Questions of jurisprudence are useless abstractions in Afghanistan, where the perceptions and pursuit of justice are based on customs - not the rule of law. The American concept of “justice” and methods of dispute mediation are dramatically different from the customary laws and tribal justice of Afghanistan. Because of this, even if the United States brings American perpetrators of crimes in Afghanistan to court, as they did in the case of Staff Sgt. Robert Bales, Afghan victims and their families often feel as though they’ve missed out on true justice.
The US should take note of this, as an understanding of “justice” through the eyes of Afghans is essential to moving forward in a post-Nato environment.
The trial of Staff Sgt. Bales helps illustrate the importance of this discrepancy and the way in which the US failed to take Afghan traditions of dispute mediation into account, ultimately causing many Afghans to feel that Americans hold the lives of US criminals in higher regard than those of innocent Afghans.
In 2012, when Bales murdered 16 Afghan civilians in Panjwai, a small district in Kandahar province, the Afghan government could not prevent his extradition back to the United States for a military court martial. For Afghans, removing the perpetrator of the crimes from the purview and judgment of his victims and their families seemed an audacious act. While Afghan witnesses and family members of the victims were flown from Kandahar to Joint Base Fort Lewis-McChord in Washington state by the US military to testify at Bales’ trial, the six witnesses who made this journey - on two separate occasions - found the American justice system in general, and the military court martial in particular, unfamiliar, grotesquely protracted, and in essence, unjust.
They also felt that it was against their socio-cultural framework. Panjwai is an archetype of Afghan culture and religious conservatism. Ethnically Pashtun and socially tribal, the population maintains civil order by complying with cultural honour codes and Islamic sharia law. Justice is local, personal, and above all else, swift. Bales’ murderous rampage and the wealth of evidence against him, in their minds, should have warranted his immediate execution: no trial, no jury, and certainly no mercy. Had Bales been an Afghan man and tried in Afghanistan, a trial council of village or tribal elders would have been convened in a matter of days. The trial - a discussion about the crimes from the aggrieved parties - would have taken place in someone’s home or a local public forum. The sentence would have been whatever the council determined was fair to settle a blood feud, which, more often than not, is the accused’s life.
But Bales is an American and was a member of the US Army at the time of the incident - important distinctions. Rather than serving justice in the Afghan tradition, a US military court martial occurred 7,000 miles from the scene of the crime, lasted 17 months, and ultimately resulted in a guilty plea from Bales, in exchange for removing the death penalty from the table.
For the victims and their families, the trial itself added insult to injury, as the US court martial took pains to make the process fair and equal for both parties, exacerbating the witnesses’ frustration. For example, during the sentencing, Haji Naim, one of the Afghan witnesses, exclaimed in surprise that Bales appeared in court “dressed like a general.” In his world, the man would have been shunned for cowardice and not afforded a place front and centre in the trial.
Even the legal structure itself seemed to privilege the accused. Local justice mechanisms in rural Afghanistan are modelled after Islamic principles of equality before God, and as such, village and tribal councils are conducted informally, with the participants sitting in a circle in which the perception of power is diffused among all present. Those involved can talk freely and openly, and often, over each other. There is no witness box to physically mark the spaces between the witness or victim, the accused, and the advocates of justice. The judge does not preside from a high chair over the court, and the forum does not restrict impassioned appeals in favour of categorical questioning and cross-examination.
When Haji Wazir, whose six children, wife, and mother were among the dead, took the witness stand to testify against Bales for the last time, he hesitated to leave it knowing that he would have no voice as soon as he stepped down. “Does anyone - anyone - have any more questions for me,” he asked. “I did not get to say what was in my heart.”
Seventeen months after the murders, the verdict, sentencing Bales to life in prison without parole, seemed neither satisfactory nor expedient. “We wanted this murderer to be executed, but we did not get our wish,” Wazir told the Tacoma News Tribune at the conclusion of the trial. “We came all the way to the United States to get justice, but we did not get that.”
Afghanistan’s informal justice mechanisms, while dramatically unlike those of the US, reinforce local governance structures in Afghanistan. From an Afghan perspective, this system promotes equality and justice in a way that the American system does not. In terms of jurisprudence, even shadow governments like that of the Taliban, though regarded as problematic and oppressive, promote a rule of law that is more consistent with traditional customs than western ideologies. Furthermore, because years of international developmental support, both pecuniary and technical, have failed to create corruption-free formal governance and justice systems with the capacity to address crimes in Afghanistan, it is understandable that Afghans have more faith in their own informal methods than formal institutions of dispute mediation - particularly those of a foreign government.
But it is also equally evident to Afghans, and perhaps as a result of recent discussions concerning the Bilateral Security Agreement, that such informal methods fail to meet international legal and human rights standards. Punitive measures that condone honour killings, for example, understandably compel foreign governments to question Afghanistan’s capacity to mete out justice. Thus, the opportunity for a proper, shared dialogue about the criminal jurisdiction of foreign troops operating in Afghanistan provides motivation for the Afghan government to strengthen its formal judicial sector by implementing the impartial, representative mechanisms for which the international community has advocated - processes that would allow Afghans like Wazir to have a voice, reflect the cultural and religious values of Afghan society, and adhere to international human rights standards.
Whether or not such efforts succeed in restoring Afghans’ faith in formal justice mechanisms remains to be seen. If the United States is to earn and maintain Afghans’ trust, they will need to take Afghan conceptions of justice into account on issues that relate directly to Afghans. If the US continues to handle cases involving Afghan victims within the US justice system, with little regard for whether the victims themselves feel that they have been given justice, it risks further alienating Afghanistan and the objectives for which the security pact stands.
Morwari Zafar is an Afghanistan subject matter expert for the US government and previously worked on international development projects in Afghanistan. She is currently pursuing her Ph.D. in anthropology from the University of Oxford.–Washington Post