Reinventing the Rules
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A Controversial New Approach to Promoting Women’s Rights in Afghanistan
As many within the law and justice sector are calling for more rights-based programming, a new USIP report argues that the rule of law community should focus more on community-based approaches to increase access to justice. “Women’s Access to Justice: Individual versus Community Barriers to Justice” unpacks assumptions common among donors and NGOs and discusses why this is insufficient to sustain long-term reform. The report also discusses how successful justice reform depends on how open or closed the local community is to outside intervention (including the state and NGOs.) 
Additionally, the report highlights several barriers for women within family, community, and state dispute resolution mechanisms. Personally, I would’ve also liked to see something written about how the specific effects of war (notably for widows and women who have been impacted by enforced disappearances, extrajudicial killings, conflict-related trauma, etc.) impacts their ability to seek justice, but it’s still an interesting and thought-provoking report. Enjoy!
Common Rights Violations or Causes of Disputes: Divorce (frequently involuntary), domestic abuse, child custody, disputes over women’s inheritance rights, rape, forced marriage, and running away.
Divorce & Child Custody
The negative stigma for women who sought divorce was so great that it was a last resort and acceptable only in extreme circumstances. Despite suffering abuse, women may choose not to seek divorce out of concern for their children. Women who divorce risk losing custody of their children (who under Afghan law would remain in the custody of the husband’s family) or having their children viewed or treated with in the community as illegitimate. Even if women do keep their children after divorce, they may have no way of supporting them unless they remarry. In many instances, women seeking divorce are discouraged from doing so by their family, their community, and government officials.
Domestic Abuse & Running Away
Because of the stigma surrounding domestic abuse, even where domestic abuse is initially reported, women face continuous and significant pressure to drop their cases. Running away is not a crime under Afghan law, but it functions as one in practice. Women who flee their husbands or family are often arrested and prosecuted by law enforcement officials, typically charged either with moral crimes, such as adultery or attempted adultery. Stigma and shame may prevent women who run away from returning to their communities or contacting their families. If a woman cannot return home and cannot stay with the man she ran away with, she may be left without any social or economic safety net.
Rape
Instances of rape in Afghanistan are underreported because of social stigmatization, limited understanding of legal definitions and protections, and fear of being doubly victimized within the state justice system. Reports of government or law enforcement officials being tacit or complicit in perpetuating sexual abuse and assault are common. Women who have reported being raped have often found themselves being charged as accomplices to the rape and also guilty of a zina crime.
How Women Address Violations and Grievances
The mechanisms by which women can access justice exist on three levels: family, community, and external (that is, state mechanisms and other actors external to the community). Typically, women (like men) turn first to a family mechanism; if that fails, they turn to community mechanisms; if that fails, they may turn to an external mechanism.
Which mechanism a woman turns to often depends on the barriers to entry and the barriers to actually receiving justice. Barriers are categorized in this report as normative, consequential, or practical. A normative or cultural barrier might be that women do not raise a dispute because they want, or feel obliged, to conform with social and cultural standards of appropriate behavior or because the deeply entrenched normative views of women legitimize some violations of their rights.
Consequential barriers refer to situations in which a woman is deterred from bringing a dispute by the risk of consequences for her action. Such risks include physical abuse, potentially fatal in extreme cases, to herself or her children; loss of any means to support herself or her family; and loss of face and honor for herself or her family (which may also lead to abuse, even death, or economic consequences). Finally, practical barriers refer to obstacles such as not having the money to pay fees associated with a court dispute, the difficulty of traveling long distances to where a court or other help might be found, or lack of appropriate documentation to establish a case in court.
Cultural Norms & Barriers to Accessing Justice
Many of these barriers relate to deeply entrenched social norms, such as expectations and definitions of a good woman and the legitimization and internalization of domestic violence. Principles of tolerance, patience, and modesty are seen as important elements in distinguishing a woman’s character. Suffering, including that inflicted by one’s family, is often cited as a requisite or natural part of a woman’s life. A woman’s ability to tolerate and quietly persevere in the face of such suffering helps define being a good woman. Aspirations to meet these social standards deter women from making a complaint. These expectations lead a large number of disputes to be abandoned within the home before they are ever brought to another person or forum for assistance.
Women’s Acceptance of Violence
Prevalent social norms tend to accept these as appropriate consequences for what is deemed bad behavior. This acceptance of punishment makes women less likely to seek justice because they see these punishments as legitimate rather than as violations of their rights. In addition, even if a woman does recognize the violation of her rights and wants to object to or resist punishment, it is difficult for women to rebut the common wisdom that she must have done something to provoke violence.
