“Negotiating Survival”: Book Symposium – The Normative Dimension of Rebel Governance in Afghanistan

About the author(s):

Rene Provost

René Provost Ad.E. FRSC is Professor of Law at McGill University, where he was the founding Director of the Centre for Human Rights and Legal Pluralism. His books include: Rebel Courts – the Administration of Justice by Armed Insurgents (Oxford University Press, 2021); International Human Rights and Humanitarian Law (Cambridge University Press, 2002); State Responsibility in International Law (Ashgate/Dartmouth, 2002); Mapping the Boundaries of Belonging: Law Between Religious Revival and Post-Multiculturalism (Oxford university Press, 2014); Culture in the Domains of Law (Cambridge University Press, 2017); Confronting Genocide (Springer Verlag, 2011); and Dialogues on Human Rights and Legal Pluralism (Springer Verlag, 2013).

Ashley Jackson’s book, Negotiating Survival: Civilian-Insurgent Relations in Afghanistan, is an important contribution to the way we understand armed insurgency. It challenges a vision of the absolute centrality of kinetic violence in insurgency to draw attention to the significance of more subtle power dynamics between rebels and the civilian population. In its approach, in its focus, and in its claims, it stands apart from existing literature in the burgeoning field of rebel governance and in the established field of counterinsurgency. Although the book is entirely unconcerned with legal aspects of this reality, I will aim to show that international lawyers have much to gain from Jackson’s analysis.

A first comment speaks to the approach taken by Jackson in her book, combining data obtained from considerable field work over several years in Afghanistan with an informed conceptual and critical analysis. The data on which the analysis is based is absolutely remarkable. Jackson spent more than a decade in Afghanistan, first working for international organizations and then doing fieldwork for the doctoral thesis on which the book is based. Because the focus of the book is on the ability of civilians to negotiate with the Taliban, the information she sought to obtain relates to areas of the country that were not, or not completely, under government control. She reports having completed a staggering 418 interviews of Taliban fighters and civilian in 34 provinces between 2017 and 2019, resulting in a dense and rich qualitative picture of insurgent-civilian relations. One has to appreciate how difficult and time-consuming it is to arrange for an interview in a context like Afghanistan, in which danger, distrust, and distance combine to erect enormous barriers. As Jonathan Goodhand (2000) and Elisabeth Wood (2006) have noted, it is not necessarily impossible to carry out ethnographic studies in conflict zones, but there are significant practical, methodological, emotional, and ethical challenges. Jackson notes that the war in Afghanistan is one of the most researched armed conflicts, but that much of the studies are carried out without the benefit of any field work. This echoes the warning by Stathis Kalyvas (2006) that writings on war often suffer from urban bias (civil wars are mostly analysed by intellectuals in cities writing about peasant rebels in the countryside) and partisan bias (feeling more sympathetic to one side than the other), both of which appear very relevant to studies of the Taliban in Afghanistan.  I have done some field work on non-state armed groups in zones of conflict, nothing that can compare to what Jackson accomplished in Afghanistan but enough to be impressed by her courage and determination. Given the inherent unpredictability of violence in war, Jackson might also be a good person to bring with you to buy a lottery ticket. 

View from a rural road through Shahri Buzurg district in the northern province of Badakhshan, June 2010.

Completing interviews and gathering data is one thing, knowing what to do what that mass of information is another. The focus of Jackson’s study, negotiations between insurgents and civilians, is a concept sufficiently vague that it would not have translated into an obvious structure. As attested to by the long bibliography at the end of the volume, she researched very thoroughly the relevant literature on Afghanistan, on negotiation, on rebel governance, and on counterinsurgency to construct her concept of insurgent-civilian negotiations. The only important source that struck me as missing from the book is the equally exceptional work by Adam Baczko (2021) on the administration of justice by the Taliban, an omission explainable either because his book came out after Jackson’s manuscript had gone to press or because it is written in French. Baczko’s book offers a sociological approach to Taliban justice that complements well Jackson’s political science analysis of civilian-Taliban relations more broadly. Turning to form, there is always a temptation, to my mind to be most often resisted, of separating the descriptive from the analytical.  Such a separation can make for a neater text in which there is narrative coherence within each segment, but at the cost of having a description that fails to be informed and explained by conceptual insights and an analysis that fails to be enriched and grounded by factual refinements. Negotiating Survival navigates between these academic Charybdis and Scylla to offer instead a compelling study which seamlessly marries conceptual and critical arguments with detailed and compelling notes from the field. The result is a text that articulates an engaged and serious argument as to the nature of civilian-insurgent relations in the specific context of the war in Afghanistan.

