VZCZCXRO1800
PP RUEHDBU RUEHPW
DE RUEHBUL #0631/01 0761520
ZNR UUUUU ZZH
P 171520Z MAR 09
FM AMEMBASSY KABUL
TO RUEHC/SECSTATE WASHDC PRIORITY 7802
INFO RUCNAFG/AFGHANISTAN COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 02 KABUL 000631 
 
SIPDIS 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV PREL PHUM KDEM AF
SUBJECT: PRO-WOMEN JIRGA JUSTICE?  YES AND NO SAY AFGHAN 
HUMAN RIGHTS ACTORS 
 
REF: 08KABUL2796 
 
¶1. (SBU) SUMMARY.  Afghan human rights actors are engaged in 
a spirited debate over whether the international community 
and its Afghan partners should support informal justice 
mechanisms such as jirgas and shuras (bodies of community 
leaders that resolve community members' disputes).  The issue 
is whether informal justice mechanisms can adjudicate 
disputes in a manner that respects human rights, particularly 
for women.  Afghan civil society is split on the question. 
 
AWN:  Successful Pilot Project 
---------- 
 
¶2. SBU) Supported by an OXFAM grant, the Afghan Women's 
Network (AWN) founded three legal aid offices in Jowzjan, 
Nangarhar, and Kunduz focused on resolving civil law cases 
through the informal justice system.  The Afghan lawyer and 
social worker staffing each office primarily handle family 
law cases such as forced marriage, divorce, child custody or 
cases in which daughters are given away to settle debts or as 
compensation for a crime.  While most clients are women, men 
also approach the clinics, most commonly seeking assistance 
when a wife or daughter runs away from home. 
 
¶3. (SBU) In working the cases, the AWN social worker meets 
with both parties to the dispute, listens to their versions 
of the situation, and attempts to mediate a mutually 
acceptable agreement.  The social worker, lawyer, and the two 
families then meet with community elders, the jirga, who 
announces the agreed upon solution as the dispute's 
resolution.  Some of the most common resolutions are agreeing 
to transfer property or pay money instead of giving a 
daughter.  Together the three clinics have resolved 300 cases 
from 9/08 through 2/09 in favor of the woman complainant, 
Barekzai said. 
 
AWN: Favors Efforts to Modernize Jirgas 
---------- 
 
¶4. (SBU) AWN project manager Saifora Barekzai strongly 
supports increased efforts to improve the informal justice 
sector's treatment of women.  Informal justice is the only 
form of justice available to most Afghans, and the 
international community and Afghan civil society should work 
to make its mechanisms and decisions fair to women and in 
line with human rights principles. 
 
¶5. (SBU) Barekzai and AWN favor working to modernize jirga 
justice for several reasons: First, most Afghans are not 
aware of and definitely do not have access to the formal 
justice system.  In most rural areas, there are not even any 
roads, let alone functioning courts, Barekzai emphasized.  In 
these areas, the government is weak or non-existent, and the 
jirgas' decisions represent the only meaningful rule of law. 
Second, using the informal justice system reduces the chances 
families will punish women for seeking help outside of the 
community.  If a woman runs away from her village to Kabul to 
get help, her family will not accept her back: she will be 
killed or seriously injured if she tries to return to her 
village, Barekzai claimed.  On the other hand, rural Afghans 
accept the judgment of jirgas and do not typically punish 
women for seeking justice through community mechanisms. 
 
 
But Acknowledges Limitations and Challenges 
---------- 
 
¶6. (SBU) Barekzai tempered her pro-jirga argument by 
acknowledging several limitations and challenges of pursuing 
justice through informal mechanisms.  Jirgas should not 
handle serious crimes such as murder or rape, which should be 
tried in the formal justice system.  Also, in some areas 
heavily influenced by fundamentalist warlords, even with NGO 
assistance, local elders would not be inclined to resolve a 
dispute in a woman's favor.  In other areas, if AWN or a 
similar organization does not assist the woman complainant in 
presenting her case, the jirga will typically not decide the 
case in her favor, Barekzai acknowledged.  However, without 
similar assistance, formal justice institutions also do not 
side with women, she claimed. 
 
