Winning War Through Law in Afghanistan? Interview with Adam Baczko
Adam Baczko is the author of a book entitled La guerre par le droit. Les tribunaux Taliban en Afghanistan ( War by Law. Taliban Courts in Afghanistan) published on 2 September by CNRS Editions within the series called “Logiques du désordre” he coedits with Adèle Blazquez, Martin Lamotte and Gilles Dorronsoro. Published three weeks after the Taliban took power in Afghanistan, this sadly very timely comparative study of the parallel legal system put in place by the Taliban for decades is likely to help us better understand more broadly the role of Law in war. Adam Baczko answers our questions on this issue and on his long-term research.
You write in the introduction of your book, “Law and civil war are seen as antithetical concepts, with civil wars often described as situations of chaos, collapse and anarchy”, and thus of the withdrawal or annihilation of law. However, the coexistence of parallel legal systems in contemporary civil war situations is often observed, in Afghanistan amongst other places, and contradicts this reading. This leads to the question, can parallel legal systems coexist in the long term?
No, and that is the main problem, in Afghanistan, as in Syria and Mali. Civil wars are not moments of temporary suspension of the law as one might intuitively imagine, but of the multiplication of legal systems. The struggle between multiple legal systems within one country can last 5 years, 10 years, or even 43 years in the case of Afghanistan.
However, the contemporary international order is still built on the idea of state sovereignty and this competition is therefore inherently unstable. There can be no sustainable balanced coexistence between these systems, because only one can benefit from international recognition and the considerable resources that this legitimacy confers. Alternative resolutions to this struggle, such as secessions, have been very rare since the 1980s. In the long run, the durability of the judgements made by judges in a civil war context depends on how the conflict evolves, militarily speaking, i.e. the victory of one side over the other(s).
Beyond international recognition, competition in the field of law translates into radical legal uncertainty for individuals, which is a source of intense conflict that fuels war. In every respect, the coexistence of different legal systems is structurally unstable.
Can legitimacy change sides? Can a civil war—also—be won through law, through the establishment of a legal system different from that of the regime in place?
Yes, this is what happened in Afghanistan, where the Western intervention in 2001 raised many hopes. These hopes were dashed because the United States failed to establish, or even follow, a functional legal system. The Taliban won the war in the legal sphere first because the United States and its allies failed in this area: by conducting their operations outside of all legal frameworks, with recurrent abuses by American special forces and the militias they set up; by producing a law detached from the concerns of the Afghans; by neglecting the judicial system for years; and by offering impunity to potentates who monopolised the land, Western aid, and state resources.
It was in contrast to these practices that the Taliban came to embody state authority in the countryside. The fact that the Taliban justice system was, from the point of view of my interlocutors, more reliable, more accessible, and more familiar—in other words, more just—than that of the Americans allowed the movement to legitimise itself, even among Afghans opposed to the organisation’s political programme and ideology. Afghanistan is a textbook case here, showing that the enforcement of justice is an essential space of legitimisation—that belligerents can win and lose wars through law.
Where do Taliban judges come from and how are they recruited?
The Taliban recruits its judges through an examination that it gives to graduates of the Deobandi religious schools (madrasas) in Pakistan. The exam consists of a series of legal cases to be decided, but the main selection criterion is the passage through these madrasas, where the vast majority of the movement’s leaders have also been trained. Since the Soviet invasion in the 1980s, many Afghans have studied in these schools, which train students in theology and Islamic law, since they were one of the few educational opportunities available to Afghan refugees.
The education acquired by the judges in the Deobandi madrasas underpins the consistency of the Taliban judiciary's verdicts, their Islamic character being based primarily on the use of Hanafi jurisprudence that was taught to the judges during their training. This socialisation over a period of ten years away from their families and villages of origin also generates a bureaucratic habitus and a shared understanding of the world. The availability of trained personnel in Islamic law was a determining factor for the Taliban, who were thus able to build a justice system at a lower cost.
In the conclusion of your book, you write that “the recognition of the authority of Taliban judges is inversely related to that of the regime's magistrates. The evaluation of the judges by the rural population reveals a critique of the governmental judicial system and the effects of international intervention”. Did your numerous visits to Afghanistan and the encounters they made possible enable you to understand what constitutes “legitimate” justice for the Afghan population? It is easy to imagine that perceptions differ between the inhabitants of Kabul and other big cities and those of the rural communities. What is the situation?
This is a key issue, because a recurring error in recent work on Afghanistan is the assumption that Afghans have a specific view of the law, stemming from their tribal or ethnic character, from a preference for the local level or from a rejection of the state. These stereotypes, dating back to British colonisation, have justified the many justice programmes that are interchangeably described as customary, informal, local, or tribal.
This emphasis on accommodation of particularities conceals the fact that these programmes are inspired by the alternative dispute resolution mechanisms developed in the West in the 1980s to save money in the judiciary by reducing the number of cases in the courts. From the 1990s onwards, these became an instrument of the development programmes of Western countries and international organisations such as the World Bank.
In contrast to widespread assumptions, the Afghans I spoke with referred to law and justice in a very common way. They wanted justice that was accessible, affordable, and impartial. They wanted legal certainty, predictable verdicts, and enforceable, documented value. This did not preclude real disagreements, for example, about the level and manner in which judges should address family matters, which is one of the stumbling blocks between urban and rural areas, but in essence, all Afghans demand an end to the legal uncertainty created by the war, for obvious reasons.
