Courts and counter-insurgency


When I saw the cover of this book, my starting assumption was that this was one of those studies you sometimes come across in which the author tries to think about the law as a means towards revolution, maybe drawing on such traditions as those of the barefooted lawyers who advised the early workers’ movement, or the Wobblies, or the likes of the Chicago 7 and their attempts at breaking judicial power in the 1960s.

Such a book would have its purposes, but Ledwidge’s is something very different, almost the exact opposite. A former barrister and former military intelligence officer, he is writing for the benefit of occupiers, imperialists and those employed in the counter-insurgency sector. He is trying to explain to technologists of counter-revolution how to do their job.Ledwidge’s real interest is in empire.

The secrets to making British or US power work, he argues, are a) a certain strategic caution, and a refusal to apply authoritarian strategies openly (a key instance, alluded to in the book but not really set out is the failure of internment in Ireland in the 1920s and 1970s), and b) the active promotion of courts and judges. Occupation works best when imperial powers encourage the existence of courts which can hear people’s ordinary disputes (about crimes, the distribution of resources, etc.) and those courts acquire a reputation for a minimum robust fairness.

Chapters deal with such topics as the creation of Dail courts by Irish rebels in the 1920s, attempts at justice in revolutionary Latin America, courts under ISIS. But I have been reading Ledwidge’s book more because of what he has to say about Afghanistan, where he served in Helmand with the brief of establishing a court system.

On his account, at no point did UK ministers, civil servants, or military officers have any knowledge of the country they were ruling, nor did many speak its languages, nor did they have any interest in the people they ruled. As they saw it, they had no choice but to support a government which was widely despised, and its courts although they were notorious for delays, and for the openness of the judges to bribery.

Alongside petty crime, Ledwidge argues, and the widespread abuse of women, the primary grievance of ordinary Afghanis concerned laws, still on the statute book but dating back to the period of Communist rule, permitting the distribution of land, which had been used by the government and its allies to expropriate the land of ordinary Afghani peasants. As far as most people were concerned, there was simply no prospect of using the existing US- and UK-backed courts, to get their land back.

On the other hand, the country also had – right through the period of US occupation – a fully-functioning shadow system of Islamic courts, backed up by Taliban guns. Some of the most interesting parts of the book concern how those courts have been used, often by people with no ideological interest in the Taliban programme, to obtain justice.

As an example, Ledwidge describes a dispute which began when a woman accused her son in law of marrying her daughter without paying the bridal price. The woman said that the man had had sex with her daughter without a lawful service, i.e. had raped her. (He had in fact paid the dowry). She took the matter to the US-backed authorities. The local police officer accepted a bribe and therefore arrested the man, punishing him by beating and raping him. Shortly afterwards, Taliban supporters murdered the corrupt police officer. In the affected community, this was widely perceived as a step towards justice.

The Taliban, he argues, wanted to maintain their relationship for moral purity. The judges were therefore spied on by a religious police force with a mandate to prevent corruption, principally bribery. I am not suggesting that this system sounds humane or in any way desirable, only saying that it is a plausible if partial explanation of how the Taliban were able to remain an institution in Afghan life, despite 20 years of formal exclusion from power.

2 responses »

  1. I wrote a paper yonks ago suggesting that counterpower works when it’s law-like – or at least that it doesn’t when it isn’t*. (Never pursued it – I hadn’t done any original research, and there’s not much call for counterpower studies REF-wise.) It’d be a bit ironic – although, in a longer perspective**, not entirely surprising – if the Taliban turned out to be approaching closer to upholding the rule of law than the US’s awful client regime du jour.

    *It’s in the Proceedings of an abolitionist conference that I didn’t even go to – Bog knows how many people have read it. Hey ho.
    **Did the Sandinistas settle disputes in liberated areas, or the FMLN in El Salvador?

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