Case Study: Property Rights and Stability in Afghanistan

One of the privileges of working at New America is the variety of Fellows and colleagues I encounter. When John Dempsey, an ISP Fellow, was explaining his work in Afghanistan, I immediately asked if he would write for FPR.  It was a good call.  Beyond a fascinating update on the state of affairs in Afghanistan, John’s work beautifully illustrates what I find myself telling people all the time: property rights touch everything.   This article illustrates how property rights relate to refugees, IDPs, water, governance, tribal conflict, fragile state reconstruction, as well as the interplay between institutions and the rule of law.

FPR exists to better understand how we can use current and emerging technology to help secure or formalize property rights.  Reading this article we take the questions of how tech applies to property rights and add, “in the context of hostile and post-conflict environments.”  How could satellite and drone imagery help clarify who is living where and for how long?   What would be different if the records were digitized and placed on a distributed ledger technology -- also known as blockchain?  Especially in the case of a country plagued with violence and shifting boundaries between territory controlled by a recognized government and the Taliban?  Or where there are destabilizing land disputes between nomadic pastoralists and sedentary farmers? What about GPS and mobile phones as a way to stake a claim and record decisions; or to record and timestamp decisions handed down by local leaders over time?

If this article peaks your curiosity -- until John writes more -- we suggest you explore Registering the Human Terrain: A Valuation of Cadastre by Douglas Batson who wrote about both about property rights and land rights work in Afghanistan.  Please share any comments with us via FPR@newamerica.org.

-Michael Graglia, Future of Property Rights

There’s lots of talk in Washington these days about how to end the war in Afghanistan and stabilize the country. Much of the focus is on ending Taliban sanctuary in Pakistan, countering transnational terror threats, fixing a weak government in Kabul and seeking support from other countries in the region  – all of which are, of course, necessary to reaching a sustainable settlement among the main Afghan political factions.  

However, while a grand peace deal may eventually end the war, stability in the country will remain elusive until the most intractable and overlooked driver of conflict in Afghanistan is addressed: the prevalence of land and housing disputes.            

I first went to Afghanistan in early 2003, taking a nine-month sabbatical from the New York office of a UK-based law firm to join the International Rescue Committee (IRC) as its first-ever “Property Law Expert”. My primary job was to assist returning refugees to reclaim the land or housing they had abandoned when fleeing the war. Having spent the prior few years as a capital markets associate working on Latin American debt transactions, I didn’t feel particularly well-qualified for the position when I applied.  Yet for some reason, there weren’t that many American lawyers looking to move to Peshawar and Kabul just after 9/11, so I got the job.

Before leaving New York, I read everything I could on Afghanistan, the war and the human displacement.  Since the late 1970s, Afghanistan had produced more refugees and internally displaced persons (IDPs) than any country in the world (only recently overtaken by Syria), with roughly 8 million Afghans fleeing successive waves of war since the Soviet invasion in 1979. Neighboring Iran and Pakistan hosted the overwhelming majority of the displaced, with each country taking in over 3 million registered and undocumented Afghan refugees.  Following 9/11 and the ousting of the Taliban, both countries hoped promises of Afghanistan’s reconstruction would set conditions that would finally allow the refugees to go home.

In February 2003, I arrived in Pakistan, comfortable with my bookish understanding of the refugee crisis. Nothing, however, could have prepared me for those first days in Peshawar and the refugee camps I visited.  After a three-hour drive into Pakistan’s tribal areas – across a lunar landscape of baked dirt and jagged rocks in unimaginably oppressive 125-degree heat – I came to an isolated outpost of human misery. Thousands of Afghan families crammed into communal tents, outnumbered only by slow-buzzing sandflies. In my backpack was a copy of the 1951 UN Convention on Refugees that I’d skimmed on the flight to Pakistan.

That day, I spent hours with refugee focus groups and UN camp managers, trying to figure out the main obstacles to return. Fully expecting war and insecurity would top the list, I was surprised to see that lack of access to land or housing in Afghanistan was by far the number one reason the refugees wouldn’t or couldn’t go back – clearly, I was going to have a lot of work – and I explained with some self-importance that I’d soon be moving to Afghanistan and would raise their concerns with Afghan and UN officials to see what could be done.  At this, a grizzled, henna-stained elder pointed at me and scoffed, “you’re the seventh aid worker to come here this year and tell us you’d go ‘see what can be done’.  We haven’t seen the other six since they left.”  I assured him of my commitment, hopped in my air-conditioned land cruiser and never saw him again.   

