Commonwealth systems of dispute resolution are so pervasive we sometimes overlook unique local considerations of the issue. Tradition and culture underpin our worldview and actions in every aspect of life. So why do negotiators so often try to apply a standard model to disputes in distinctive international environments?
What You’ll Learn: The costs and benefits of Jirga, a traditional dispute resolution model in Afghanistan.
Expected Reading Time: 8-10 mins, (~1,400 words)
Conflicts are deeply rooted in the tradition and culture of societies. The tools used to address those conflicts should accordingly be tailored to the peoples involved. Though Commonwealth systems of dispute resolutions almost become conceptually accepted as inevitable and archetypical, it is important to reflect on different cultural systems of dispute resolution.
As nations build their principles of law and justice from the culture they arise in, we must consider where authority stems from. Within the building stage of dispute resolution structures for a nation, the values of a population can decide this authority. To explore how culture can shape conflict resolution, let’s look at Jirga in Afghanistan. As a nation restoring its justice institutions after decades of instability, it has experienced a significant lack of participation of its people in formal systems. Instead, diverse ethnic groups around Afghanistan usually prefer the use of Jirga: an informal model of dispute resolution.
While stages of Jirga may appear to force a choice between tradition and global values, striking a balance between the two may result in an improved model for all involved.
1. History of Jirga
Jirga derives from the original Pashtun language meaning ‘gathering of people to consult’. This word reflects the tradition of the Pashtun people to come together and resolve disputes by making a collective decision about community issues. Jirga can function for family matters, in a small community setting, or on a wider level of confederation. Developed centuries ago, it has been the standard for resolving economic, political, religious, social, and cultural issues alike. This has resulted in the vast majority of disputes in Afghanistan being resolved outside of the formal state-based justice system.
With ancient and modern histories of foreign intervention, Jirga presented an opportunity for grass-roots political stabilisation in Afghanistan. From the 1979 Soviet intervention to the U.S. intervention after the September 11 terrorist attack, Afghanistan’s political and economic infrastructures have been left in ruin repeatedly. Jirga represented an internal alternative for rebuilding a nation. It is widely used informally by Afghani people from diverse ethnic backgrounds, such as the Hazaras, Uzbaks, and Tajiks.
2. Jirga in Action
Jirga places a strong value on reconciliation. As such, where State-based justice tends to create ‘winners and losers’ in Afghanistan, Jirga tends to promote restorative justice. For instance, in a village in the Behsud district of Nangarhar, a heated dispute arose over a local election of a government representative. After the election of one candidate over the other, two supporters of the candidates began to fight over a portion of contested land. To seek resolution, a Jirga was formed at a communal level in the village. After both sides had expressed their issues, with the election and the land, local leaders guided the parties acknolwedge the validity of the election and resolve the land dispute peaceably. This maintained the social harmony of the village.
Local leaders normally derive their power from local consent, as was the case here. Because the leaders mediating these Jirga sessions are historically beholden to their communities, they are more incentivised to achieve a resolution that preserves community harmony. Gathering an understanding of both parties perspectives, and encouraging reconciliation is not just a convenient solution, as is the case in many Western mediations for land disputes, but is a cultural imperative.
Though the structure’s dependence on consent seems theoretically shaky, and may face severe challenge in coming decades, historically the ‘by consent’ feature has been Jirga’s greatest strength. This is fundamentally linked to trust. According to a Asia Foundation survey, participants rated more favourable perceptions of Jirga compared to formal justice institutions, particularly in regards to following ‘the values of our people’ and being ‘fair and trusted’. While communities trust the traditions of their cultural structures of dispute resolution, they are likely to produce more favourable conciliatory outcomes that are upheld by the parties.
3. Potential Issues with the Model
The level below communal resolution within Jirga is ‘private’ resolution. These matters are resolved by the extended family without the involvement of tribal or State institutions. Considered a ‘cornerstone of society’ within Afghanistan, this tradition sees the outcome of many potentially serious disputes concerning divorce, marriage arrangements, and domestic violence. However, each issue is ultimately decided by the male head of the family.
Afghani women can be dependent on a patriarchal, non-transparent system for achieving justice. These women are actively subjugated through the practise of ‘baad’: the offering of women into marriage as a dispute settlement tool. Though rare, the implications of this for the agency of Afghan women is troubling. This highlights the crucial battle between a desire to preserve cultural tradition and to equally promote a standard of global human rights. Unless there is a radical change in the traditional structure of Jirga for ‘private’ matters, Afghani women risk being inadequately represented and subject to potentially unjust decisions.
In response to this issue, the Afghan Ministry of Justice prepared a ‘non-state’ justice policy in 2009 that contained provisions allowing individuals to opt-out of informal, such as ‘private’ justice bodies, and that any decisions made through these bodies can be appealed at a state level. It specifically referred to an intent to improve access to justice for women and to increase their participation in informal Jirga settings. Whether such intentions have been realised is unclear. Likewise, given the strong patriarchal values of Afghani culture, it is dubious whether women would risk social isolation and punishment by seeking alternative dispute resolution. While those values are upheld as vital to Afghani culture, the traditional structures of Jirga are likely to continue to dominate.
So what can we learn from this?
Jirga encapsulates the values prioritised by diverse communities within Afghanistan. As a reflection of these values, it can produce more satisfactory reconciliation between disputing parties than foreign models devoid of cultural context. Though the battle rages on between discriminatory patriarchal values and modern global standards of human rights, slow steps to improve the participation of all within Jirga are being made.
The importance of cultural traditions should be fully appreciated for any negotiator attempting to assist local communties to resolve disputes, and improve the resolution process overall.
Asia Foundation. (2010). Afghanisatan in 2010: A Survey of the Afghan People. 134 < http://asiafoundation.org/resources/pdfs/Afghanistanin2010survey.pdf>
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