Legal advice from the Taliban

What NATO and Kabul can learn from their enemy.

By Patrick Devenny

Last month during a visit to Kabul, Afghanistan’s minister of the interior, Hanif Atmar, showed Joint Chiefs of Staff chairman Mike Mullen and Amb. Richard Holbrooke a particularly sobering map. Atmar shaded two thirds of Helmand Province in Afghanistan’s south — an area home to about 750,000 Afghans — to denote its status under Taliban control.

It is not news that swaths of Afghanistan — particularly rural Pashtun areas in the south — now fall under the influence of the Taliban’s “shadow government.” What has been overlooked is why. Force certainly plays a part as the Taliban conquers new territory. But it’s the insurgents’ management structure — one that supplements rather than supplants existing tribal structures — that explains the Taliban’s staying power. NATO and Kabul aren’t being outfought in Helmand; they’re being outgoverned.

So far, NATO has responded to Taliban expansion by reinforcing its units in the area, boosting its firepower, and combating the poppy economy through interdiction and crop substitution. That’s the easy part. The real challenge will come after territory is regained and NATO begins its fight for the population — not just the land. To get this next phase right, NATO and its Afghan allies would do well to take a lesson from the force that has been managing much of the south for the last two years: the Taliban. Yes, time to take advice from the enemy. What methods of “guerrilla governance” are attracting the support of local populations? And how could NATO and Afghan forces use them to “clear, hold, and build?” 

There is no better place to start than the Taliban’s court system, staffed by groups of religious scholars who review disputes over land allocation and property rights — issues of vital importance in pastoral Afghanistan. There are a dozen or so courts like this in Southern Afghanistan who settle cases and sentence local criminals. Their justice is visible, immediate, and familiar to Afghans who have relied on informal conflict resolution for centuries. The courts’ attraction is rooted in the absence of effective alternatives, rather than ideological affinity. Afghans, desperate for some measure of order, will often turn to Taliban courts even if they do not support the organization’s overall goals. Indeed, though many have dismissed the courts as a mere PR gambit, a sideshow to the Taliban’s main operations. But PR might be just the point: The courts are better at gaining local support than dozens of gunmen or bomb-makers ever could.

If NATO and the Afghan government want to cement any future military gains in the south, they will have to offer an alternative to justice à la Taliban. The official answer is to build up the nascent Afghan court system — a near impossible long-term task unlikely to win hearts and minds anytime soon. Realistically, another option would work far better: accept informal local and tribal courts as reality and explore new avenues of interaction and, possibly, support. In the near-term, that is far more doable than fixing a judicial system that is largely perceived as corrupt and is certainly understaffed. (There are just six judges in Kandahar to serve nearly 1 million people.)

Relying on traditional mediation under tribal or religious elders is hardly a radical idea; the U.S. military in Iraq has been doing it for years. In areas with strong tribal authority and sparse government representation, U.S. military units have been walking a tightrope — implicitly allowing tribal law while halting any excesses.

In Afghanistan, the existence of local courts is a fait accompli — the only question is who will influence them, NATO or the Taliban? Captain David R.D. Nauta, a Dutch legal advisor writing in NATO’s in-house journal, recently endorsed tribal law as a stopgap measure. The formal court system, he writes, is “two decades away,” and informal courts, which are “crucial to restore some degree of rule of law,” need to be utilized by NATO and Afghan forces in the meantime.

In the coming months, NATO forces will venture into areas long held hostage by the Taliban or affiliated elements. If they bring empty promises of a fair justice system in some distant future, the Taliban will be handed a victory, regardless of the military situation. Or, if NATO takes a chapter from the Taliban book, it might just beat the insurgents at their own game.

Patrick Devenny is an employee of the U.S. Department of Defense. The views expressed in this article are his own.

Photo by John Moore/Getty Images