Foreign Influence on Community-Based Mechanisms & its Impact on Women’s Access to Justice
In the past dozen or so years, the Afghan government and foreign donors have transformed existing shura councils or formed new ones to create and expand subnational governance structures, the most prominent of which are the NSP shuras. These semi-formal governmental bodies have become increasingly dominant in local dispute resolution. Many of these semigovernmental bodies are required to have a certain quota of female members or a certain level of female participation in decision making. Yet despite this, the majority of community forums to which disputes are referred consist entirely of local men.
In some of the participating research districts, all-female NSP shuras have been established. In districts where all female NSP shuras exist, or where women participate in NSP shuras, female interviewees tended to identify them as one of their first choices for dispute resolution outside the family. This is a positive development because it increases options for women to seek justice in their local communities and creates opportunities for women to be part of the process. On the other hand, government efforts to force communities to promote women to positions of authority by putting them on local NSP shuras has provoked a backlash in more conservative communities.
Why Women Avoid Community Mechanisms
Privacy: A woman may be deterred from raising a case before community mechanisms because she fears the consequences of going outside the home or does not believe that she will receive a fair hearing. Women interviewees said that they are uncomfortable at the prospect of sharing the intimate details of their lives with men who are not part of their family. Indeed, in communities where rigid gender segregation has been in place and women’s exposure to men has been restricted almost entirely to immediate relatives, the prospect of discussing personal matters with men unrelated to them is harrowing.
Stigma & Honor: Taking a claim outside the family to community mechanisms, can trigger very real consequences for women. These include social stigma or disapproval, physical violence, and loss of economic support or sustenance. Fear of these consequences can be a serious barrier against raising a claim with community mechanisms. Women in all five provinces said that taking a case outside of the home, even to another community member, would dishonor them personally and harm their family’s reputation or honor.
Discrimination: Community mechanisms also still mete out discriminatory and sometimes abusive punishments toward women; decisions are based on community compromise rather than rights enforcement, which is what some women want; and women are unable to represent themselves in many community forums, exacerbating existing inequalities.
Social Harmony: Community forums seek a sustainable compromise that will strike a balance between the interests of the parties; their primary concern is not necessarily enforcing an individual’s legal rights, especially not the rights of women. The lack of respect for women’s rights or wishes can range from counseling a woman who wants a divorce to continue trying to live with her husband despite abuse, to not respecting a woman’s inheritance rights, to sanctioning punishments against her for behavior that does not comply with community social norms but is not illegal under Afghan law.
Male Family Member Needed: In most communities, women reported being unable to approach shuras directly. Typically, a woman’s case is represented in a community forum by a male family member, such as a father, brother, husband, or uncle. This immediately puts a woman at a disadvantage if the perpetrator of rights violations is representing her or if she is lobbying for individual interests or rights not supported by her family.
Women’s Experiences with External & Formal Justice Actors
State: Reports of state misconduct, incompetence, and malfeasance are rife, ranging from pervasive corruption to officials’ lack of knowledge sufficient to perform their jobs competently, to predatory behavior against the population over whom state representatives have authority. Conservative views of women and discriminatory decisions and punishments are a major issue in state mechanisms, as they are at all levels. Legal aid workers and women’s rights activists have noted that even defense counsels may further deprive their female clients of their legal protections because they do not agree personally with a female client’s decisions or actions or have a poor understanding of her individual rights.
Shelters: Women who turn for help to women’s groups or shelters, are likely to find it extremely difficult to return to their former lives. The only option for many women who have run away from home, face extreme abuse and persecution, and have no other family support is to seek the assistance of a women’s shelter. A frequent consequence may be that a woman is cut off from her long-term support. Women may not be able to see or live with their families again because of notions of shame or dishonor associated with time spent in a shelter.
Although in many communities, shelters are controversial because the women taken in are perceived to violate social taboos, some shelters have been successful in winning local community support. Some shelters have also made headway developing positive partnerships with local authorities and police, which can improve the chances that women in extreme circumstances will be able to seek help without being doubly victimized.
Community Suspicion and Openness to External Intervention
Distrust seemed to be greater with state mechanisms than with nongovernmental actors, though this depended highly on local community values and preferences. That it does may stem from the perception that the government’s methods do not reflect local norms and values.
