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© USIP 2011 • All rights reserved.

“Despite extensive 

efforts since 2001 to build 

Afghanistan’s formal courts, 

at least 80% of all disputes 

in Afghanistan continue to 

be resolved through TDR 

mechanisms, principally in the 

form of community councils 

called shuras or jirgas . . . But 

traditional mechanisms have 

been criticized for violating 

women’s rights . . . Afghan 

women’s rights advocates fear 

that ongoing financial and 

political support from NGOs 

and foreign governments 

validates TDR, despite its 

reputation for inequality.”

December 21, 2011

Traditional Dispute Resolution and 

Afghanistan’s Women

Summary

•	 At least 80% of all disputes in Afghanistan are resolved through traditional dispute resolution 

(TDR) mechanisms, principally community councils called shuras or jirgas. TDR is therefore 

impossible to ignore as the primary justice institution in the country. 

•	 Still, most women’s groups in Afghanistan tend to oppose international donor or Afghan 

government support for TDR because they generally exclude women from participation and 

are known to issue decisions that violate women’s rights.

•	 In the spring of 2011, the U.S. Institute of Peace in Kabul hosted meetings to examine the 

broader question of how women can gain greater access to justice. 

•	 The outcome of the conversations was a more nuanced view of TDR and women in Afghanistan and a recognition that creative engagement rather than condemnation is a more productive approach to resolving deficiencies in women’s rights in TDR venues. 

Background

Despite extensive efforts since 2001 to build Afghanistan’s formal courts, at least 80% of all 

disputes in Afghanistan continue to be resolved through TDR mechanisms, principally in the form 

of community councils called shuras or jirgas. Afghans generally trust TDR to resolve disputes more 

fairly, cheaply, and quickly than courts. 

But traditional mechanisms have been criticized for violating women’s rights. Certain customary 

practices—baad, for example, whereby girls or women are forcibly exchanged as brides to settle 

blood feuds, debts, and other disputes—are illegal under both Afghan and international law 

and contrary to Islamic legal principles, but they are sometimes sanctioned within TDR based on 

customary practice. Women are also usually not allowed to sit on TDR bodies or even be present if 

they are a party to a dispute. 

Afghan women’s rights advocates fear that ongoing financial and political support from NGOs 

and foreign governments validates TDR, despite its reputation for inequality. Some women even 

allege that donor support for TDR bodies might empower them to further discriminate against 

women, because any infusion of political capital and financial resources may increase their capacity to suppress women’s rights. 

That said, while all women’s advocates oppose practices that do not respect women’s rights, 

some recognize that TDR might help women resolve certain disputes, and that, in any case, TDR 

cannot be ignored. 

Sylvana Q. Sinha

E-mail: sylvana@post.harvard.edu

peaceBrieF117
© USIP 2011 • All rights reserved.

Traditional Dispute Resolution and Afghanistan’s Women

page 2 • PB 117 • December 21, 2011

Furthermore, the same repressive values towards women reflected in TDR are evident in the 

formal courts. In some cases, women cannot exercise their rights to appear in court and may even 

have more access to traditional forums through local male proxies. In other cases, the formal court 

system officially sanctions practices that violate both Islamic and Afghan law. 

For example, Afghan President Hamid Karzai recently pardoned a rape victim, identified only as 

Gulnaz for her protection, whom the courts had sentenced to 12 years in jail for adultery. However, 

the pardon also allows an agreement that Gulnaz will marry her rapist, which was approved by 

the courts.1 Gulnaz’s case is not uncommon. An estimated half of the inmates in female prisons are 

there for zina, or moral crimes, and many of them are victims of rape. Thus, the imperfections of 

TDR should thus not be compared to an idealized vision of the formal system.

The findings and recommendations below are based on ongoing discussions with civil society 

advocates and USIP’s research in 13 districts and seven provinces.2 

Findings on Women’s Access to Justice and TDR

•	 Donor activities that work with TDR bodies should aim to maximize their positive 

aspects and minimize and prevent negative outcomes and side effects. 

Rather than strengthening shuras and jirgas themselves, donors should work to support linkages 

between TDR and formal justice systems and to introduce legal accountability into the traditional 

bodies. Women’s groups do not support projects that purport to strengthen or embolden 

traditional practices. Programs that ensure greater accountability and oversight through reporting 

or recording judgments can help to highlight and reform repugnant practices, rather than allow 

them to perpetuate out of sight.

