With the drawdown of foreign troops and the post-International Security Assistance Force (ISAF) period quickly approaching in Afghanistan, attention has focused on the outlook for continued armed conflict between the government of Afghanistan and the Taliban. While insurgents will undoubtedly continue to plan attacks on government officials and security forces, their efforts will also focus on softer initiatives, such as expanding parallel or competitive governance through Shari`a  courts.

The establishment of an Islamic state based on Shari`a law in Afghanistan has been the cornerstone of Taliban political goals since the movement began in the 1990s. The growth of Shari`a courts, therefore, will be integral to the Taliban’s post-ISAF calculus. The Taliban likely recognize that their ability to provide law and order through Shari`a capitalizes on the shortcomings of the current formal judicial system in Afghanistan,[1] and they will quickly attempt to expand courts to contest Afghan government control and habituate their authority over the local populace. Measuring the development of such courts may provide an insightful barometer of Taliban influence and local control post-2014.

This article first provides background on Shari`a law and its traditional role in Afghanistan. It then identifies some vulnerabilities to the Taliban’s objectives of implementing Shari`a, and offers indicators that might portend the expansion of the Taliban Shari`a court system. It finds that the military narrative often overshadows the significance of Shari`a to the Taliban, and suggests that evaluating the growth of the Taliban’s courts can be a beneficial tool in judging the nature of the insurgency in Afghanistan.

Understanding Shari`a
Implementing Shari`a across Afghanistan is a strategic objective of the Taliban. Understanding what it means, and the methods in which it is employed in Afghanistan, is important. The word Shari`a in Arabic literally translates to “the path to follow” and in jurisprudential context means “ideal Islamic law.”[2] Shari`a is both a system of criminal justice and a religious or moral code for Muslims. Although this system is based on principles outlined in both the Qur’an and the hadith, the implementation of Shari`a is largely left up to the interpretation of Islamic scholars (which many Taliban senior leaders and commanders claim to be).[3] This has resulted in a diverse practice of Islam, including different schools of thought.[4] The exception is a specific set of punishments for offenses called hudud, or “limits,” which are considered to be the most serious crimes.  These offenses are punishable by specific penalties—including stoning, lashing, or amputation of a limb—and are considered by some Islamic scholars to be immutable.[5]

During the Taliban’s regime, Shari`a was used as a means to establish (or at least project) law and order within Afghanistan. Taliban officials claimed that their ability to rule through Shari`a was misunderstood and overlooked by the outside world. For example, Sher Muhammad Stanekzai, a senior Taliban leader, stated in 1994, “By enforcement of Shari`a, we have made safe the lives and property of millions of people.”[6] He also said, “This is the law that was revealed by God to Muhammad.  Those who consider the imposition of this law to be against human rights are insulting all Muslims and their beliefs.”[7]

Currently, the Taliban operate Shari`a courts (and even some prisons) in several regions of Afghanistan.[8] The Taliban were able to reopen and operate Shari`a  courts in the southern provinces of Kandahar and Helmand since at least 2008, and courts have been identified in the western province of Herat, as well as in the eastern province of Paktika.[9] These courts dispense judgment on criminal as well as civil cases. This means that the Taliban can conduct trials of spies (creating a deterrent for behavior that may harm their movement) as well as provide services to the local populace, such as enacting punishment for thieves or resolving civil matters such as land disputes. As a result, the Taliban are able to establish local-level legitimacy and transform Shari`a courts and rule of law into authority (particularly in rural areas where the Afghan government has had difficulty establishing its own legitimacy).

Shari`a, however, is much more than just a mechanism to gain local control. It is also the foundation of Taliban governance and used to underpin the cohesion and legitimacy of the movement. According to Abdul Salam Zaeef, the former Taliban ambassador to Pakistan, the Taliban believe that only a society based on Shari`a law is living honorably or within “God’s orders.”[10] Given the significance of Shari`a as both a means, and an end, for the Taliban, the expansion of courts and the implementation of Shari`a are critical for the viability of the movement.

Why Shari`a Courts Matter to the Population
Political scientists have posited that the public will do “almost anything” and support “almost anyone” to establish security and reduce uncertainty.[11] Given this concept, Afghanistan’s long-term stability will be impacted by the government’s ability (or inability) to provide security and certainty through rule of law. This includes dynamics that are more closely tied to the local populace, and are often overshadowed by the predominant narrative of the Taliban versus the Afghan government. For instance, the UN High Commissioner for Refugees has stated that land-related disputes are among the most serious issues threatening the stability of Afghanistan.[12]  As counterinsurgency theorists have argued, insurgencies are “20 percent military action and 80 percent political,” and successful insurgencies will challenge the state by usurping the rule of law to mobilize and control the local population.[13]