Copy and paste that experience across a half dozen other refugee camps that week, and I soon realized that the magnitude of the property problem was exponentially greater than anyone could have imagined.  I moved up to Kabul and began traveling all over Afghanistan – in my first few months, I visited Nangarhar, Balkh, Baghlan, Kunduz, Badahkshan, Ghazni, Kandahar, Parwan, Panjshir, Bamiyan, Faryab, Herat and Helmand – to check on returnees and see how they were faring with their own property issues. The answer was generally not so good.

One morning, the head of the Kabul office of the United Nations High Commissioner for Refugees called to ask me to join her on a day-trip to the farming village of Khalazai on Shomali Plain just north of the city.  Khalazai was on the front-lines between Taliban and Northern Alliance forces in the late 1990s, and thousands of ethnic Pashtuns had been forced to flee the village to Iran, Pakistan or into IDP camps. After the Taliban were ousted, UNHCR facilitated the return of millions to Afghanistan, but in Khalazai, ethnic Tajiks who had moved in during the war now occupied most of the area, driven by water shortages in their neighboring villages.

A group of 100 or so Pashtun families had returned to Khalazai from Pakistan, only to find their land occupied by the rival Tajiks.  The UN had been called to sort out the dispute, and they were excited to enlist me – the only “Property Law Expert” in Afghanistan – and my weeks-old expertise.  We drove up to Charikar, an hour from Kabul, and met with representatives of the landless returnees, the alleged occupiers and the local Afghan police commander, a Tajik warlord named Amanullah Gozar.  Mediators we were not.  We considered ourselves neutral observers, or at most, facilitators of a dispute resolution process. I spent hours in disorganized property records offices with my interpreter and illiterate Tajik clerks, trying to find evidence – deeds, titles, tax records – anything that might back up claims.  Most of the Pashtun returnees had hand-scrawled property claims issued by earlier governments, while some of the Tajik occupiers also had their own customary documents “proving” their ownership rights.  But with the wave of regime changes in Afghanistan since 1978, there was no real way to sort out whose claim was legitimate.

Going to the courts and land records office was no help, as there was neither a searchable filing system nor a fair dispute resolution process. Official records, maps and deeds were gathering dust or simply missing. Government adjudicators were either untrained or in the pocket of local strongmen. We were told that “informal” dispute resolution was the only viable way to settle the claims – that is, to have a council of elders representing the various parties sit together and reach consensus on an equitable outcome.  Known as jirgas or shuras, these centuries-old processes are how Afghans traditionally resolved disputes over land and other matters, and we were led to believe that the decisions would be respected. 

Yet the years of war and rise of warlordism had infected the traditional mechanisms as well – in essence, local powerbrokers would ensure a result in their favor, exactly what we saw when we observed a gathering of the Pashtun and (well-armed) Tajik leaders a few days later.  First, the Pashtun elders apologized, claiming they had been mistaken and that the disputed arable land did indeed belong to the Tajik occupants. Then, they drank tea and ate mulberries together, shook hands and moved on.  Clearly the Pashtuns had been coerced to accept this position, and they had no choice but to resettle their families to nearby arid and generally worthless lots. And there was nothing we – the well-intentioned foreigners – could do. Within six months the Pashtuns were displaced again, living in squalid IDP camps or heading back to Pakistan.

These types of stories were far too common. And with literally millions of Afghans pouring back into the country, the new Afghan Government and its donors quickly recognized that something needed to be done to address the property concerns of the returnees.  As for me, the notion that I might be able to achieve meaningful results during a nine-month sabbatical was fanciful at best, so I cut ties with my firm and spent the next seven years working on justice sector reform and dispute resolution in Afghanistan, until returning to join the Obama Administration as the State Department’s Afghanistan Rule of Law Advisor.  

