Ozair Khan, researcher at the Cordoba Peace Institute, reviews Adam Baczko’s book La guerre par le droit – Les tribunaux Taliban en Afghanistan (War through Law – The Taliban Courts in Afghanistan).
It’s been a year and a half since the Taliban takeover and the literature investigating the debacle of the US-backed government is slowly but surely developing. Already a year after the Taliban toppling of the Ghani government, the French sociologist Adam Baczko published, in September 2021, La guerre par le droit – Les tribunaux Taliban en Afghanistan (War through Law – The Taliban Courts in Afghanistan): a book offering key insights into understanding the slow but steady rise of the Taliban.
Baczko argues that the Taliban mostly won the war thanks to the efficiency of their judicial system in the territories under their control, which kept expanding over the last decade. At its heart, this book is a veritable condemnation of the post-2001 regime, whose justice system was riddled with corruption. To write this fascinating book, Baczko spent several years conducting field research in Afghanistan from 2010 to 2016, interviewing many Taliban judges, community leaders, regular Afghans served by the Taliban judicial system, and actors of the Western intervention. Despite how scholarly, timely, and meaningful this book is, it received little attention in the Anglosphere, where it was most pertinent.
The book covers three main themes:
- The judicial insecurities under the post-2001 regime
- The structure of the Taliban judiciary
- The restructuring of the social order through Taliban rule
Part I: Judicial insecurities
The advent of Jihad resulted in the transformation of Afghanistan social organisation, bringing with it judicial insecurities. Baczko illustrates this issue with various problems related particularly to land tenure, (p. 84). Ownership of many lands is disputed due to extensive population movement and displacement. Many assumed that with the post-2001 government in place, they could reopen juridical procedures. However, disillusionment quickly sunk in due to the inefficiency of the legal system. Baczko offers a good overview of the dysfunction of the Karzai and Ghani regimes: only 3% of total funds were for the judiciary (against 6% for mine clearance), 45% of judges did not possess law degrees and 57% of judicial buildings having to be built from scratch (p. 120-121). Moreover, Afghan courts were often not accessible to the Afghan layman due to their cost, widespread corruption, and the chronic failure of the police in the practical enforcement of court decisions (p. 126).
Baczko furthermore points to some of the missteps. Italy, for example, with little acquaintance with Afghanistan and its customs, was tasked with supervising the establishment of a functional judicial system (p. 115). He also argues how the international community sabotaged instituting a strong judiciary it was otherwise, at least in theory, mandated to create. He recounts that member states, for example, tried to help the newly established Karzai government circumvent the judiciary on many occasions to further their own interest, such as by pushing labour and commercial code reforms during the parliamentary break (p. 115). Meanwhile, Western forces protected themselves from and remained outside any legal framework, especially in their campaign of targeted eliminations (pp. 145-151).
According to Baczko, at some point, the Western states involved in Afghanistan realised how the judicial system was ineffective and gave up hope of reforming it; it decided to deal directly with local magnates, including warlords. Baczko narrates that the West injected millions to promote an orientalised vision of customary law with Jirgas and Shuras (pp.159-160). He affirms, however, that this didn’t amount to much since there was no coordination between parties (p.164). There were too many local councils, so if an individual did not find a jirga’s decision satisfactory, he could always go to another.
Baczko quotes US General McChrystal, who conceded that the Taliban became increasingly popular, even amongst people who did not entirely support them, due to the greater effectiveness of their judiciary (p. 158).
Part II: The Taliban judicial structure
Baczko explains that the Taliban do not see their re-emergence as a break from their previous regime but rather a continuation of their last Emirate. He points to how the judicial structure in the controlled territories was similar to the militant group’s centralised system from 1996 to 2001. The Taliban were therefore already accustomed to running a judicial system. Thus, their courts’ judgments were highly predictable, and plaintiffs and others seeking Taliban arbitration largely knew what to expect.
Baczko explains that, contrary to what some Western social scientists theorise, civil war does not necessarily and by default entail lawlessness. The Taliban-controlled areas after their comeback in the last decade are an excellent anti-thesis example. The court system in Afghanistan was fairly traditional, with courts of first instance, provincial courts of appeal, supreme courts, and courts of cassation. Besides, the judges’ selection was highly standardised. They were almost all graduates from Deobandi institutes in neighbouring Pakistan, meaning they all studied the same curriculum (p. 202). Moreover, to ensure impartiality in their judgments, the Taliban authorities required the judges to rotate every few months.
Although more effective than Kabul’s, Baczko nonetheless details the deficiencies of the structure of the Taliban judicial system . A main concern is that judges were not included in the most critical of political affairs, decided by the highest Taliban body: the Leadership Council, otherwise known as the Quetta Shura. Some of the judges also admitted they had to learn the job on the spot, saying there was much of a difference between learning the theoretical aspects of law and actually applying it. However, the most constraining matter for the Taliban magistrates was the absence of a dedicated police force. Therefore, they depended on military commanders to apply sanctions, although the judges were supposed to monitor these military commanders’ actions, which were sometimes young and out of control (p. 265).
Part III: Restructuring the social order through law
One of the most potent effects of Taliban rule on social order, according to Baczko, is centralisation. As mentioned, the Taliban judicial structure is centralised. The Taliban notably tried to control independent behaviours within its movement as much as possible. For example, to have a minimum level of coherence within the movement, its direction integrated strong and rather independent commanders in their supreme instances (pp. 269-270). Another case of social restructuring tightly linked with centralisation, according to Baczko, is the imposition by the Taliban of a national identity like the pre-Soviet period, which downplayed ethnic divisions, albeit this nonetheless favoured the Pashtuns (p. 295).