A community’s willingness to engage with state and external mechanisms varied greatly from one district to another and strongly affected how much the women in that community were able to access them. No single model of openness to state and external actors fits all communities. Instead, communities fall along a spectrum—from those that are relatively open to external intervention or assistance to those that are closed and discourage all members from seeking outside help. Most communities in Afghanistan are situated toward the closed end of the spectrum, in part for historical reasons and in part as a response to generations of conflict. Greater openness is to be found in urban areas; however, even urban areas contain some relatively closed communities
Relatively open communities tend to make greater use of services offered by NGOs, formal government services and institutions, and actors (even informal actors) in other communities. For example, in Herat City and the immediately surrounding areas, both men and women were relatively free to approach external actors, though women still faced greater stigma for doing so. In such communities, strategies of ensuring that legal resources are available to women are likely to have an impact. This research suggests that expanded access to these resources in the past decade in areas such as Herat City has significantly improved popular perceptions of external justice services and enhanced women’s access to external forums for rights protection.
Neglected Areas of Women’s Legal Aid
Often neglected in rights awareness and legal aid campaigns is that women typically lack the legal documentation necessary to establish legal protections. Nearly all the married women interviewed said that they did not have an official marriage certificate from the state. Women also faced bureaucratic or administrative barriers to seeking assistance within state forums when they did not have a tazkera (an official government identification card). Many women did have voter registration cards, but few had a tazkera, which is often needed to formally register cases or obtain government assistance.
Unpacking Assumptions in Women’s Rights Programming
Women’s rights programming in Afghanistan was based on assumptions that increasing women’s (and men’s) knowledge about their rights and improving women’s proximity to resources would enable women to access justice. These assumptions and subsequent programming need to be revisited in light of the findings about barriers to justice for women. Lack of awareness and lack of resources are certainly significant hurdles to women’s access to justice, but they are only part of the problem. Even when women are aware of and physically close to the resources, they often are prevented from using these resources or choose not to use them because of the individual and collective barriers described below.
#1) Women’s Realistic Appraisal of Options to Seek Justice
The prevailing family and community norms and the consequences for contravening those norms may have more of a limiting role than a woman’s level of knowledge. Certain decisions a woman may make may seem to forfeit her individual rights or protections and thus may appear ill-advised and the product of coercion or ignorance. Yet often these decisions are based on a rational and realistic appraisal by a woman of the limited opportunities to pursue justice and of the very likely consequences of choosing to do so. Even women who are well aware of their rights may rationally decide not to pursue them. An Afghan woman is more likely to weigh the potential consequences of her actions for her family and surrounding community members than a Western woman is.
This results in actions different to those that an individual rights-based perspective might anticipate. Community-based concerns—including the protection of her personal or family honor, the guarantee of custodial rights, and the security of the social and economic safety net woven by family connections—may be judged more valuable to a woman than her individual rights. Or the certain consequences of contravening social norms may loom larger than the benefit preferred by a woman’s rights in theory given the dim prospects for actually having those rights enforced in the available forums, whether through family, community, or state mechanisms.
What this suggests is that though awareness-raising, education, and the gradual norm change that such activities ideally encourage are core components of improving women’s access to justice, they are not sufficient in themselves. They can contribute to change over the long term but they may not change a woman’s ability to access justice in the short or medium term because of the many other barriers that may take much longer to break down.
#2) Nature of the Community Matters More than Proximity to Legal Aid
The second assumption underpinning women’s rights strategies has been that the availability and proximity of resources are the primary determinants of access. Since 2002, legal aid clinics, formal justice mechanisms, women’s shelters, and other resources have been provided on a geographic basis wherever funds and infrastructure were available. Although no sector or type of gender programming was able to cover all geographic areas, many programs have assumed that the impact would gradually spread like an inkblot. According to this theory, making legal services or counseling more available in one area and raising awareness of individual rights could increase access and spread awareness to neighboring areas, even if the programs did not directly engage those areas.
This research suggests that the inkblot theory of programming impact is misguided: The nature of the community matters more than its geographic proximity to services, information, or resources. For example, despite Paghman District’s immediate proximity to the city of Kabul, which has the country’s largest concentration of women’s rights resources, very few women in Paghman District accessed resources outside the immediate family or community. Local community norms were extremely resistant to members of the community going to outsiders for help and largely blocked any positive spread of rights protection to women in the community.
