Routledge Handbook of South Asian Criminology

K. Jaishankar

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781000300888
• Edition: 1
• Topic: Informatique
• Subtopic: Cybersécurité

Although the literature and cultural practices of the South Asian region demonstrate a rich understanding of criminology, this handbook is the first to focus on crime, criminal justice, and victimization in Afghanistan, Bangladesh, Bhutan, India, Maldives, Nepal, Pakistan, and Sri Lanka.

South Asia's rapid growth in population and economy continues to introduce transformations in social behaviors, including those related to criminality and victimization. Readers of this handbook will gain a comprehensive look at criminology, criminal justice, and victimology in the South Asian region, including processes, historical perspectives, politics, policies, and victimization. This collection of chapters penned by scholars from all eight of the South Asian nations, as well as the US, UK, Australia, and Belgium, will advance the study and practice of criminology in the South Asian region and carry implications for other regions.

The Routledge Handbook of South Asian Criminology provides a wealth of information on criminological issues and their effect on the countries and governments' efforts to mitigate them. It is essential reading for students and scholars of South Asian criminology, criminal justice, and politics.

Part I

Crime and Criminal Justice Processes

1
Afghanistan

State and Non–State-Oriented Criminal Justice Systems¹

Ali Wardak

Introduction

Afghanistan is a land-locked country that lies at the crossroad between South and Central Asia. To the north and northwest of the country lie the former Soviet republics of Uzbekistan, Tajikistan and Turkmenistan; to the South and East is Pakistan; to the West of Afghanistan lies Iran, and to its north-east is China. It is this strategic geo-political location of Afghanistan that has made it both a crossroad between civilizations and a battlefield between competing global and regional powers (Wardak, 2004).

The total population of Afghanistan is estimated to be between 20 and 25 million, composed of various ethnic and tribal groups, most of whom have lived together in the country for centuries. These include: Pashtun, Tajik, Hazara, Uzbek, Turkmen, Aimaq, Baluch, Brahui, Nuristani, Pashaie, Pamiri, Kirghiz, Qizilbash, Mongols, Arabs, Gujars, Kohistanis, Wakhis and Jats. Among these, the Pashtuns constitute the largest ethnic group (estimated around 50% of the total Afghan population), followed by Tajiks, Hazras and Uzbeks (Dupree, 1980; Canfield, 1996; Glatzer, 1998; Wardak, 2004).

Although these various Afghan groups are generally distinguishable from one another by their members’ distinct language (or accent) and ethnic origin, for generations trade and commerce, universities/colleges, government institutions and cross-regional employment opportunities have pulled thousands of Afghans from different ethnic/tribal backgrounds to live and work side by side. Furthermore, inter-marriages, service in the national army and police, and participation in shared cultural, religious and social activities have strengthened citizenship at the expense of ethnic/tribal affiliations in urban centers and cities. This interaction among Pashtuns, Tajiks, Hazaras, Uzbeks, Turkmens and other Afghan ethnic and tribal groups has resulted in a cultural fusion among various Afghan ethnic and tribal cultural traditions at the national level. The richness of Afghan national culture owes much to this centuries-old multi-cultural fusion (Wardak, 2004).

However, since the Soviet military intervention in Afghanistan in 1979, the country has been used as a battlefield between competing global and regional powers and groups—a battlefield between the former Communist USSR and the capitalist West (mainly the USA) in the 1980s; in the 1990s a battlefield between Pakistan, the Arab Gulf countries on the one hand and Iran and Russia on the other; and a battlefield between foreign Muslim extremist groups and a right-wing U.S. administration. In this process of rivalry, Afghanistan’s main immediate neighbors infiltrated deep into Afghan politics. With competing interests in the country, they created their client factions/warlords and sponsored them militarily, financially and politically. The factions gradually became so dependent on their foreign sponsors that they saw Afghanistan’s interests through the eyes of these foreigners. These neighbors also exploited Afghanistan’s existing ethnic and religious composition and justified their interventions on the grounds that they had common religious and ethnic ties with their clients. Thus the armed conflict (which continued for several years even after the defeat of the former Red Army) resulted in the extensive destruction of Afghanistan’s economic, political and social infrastructure. The Western world, particularly the USA, which lured the Soviets to invade Afghanistan, and strongly supported the Afghan mujahedin—Islamic warriors—almost completely, abandoned the ruined country after the Red Army was defeated (Wardak, 2004).

