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Legal advice from the Taliban
What NATO and Kabul can learn from their enemy.
By Patrick Devenny
Last month during a visit to Kabul, Afghanistan's minister of the interior, Hanif Atmar, showed Joint Chiefs of Staff chairman Mike Mullen and Amb. Richard Holbrooke a particularly sobering map. Atmar shaded two thirds of Helmand Province in Afghanistan's south -- an area home to about 750,000 Afghans -- to denote its status under Taliban control.
It is not news that swaths of Afghanistan -- particularly rural Pashtun areas in the south -- now fall under the influence of the Taliban's "shadow government." What has been overlooked is why. Force certainly plays a part as the Taliban conquers new territory. But it's the insurgents' management structure -- one that supplements rather than supplants existing tribal structures -- that explains the Taliban's staying power. NATO and Kabul aren't being outfought in Helmand; they're being outgoverned.
So far, NATO has responded to Taliban expansion by reinforcing its units in the area, boosting its firepower, and combating the poppy economy through interdiction and crop substitution. That's the easy part. The real challenge will come after territory is regained and NATO begins its fight for the population -- not just the land. To get this next phase right, NATO and its Afghan allies would do well to take a lesson from the force that has been managing much of the south for the last two years: the Taliban. Yes, time to take advice from the enemy. What methods of "guerrilla governance" are attracting the support of local populations? And how could NATO and Afghan forces use them to "clear, hold, and build?"
There is no better place to start than the Taliban's court system, staffed by groups of religious scholars who review disputes over land allocation and property rights -- issues of vital importance in pastoral Afghanistan. There are a dozen or so courts like this in Southern Afghanistan who settle cases and sentence local criminals. Their justice is visible, immediate, and familiar to Afghans who have relied on informal conflict resolution for centuries. The courts' attraction is rooted in the absence of effective alternatives, rather than ideological affinity. Afghans, desperate for some measure of order, will often turn to Taliban courts even if they do not support the organization's overall goals. Indeed, though many have dismissed the courts as a mere PR gambit, a sideshow to the Taliban's main operations. But PR might be just the point: The courts are better at gaining local support than dozens of gunmen or bomb-makers ever could.
If NATO and the Afghan government want to cement any future military gains in the south, they will have to offer an alternative to justice à la Taliban. The official answer is to build up the nascent Afghan court system -- a near impossible long-term task unlikely to win hearts and minds anytime soon. Realistically, another option would work far better: accept informal local and tribal courts as reality and explore new avenues of interaction and, possibly, support. In the near-term, that is far more doable than fixing a judicial system that is largely perceived as corrupt and is certainly understaffed. (There are just six judges in Kandahar to serve nearly 1 million people.)
Relying on traditional mediation under tribal or religious elders is hardly a radical idea; the U.S. military in Iraq has been doing it for years. In areas with strong tribal authority and sparse government representation, U.S. military units have been walking a tightrope -- implicitly allowing tribal law while halting any excesses.
In Afghanistan, the existence of local courts is a fait accompli -- the only question is who will influence them, NATO or the Taliban? Captain David R.D. Nauta, a Dutch legal advisor writing in NATO's in-house journal, recently endorsed tribal law as a stopgap measure. The formal court system, he writes, is "two decades away," and informal courts, which are "crucial to restore some degree of rule of law," need to be utilized by NATO and Afghan forces in the meantime.
In the coming months, NATO forces will venture into areas long held hostage by the Taliban or affiliated elements. If they bring empty promises of a fair justice system in some distant future, the Taliban will be handed a victory, regardless of the military situation. Or, if NATO takes a chapter from the Taliban book, it might just beat the insurgents at their own game.
Patrick Devenny is an employee of the U.S. Department of Defense. The views expressed in this article are his own.
Photo by John Moore/Getty Images
- Afghanistan | Islam | Law
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Excellent observation
We need a pragmatic approach to regional stability, and empowering the in-place tribal courts would be a great place to start. We can't keep throwing out promises that are years away from realization when we find ourselves in a scenario that is dependent on immediate results.
