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UNITED STATES INSTITUTE OF PEACE

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“[I]nsurgent groups can 

best be understood as opportunistic infections that take 

advantage of Afghanistan’s 

immune system, which has 

been weakened by three 

decades of conflict. For the 

international community to 

achieve its strategic aim, 

it must not only eliminate 

these infections but build 

up the society’s immune 

system so that in the future 

it can repel such political 

pathogens by itself. ”

June 18, 2010 

Rebuilding Afghanistan’s Political 

Immunity

Summary

t Afghanistan is an exceptionally !ssiparous country, riven by innumerable con"icts over scarce 

resources and longstanding enmities between neighboring groups. 

t Traditionally, such disputes have been managed by ad hoc groups of elders, known as jirgas 

or shuras. In the past 30 years, the stature and security of the jirga system and of the elders 

themselves have been challenged and undermined by all the parties contending for power, 

including the state itself. 

t In the context of weak state institutions, a reinvigorated system of jirgas could make a valuable contribution to resolving the disputes that currently feed the insurgency and make 

Afghanistan vulnerable to exploitation by groups that destabilize the country and the region, 

and threaten the West. 

t To explore what might be done to create an enabling environment for jirga-like bodies, USIP is 

piloting Dispute Resolution Commissions in insurgency-a#ected provinces, and, on the basis of 

this experience, will recommend principles and actions for a larger-scale program of support. 

Introduction

The national con"ict between the Afghan government and its allies and the Taliban-led insurgency 

is fed by a myriad of smaller con"icts on a provincial and local level. In the insurgency-a#ected 

parts of the country, such con"icts traditionally have been managed by councils of tribal elders 

known as jirgas or shuras. Thirty years of violence and upheaval have disrupted and weakened 

the jirga system. USIP’s Dispute Resolution Project is establishing dispute resolution commissions, 

comprised of respected elders, to try to resolve inter-group disputes with the potential to contribute to the broader con"ict. Through continuous interaction and discussion with commission 

members and other stakeholders in their respective provinces, the project is identifying challenges 

and opportunities to reinvigorate and improve the system. These pilot projects will yield a set of 

concrete, experience-based recommendations for interventions on a larger scale. 

Enmity and Insurgency 

The strategic aim of the international intervention in Afghanistan is not simply to end the current 

insurgency but to help create conditions that will prevent the country from ever again being 

used as a safe haven for terrorists. Al-Qaeda, the Taliban and related insurgent groups can best be 

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understood as opportunistic infections that take advantage of Afghanistan’s immune system, which 

has been weakened by three decades of con"ict. For the international community to achieve its 

strategic aim, it must not only eliminate these infections, but build up the society’s immune system 

so that in the future it can repel such political pathogens by itself. 

The most debilitating of Afghan society’s weaknesses is its combination of deep-rooted divisions and scarce resources, which together continuously give rise to !erce enmities. These enmities 

create an opening for insurgent groups in three ways: 

t As long as groups are engaged in intense disputes with one another, they will constantly be 

on the lookout for allies. Under current conditions, there will always be groups in the world 

ready to exploit this need for support.

t By providing a system for resolving disputes, however brutal and unjust, the Taliban convinces many Afghans that it is outperforming the state in ful!lling the government’s most 

fundamental responsibilities with the provision of security and justice.

t Some insurgents have enmities with their neighbors and cannot return to their villages 

unless these are resolved. 

State and Customary Systems of Law

More than 30 years of con"ict have exacerbated Afghanistan’s divisions and enmities while 

weakening the traditional means for managing them. Jirgas are ad hoc councils of elders to whom 

disputants voluntarily give authority to arbitrate a dispute. For centuries, jirgas have been at the 

heart of the decentralized, tribal system of governance of the Pashtuns who make up about half of 

Afghanistan’s population and are the ethnic base of today’s insurgent groups. However, over the 

past 30 years, the authority of jirgas has been challenged and undermined both by the state itself 

and by other parties who wield authority not by virtue of their reputation for fairness and probity 

or knowledge of tradition, but through their command of raw force. 

