Rights, Culture, and Crime: The Role of Rule of Law for the Women of Afghanistan.

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.