The Taliban’s provision of law capitalizes on the shortfalls of the Afghan government’s justice sector, which according to U.S. Department of Defense reporting continues to show slow progress in becoming transparent, consistent, reliable, and fair.[14] There have been increases in the number of Afghan government judges being appointed and districts holding trials; however, the formal judicial system in Afghanistan has demonstrated little progress in becoming self-sustaining and little will in combating fraudulent activity. According to a February 2013 report from Afghanistan’s Tolo TV, more than 50% of the populace in Afghanistan has used Taliban court systems rather than those provided by the Afghan government due to corruption.[15]

Afghan citizens have also cited the expediency, limited cost, and access to Taliban courts as notable advantages over the formal Afghan government system. For instance, a local resident of Paktika Province stated, “The Taliban courts don’t disturb people and tell them to wait for a long time before hearing a case, or demand bribes.”[16] A resident of Kandahar Province claimed, “I don’t like our current government at all, and I don’t really like the Taliban, either. But I can either spend months in the government court and pay bribes, or I can go to the Taliban and have the matter settled in one day.”[17] In addition, Taliban courts provide roving support to remote rural locations in Afghanistan, and may not be fixed to urban areas like many Afghan government facilities.[18]

Vulnerabilities of Taliban Shari`a Courts
Despite its advantages, the Taliban system is not without faults. Due to his personal security practices and the nature of conflict in the region, Taliban Supreme Leader Mullah Muhammad Omar is no longer accessible as the authoritative head of Taliban jurisprudence. Given his longstanding absence, the role of legal authority has likely been delegated to Afghan-based commanders, regional tribal leaders, or power brokers.[19] This could allow for personality-based rule of law, which may cause rifts, enable retribution for previous personal conflicts, or even foster tribal favoritism. Although the Taliban have likely developed internal disciplinary mechanisms to manage such issues, the expansion of Taliban courts may complicate their ability to prohibit these practices, particularly outside of Pashtun-dominated Kandahar Province.

In addition, the Taliban will have to co-opt, marginalize, or co-exist with the informal dispute resolution systems that currently exist in Afghanistan—to include replicating the mechanisms that are working in areas outside of their control, such as mediation by elders, tribal leaders, shuras, and other trusted officials. Even during the Taliban’s regime, they was forced to acquiesce or negotiate with local elites and accept varying degrees of local autonomy, especially within more ethnically diverse areas such as eastern Afghanistan.

Furthermore, the insurgents are attempting to shift from the arbitrary measures that the Taliban used when they were in power. During the 1990s, the Taliban imposed their legal system through the Department for the Promotion of Virtue and Prevention of Vice, which operated a religious police force. The police were empowered to beat and jail offenders, often without any proof or any trial process. To prevent this from occurring again, the Taliban have taken measures to make their enforcement of Shari`a more standardized. For instance, the 2010 layeha (code of conduct) stated that no one is allowed to pronounce punishment decisions except Mullah Omar, his deputy, or a judge. This, however, will likely be difficult to implement throughout all areas of Afghanistan. Religious police have reportedly returned to remote Nuristan Province, for example, and are said to be enforcing arbitrary punishments for behavior without the ruling of judicial officials.[20] How the Taliban will regulate Shari`a in regions such as Nuristan remains unclear. In addition, even with standardization, some of the practices the Taliban employ will continue to be unpalatable to the outside world. For example, Taliban spokesman Qari Yousef Ahmadi rejected claims that the Taliban were involved in the August 2010 death of a woman who received 200 lashes and was shot for adultery based on the grounds that the proper sentence in accordance with hudud should have been death by stoning.[21]

Indications of an Expansion of Taliban Courts
During their regime, the Taliban operated 13 high or appellate courts in several provinces of Afghanistan.[22] Although the Ministry of Justice and the Supreme Court were located in Kabul, the most powerful institution was the Kandahar Islamic Supreme Court, which appointed qazis (judges) and provided bi-annual training and discussions on the application of Shari`a law. Given that Taliban Shari`a courts are already operational in the rural regions of Kandahar Province (where insurgent parallel governance is possibly among the most robust), and due to the proximity to Taliban senior leaders in Quetta, Pakistan, it is likely that initiatives to replicate the previous bodies will be launched from this region. The development and expansion of courts in Kandahar may be an insightful gauge of the capabilities of Taliban Shari`a systems. Indicators may include the establishment of appellate courts, the issuing of official or standardized summons, and possibly the operation of trials in open arenas or public forums (free from fear of ISAF or Afghan government retribution).

In addition, an expansion would see Taliban courts spread outside of the south, particularly in the more rural areas of Afghanistan, where the populace is often skeptical of the formal Afghan government court systems. In the cases where locals have accepted informal rule of law, the Taliban will look to increase their influence over these structures. Indicators of this may include co-opting or coercing local leaders, or even establishing power sharing agreements. Furthermore, although some Taliban courts may start off as roving, there is likely the intent to develop more permanent rule of law throughout the country. Indicators of this would be the naming of specific judges for a geographic area, and the creation of a court or possibly prison system in a dedicated building or facility.