Moving Away from a Purely Rights-Based Approach
Where communities are completely closed to outside intervention or help, the collective barriers against going outside the community can restrict not only women but also men’s ability to reach state or external barriers. Collective barriers have important bearings for designing programming that can push further against women’s access issues and may explain at least some of the limitations that still exist despite great efforts and strides in women’s rights. The findings suggest that a purely rights-based approach to improving women’s access to justice, without consideration for the collective barriers, may have little impact—and in some instances may further ossify the gaps between communities and state resources and principles of justice.
This is not to suggest that women’s access to justice efforts should abandon the strategies that—by all evidence—have had a significant impact since 2002. That those interviewed noted some gains is a signal that some of these rights-based strategies may be succeeding, albeit gradually. Although this report is based on a recognition that community forums are an important part of the justice landscape in Afghanistan—and may become increasingly so—it does not suggest that the women’s rights community should switch tracks entirely to a purely community-based justice approach (a strain of programming that has already provoked a significant schism in women’s rights groups because of the adamant opposition of some to this approach). Instead, a strategy combining both approaches will be necessary to maintain existing gains and to breach the obstacles that most women still face.
Assessing Local Communities
In the future, the nature of the local community should affect the type of engagement strategy adopted. Evaluating the nature of the target communities should be the first step taken before any program is developed. One of the most important factors to assess is how strong the stigmas are within a given community against seeking outside help; in other words, one must determine where a community falls on the open or closed spectrum. In open communities, providing and expanding support via external mechanisms may help women because they will have some degree of freedom to access those resources. However, if strong collective barriers are present, as they are in closed communities, strategies that target women as individuals but that ignore the wider community will have only limited impact, and in some cases minimal impact.
Legal Aid for Minorities: For example, the minority Pashtun community within Aqcha District mistrusted all state actors and NGOs working with the government because the community perceived the government to be dominated by the local majority, non-Pashtun ethnic group and therefore to be biased against Pashtuns. Because of these community barriers, no individual in the Pashtun Aqcha community would consider resorting to outside actors (governmental or nongovernmental) to resolve a dispute or help address a problem. Women’s services might be available close by, and a woman might even know about them, but as a member of the Aqcha community, she would be unlikely to take advantage of them.
Legal Aid in Urban Areas: Even in relatively open communities, it is important to explore subcultures or smaller communities within the city where community barriers or social mores may limit access regardless of the openness of the surrounding urban community. If these barriers are not identified, then a large subsection of the population will struggle to obtain access to justice, even if resources are close at hand.
Why Gender Intervention Strategies Have Failed
Many gender-based intervention strategies in such communities have failed because they have misdiagnosed a large part (if not the largest part) of the problem by ignoring or underestimating the scale of collective barriers. In most cases, the collective barriers are stronger than the individual ones. Although collective barriers may not be based on gender, women may find them even more of a hurdle because of prevailing conservative norms. Where women’s rights programming seeks to work in closed communities, a narrow focus on women’s rights will be ineffective. Programming and awareness campaigns must broaden their focus and target the entire community, particularly men, to ensure improved access to or acceptance of external mechanisms by the community as a whole.
Recommendations
These revisited assumptions suggest a need for a slightly different strategy in the future, one whose underlying theory of change is based on a more community-specific and end user–focused strategy of access to justice. First, to the extent possible, greater efforts should be made to engage with community-level forums. Second, many of the existing strategies of awareness-raising should continue but with an understanding that they are long-term strategies, which must be committed to on a sustainable basis for years to come. Third, to the extent that engagement with formal and external mechanisms continues and is possible (which may depend on the reach and openness of successive Afghan governments), efforts should be made to break down some of the practical barriers to reaching state dispute resolution mechanisms.
Resistance from Afghan Women’s Groups
Many women’s groups have been reluctant to engage with community forums because many of those forums continue to resist the full application of women’s rights as outlined in Afghan and international law. These are valid concerns, but some engagement with these actors may be necessary to shift changes in norms in the long term. Trying to shift norms without engaging community actors and forums as part of a rights-based strategy may slow the pace of long-term change by creating short-term resistance and blowback against what are perceived as outside or Western norms—resistance that is likely to strengthen—as the international presence in Afghanistan diminishes. Understanding community perceptions and norms before trying to shift them will help practitioners target diminishing resources more strategically. Some women’s rights groups and legal aid organizations have recently invested more time and effort in engaging religious leaders and progressive mullahs, helping them to be advocates or to help in community rights outreach.
Reinventing the Rules 