In the most insurgency-a#ected provinces and districts, in the east and south of the country, 

only a small fraction of positions in the state justice system are !lled by people who actually carry 

out their duties in their assigned areas. Courts seldom operate outside provincial capitals, making 

the state system hard for many to access. Few criminal trials conform to the law since the accused 

rarely has defense counsel, as guaranteed by Article 31 in Afghanistan’s Constitution. The state 

system is widely perceived as ine$cient and vulnerable to corruption, while the customary system 

enjoys greater public con!dence. A 2009 survey by the Asia Foundation found that 24 percent 

of Afghans strongly agree and 48 percent somewhat agree that jirgas are fair and trusted. The 

comparative !gures for the state courts are 11 percent and 39 percent. 

Like the justice systems of Western countries, Afghanistan’s state justice system is retributive, 

assigning culpability exclusively to one party and punishing that party accordingly, whereas the 

customary system seeks to establish a new basis for harmonious relations within the community. 

Challenges and Opportunities of the Customary System

There are a number of steps that could help improve the environment in which traditional dispute 

resolution mechanisms operate:

t The decisions of jirgas and shuras need to be clearly and consistently documented, so 

concerned and government authorities have a precise record of decisions that disputants 

have accepted, and so the processes and decisions can be critically scrutinized for possible 

violations of human rights. Both precision and transparency are preconditions for a more 
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systematic recognition of jirgas’ and shuras’ decisions by the courts and other parts of 

government. 

t Jirgas and shuras need to be recognized by other aspects of society—by the political 

administration in their district or province, by the public and by the formal legal system. 

Recognition of the legal validity of jirga decisions by the state justice system is pending acceptance of a policy and/or law that is now under consideration by the Ministry of Justice. 

Therefore, for now, programs like USIP’s Dispute Resolution Project should emphasize 

recognition of the customary system’s contribution by the government and the public. 

t The prestige of elders who serve on jirgas needs to be enhanced. Prior to the 1978 coup 

and the succession of contested regimes (communist, mujahideen, Taliban and the current 

government), elders enjoyed such respect within their tribes that all tribesmen protected 

them and followed their decisions. Conditions over the past 30 years have undermined the 

authority of elders and consequently the esteem in which they are held, as well as compliance with their decisions. 

t Recognition of the jirga system as a legitimate part of Afghanistan’s political and legal system entails !nding ways to prevent systemic abuses of human rights, including decisions 

that are prejudicial to women and those that give undue in"uence to local powerbrokers, 

such as warlords. These are challenges to both the formal and informal justice systems in 

Afghanistan. As noted, systematic documentation would facilitate this process.

t Some elders also require help with their personal security. Many highly respected elders 

have either been killed or feel estranged by political developments since 2001. 

t Di#erent ministries and agencies—the Ministry of Tribal A#airs, the Ministry of Rural 

Rehabilitation and Development, the Independent Directorate of Local Governance and 

provincial councils—all occasionally set up their own jirgas/shuras. These activities must be 

coordinated so jirgas/shuras with overlapping mandates don’t undermine one another’s 

credibility and authority. 

t The credibility of a jirga depends on the reputations of the individual elders who make 

it up. The members of the pilot Dispute Resolution Commissions supported by USIP are 

chosen after consulting di#erent parties with independent points of view, including the 

governor, Ministry of Tribal A#airs, members of the provincial council and elders themselves. In extracting lessons from the pilot commissions, consideration will be given to the 

process used in choosing members of customary dispute resolution bodies. 

t By working with both provincial and national bodies, the commissions will contribute to 

strengthening the constructive links between Kabul and the provinces. The project will 

consider how to replicate these links in a larger scale system. 

Pilot Conflict Resolution Commissions

USIP’s Dispute Resolution Project has helped establish Dispute Resolution Commissions in the 

provinces of Kunar and Nangarhar. These provinces su#er from high levels of insurgent activity, but 

jirgas can and do already operate in them and the provincial governors have welcomed support 

from USIP and the Ministry of Tribal A#airs for the jirgas’ work. 

