Engaging Non-State Justice as State-Building and Counterinsurgency

Non-state justice, generally rooted in religion, custom or tradition, enjoys widespread legitimacy and effectiveness in conflict-prone states. Indeed, these forums are often the most dominant form of legal order, even surpassing the state itself. In these circumstances, foreign aid providers view these forums as a promising way to advance state-building, promote stability, or even undermine anti-regime insurgencies. However, little empirical work has been done concerning the actual work undertaken by external actors and the consequences of those efforts. Drawing on two case studies of places with robust legal pluralism that have received extensive foreign assistance, namely Afghanistan (2002-2021) and Timor-Leste (2002-2022). It draws on extensive in-country interviews, contemporary documentation, and relevant secondary literature. The paper highlights how. International actors seek to capitalize on supporting effective non-state justice systems to maintain order and bolster regime stability by offering material support or technical assistance. At the same time, non-state judicial actors, such as the Taliban’s rival justice system in Afghanistan, can pose a profound, even existential, threat to the state. International actors could support the criminalization of non-state justice forums or even the use of force against non-state justice sector personnel. When non-state authorities enjoy significant authority and autonomy, rejection strategies tend to generate strong, even violent, opposition from those targeted. For example, international assistance in Afghanistan repeatedly attempted to harness the legitimacy and authority of tribal-based justice to defeat the Taliban and bolster the floundering Islamic Republic. However, external efforts alienated powerful tribal authorities. Worse, these efforts led to violent reprisals against the people who worked with international personnel. Alternatively, as in Timor-Leste, programming can boost the capacity of non-state justice actors in a way that supports stability and even strengthens the state.