This is not the time to get greedy, so working with the established courts may end up being a crucial measure towards immediate progress. Of course, there will likely be objections regarding, as you mention, that tightrope US troops will be forced to walk when observing the legal processes of these courts, but this is surely preferable to persuading these guys that an entirely new system is right around the corner!...well, 20 years around the corner, but time flies when you're fighting to survive!
Lacks local understanding and nuance
I agree on the need for a far greater focus on the rule of law but boy what a confused article this is sweepingly labeling everything “exotic” to a Westerner in Afghanistan as “traditional”. It lacks understanding of the many different forces at play. The Taliban are NOT traditional, they are a warped outcome of 30 years of war in which hardline Islamism has been encouraged by outsiders. They do NOT offer a tribal legal system – their legal system is based on their hardline interpretation of the sharia which can be in conflict with tribal codes.
Legal Lesons from the Taliban
This is one of the more insightful articles on this subject I've seen in a while. The only wonder is that it took so long for the reality to sink in. One only needs to read a history book to see what is so obviously the difficulty.
Afghanistan is not really a country, it's a region with a lot of culturally similar and socially diverse human groups. The languages of these groups is similar, but the nuances to each individual one are obvious to one who looks at why. Pathans, Uzbeks, Irakzai, Kurakzai, and a host of others are all tribal designations for people that are related by common descent to one another. Each major group can be understood as five or more families related by blood and marriage ties to one another for mutual prosperity and common defense. Almost anybody can tell the geneology of their family for more than five generations. Consequently, these groups are not amenable to cohesion with non-related groups, particularly those with whom they are at odds.
For almost three centuries now, various European (and now the United States) powers/nation-states have tried repeatedly to place the region of Afghanistan under their influence or control for strategic reasons. The English, the Russians (foolish enough to try TWICE), the French, and the USA have all attempted to bring the 'savages' of the region into a malleable puppet state they called 'Afghanistan'. The region is shaped by its geography into a place much like the Highlands of Scotland or the Greek peninsula; ridges and valleys where the human population is so spread out that it forms little enclaves in the areas of greatest resource amount and easiest of access. Each little village is dominated by some form of defensive structure, and that is where traditionally the strong-man lives. His family is the one that runs things on a local and an extended level, and his men protect and serve the communities that are attached by social and economic ties to his village. The population of the village(s), therefore, look to their traditional leadership to fill the roles of captain, police officer, judge, jury, and CEO as needed.
Historically, the European method of dealing with such alien social structures has been to bribe the most powerful (in their perception) leader with the most influence in the region they (the Europeans) want to exploit. Then, with promised military assistance, they install him as the 'president' or amir who rules the area to their mutual profit. When the time seems right, the Europeans will move with military units to attempt to wrest control of the whole region that they designate as important to their personal interests. This works out for a while, usually as long as the overwhelming (& expensive) military force occupies. then, they withdraw and hope the leader thoroughly in their pockets will handle things 'business as usual'.
This hasn't worked out so well. Because there's no real sense of 'nation' in the European sense, the various groups divide once more along their traditional boundaries and attack each other as soon as the legions have gone home. This causes the reaction of the European power sending in troops yet again, and then more troops to support the first troops. Sort of like we're (the US) is doing now. We think we're fighting for the liberation of some of the freest people in the world, and if we would just open our eyes and look through the spectacles of history we'd realize we're just aping the English. Ever since the failure of the 'Hearts and Minds' campaign in Viet Nam, we've slavishly adhered to the notion that everyone wants to be just like us. They don't. They want to be themselves.
The Taliban, as stated previously, are a consequence of the situation that has been brewing since the late 1700's. Islam is a glue, in a social sense, that binds all of the various un-related tribes together, and is the only real unifying factor in the region. The guerrillas keep succeeding for the same reason their former incarnation, the mujahedeen, did; they're the local boys who whupped up on the outsiders. Because everybody knows them, they're OK. Because the NATO and US troops aren't, no matter how nice we are we'll never be the good guy. Why? Because we just won't leave.
