One of the most significant defects of state building in Afghanistan has been its failure to achieve rule of law after almost a decade of effort. Despite intense efforts made by the international community to build the Afghan government’s capacity, the formal system of justice fails to meet the country’s needs. Indeed, the government’s incapacity and corruption are often cited as reasons for popular support of the Taliban, who have touted their ability to resolve the disputes that government-appointed officials cannot. In September 2010, the American Institute of Afghanistan Studies convened a conference to examine the rule of law in Afghanistan. Conference participants included lawyers, social scientists, diplomats and practitioners. Most had considerable on-the-ground experience in Afghanistan, but the group also included those familiar with rule of law issues in other countries.
Participants agreed that too many plans for institution building in Afghanistan failed to account for historical and cultural implications, or consider how alternate systems of dispute resolution maintain social order in the absence of formal government institutions. For this reason, the conference first focused on the relationship between state and society in Afghanistan. It then examined traditional, local dispute resolution systems and their implications on the government’s formal system of justice. Due to the international community’s financing and support of the formal justice system, the conference next examined the tensions between Afghan cultural values and internationally accepted legal norms and standards. Finally, the conference proposed a set of policy options better designed to meet Afghanistan’s needs. However, a number of participants warned that plans for achieving the rule of law cannot be divorced from the political environment where impunity from legal consequences benefits those with political power.