These commissions are comprised of respected elders representing the main groups in their respective province. The elders are chosen in consultation with the provincial director of the Ministry 

of Tribal A#airs and the governor’s o$ce as well as ulema (Muslim religious scholars), provincial 

council members and elders themselves. Approval from several sources helps ensure that commission members are widely respected and that membership as a whole will re"ect the population of 
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the province as a whole rather than favoring one tribe over others. The provincial director of tribal 

a#airs and, where possible, the governor or his representative, will be ex o!cio members. 

USIP will play a facilitating role to help the commissions provide a combination of training, 

dialogue and problem-solving led by experienced Afghan elders to help pave the road to wider 

reconciliation. The disputes that these commissions deal with belong on a continuum with those 

involving individuals or families, which are handled by the traditional mechanisms supported by 

USIP’s longstanding traditional justice program. The Dispute Resolution Commissions, however, 

will deal with disputes on a larger scale that have a more direct impact on the security situation. 

The commissions, for instance, might deal with a land dispute pitting two clans against one 

another or address grievances against an insurgent who wants to reintegrate into his community. 

In creating these commissions, USIP seeks to address the following key questions:

t How can the customary law system recover the stature and vitality lost during three 

decades of turmoil? 

t How can elders’ security be enhanced? 

t How can the customary and legal systems be linked in ways that prevent or mitigate the 

customary system’s violations of human rights without undermining the perceived legitimacy the customary system derives from being independent of the state and grounded in 

venerated tradition and the reputations of respected elders? 

The program will develop insights concerning these issues by re"ecting on the experiences of 

the Dispute Resolution Commissions over the coming months and incorporating lessons from 

previous dispute resolution projects sponsored by USIP.1

Future Direction of the Pilot Study 

The experience of the pilot commissions will inform a set of recommendations for an expanded 

program for traditional dispute resolution mechanisms. To be considered legitimate by the 

disputants and the wider community, jirgas must be grounded in local custom or narkh. Such 

knowledge cannot be taught by people outside the community and the local jirga system. Therefore, rather than interfere with the mechanics of how the dispute resolution commissions work, 

USIP will focus on helping to foster an environment within which jirgas can play their traditional 

role more e#ectively. 

The recognition of dispute resolution by jirgas is systematically undermined by an absence 

of documentation. Only the resolution of the largest scale of disputes is usually recorded. Even 

when a decision is recorded, the record is short on detail and not reliably !led with any particular 

government o$ce. The Dispute Resolution Project’s o$cers will act as recording clerks in each 

pilot province and liaisons with the Ministry of Tribal A#airs. They will be responsible for recording 

all decisions of the Dispute Resolution Commissions, and, when possible, those of jirgas with 

which commission members are in contact, and the decision-making processes leading to the 

decisions, including elements of narkh, sharia and considerations speci!c to each case. The dispute 

resolution o$cers will then !le them with the Ministry of Tribal A#airs and other interested bodies, 

so both the decisions and reasoning will be accessible for future reference. 

The project will also seek other ways to secure political recognition of the worth and decisions 

of the commissions, including helping to prevent con"icts with jirgas or shuras sponsored by other 

ministries and government bodies. The project will help to secure public recognition of their worth 

and their decisions through various means, such as media training for commissioners so they can 

better explain their work to the public. It will help defray members’ modest transportation and 
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ABOUT THIS BRIEF

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communications expenses. It is important to minimize potential unintended negative consequences by making the !nancial support modest; an injection of signi!cant money into a sphere 

in which elders have typically served without being paid would risk creating distortive economic 

incentives.

What can already be foreseen is that no single, rigidly prescriptive model would be appropriate for every part of the country and the very di#erent customs native to each of those regions. 

What the project will seek to develop, rather, is a set of guiding principles and best practices that 

maximize jirgas’ contributions to resolving disputes between groups in a way that is respected 

and durable. In this way, empowered jirgas can make an important contribution by depriving the 

Taliban and their allies of a key source of support, and pre-empting potential insurgencies in the 

future. 

Endnote

1. ”Between the Jirga and Judge: Alternative Dispute Resolution in Southeastern Afghanistan.” 

The Liaison O$ce, March 2009.

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