The destruction of the country’s economic infrastructure, particularly, provided opportunities for foreign players and their client Afghan warring factions to exploit the situation, seeking their strategic goals and sectarian interests at the expense of the Afghan population. The almost total collapse of the Afghan pre-war economy gradually resulted in the emergence of a “war economy” (Rubin, 1999; Goodhand, 2003)—economic conditions that mainly centered on the manufacturing, repair, use and smuggling of weapons and ammunition, on the one hand, and on the smuggling (and production) of illicit drugs and national treasure on the other. The nearly a quarter-of-a-century-long conflict also resulted in a generation of young people who were largely deprived of the opportunity of gaining educational qualifications and other useful skills. This “war generation” of thousands of young people has been deeply traumatized by the war—many lost their parents, relatives and homes. The various factions were able to recruit their fighters from amongst this war generation so that the conflict in which they had a stake continued. Fighting for one or other warlord provided these young men with a source of income, social status and a way of channeling their energies. More importantly, this situation provided the opportunity for foreign Muslim extremist groups—mainly Al-Qaeda—to use Afghan soil as headquarters for terrorist activities against other nations. There now exists an increasingly convincing body of evidence which links the Afghanistan-based Al-Qaeda to the 9/11 terrorist attacks on New York’s Twin Towers and on other targets in the United States.

In the wake of the US-led military campaign in Afghanistan that resulted in the collapse of the Taliban regime, the Bonn Agreement of December 2001 was signed among the representatives of Northern Alliance warlords, pro-Zahir Shah (former king of Afghanistan) technocrats/intellectuals, and two other small Afghan groups that were mainly based in Pakistan and Iran. Although the four anti-Taliban groups did not consult (or represent) the people of Afghanistan, the Bonn Agreement, which was signed in a rush, did open the possibility of a new participatory political order for Afghanistan. It provided a framework of state formation processes that aimed at the eventual creation of a “broad-based, multi-ethnic and fully representative” government by 2004. The agreement, which resulted in the establishment of the Afghan Interim Administration in December 2001, raised hopes among many Afghans that there was an opportunity to end warlordism in Afghanistan and to rebuild the country’s social, political and economic institutions.

However, the reinstatement of most warlords as key political and military leaders in the post-Taliban administration and the US government’s emphasis on the “war against terrorism” rather than on rebuilding Afghanistan has spread disillusion among many Afghans about the prospects of lasting peace. The US’s military and financial support for warlords, who may cooperate in hunting down remnants of the Taliban and Al-Qaeda, continues to be a major obstacle to the development of national participatory institutions in Afghanistan and therefore a major source of increasing instability in the country. Central to political stabilization and to the re-building of social and political order in Afghanistan is the establishment of an effective system of justice in the country. This chapter assesses the rebuilding of the criminal justice system in Afghanistan from the perspectives of both the state-oriented criminal justice system and the non–state-oriented criminal justice system (the historical and cultural system) and proposes a synergy of the two systems.

Criminal Justice System in Afghanistan

1. State-Oriented Criminal Justice System

Although it is difficult to draw a clear dividing line between state- and non–state-oriented criminal justice systems in Afghanistan, the former generally refers to positive law that functions through legal codes and state institutions, such as the courts, prosecutors, police, the prison service and the bar of law. Thus, in the context of Afghanistan, key state justice and judicial institutions include the Supreme Court (stara mahkama), the Attorney General’s Office (loy saranwali), the police (sarandoi), the Ministry of Justice (wezarate-e-adelia) and the prison service. Although these institutions are supposed to be closely interconnected, in reality there exists little organic chain-like interaction among them, and therefore they hardly operate as a system (Wardak, 2009). Nevertheless, the totality of these generally justice institutions has historically been referred to as a nezam-e-adlee wa qazaiee (justice and judicial order/system), which was central to the maintenance of social and political order in pre-war Afghanistan (Wardak, 2013).

While progress in rebuilding the Afghan state criminal justice system during the past 10years has been slow and patchy, it has nevertheless been noticeable: significant work has been done on legislation; several hundred judges, prosecutors and prison wardens and thousands of police personnel have been trained; some criminal justice institutions have been refurbished; and several new ones have been built from scratch (UNDP, 2007). Progress has also been made with regard to building administrative capacity within the existing justice institutions and the publication and distribution of a large body of law to legal professionals (UNDP, 2007). Progress in rebuilding Afghanistan’s state criminal justice system has included the establishment of the Independent Bar Association of Afghanistan, legal aid departments in Kabul and in three provinces, the Independent National Legal Training Centre (INLTC) in Kabul and a committee for the simplification of judicial bureaucracy (UNDP, 2007, p. 33). Moreover, there has been an agreement between the Attorney General and Ministry of Interior on the development and implementation of measures to improve prosecution processes and the introduction of common telephone numbers for use by the public to register complaints (UNDP, 2007, p. 33) (Wardak, 2013).