Insurgents look to overthrow a government through a variety of methods, including armed conflict, as well as undermining its authority and legitimacy. While much is known about the military methods and tactics used by the Taliban against their opposition in Afghanistan, less is known about how they use subversion to gain local control. The establishment of Shari`a courts represents the foundation of what any insurgency is looking to accomplish: to challenge the authority of the government by making inroads with the local populace (in this case, through the provision of security and dispute resolution).

The Taliban likely recognize that their implementation of Shari`a in the post-ISAF period will not only help shape public opinion within Afghanistan, but also the international community. Given the desire to be recognized as a legitimate political movement, they may seek to formalize and adapt their practices so that they are more methodical and predictable.

Although the Taliban will promote their law and order agenda at first, a radical Islamist and draconian rule could emerge once enough influence or control is obtained, as it did in the 1990s. How, or if, the Taliban plan on preventing such a progression remains unclear. Examining the practices used by the Taliban will undoubtedly provide insightful indicators regarding the viabilities and capabilities of the insurgency, and will help to understand counterinsurgency writ large.

Jami Forbes is an analyst with the U.S. Department of the Army who specializes in studies regarding southern Afghanistan. She has traveled to Afghanistan on several occasions, and most recently spent several months in Kandahar Province.

[1] The shortcomings of the judicial system include limited access (particularly outside of urban areas), corruption, a lack of transparency, inadequate security, and a shortage of human capital.

[2] John Esposito, The Oxford Dictionary of Islam (Oxford: Oxford University Press, 2003); Joseph Schnat, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964).

[3] Hadith are the statements and actions of the Prophet Muhammad.

[4] There are several legal traditions, or schools of Shari`a thought. These include Sunni schools—Hanafi, Maliki, Shafi`i and Hanbali—as well as the school of Twelver Shi`a, Ja`fari. Most of Afghanistan and Central Asia fall under the Hanafi school, from which the Taliban take a strict interpretation. For more details, see Viktor Knut, Between God and the Sultan, A History of Islamic Law (Oxford: Oxford University Press, 2005).

[5] The hudud crimes are syrub (drinking alcohol), sariqa (theft), hiraba (armed or highway robbery), zina (illegal sexual intercourse or adultery), qadhaf (false accusation of rape), and irtidad or rid`a (apostasy or blasphemy).

[6] Peter Marsden, The Taliban War, Religion, and the New World Order in Afghanistan (Oxford: Oxford University Press, 1994).

[7] Ibid.

[8] Noah Coburn and John Dempsey, Informal Dispute Resolution in Afghanistan (Washington, D.C.: U.S. Institute of Peace, August 2010).

[9] Tom Blackwell, “Taliban Rule Returning to Kandahar,” National Post, October 2008; Tahir Khan, “Shari`a Court Ruling: Taliban Amputate Thieves Limbs in Herat,” Express Tribune, April 21, 2013; David Isby, Afghanistan: Graveyard of Empires: A New History of the Borderland (New York: Pegasus Books, 2011).

[10] Abdul Salam Zaeef, My Life with the Taliban (New York: Columbia University Press, 2010).

[11] Stathis Kalyvas, The Logic of Violence in Civil War (Cambridge: Cambridge University Press, 2006); Thomas Hobbes, The Leviathan (Cambridge: Cambridge University Press, 1996).

[12] “Land Issues Within the Repatriation Process of Afghan Refugees,” United Nations High Commissioner for Refugees, September 1, 2003.

[13] David Galula, Counterinsurgency Warfare, Theory and Practice (New York: Praeger, 1964); David Kilkullen, Counterinsurgency (Oxford: Oxford University Press, 2010).

[14] “Report on Progress Toward Security and Stability in Afghanistan,” U.S. Department of Defense, December 2012.

[15] “Corruption in Judicial System Leads People to Traditional Courts: Afghan Integrity Watch,” Tolo TV, February 19, 2013.

[16] Tom A. Peter, “Leery of Courts, Afghans Seek Taliban Justice,” USA Today, March 7, 2012; Dan Murphy, “Dent in Afghan War Strategy:  Why Kandahar Locals Turn to Taliban,” Christian Science Monitor, July 6, 2010.

[17] Ibid.

[18] “Why the Taliban are So Strong in Afghanistan,” BBC, February 2, 2012.

[19] Sam Siebert, “Has Mullah Omar Lost His Mind?” Daily Beast, October 15, 2012.

[20] Emma Graham-Harrison, “Taliban Enforcer Squads Accused of Ruthless Control in Nuristan,” Guardian, May 1, 2012.

[21] “Brutality Against Women Stirs Fear in Afghanistan,” National Public Radio, August 20, 2010.

[22] Ahmed Rashid, Taliban: Militant Islam, Oil and Fundamentalism in Central Asia (New Haven, CT: Yale University Press, 2000).

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