resolving their own disputes again (with limited or no need for international programs 

to facilitate dispute resolution).

• Recognize that members of recently-“cleared” communities may not be willing to cooperate if they aren’t satis ed that long term security will be met (i.e., that the Taliban won’t just 

return when the troops leave in six months). 

• Secure community guarantees for detainees, suspects or prisoners being released after detention operations—building on traditional enforcement of community council decisions.

Traditional Dispute Resolution and Stability in Afghanistan

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© USIP 2010 • All rights reserved.

• Create regular mechanisms that build links between the state and traditional systems (e.g., 

formal recording and storage process for traditional justice decisions, registering decisions 

with the state, the designation of a respected individual as a liaison between the state and 

community shuras, etc.). 

• Recognize that district and provincial governors have historically played and continue to 

play an important role in resolving disputes. These governors can work with community 

elders to facilitate equitable resolution of disputes (including larger, inter-tribal disputes).

• Encourage follow-up by ISAF and/or community leaders on cases that they hand over to 

the Afghan state to ensure they are resolved and that decisions are enforced.

• Encourage state institutions to involve communities in the reconciliation (i.e., civil) aspects 

of crimes it is prosecuting to ensure sustainable resolutions.

• Understand that individuals should never be forced to participate in traditional dispute 

resolution against their will.

• Be patient and keep expectations realistic in terms of how quickly programs designed to 

foster improved dispute resolution will see measurable impact. Implementation will not 

always meet COIN timetables and often can progress very slowly.

Approaches to avoid:

• Do not pour money into traditional justice (e.g., don’t build shura “courthouses,” don’t pay 

shura salaries); the system generally works well without much money in it. Financial reward 

can create perverse incentives and undermine the very aspects of traditional justice that 

make it legitimate.

• Do not assume you’ll know the right people to engage (i.e., just because someone has a long 

white beard and/or speaks English doesn’t mean he’s the respected community leader).

• Do not think what works in one district will necessarily work in the next. Understanding 

local power dynamics and demographics is key.

• Do not be seen as biased in favor of one group, tribe, etc. over another. Again, understanding local power dynamics and demographics is key.

• Do not think that traditional justice bodies just need to “learn the law” to change how they 

resolve disputes. Their approaches are cultural more than legal, and must adapt over time.

• Do not assume that all disputes are ripe for traditional justice resolution. Some, like serious 

crimes and crimes against members of other communities, are better resolved in courts.

• Do not create programs where expatriate advisers are the primary focal point in the communities. Afghans must lead the work and must not be seen as simply acting on behalf of 

foreign donors or militaries.

Conclusion

The Taliban often exploit the absence of law and order to promote their own brand of harsh 

justice. Therefore, international military and civilian programs must focus on both improving 

security and access to fair dispute resolution in areas where they operate. Working with Afghans 

to address these needs in line with their own traditions is likely to be the most e ective approach. 

At the same time, a modern state justice system must be developed to encourage the growth of a 

system based on the rule of law. 

At the national level, the Afghan state recognizes that it must engage community dispute 

resolution mechanisms—both to capitalize on their strengths while addressing their limitations 

Traditional Dispute Resolution and Stability in Afghanistan

page 5 • PB 10 • February 16, 2010
© USIP 2010 • All rights reserved.

United States 

Institute of Peace

1200 17th Street NW

Washington, DC 20036

202.457.1700

www.usip.org

ABOUT THIS BRIEF

John Dempsey is a lawyer and 

director of USIP’s rule of law 

programs in Afghanistan, where 

he has worked on legal development since January 2003. Noah 

Coburn is an anthropologist and 

traditional justice specialist with 

USIP in Afghanistan, where he has 

worked since 2005. This report 

re ects the preliminary  ndings of 

pilot projects USIP has sponsored 

in four provinces to explore positive linkages between the formal 

and informal justice systems in 

Afghanistan.

USIP provides the analysis, training and 

tools that prevent and end confl icts, 

promotes stability and professionalizes 

the fi eld of peacebuilding.

For media inquiries, contact the offi ce 

of Public Affairs and Communications, 

202.429.4725

and bad practices. The 2008 National Justice Sector Strategy for Afghanistan requires the development of a national policy on state relations with community dispute resolution mechanisms. At 

the request of the Ministry of Justice, USIP has facilitated work on this draft policy, which addresses 

criminal jurisdiction, protecting women’s rights and other key concerns. The draft has advanced 

considerably, perhaps allowing a  nal policy to be adopted in the near future. 

In the meantime, immediate steps must be taken to ensure that ongoing con icts and disputes 

can be settled peacefully and fairly. The above checklist of recommendations provides basic principles for those working in this area to consider. With these in mind, and by proceeding cautiously 

but deliberately, access to legitimate and e ective dispute resolution can be maximized. 

Endnote

1. General McChrystal’s opening remarks to USIP-led workshop for ISAF on traditional justice, 

November 27, 2009.

Traditional Dispute Resolution and Stability in Afghanistan

page 6 • PB 10 • February 16, 2010