Is there a dialogue between the Taliban law and international law?
While the Taliban disregarded international law in the 1990s, its ostracism and subsequent defeat have made it more aware of the power of the international system. There was a marked evolution in the 2000s, with, for example, increasing references to human rights in official documents of the movement or in the speeches of Mullah Omar, the Taliban leader. The Code of Conduct that the movement distributes to its fighters illustrates this. The 2006 version has a very violent tone, calling for the burning of schools and clinics and the execution of spies without trial, which corresponds to the movement's practices at the time. Three years later, the new version stressed the need to respect human rights, took up the Geneva Conventions without quoting them, and called for respect for civilians, schools, and clinics.
This is obviously a discourse on the part of the movement, but it is reflected in a decrease in attacks on civilian targets and an increasing dialogue with the UN human rights mission. There is even collaboration with the movement in some of the UN investigations into attacks on civilians. Of course, some of the punishments applied by the judges, such as stonings, beheadings, or amputations, are obviously still in breach of the UN conventions on the elimination of all forms of discrimination against women or those of Geneva. Nevertheless, in the legal sphere, we can observe an inflection compared to the break that the movement marked in the 1990s with international law by filming and broadcasting images of the most violent sentences that its judges handed down and the destruction of the Buddhas of Bamiyan, for example.
Is Taliban justice independent? Can it be by definition?
Like any legal system in a civil war context, the Taliban courts embody a distinctly political form of justice in every sense of the word. Firstly, this is because the judges have the prerogative to judge people suspected of having collaborated with the government. This is one of the points on which my interlocutors were most critical of the Taliban, which they accused of conducting summary proceedings and applying unjust sentences. This is also the area where judges had to compete with military commanders, who, despite instructions from the movement's leadership, continued to execute people without going before a judge.
Moreover, the Taliban’s form of justice is a political justice because as soon as the political consequences of a decision become far-reaching, for example in the case of a conflict between two villages over communal land in the east of the country that I report in the book, the judges are instructed to postpone the decision until after the war. The movement cannot afford to alienate entire communities.
Finally, it is political justice because the judges' decisions have profound social effects. As soon as the Taliban succeeded in having its judges' decisions recognised as legal, it was able to influence society, to put across its vision of the law, of property, and of the family. Through its insistence on the law, the Taliban makes visible a more general logic: all justice in a context of armed conflict is caught up in the issues of war. At the same time, the law, provided it respects the constraints it implies, is paradoxically a powerful political and strategic instrument in such a context.
If we place ourselves in a post–civil war context, can we imagine that the staff and legal mechanisms of one of the parties would be integrated by the other camp?
It is extremely rare for judicial personnel from the defeated camp(s) to be reintegrated, which confirms the deeply political nature of justice in the eyes of the belligerents. The integration of judges from the Vichy regime into the judicial system of post-war France is one of the few well-documented cases, thanks to Liora Israël’s book Robes noires, années sombres . The rarity of such integration processes is a sign of the strategic nature of the law for the victors who are, like the Taliban today, in a position to impose their own system of order.
Similarly, how could the sustainability and survival of the Taliban justice system’s verdicts be envisaged in a context of political uncertainty and instability? What does the population think? Does this play a role in their perception of Taliban justice system?
Now that the Taliban have won the war, the verdicts of the Taliban judges when they were in hiding have the seal of officialdom. But between 2011 and 2013, many users of the Taliban courts expressed concern that any verdict against them would no longer be valid if the insurgency came to lose the war. Afghans were acutely aware of the link between the fortunes of arms and the durability of legal decisions.
You write that in order to “disorientalise” the Afghan case and benefit from the heuristic force of the comparative approach, you conducted research in Syria, Iraq, and the Democratic Republic of the Congo. How did you choose these three other sites? Did you specifically explore them in relation to the research you were conducting in Afghanistan? How did you work on these comparisons?
My work on the Taliban courts adopts a comparative approach, especially in the choice to focus on law. From my first research in Afghanistan in 2010, I wanted to compare my observations with other contexts, not only because Afghanistan is the focus of many fantasies, but also because comparative research is able to identify invariants that are not always those that are expected.
My interlocutors in these contexts repeatedly emphasised the exceptional nature of the interference of neighbouring countries, Western powers, and international organisations, the reinvention of tradition by development operators, or the establishment of courts by armed movements, whereas these practices are found in all armed conflicts. I have therefore drawn on my initial observations in Afghanistan for my research in other contexts. The comparison with Afghanistan underpins many of the questions in Civil War in Syria , which I co-authored with Gilles Dorronsoro and Arthur Quesnay.
In return, my observations in Syria, Iraq, and the Democratic Republic of Congo allowed me to re-read my material collected in Afghanistan and to highlight certain specificities. In particular, the degree of institutionalisation of the Taliban courts struck me after having experienced other contexts of armed conflict, and led me to investigate the reasons for this sophistication. In this way, I gradually gained a better understanding of the centrality of the recruitment process and the possibilities for societal transformation that this institutionalisation offered the armed movement.
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Access our Podcast "Le retour des Taliban et ses conséquences", with Adam Baczko and Gilles Dorronsoro (in French)
Interview by Miriam Périer, CERI