To be clear, there is absolutely no perceived need for additional donor funding. 

•	 Initiatives to raise awareness on women’s rights must begin with specific, locally identified 

needs. 

Women’s rights projects require long-term partnerships based on earned trust that incorporate 

local values. Lasting impacts on the status and rights of women are not achieved when trainers are 

brought from Kabul or even a nearby city to conduct one-off workshops or campaigns. Because 

communities are often self-contained and isolated, such actors are usually considered untrustworthy outsiders with different values from the community. Thus, the lessons they wish to impart 

are discounted or dismissed outright, especially by those who are already suspicious of concepts 

such as women’s rights.

•	 TDR projects are most effective if pursued with the least controversial concepts in 

more secure areas. 

Partnerships are easier to build in more stable districts, and successful development projects in stable 

areas often have positive spillover effects across a province or region. Limiting work to areas where 

the insurgency is ripe and military operations are intense is unlikely to achieve results. Pushing TDR 

projects in insecure areas risks negative long-term impacts on the equity of the Afghan justice system. 

These areas tend to be those where women’s rights have already taken a back seat to stabilization 

gains and women’s mobility is especially restricted because of the relative power of more conservative 

elements, so there is also less political space to promote the cause of women’s rights. 

The very fact of educating a girl or woman is controversial in Afghanistan, partly explaining 

why the national literacy rates among adult women are less than 20 percent, and as low as 4-5% 

in rural areas.3 But there are less controversial subjects, such as women’s freedom of movement or 

freedom to participate in the economy, as consumers or entrepreneurs, that may be better starting 
© USIP 2011 • All rights reserved.

Traditional Dispute Resolution and Afghanistan’s Women

page 3 • PB 117 • December 21, 2011

points, since those issues potentially benefit men as well. Research has already shown that, where 

Afghan women have greater social and political capital, they are also better able to claim their 

rights in both the formal and traditional justice systems. 

•	 Raising awareness of the myriad ways Islam protects women’s rights is more powerful 

than any other justifications. 

While women’s rights organizations often focus on how TDR practices are at odds with the Afghan 

constitution and international law, it has been overlooked that the most repugnant violations of 

women’s rights in TDR forums—such as forced marriages or mutilation of women for leaving their 

home—are clearly against shari’a. Many mullahs, themselves not properly qualified to opine on 

Islamic law, will sanction these un-Islamic practices. They possess substantial authority in an Islamic 

republic where more than 70% are illiterate. Education about how TDR practices may violate Islamic 

law is far more effective than references to international standards or the Afghan constitution. A 

women’s radio station in Jalalabad, called Nargis, has stated that its radio messaging on rights is always 

informed by Islam, since without a religious context the topic of women would face intense vulnerability. These messages must, however, be delivered by a credible authority on Islam. 

•	 Additional research is necessary for a more complete and nuanced understanding of 

women’s access to justice. 

Improved planning, assessment of target populations, feasibility studies, and evaluation are essential to successful development projects targeting Afghan women. Because of the sensitive nature 

of alleged abuses such as baad, rape, and forced marriages, there are no historical baseline data on 

these practices. Without such data, it is extremely difficult to measure trends. Still, a 2011 report by 

AREU found that, “[w]hile questions over human rights and the treatment of women remain, the 

use of more extreme customary practices, such as baad, is declining” among TDR bodies.4 It would 

be useful to examine how credible data on these practices can be collected. Research should 

additionally focus on the perspectives of local women on whether and in what circumstances 

women view courts or TDR mechanisms as better vehicles to claim their rights. 

•	 Research should explore the use of legal aid providers to improve women’s access to 

justice. 

Legal aid providers such as the Legal Aid Organization of Afghanistan (LAOA) and Cooperation for 

Peace and Unity (CPAU) can be important resources for both female litigants and for members of 

jirgas and shuras. With basic legal training, paralegal representatives can identify alternatives for 

resolving a dispute that are relevant to the local population and highlight pertinent Afghan and 

Islamic laws. 

Recommendations for Future Projects and Programming to 

Women’s Access to Justice in Afghanistan

The recommendations below aim to inform existing TDR programming and suggest specific 

forms of constructive engagement to increase women’s access to justice. Broadly, the hope is for 

donor activities in TDR to work toward mitigating TDR practices that are harmful to women and to 

prevent, to the extent possible, harmful practices from being reinforced by official actors. 