From the moment I started working with IRC, it was obvious that the massive crisis of human displacement in Afghanistan led to – and yet was also caused by – a variety of property concerns.  But in Afghanistan, problems related to land and housing are extraordinarily complex and are complicated not only by displacement but by a number of other often-related factors: droughts, floods and a lack of arable land, the presence of land mines, warlordism, the opium economy, government confiscation of property, communal/pastoral “ownership”, rapid urbanization, water disputes, the rise of informal settlements, inadequate cadastres and government recordkeeping, insufficient dispute resolution mechanisms, inheritance disputes, poor access for women to property, and confusing or conflicting ownership records to the same house, apartment or plot of land.  In a country like Afghanistan – where access to land is so central to livelihoods – these disputes often devolve into violence, sometimes reflecting years or decades-long inter-communal feuds between families, tribes or entire villages.

Such conflicts perpetuate instability around the country and occasionally provide fuel to the Taliban, who can garner support by weighing in on one side of a land conflict. The Taliban’s swift (if, at times, brutal) system of justice often provides property ownership “certainty” in cases where the government is unable or unwilling to resolve matters.  And even if Taliban justice isn’t a model of due process, it does a good job at ending conflict and providing some modicum of stability.  While true that most Afghans don’t want a return to the dark ages of the Taliban era, some – especially in rural areas – see a strong, order-based Taliban rule as preferable to a government that doesn’t uphold rule of law. This explains in large measure why the Taliban are able to assert control or influence over nearly half the country today – and it’s the same reason they were easily able to march across the country in the mid-1990s following the chaos and bloodshed of the 1992-96 civil war.

Interestingly, Afghans have a fairly long tradition of keeping both informal and official property records – hence the various deeds (qabala) issued by the many governments over the last few decades. But the property records offices in the Ministry of Agriculture, the Land Management Office, the official cadastral office, the Ministry of Justice Department of Rights (Hoqooq) and other government offices are largely disorganized and poorly functioning. And despite scores of laws and decrees on the books related to property rights – some of which might actually assist when sorting through competing deeds to the same property (e.g., provisions on adverse possession, which essentially grants ownership to inhabitants who have physically and openly occupied land for a statutorily set number of years) – the poor state of the justice sector means property disputes are generally resolved through political connections, bribery, intimidation or violence rather than an equitable and transparent process.

Nearly 6 million Afghans have gone back to the country since 2001, increasing the population by some 20%, and the number of property disputes has multiplied as a result.  Moreover, many of the returnees who once worked as sharecroppers in rural parts of the country have fled to cities, where job prospects seem better.  This has resulted in massive, village-size informal settlements springing up in urban areas – sometimes on government land, sometimes on privately-held, and often on land of uncertain ownership.  A number of government and donor projects to formalize these settlements and to clarify land and housing ownership more generally have long-been planned, but both rising property values and overall lack of rule of law have made implementation extraordinarily challenging.  

Formalizing the settlements and clarifying land and housing ownership rights could have enormous benefits for Afghanistan: allowing property to be used as collateral to get credit, freeing up capital, increasing investment, encouraging improvements in land and housing, raising property values, enhancing livelihoods, reducing the constant threat of eviction and allowing for equitable and peaceful resolution of property disputes, thereby reducing a significant driver of instability around the country.  And for those who don’t own property, ensuring adequate access to land and affordable housing is of equal importance, be it through fair and enforceable sharecropping, leasing or other temporary arrangements with the legitimate owners.

Fortunately for Afghanistan, President Ghani understands the complexity and seriousness of clarifying property rights, and he has made tackling illegal land grabbing and occupation a top priority as he implements his overall reform agenda. He also hopes to implement a fair and transparent means of distributing land and recording property ownership that will reduce disputes. To be certain, the challenges are formidable – but they must be addressed to mitigate conflicts and bring stability to the country.  Thus, beyond defeating the insurgency, donors should focus resources on helping Ghani implement his plans to address other sources of conflict, including property disputes.  Doing so will not only increase stability and reduce conflict – it should also help to reduce corruption, improve perceptions of the government and assist with the development of the country’s justice sector and overall economy.

bit.ly/FPR-Afg-1

Authors:

John Dempsey is a fellow in New America's International Security program, with a specialization in Afghanistan and South and Southeast Asia, the laws of armed conflict, and promoting rule of law, democracy, and security in fragile and developing states. 

Michael Graglia is the director of the Future of Property Rights initiative at New America.