¶7. (SBU) On the other hand, Barekzai is not troubled by the 
absence of a legally binding document resulting from jirga 
decisions. In local communities, the elders' word is law, 
more powerful than any document.  The community accepts 
whatever the jirga decides, she reiterated.  However, the AWN 
legal aid offices do keep documentary evidence and written 
notes for each case.  She wishes to explore in the future 
building links between informal and formal justice through 
such mechanisms as formalizing a jirga decision through a 
 
KABUL 00000631  002 OF 002 
 
 
court-issued document. 
 
 
Voice of Women: Formal Justice is Best in the Long Term 
---------- 
 
¶8. (SBU) Voice of Women's (VOW) Suraya Pakzad agreed the only 
option for most Afghans to resolve a dispute is through the 
informal justice sector.  However, she cautioned against the 
international community thinking of the informal justice 
sector as a permanent solution or investing huge amounts of 
resources to "modernize" jirga justice.  Instead she 
advocates programs geared toward increasing citizens' 
understanding of their rights, for example, through radio and 
television announcements.  These types of programs could 
positively affect jirga and formal justice actors alike, and 
also make people more likely to seek justice through either 
the formal or informal system. 
 
 
AIHRC: 100 Percent Anti-Jirga 
---------- 
 
¶9. (SBU) Afghan Independent Human Rights Commission (AIHRC) 
Chair Sima Samar sharply disagreed with any international 
suppor to informal justice mechanisms.  First, jirgas are 
not legitimate legal authorities: they are not contemplated 
in Afghan law, and have no formal rules, regulations, or 
appeals process. Jirgas do not base their decision on civil 
or religious law.  Although they may claim to make decisions 
based on religious law, most informal adjudicators never 
formally studied religious law, she clarified.  Second, 
warlords and druglords are often the community powerbrokers; 
asking them to take the place of courts is lowering 
expectations beyond toleration.  Third, the informal sector 
never sides with women.  Jirgas are always exclusively male, 
meaning women cannot access them without the support of a 
male relative.  Even with this support, the outcome never 
favors a woman over a man, Samar claimed. 
 
¶10. (SBU) Samar cited two recent cases to support her 
argument about injustice for women under the informal justice 
system: (1) In Ghazni Province two brothers raped an 
eight-year old girl.  To resolve the dispute, the families 
and local elders agreed the brothers' family would give one 
of their daughters to the victim's family; (2) Baghdis 
Province villagers, following a jirga's decision, stoned to 
death two girls, ages 13 and 14, for running way from home. 
 
 
¶11. (SBU) Samar challenged AWN's positive depiction of how 
NGOs can refom jirga justice.  First, AWN's offices are inprovincial capitals where the population typically has more 
progressive attitudes towards women. AWN does not have access 
to rural areas, Samar claimed.  Nor is it possible for the 
AWN mode of NGO support to jirgas to expand in a meaningful 
way.  There is a jirga in every village, a hundred in every 
district, and thousands in every province, she said. 
Redirecting the enormous financial resources necessary to 
support these jirgas would gut international support to the 
legitimate Afghan legal system.  The international community 
should spend its energy and resources supporting the formal 
justice sector, Samar concluded.  However, Samar said she 
enthusiastically supported public awareness campaigns such as 
radio programs emphasizing civil rights as a very effective 
way to increase public awareness of the existence of the 
formal justice system and improve the quality of informal 
decision-making. 
 
Comment 
---------- 
 
¶12. (SBU) AWN is not alone in claiming informal justice 
bodies can treat women fairly. Norwegian Refugee Council in 
Herat reported similar positive outcomes (reftel).  UNIFEM, 
in a break with their past anti-informal justice position, 
recently hired an international staff member dedicated to 
working with the Afghan govenment to develop a policy on the 
informal jusice system, a process post closely monitors. 
Without NGO support, however, the vast majorit of jirgas 
undoubtedly do not uphold basic human rights principles. 
Further, Samar's point that NGOs cannot physically reach most 
jirgas without a massive increase of international aid is 
solid.  In allocating resources to support the informal or 
formal justice systems, we will hold the recipients 
accountable to supporting Afghan law and the human rights 
principles it espouses.  Post will also explore more public 
outreach campaigns promoting civil rights awareness as a cost 
effective way to reach rural populations. 
WOOD