Source: (2004) Columbia Journal of Transnational Law. 42:100-140. Downloaded 19 October 2005.

This Article explores the role of rule of law in redressing crimes and human rights abuses committed against the women of Afghanistan. Mainstream discourse approaches the situation binarily, obliging women to choose between international and often distant human rights, on the one hand, or proximate cultural/religious norms, on the other, in order to adjudicate gender crimes. This can lead either to externalized justice or, in the case of the implementation of Afghan local law, to renewed victimization of women in the name of redressing abuses suffered by other women. Local law in Afghanistan is reflected in codes such as the Pashtunwali. The Pashtunwali consists of a blend of custom and practice that emerges from a context of embedded conflict and is filtered through an Islamist lens. The Pashtunwali propounds a restorative approach to human rights abuse in which the abuse is rectified when the family of the abuser transfers money, goods, animals or, preferentially, young girls or women to the family of the abused. Drawing from recent literature on law and culture, this Article posits that custom and culture in Afghanistan as operationalized through the Pashtunwali are politically contingent (and at the moment defined by patriarchal elites) instead of statically or immutably oppressive to women. If thoughtfully constructed, transitional justice institutions can play an important collective role that transcends the adjudication of individual guilt or innocence. They can pluralize the number of domestic actors that contribute to the definition of customary and cultural norms. This implies that transitional criminal interventions could play a democratizing role insofar as they could advance claims by all members of local communities to a right to involve themselves in the formulation of customary law. In the end, this Article links transitional criminal justice to the innovative conception of freedom within culture, instead of freedom from culture. Author’s abstract.

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