•	 Disseminate progressive interpretations of shari’a, especially among religious 

leaders.

Demands for rights training—from more progressive mullahs and traditional leaders—should be 

nurtured and supported. Also, thousands of mullahs form a powerful network of religious scholars 

and community activists already engaged and respected in their communities. This network presents 
© USIP 2011 • All rights reserved.

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202.429.4725

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About This Brief

This brief is based on recent 

discussions USIP held in Kabul 

on traditional dispute resolution 

(TDR) and women’s rights. Based 

on these discussions and USIP’s 

research, it outlines recommendations on how to increase access 

to justice for women. Sylvana Q. 

Sinha served as rule of law advisor 

in USIP’s Kabul office from November 2010 to November 2011.

great potential to raise awareness on women’s rights and to work against other powerful conservative 

elements that have infiltrated communities with ideas that directly violate tenets of mainstream Islam. 

•	 Explore the expansion of religious education on civic and human rights.

Contrary to their reputation in the West, madrassas do not necessarily teach conservative principles. In 

fact, employing an estimated 7,000 teachers, madrassas offer a great opportunity to teach progressive 

rights in a secular or Islamic framework. Collaboration between the Ministry of Education and the 

Ministry of Hajj and Religious Affairs is needed to promote teachings of Islamic principles of justice, 

rights, and due process that are consistent with Afghan law in Madrassa curriculums.

•	 Engage with local change agents. 

Male change-agents possess the greatest potential to publicize and popularize women’s access to 

justice. Identifying who has the ear of a community—local maliks, mullahs, or other actors—and educating those local gatekeepers are critical to a broader understanding of rights. This requires long-term 

engagement and is most plausible in stable communities where the political and security space allows 

for positive change-agents to emerge. Each community will be different, as each has different leaders 

willing to risk their political capital in different degrees by promoting progressive ideas. 

•	 Focus on training female legal aid providers.

Female legal aid providers, who are in a better position to have access to women, particularly in 

more rural areas, need to be trained across the country. UNIFEM’s pilot projects in Kandahar and 

Bamiyan to train female paralegals may be expanded and mined for lessons learned. Legal awareness programs that include training on matters such as how drafting marriage certificates defining 

women’s rights in marriage and divorce can also help reduce arbitrary or illegal TDR decisions. Also, 

“Legal Aid Referral Centers” for women, already established in Jalalabad and Parwan at the request 

of the Ministry of Justice, are useful resources, provided they have local buy-in and are accessible. 

•	 Use media to raise awareness of religious discourse on women’s rights. 

The wide reach of radio, television, and print media should be exploited to promote discourse on 

women’s rights under Islam. Radio programs, in particular, have impact across the country and are 

the most obvious way to reach the large percentage of the population who are illiterate.5 

In the coming months, USIP will facilitate continued dialogue between opponents of donor 

activities in TDR and development organizations working in TDR. The goal is that increased 

communication can promote creative solutions to the challenges of women’s rights and access to 

justice in Afghanistan, given the realities and limitations of both the formal courts and TDR. 

Endnotes

1. “For Afghan Women, Rape Law Offers Little Protection,” Quill Lawrence, NPR, December 2, 2011, at 

http://www.npr.org/2011/12/02/143057341/for-afghan-women-rape-law-offers-little-protection. 

2. See, e.g., Informal Dispute Resolution in Afghanistan, Special Report, by Noah Coburn and 

John Dempsey, USIP, August 2010, available at http://www.usip.org/publications/informal-disputeresolution-in-afghanistan. 

3. International Women’s Rights Project, “Women’s Equality in Afghanistan,” available at http://

www.iwrp.org/pdf/afghan_paper.pdf. 

4. Dr. Douglas Saltmarshe and Abhilash Medhi, “Local Governance in Afghanistan: A View from 

the Ground,” AREU, June 2011.

5. See, e.g., Afghanistan Media Assessment, Peaceworks by Eran Fraenkel, Emrys Shoemaker 

and Sheldon Himelfarb, USIP, December 2010, available at http://www.usip.org/publications/

afghanistan-media-assessment. 

Traditional Dispute Resolution and Afghanistan’s Women

page 4 • PB 117 • December 21, 2011