The Pakistanis and the rest of us aren't ever going to accomplish what we want, because we aren't from the neighborhood. The tribes are pretty happy with the way things are, because over time it has proven to be the successful way to live in their part of the world. Yes, the supply of heroin is bad, no question. But, if their markets would stop paying top dollar or euro, then they'd stop producing. Western misery fuels their economy, because we like drugs to dull our senses to what we don't like about our own world. The activity is only criminal because Westerners decided it was, not because the morally savvy of all the cultures involved thought it was.
The problems in Afghanistan will work themselves out when Westerners stop trying to save the world and shoulder the white man's burden. Reading a little Kipling would save a lot of headaches, and soldier's lives. Kabul is not Afghanistan, and Afghanistan is not a nation. When we realize that, and treat with each tribe equally and fairly (unlike how we managed it with the Native American groups), and stop using military force to impose our will on someone who doesn't want it, then we'll get somewhere diplomatically and practically.
Good article.
Limited objectives
Thanks to relichuntr for the contextual exposition.
Our dilema is that Afghanistan is no longer on the peripehery of the world system. It is a nexus that is growing in importance. That OBL was able to coordinate his networks and strike the US from Afghanistan tells us why we can't simply repeat the decision of GHW Bush to abandon and ignore the region or the people.
Yet you are correct that Afghanistan doesn't possess the attributes of a successful nation-state. The Taliban did seem to be having some success with a theocratic state, however.
Obama's goals seem to include increased security for Kabul, as well as punishing Al Qaeda and denying terrorists a secure base in the territory, but not to go as far as a nation-state.
We need a new conceptual model to replace the nation-state in regions such as Afghanistan and other candidates for "failed state" status that build on indigenous political structures and sources of legitimate authority that may coordinate without ruling or possessing a full monopoly on violence. We may need to look back in history for alternative model candidates in leagues and more-or-less consensual tributory empires.
Legal advice from the Taliban
US has nobody to blame but itself for Taliban’s momentum in Afghanistan because US has conspired with Pakistan to compartmentalize Taliban into Pakistani Taliban and Afghan Taliban. While US goes after Pakistani Taliban led by Beitullah Mehsud in Hindu Kush mountains, US is allowing Pakistani Intelligence to shelter entire top Afghan Taliban leadership in Baluchistan province even when it is Afghan Taliban in Baluchistan that engineers daily attacks on US/NATO forces in southern Afghanistan. Mullah Muhammad Omar and other members of the Taliban's inner shura (council) have been ensconced for years in the Quetta area.
Pakistan has gone after Pakistani Taliban for understandable reasons while protecting Afghan Taliban living openly in Baluchistan because Pakistan considers Afghan Taliban to be a ’strategic asset’ to be used when US leaves Afghanistan. But US has NO reason to spare Afghan Taliban when US threw them out from Afghanistan to begin with. So US drones have targeted militants in Pakistan's Federally Administered Tribal Areas (FATA), but not the Afghan Taliban leadership operating with impunity from Baluchistan. US ground-commando raids also have spared the Taliban's command-and-control network in Baluchistan.
As long as US continues to play such a duplicitous game, US troubles in Afghanistan are bound to continue.
relichuntr
I think you really need to stop reading books and get over here. In decades of war there have been NO seccessionist movements, doesn't that say something? In your reading you have also been looking far far too much Kipling if you think this is a land of tribes and ethnic groups eternally falling on each other. An enormous amount of the violence (including the current insurgency) is amongst communities/individuals within ethnic groups. The Taliban has certainly NOT been brewing since 1700, it is a direct offspring of foreign interference (Saudi, U.S. etc) in fighting the Soviets with a hardline, alien form of Islam was deliberately promoted over more tolerant local interpretations.
They can't learn anything
They can't learn anything
UltraSurf