At the beginning of the book, Baczko addresses the historical evolution of the ethnic and national dimensions of the Afghan identity. For many decades before the Soviet invasion, previous Pashtun leaders of Afghanistan did not generally perceive Pashtuns (ethnic Afghans) as the sole claimants of the wider national Afghan identity. Still, Pashtun dynasties had ruled Afghanistan since 1747, thus exercising greater defacto authority at the expense of other ethnic groups. The Soviets were amongst the first to promote ethnic identities ‘to divide and conquer.’ During the intra-mujahideen civil war, warlords increasingly relied on using ethnic affiliation to foster their support bases and the post-2001 regime buttressed this feeling by divvying up shares of government along arbitrarily defined ethnic quotas. The Taliban, for their part, returned to a pre-1979 understanding of national identity, making particular effort to emphasise Islam as the main factor uniting Afghans. They never claimed to be a Pashtun movement, although, in practice, a byproduct of the group’s southern origins meant that most of its adherents and heads were Pashtuns.
Baczko highlights that, for the Taliban, law is essential because it is a moralisation project. Only with a truly moral community, per the Taliban worldview, would God grant durable peace to Afghanistan. Due to the inherently religious character of these courts, religious capital was now considered the principal social capital to work one’s way up in the administration. Baczko points out that because these men of law judged per Islamic rules, their decisions were invariably harder to challenge (p. 309)
Baczko is quite critical of Western propaganda on the harsh nature of the Taliban movement in trying to bend society to its image. He asserts that researchers cannot limit themselves to the discourse of liberals in Kabul; this invariably painted a predictable picture of the Taliban as oppressors, preventing researchers from comprehending how the Taliban gained more and more territories over the years through the effectiveness of their courts. With this in mind, Baczko dedicates a few pages (pp. 97-104) to women-related issues and how each Afghan regime has historically used women’s fate to justify their policies.
One of the communists’ main arguments for their efforts was to liberate women from backward traditions (p. 97) Then, the anti-Soviet mujahideen of the 1980s wanted to give back women their honour which was soiled by communist forces (p. 98). Later, the US-led Western intervention in 2001 was justified partly in hindsight to better women’s conditions. Women’s rights were instrumentalised, and the women in burqa symbolised women’s suffering. For Baczko, this is rewriting from the West. He laments how wrong it is to solely blame women’s current situation on the Taliban and not mention the overall social disruption since the Soviet invasion (p. 101-104).
As for women’s lived experience under the Taliban, he reminds the readers that the Taliban originally were a movement to safeguard women’s integrity and private spaces against feuding warlords. The byproduct of this was the Taliban keenness, overbearing for some, on regulating women’s conduct (p. 101). Baczko also argues that, contrary to widely held belief, many of the Taliban regulations were not new, but aligned with measures advocated by Burhanuddin Rabbani and Ahmad Shah Massoud, the latter especially romanticised by Western media following his death in 2001 (p.103).
Baczko touches on how under the Taliban, women were essentially deterred from accessing judicial courts since they could not visit the courts without a male guardian. However he also clarifies some misconceptions put forth by the West. He describes a difference in the level of social engineering between major cities and villages. The Taliban were much stricter in big towns, which they perceived as being susceptible to Western influence, whilst in the villages, they proved far more flexible (p. 104). They most notably tolerate women working outside, such as in fields, and not wearing traditional burqas. Therefore, for Baczko, only between 40,000 to 150,000 women in ‘Westernised towns’ suffered the most restrictions due to their lack of employment opportunities (p. 102).
In his book, Baczko also focuses on the evolution of the Taliban’s decrease in strictness in their rulings. For example, he mentions that the Taliban do not want to be on the margins of the international community due to their links with Al-Qaeda; their judicial system was thus solely geared towards Afghan challenges (p. 202). To also prove this evolution, he cites the Taliban’s growing willingness to recognise international humanitarian law since, throughout its various edicts, the fate of non-combatants is increasingly cited. There is also a further emphasis on the impermissibility to attack schools or clinics and that NGOs were now allowed to work on their territories (p. 219). The Taliban started increasingly using rhetoric pertaining to human rights, to the point that half of the declarations on their website were related to this issue (p. 221).
The Taliban’s aim to reform society also came by prohibiting certain customs found within Pashtunwali. Theoretically, Mullah Omar officially banned any tribal custom conflicting with the Sharia. However, Baczko narrates specific cases where local judges faced with the pressure of applying strict provisions found in Islamic scriptures like in the case of adultery, reverted to using more lenient rulings found in Pashtunwali to avoid tensions locally (p. 246)
Baczko narrates the decreased application of the infamous edicts on beard size in the 1990s, indicating an apparent change of attitude in the face of widespread public resentment (pp. 312-313). The enforcement of capital punishments for higher crimes such as fornication, however, especially in rural zones, were widely approved of (pp. 316-317).
The book is a fascinating read. Baczko, to the point that some may accuse him of over-indulging the Taliban, remains rather impartial in his assessments. Another excellent aspect of this book is that it is accessible to any reader unfamiliar with the country’s history. Afghans and students of contemporary Afghan history would enjoy reading the book.