Helping Afghanistan's Informal Dispute Resolution Systems Follow Afghan Law in Criminal Matters: What Afghanistan Can Learn from Native American Peacemaking Program

Abstract

Informal dispute resolution is common in rural areas of Afghanistan because of a general lack of access to or inefficiency of the formal mechanisms in those areas. While the Afghan informal dispute resolution systems have been known to resolve some criminal cases in ways that violate human rights or deviate sharply from Afghan formal law, it can be possible to minimize these practices while taking advantage of some of the strengths that informal dispute resolution offers. This paper argues that some Native American Tribal justice systems could serve as helpful models for the Afghan approach to informal justice because they offer effective informal dispute resolution and peacemaking systems that are consistence with the formal justice system and generally do not violate human rights. Accordingly, this paper begins with an introduction to informal dispute resolution mechanisms in both Afghanistan and selected Native American Tribal systems, elaborating on the interaction between the informal and official state law in these various systems. Next, it describes the failed attempts of the Afghan central authority to rule in the informal justice systems and integrate them into the formal legal structure. Then the paper will provide possible solutions which would include coordination between the formal and informal justice systems, monitoring of the cases within the informal system, including important criminal cases such as honor killing, theft, rape, and serious injury by members of the official system including provincial governor, district governor, and other law enforcement institutions. Finally, this paper offers some suggestions for how to respond once the monitoring bodies identify violations of human rights and Afghan law.