A second point concerns the focus of Jackson’s book, the messy and apparently incoherent nature of relations between the Taliban and the civilian population in Afghanistan. The ambition here is to provide a picture, so to speak, from the ground up. While it is often remarked that the history of war is written by the victorious side, less attention is paid to the fact that the perspective in which this history is rooted in modern history is that of states. Even when looking at civil war from an insurgent perspective, the classical texts on insurgency from Mao and Che Guevara that are routinely cited (even by me) hail from individuals who were on the winning side, by that point also forming the state. The civilian in war is a silent figure, the target of violence and the object of protection, presumed to lack any meaningful agency. In a counterinsurgency perspective, the ‘hearts and minds’ of the civilian population are something to be acted upon, rhetorically reduced to a ‘human terrain’ in which the military operates. Recent literature on rebel governance, in particular the work of Ana Arjona (2015) and Nimmi Gowrinathan and Zachariah Mampilly (2019), has challenged this understanding of the civilian as a fundamentally passive actor, to show that civilians can have agency allowing them to negotiate, resist, and sometimes even block insurgent action. Negotiating Survival applies and develops these ideas to an extent never attempted before, by surveying the multifaceted reality of civilian agency over a period of several years in nearly all regions of a single armed conflict. The result is not any kind of key system that allows to predict when and to what extent civilians will be able to negotiate or resist armed insurgent governance, because such systematisation appears unrealistic due to the high number of variables involved. Instead, Jackson opens a vista to a much deeper understanding of the dynamics of war in situations in which armed groups exert authority over a civilian population.

Ashley Jackson is not a lawyer, and the analysis she offers of the status of civilians and their relations with the Taliban in Afghanistan makes no reference to applicable legal standards, including international humanitarian law. Like Monsieur Jourdain who spoke prose without realising it in Molière’s Bourgeois gentilhomme, Jackson speaks law without realising it, or at least offers many insights that are relevant to legal analysis. To begin with, the silencing of the civilian that she challenges in her study is echoed, and possibly amplified, by the place of the civilian in humanitarian law. Unlike international human rights law, imagined as a regime that grants individual right to all persons so as to empower them to resist abuses by the state, humanitarian law operates largely through the imposition of individual duties on those wielding power over others, including over civilians (Provost 2002). Indeed, even insurgents remain an ambiguous, semi-mute figure in the legal regulation of non-international armed conflicts. As noted in feminist critiques of humanitarian law by, among others, Judith Gardam (1993) and Helen Kinsella (2011), international humanitarian law as a whole is constructed around the image of the (state) combatant, presumed to be male; the civilian is never defined in the Geneva Conventions and Protocols, its identity being determined by the negative condition of not being a combatant (Art. 50, Additional Protocol I). The civilian is but a mere shadow of the combatant, a diaphanous figure to which it is difficult to attach agency. The normative haziness is even more pronounced in the regulation of non-international armed conflicts (like most of the war in Afghanistan), in which the legal concept of the combatant itself becomes elusive, further dematerialising that of the civilian. The call issued by Jackson to acknowledge the reality of the agency of civilians in their relations with armed groups is one that international lawyers should also pay heed to so as to take account of civilian agency in the legal construction of war. 

This brings me to a third and final comment on Jackson’s claim that civilian agency in negotiating with insurgents is significant and should be taken into consideration. Throughout the book, there are occasional references to Taliban courts as one of the theatres in which such negotiations play out. The administration of justice by non-state armed groups in conflict zones in a frequent phenomenon that has received scarce academic attention in general, smothered by the generalised strident denials by governments in all conflicts that ‘kangaroo courts’ run by insurgents are just a parody of justice. This reflect a claim by governments that the rule of law implies a monopoly for the state in the administration of justice properly so called. In a monograph on Rebel Courts (2021) which I published recently, I have sought to offer a legal analysis of the rebel administration of justice combined with a series of case studies that includes the Taliban court system. Studies of Taliban justice by Ashley Jackson and Florian Weigand (2020)Antonio Giustozzi (2012), and Baczko’s book mentioned earlier, make the point that justice was an early and important public good that the armed group offered the civilian population when asserting its authority over an area. Unlike many other public services, justice was relatively simple and inexpensive for the Taliban to offer, and it matched an important need of the civilian population given the thoroughly corrupt, ineffective, and slow nature of the official court system of Afghanistan. Far from a problem, the fact that Taliban courts applied Sharia was an asset, as it relied on principles that were culturally and morally familiar to a peasant population living in the countryside. Thus, many ordinary Afghans had a mostly positive view of Taliban courts, even if they objected to some of the harsh penalties imposed for some ‘crimes against virtue’. It goes without saying that minorities persecuted by the Taliban and women did not necessarily share in this positive view of Taliban justice. 

For the Taliban, as for other armed groups in different conflicts, the administration of justice is a performance of public authority that can both cement their control over a population and assert the legitimacy of their insurgency. One point that is not developed by Jackson in Negotiating Survival is the idea that, once a legal order is established, it can never be a device corresponding to the unidirectional imposition of power. The parallel to make is with the role of law in the imposition of colonial rule: while law is described as having been the cutting edge of colonialism (Chanock 1985), it generated a complex dynamic of power that allowed colonised peoples to ‘negotiate’ in ways that recall Jackson’s description of civilian-insurgent relations in Afghanistan. This is not to deny that law served as the handmaiden for colonial oppression, but to note that courts created by colonial authorities could at times be instrumentalized by colonised peoples and thus become arenas of resistance (Merry 1991). Likewise, there is a normative dimension to the negotiation taking place between civilians and insurgents in the context of rebel courts: while the Taliban sought to impose its rigid interpretation of Sharia, all law is ineluctably modulated by its invocation and application, shaped by the claims presented by civilian parties appearing before Taliban courts and influenced by non-legal cultural practices (Fuller 1969). Far from a monolithic vector of Taliban authority, Taliban law was plural and fluid. Jackson comments several times in her book that the dynamics of civilian-insurgent negotiations in Afghanistan varied from place to place and over time, variations that will be crystallised to some extent in the law applied by Taliban courts.

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