Justice takes on a different meaning in Afghanistan

Banishment or public execution. These are the two punishments being considered for eight humanitarian aid workers on trial in Afghanistan for allegedly preaching Christianity.

City of Kabul

Experts say such judgments are commonplace in Afghanistan, where the ruling Taliban enforce their power with a judicial system that bears little likeness to the legal structures of Muslim states in the Middle East, much less to Western practices.

"It is not mainstream Islamic law or courts and it doesn't seem to jive with anything we know," said Padideh Ala'i, associate law professor at American University's Washington College of Law. "I'm not qualified to read their minds and I don't know anyone who is at this point."

The country has no codified statutes. Instead, its religious leaders — known as mullahs — produce occasional edicts on which activity is criminal and which punishments should be levied for infractions. For the crime of proselytizing, Taliban spiritual leader Mullah Muhammed Omar has given contradictory instructions; once he said offenders should be deported, and once he demanded their execution.

When the Taliban came to power in Afghanistan in the mid-1990s, the leaders promised to produce a constitution that would spell out how sharia law — legal and cultural practices set out in the Koran — would be enforced. But the Taliban never wrote a constitution, and experts say the judicial system that has emerged is based more on tribal culture than Islamic practices, and enforced more for political than religious reasons.

"It's kind of a folk culture interpretation of sharia law. It has as much grounding in cultural practices of a tribal society as in a religious approach," says Thomas Gouttierre, director of the Center for Afghanistan Studies at the University of Nebraska.

Azizah al-Hibri, professor of Islamic law at the University of Richmond, Va., notes that every country in the Islamic world has a judicial system that reflects both native culture and religious dictates. "But the Taliban are caught in the culture of a day and age which is different from the modern world," she says.

In criminal proceedings, this usually amounts to a group of officials serving as prosecutor, judge and jury. They weigh the evidence on a largely ad hoc basis and proscribe punishments based on edicts from the Taliban mullahs.

"This is rule by man rather than rule by law. The judicial system comes down to a group of elders and clergy making decisions," says Gouttierre. "And a lot of these people don't have any schooling. There's a lot of interpretive law based on personal judgments."

The system of punishment relies heavily on the doctrine of "an eye for an eye." The hands of thieves are cut off. Murderers are usually executed, with the kin of their victims dictating the means of punishment and sometimes even carrying out the sentence themselves.

For crimes in which the punishment is not so clear, the Taliban's mullahs convene to consider the proper sentence.

"We have a dilemma on this," the Taliban announced in one edict concerning the case of two men found to be homosexuals. "The difficulty is this: One group of scholars believes you should take these people to the top of the highest building in the city, and hurl them to their deaths. [The other group] believes in a different approach. They recommend you dig a pit near a wall somewhere, put these people in it, then topple the wall so that they are buried alive."

These punishments are almost always public spectacles. Executions are often carried out in town squares, or, in the case of large cities, in sports stadiums.

Laws in Afghanistan are enforced by the Taliban's Ministry of Virtue and Vice, whose agents patrol the cities carrying whips and automatic rifles, looking for violators and making sure that people attend prayers at their mosques.

Experts say these draconian tactics serve to ensure law and order as much as to inculcate morality in the populace. Throughout their history, the Taliban have been fighting a civil war with a group of rebels called the Northern Alliance. With the risk of instability always present, the Taliban have tried to ensure their own survival by curtailing the possibility of civil unrest.

"The judicial system is a tool of the regime, because they have a political agenda. They say that the law informs their program. I think their program informs the law," says al-Hibri.

Afghans have no freedom of speech, press, assembly or association. There is no constitution, although leaders promised to enact one after seizing power. Instead, the Taliban's mullahs have steadily produced edicts curbing freedoms. These restrictions address a wide assortment of activities.

It is illegal to possess photographs or a television. Nonreligious music is strictly prohibited, as is dancing.

Kite flying was banned in one edict, because of its "useless consequences such as betting, death of children and their deprivation from education."

But the harshest of all these prohibitions concern Afghan women. They are deprived of schooling and instructed to make themselves as invisible as possible by covering their faces and remaining indoors.

"Women, you should not step outside your residence," the mullahs ordered in another edict. "If you go outside the house you should not be like women who used to go with fashionable clothes wearing much cosmetics."

All these restrictions combine with the country's nearly nonexistent economy, experts say, to reinforce the sustainability of the Taliban's legal system. With little social activity to speak of, and even less economic infrastructure, there is less need for a system of law that can regulate them.

"Afghanistan is no longer a country with a developed economy or social life," notes Tayeb El-Hibri, director of the Middle Eastern Studies Program at the University of Massachusetts." It doesn't have the type of complexity that other Middle Eastern countries have regarding reconciling business or lifestyle practices with religion."