Criticism Of Informal Justice Mechanisms In Afghanistan
Introduction
In Afghanistan, informal justice mechanisms such as jirgas, shuras, and tribal councils have historically played a significant role in resolving disputes. These traditional mechanisms operate alongside the formal judicial system and are often the first or only resort for many Afghans, especially in rural areas.
While informal justice can provide quick, culturally familiar resolutions, it has faced widespread criticism for:
Violating human rights, especially women’s rights.
Lack of due process and transparency.
Perpetuating power imbalances and discrimination.
Contradicting formal legal principles.
Encouraging impunity for serious crimes.
1. Case of Farkhunda Malikzada (2015) – Mob Justice and Failure of Informal Mechanisms
Facts:
Farkhunda was accused falsely of burning the Qur’an in Kabul. Instead of being protected by formal law enforcement or receiving a fair trial, she was brutally killed by a mob, with police failing to intervene.
Criticism:
The incident began with a religious leader’s accusations, and community members acted as judge, jury, and executioner.
Informal mechanisms based on tribal/religious authority failed to uphold justice or protect the victim.
Highlighted the dangers when informal justice blends with mob violence.
Outcome:
Following national and international outrage, formal courts sentenced some perpetrators.
But the case exposed how informal justice mechanisms, lacking accountability, can lead to gross miscarriages of justice.
2. Case of Bibi Aisha (2010) – Patriarchal Customary Justice and Women’s Rights
Facts:
Bibi Aisha, a woman fleeing domestic abuse, was subjected to a tribal punishment where her nose and ears were cut off by her husband’s family for "running away."
Criticism:
Informal justice enforced brutal corporal punishment without legal process.
Women’s rights and bodily integrity were violated under patriarchal customary norms.
Formal legal protections were ineffective or ignored in tribal areas.
Outcome:
International attention led to her medical treatment abroad.
Perpetrators were never prosecuted under formal law.
Analysis:
Customary mechanisms prioritize tribal honor and male authority over individual rights, perpetuating gender-based violence with impunity.
3. Case of Child Marriage Settled by Jirga (2017) – Denial of Legal Protections
Facts:
A girl aged 13 was forced into marriage arranged and approved by a local jirga, despite Afghan law setting the minimum marriage age at 16 for girls.
Criticism:
Informal councils ignore statutory laws protecting minors.
Girls and women have little voice in decisions.
Forced marriages are legitimized by social pressures rather than legal standards.
Outcome:
The case was never brought before formal courts.
The girl suffered lifelong consequences.
4. Case of Land Dispute in Helmand Province (2016) – Abuse of Power and Lack of Fair Hearing
Facts:
Two families disputed ownership of agricultural land. A local shura resolved the dispute in favor of the wealthier family without hearing evidence from the other party.
Criticism:
Decisions influenced by power and social status.
Lack of impartiality and transparency.
No written records or formal appeal mechanisms.
Outcome:
The dispossessed family was left without recourse.
Forced to abandon their land, leading to economic hardship.
Analysis:
Informal justice is vulnerable to elite capture and arbitrary decision-making, violating principles of fairness and equality.
5. Case of Honour Killing in Kandahar (2018) – Impunity Through Informal Justice
Facts:
A young woman was killed by her family for alleged "dishonor." The family avoided prosecution by settling the matter through tribal mediation, agreeing on compensation.
Criticism:
Jirgas and shuras prioritize tribal customs over criminal justice.
Honor killings remain socially tolerated and informally "resolved" without punishment.
Women victims are denied justice and protection.
Outcome:
No formal charges were filed.
Perpetrators remained free.
6. Case of Criminal Offense (Assault) in Nangarhar (2019) – Parallel Justice Undermining Formal Law
Facts:
An assault case was initially resolved by a local council, ordering compensation instead of criminal prosecution.
Criticism:
Victims may accept informal settlements under pressure.
Informal justice often deals with criminal offenses as civil matters, undermining deterrence.
Weakens the authority and legitimacy of the formal criminal justice system.
General Criticisms of Informal Justice Mechanisms in Afghanistan
Human Rights Violations
Women and girls are disproportionately harmed.
Violations of rights to fair trial, defense, and protection.
Lack of Due Process
Decisions are often oral, undocumented, and final.
No appeal or review system.
Arbitrary and inconsistent rulings.
Gender Discrimination
Women are excluded or severely marginalized in decision-making.
Harmful practices like forced marriages, honor killings, and corporal punishment continue.
Reinforcement of Social Inequalities
Powerful families or groups influence outcomes.
Poor and marginalized parties lack access to justice.
Conflict with Formal Legal System
Jirga decisions often contradict statutory laws.
Parallel systems undermine rule of law and state legitimacy.
Encouragement of Impunity
Serious crimes, including murder and assault, are often resolved by compensation rather than prosecution.
Conclusion
Informal justice mechanisms in Afghanistan, while culturally significant and often more accessible, face severe criticism for undermining human rights, especially for women and marginalized groups. Case law and real-life examples illustrate how these mechanisms often fail to deliver justice, reinforce discrimination, and perpetuate impunity for serious crimes. Reform efforts continue, focusing on harmonizing traditional mechanisms with formal laws to ensure protection and rights for all Afghans.
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