However, despite the above-mentioned achievements, the post-Taliban state criminal justice system is far from delivering justice to the Afghan people and faces serious problems. The nature and severity of these problems appear to have heavily overshadowed what has been achieved thus far. These problems include endemic corruption, high levels of professional incompetence, inadequacy of physical infrastructure such as courtrooms and detention/correctional facilities, very low levels of public trust and the provision of minimal international funding for the rebuilding of justice and rule-of-law institutions in post-Taliban Afghanistan (Carter & Clark, 2010; Wyler & Katzman, 2010). Due to the United States’ overemphasis on the War on Terror in Afghanistan, the issue of rebuilding justice and rule-of-law institutions has, until recent years, been largely neglected (Wardak, 2013).

Some of the problems that Afghanistan’s criminal justice system currently faces, particularly the lack of sufficient professional, human and legal resources, inadequacy of physical infrastructure and low salaries for justice officials, could be directly traced to the very low level of investment in this sector. Other than insufficient investment in the justice sector, national and international efforts have primarily focused on strengthening the pre-war state justice institutions in Afghanistan—they have mainly focused on patchy legal engineering and quick fixes and on meeting targets and the technical aspects of reform at the expense of its normative dimensions (Carter & Clark, 2010; Wardak, 2004. Different donor countries concentrated on different aspects of the justice sector without effective coordination among them and with the Afghan state institutions (UNDP, 2007; Wardak, 2009). This situation also seems to have resulted in the continued absence of a coherent vision for rebuilding and reforming the justice sector in Afghanistan. The outcome has been a fragmented justice system, the key components of which (the judiciary, police, prosecution and prison service) do not operate as a system at all (Johnson, Maley, & Wardak, 2003; Wardak, 2009). All these problems, combined with a growing insurgency and persistent institutionalized corruption, have further complicated the task of rebuilding an effective criminal justice system in post-Taliban Afghanistan (Wardak, 2013).

2. Non–State-Oriented Criminal Justice System

The role of the Afghan central government and its formal institutions of criminal justice (courts, police, corrections etc.) in maintaining social order in Afghan society has always been limited (Wardak, 2002a; ICG, 2003). This particularly applies to rural Afghanistan, where it is estimated that more than80% of the Afghan population live. In some southern and eastern parts of the country, formal institutions of criminal justice have no (or just nominal) existence, and yet there exist a reasonable degree of social order in these areas.

A great many potentially serious disputes, relating to domestic violence, divorce, inheritance and marriage, are normally settled within the “private” sphere of the Afghan extended family without the involvement of local/tribal or state institutions (Wardak, 2002a). They are dealt with on the spot before becoming a “public” problem and a burden on other societal institutions. However, those disputes that are considered “public” are resolved by public institutions at local and tribal levels. The main institution that has traditionally operated as a mechanism of dispute settlement (at village and tribe levels) is jirga/maraka² among the Pashtuns and its approximate equivalent—shura³—among the non-Pashtuns of Afghanistan (Carter & Connor, 1989; Farhadi, 2000; Gletzer, 1998; Hashemi, 2000; Malekyar, 2000; Wardak, 2004).

The particular form and composition of a jirga or shura are determined by the nature of a dispute at hand, but typically by a body of respected marakachian or rishsafidan (local elders and leaders) who refer to customary laws in order to reach a settlement that is acceptable to disputants and to the community. Jirga and shura address issues ranging from minor bodily harm and agricultural land boundaries to serious and sometimes violent conflicts concerning communal lands and murder (Wardak, 2013).

Jirga in every day practice refers to a local/tribal institution of decision-making and dispute settlement that incorporates the prevalent local customary law, institutionalised rituals, and a body of village elders whose collective decision about the resolution of a dispute (or local problem) is binding on the parties involved (Wardak, 2002b). Those on the jirga combine “traditional authority” (based on personal qualities, social status and leadership skills) and “competent authority” (based on the individual’s recognized expertise and skills), which play a central part in achieving a prikra (ruling) that is satisfactory to both parties (Wardak, 2004).

One important form of tribal jirga is...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Dedication
• Contents
• Notes on Contributors
• Foreword
• Acknowledgments
• Introduction: Towards a South Asian Criminology
• Part I Crime and Criminal Justice Processes
• Part II Historical Perspectives of Crime and Justice
• Part III Politics of Crime and Justice
• Part IV Crime and Justice Policies
• Part V Victims and Victimization