Pashtunwali: Rule of Law?

Purple Pashtun

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This post is merely an inquiry. Yesterday, I blogged on Philip Bobbitt's "New Rules of Engagement" and openly wondered if about his central statement. As I expressed this:

He says that our war aim is "is the protection of civilians within the rule of law," and he adds that "this is what General Petraeus realized was necessary in Iraq, and it is what General McChrystal has testified will be his goal in Afghanistan."

I then asked:

Is rule by Pashtunwali, for example, rule of law?

I would think not since Pashtunwali is customary law, but I don't really know very much about it. I looked briefly into this issue today and found reference to an article by Mark A. Drumbl titled "Rights, Culture, and Crime: The Role of Rule of Law for the Women of Afghanistan" (Columbia Journal of Transnational Law, Vol. 42, No. 2, January 2004). I haven't read this article, but I did find a summary, which includes the following:

There is . . . a role for rule of law in redressing the longstanding abuses suffered by the women of Afghanistan. However, as I have argued elsewhere, the justice emanating from foreign or international legal interventions often becomes externalized from the societies that this justice is intended to assist. One way to mitigate this externalization is to embed international norms within local contexts, perhaps through the use of ordinary local justice mechanisms. In the case of Afghanistan, however, the invocation of ordinary local law -- whether substantive or procedural -- to punish perpetrators of gender crimes may prompt troubling outcomes. In Afghanistan, local justice involves a fusion of Islamic and customary law that responds to and reflects endemic cultures of war. In the majority Pashtun community of Afghanistan, this customary law is called the Pashtunwali. The Pashtunwali resonates among certain local constituencies as legitimate local law. However, the punishments and reparations it imposes on systematic human rights abusers themselves amount to human rights abuses, particularly against women. For example, conveying women as chattel among clans constitutes a preferred form of reparation under the Pashtunwali for a broad array of human rights violations. For those women who are so conveyed, the Pashtunwali creates a situation of sexual terror in the name of pursuing accountability for prior wrongs.

This passage does not explicitly address the issue of whether or not Pashtunwali is in some way a "rule of law," which I doubt, but it does focus upon a dilemma posed by current ideas on dealing with insurrection by providing protection for the population. For the Nato forces in Pashtun regions of Afghanistan to be accepted as offering legitimate protection, local Pashtun custom must be respected. Yet, in protecting the a local population against insurgent terror, the Nato forces must accede to what Drumbl calls customary "sexual terror" against women. As he states the dilemma:

At the present point in time, the incorporation of the local in the adjudication of mass violence in Afghanistan is itself a form of mass violence.

Drumbl was writing in 2004, but the dilemma remains. However, he expresses guarded optimism:

By way of conclusion, this Article suggests ways to reframe the dialog to circumvent this impasse. A helpful starting point is to recognize that religion and culture in Afghanistan are neither static nor immutable but, in fact, are politically contingent, and, as such, are informed by power structures. Present power structures are patriarchal, exclusionary, and totalitarian. One way to reframe the dialog is to generate change within local communities toward representative procedural access, including what Madhavi Sunder calls a right to culturally dissent. Norms cascading from this generated change, in turn, could facilitate the input of all members of local communities in the construction of local law. International interventions that encourage such procedural openness could permit interested local constituencies to claim international norms within the framework of customary and religious communities.

The idea of "procedural openness" is one concept among many in the modern understanding of "rule of law," so Drumbl would appear to be counseling patience in handling the dilemma.

That might involve a lot of patience.