The complexity of local and regional conflict dynamics in Afghanistan and Pakistan would be well served by the revivification of the Jirga system, the only convincing institutional base through which to build lasting peace.
The pattern of conflict in the world has changed from predominantly inter to intra state conflict. Even regional conflict now needs local solutions, since the origin of conflict lies with a tribe, country, nation that challenges world peace and security. The criminal justice system designed to punish perpetrators is increasingly applied to conflicts at a state level and internationally, while mechanisms of reconciliation to heal the wounds of all parties to a conflict are ignored. Such mechanisms exist still in traditional societies, and are worthy of exploration by policy makers for sustainable peace in areas of conflict the world over.
Instead of relying exclusively on official diplomatic methods to address conflicts, a more holistic approach is required. Sustainable peace cannot be achieved without participation at a grassroots level. Development, which is rather a post-conflict and long-term process, is possible only after attaining a reasonable level of comfort with people and among people.
In order to be successful, peace efforts at the grassroots require that local, indigenous mechanisms work in partnership with both the government and community. The participation of both is necessary in order to reach the underlying causes of the conflict, resolve it according to the local indigenous law, and make it on a par with standards of human rights as enshrined in the UN charter. Such local and indigenous mechanisms empower communities to take on the responsibility of conflict prevention, resolution and transformation, and move forward with the socio-economic development of their respective societies.
Jirga in the Pukhtoon Belt of Pakistan and Afghanistan
Before the nation state system was consolidated, each community of the world was governed through its own centuries old traditional methods. The communities with the group of elders, aware of local indigenous values of traditions, custom, and religion, used traditional methods to resolve domestic conflicts and inter-community conflict. Such elders, apart from exercising leadership in external affairs, also expressed immense concern for the victims of conflict, their rehabilitation and restoration in the community. Such interventions mostly resulted in a consensus award or amicable settlement of disputes. This also took care of issues of rehabilitation of the victim as well as offender.
One such surviving system is the Pukhtoon Jirga, practiced in the Pushto-speaking belt of Pakistan and Afghanistan since time immemorial. The working principals of the Jirga are community based and fact finding; it acts like a modern jury system. The Jirga intervenes to halt violence, identify the issues in order to resolve them through mediation or arbitration, and work towards reconciliation and rehabilitation. The Jirga system could also be described in terms of the three aspects of peacekeeping, peacemaking, and peacebuilding, through the use of Tega (ceasefire), Nagha (ban on arms show), Community Policing (Arbakai) and volunteer force (Lakhkar).
The main difference between the Jirga system and the criminal justice system is that where the criminal justice system punishes, leaving the enmities as they were, the Jirga resolves the enmity at its roots and adopts certain rules for prevention.
Jirga, Human rights and the rule of law
Some people argue that the Jirga is an outdated institution. There may be some truth in this, yet it is also true that there is no credible substitute available in the Pukhtoon societies with which to replace the Jirga. The Governmental systems in both Afghanistan and the Federally Administered Tribal Area (FATA) part of Pakistan are as weak as the Jirga, if not more. The institution of Jirga in Pakistan and Afghanistan is still a strong community based process of peacebuilding. It is practiced widely at the community level, where it is used as a social organization preparing communities for much needed social change. The Jirga thus involves itself in all aspects of collective decision-making, as well as being used as a forum for the settlement of all kinds of disputes and conflicts.
Some accuse the Jirga of being a parallel system to state-endorsed justice, but this need not be the case: the Jirga supports the criminal justice system by providing a forum through which settlements handed down by the court can be properly facilitated. The Pukhtoon code by which families live is based on revenge. Even after a decision taken in a court of law by which guilt is attributed and a penalty assigned, parties to the conflict will seek to punish the enemy in order to make the social norms of Badal (revenge) equal. However if the court decides to reconcile the parties, they are compelled to approach a Jirga since techniques to facilitate reconciliation do not exist in the criminal justice system. For a durable solution Jirga is the only tool with which to end enmity once and for all.
In times of need, governments involve Jirgas to take on board the views of communities on a wide range of issues. The Afghan Grand Jirga at Bonn is a case in point. However, in recent times we have also witnessed cases of professional dishonesty in Jirga members. A Jirga is sometimes used by the government to get a rubber stamp on unpopular decisions, for example in the FATA (Federally Administered Tribal Area) of Pakistan, where an independent court system does not exist. Instead political agents use all power of the judiciary, executive under the system of FCR (Frontier crime regulation) inherited from the British.
Since the modern vocabulary of human rights is not known to the people, the old traditional system of moral codes is still exists, and in some cases supports the violation of the rights of children and women. The displacement of the community-based institution known as Hujra to the individual drawing room completely stopped the informal learning of the Pukhtoon code of life, closing one channel through which moral codes can be developed within the community. Without reinvigorating the Pukhtoon Jirga, it is difficult to convince people to accept social and cultural change.
Recently, community elders and members of Jirgas have become victims of targeted killings. It is estimated that in the last two years, some 200 professional community elders have been killed by unknown elements. Many have thus migrated to safer places. Another set back to the institution of Jirga has come through the use of this word by other traditions, like Fasilo of Sindh, Mair of Baluchistan, Punchayat of Punjab. These local traditional practices of other areas are sometimes involved in violations of fundamental human rights especially in cases of honor killing, exchange of marriages or early marriages.
President Karzai’s approach to jirga for peace building is the right way to bring all stakeholders to the table for further peace negotiation and restoration of peace and harmony in Afghanistan.
Critical issues addressed by Just Peace Initiatives
Critics of the Jirga system often raise the issue of the unwritten nature of both the deliberation and resolutions arrived at in the Jirga. This coupled with the perceived incompatability of the Jirga with a criminal justice system and the discourse of human rights, has led some to dismiss the system as outmoded in a modern nation-state. Another criticism is that traditional Jirgas do not allow for the development of the role of women in the system, and are easily captured by political actors or devalued through the misuse of the term ‘Jirga’ to apply to other forums.
The focus of Just Peace Initiatives is therefore on institutionalizing the Jirga system, and building linkages between this and the state provision of security and justice. Muslahathi (Reconciliation) Committees have been established at local police stations in twelve districts of Khyber Pukhtoon Khawa. We have trained Jirga members and police in the code of human rights and using restorative justice practices, so that they can face the modern challenges of the world. The decisions made by the Jirga are now recorded in writing at the Muslahathi Committees.
A check and balance system is developed, with the elders sitting at the police station able to challenge police corruption and exploitation of the vulnerable, and the police able to check that the workings of the Jirga are in accordance with the norms of human rights. We provide separate trainings for women at the police station and around the district to enable them to participate. In some districts where the literacy rate is high women play an active role in the Muslahathi Committees. In others an elderly woman represents the interests of younger women in the Committee’s decision-making process, or a male elder will visit women at their homes to seek their opinion and build a consensus.
Reinvigorating indigenous systems
Restorative justice is one of the tools to update indigenous justice systems for community-based reconciliation the world over. Our project of working with reconciliation committees comprised of police and local elders of the Jirga has given us fruitful results, changing the inhuman practices of the traditional system through the facilitation of community work, reconciliation, and equal participation. The reinvigoration of this system answers a need in local communities: after prolonged court litigation and the wastage of financial and human resources, the parties again approach the Jirga for sustainable peace and reconciliation.