Transitional Justice and Socio-Economic Harm: Land Grabbing in Afghanistan 9780367681340, 9780367681364, 9781003134411

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Transitional Justice and Socio-Economic Harm

Maintaining the importance of socio-economic issues in devising transitional justice mechanisms, this book examines the widespread practice of land grabbing in Afghanistan. On 3 September 2003, 100 armed police officers bulldozed around 30 homes in the Sherpur neighborhood of Kabul, Afghanistan, evicting over 250 people. Historically, the land was part of the property of the Ministry of Defense, of which a zone was allocated to the ministry’s employees who had built homes and had lived there for nearly 30 years. After the demolition, however, the land was distributed among 300 high-ranking government officials, including ministers, deputy ministers, governors and other powerful warlords. Land grabbing in Afghanistan has become a widespread practice across the country. Based on over 50 semi-structured interviews with key informants and group discussions with war victims and local experts in Kabul, the current book examines the relevance of transitional justice discourse and practice in response to this situation. Following a critical criminological concern with social harm, the book maintains that it is not enough to consider a country’s political history of violent conflict and the violation of civil and political rights alone. Rather, to decide on appropriate transitional justice mechanisms, it is crucial to consider a country’s socio-economic background, and above all the socio-economic harm inflicted on people during periods of violent conflict. This original and detailed account of the socio-economic challenges faced by transitional justice mechanisms will be of interest to those studying and working in this area in law, politics, development studies and criminology. Huma Saeed is an affiliated senior researcher at the Leuven Institute of Criminology, Belgium, and an independent consultant on transitional justice and human rights.

Part of the Transitional Justice series Series editor Kieran McEvoy Queen’s University Belfast, UK

For information about the series and details of previous and forthcoming titles, see https://www.routledge.com/Transitional-Justice/book-series/TRANJ

a GlassHouse book

Transitional Justice and SocioEconomic Harm

Land Grabbing in Afghanistan

Huma Saeed

First published 2023 by Routledge 4 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 605 Third Avenue, New York, NY 10158 a GlassHouse book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2023 Huma Saeed The right of Huma Saeed to be identified as author of this work has been asserted in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-68134-0 (hbk) ISBN: 978-0-367-68136-4 (pbk) ISBN: 978-1-003-13441-1 (ebk) DOI: 10.4324/9781003134411 Typeset in Bembo by Deanta Global Publishing Services, Chennai, India

To my parents

Contents

Preface and acknowledgments

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Introduction: Setting the scene

1

A land-grabbing case in the Sherpur neighborhood of Kabul 1 Relevance of Sherpur for the current study 2 Sherpur and beyond 5 Research aim 7 Introduction to the conceptual framework 7 Critical criminology 7 Transitional justice 8 Introduction to the empirical component 10 Methodology 11 Desk research 13 Fieldwork 14 Data analysis 17 Ethical considerations 18 Research limitations and challenges 19 Security 20 Data saturation 21 Validity and reliability 21 Researcher’s positionality 23 Emotional challenges of the data analysis 25 Book structure 25 References 26 1

Socio-economic harm in violent conflicts, transitional justice and critical criminology Socio-economic harm in times of violent conflicts 31 Socio-economic harm, transitional justice and criminology 35 Transitional justice and socio-economic harm 35

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Transitional justice and development 42 Transitional justice and structural inequality: A move towards transformative justice 43 Critical criminology and a harm-based approach to crime 47 Critical criminology 47 An understanding of crime 50 Harm-based approach to crime 53 State crime 55 Approaches to state crime 56 State crimes as serious human rights violations 60 Approaches to economic crime in criminology 60 Conclusion 65 References 66 2

Housing, Land and Property (HLP) loss in violent conflict

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The right to adequate housing in the human rights regime 73 HLP rights violation in violent conflicts and peace settlements 75 Land grabbing and transitional justice 78 Land dispute, urbanization and criminology 81 Conclusion 82 References 82 3

Violent conflict, socio-economic harm and transitional justice in Afghanistan

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Conflict background 85 The Bonn Agreement 89 Transitional justice in Afghanistan 90 “A Call for Justice” 90 The Action Plan for Peace, Reconciliation and Justice 91 Bottom-up approach to transitional justice 92 The impact of violent conflict on the socio-economic fabric of the Afghan society 93 Market economy and liberal peacebuilding in Afghanistan 97 Conclusion 99 References 99 4

Housing, Land and Property rights in Afghanistan Background and legal framework for HLP rights in Afghanistan 103 HLP rights, women and the marginalized population 105

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Land titling and registration 107 Land dispute mechanisms in Afghanistan 108 Conflict impact on HLP rights in Afghanistan 110 The returnee IDPs’ perception on HLP harm 111 The returnees’ perception on HLP harm 114 Perceptions of victims of land grabbing 117 Conclusion 121 References 122 5

Land grabbing in Afghanistan

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General background and definition of land grabbing in Afghanistan 126 Definition of land grabbing in Afghanistan 128 Land grabbing in the Afghan law 129 Tackling land grabbing in practice 131 The Strategic Plan to combat land grabbing 131 Other measures by the government to tackle land grabbing 135 Conclusion 136 References 137 6

Land grabbing in Afghanistan, economic-state crime and transitional justice Land grabbing as economic crime 139 The actor 139 The motive behind the act 142 The contextual factors and means employed 144 The consequences and harm 150 Land grabbing as state crime 153 State crimes of commission 153 State crimes of negligence 155 State crime by omission 158 Land grabbing as economic-state crime 159 Transitional justice and land grabbing 160 Land grabbing and impunity 160 Land grabbing and property restitution/provision to the IDPs and returnees 161 Land grabbing as serious human rights violations 163 Quality (the degree of gravity) 164 Quantity (level of frequency) 165 Conclusion 167 References 167

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Transitional justice and criminology: Bridging the gap

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Through the prism of crime 170 The gap between criminology and transitional justice 171 Towards bridging the gap by combining fieldwork and an interdisciplinary approach 174 Crime as injury and social harm 176 State crime victims 177 Through the methodological prism 180 Conclusion 182 References 183 Conclusion

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Main argument and research contribution 187 Recommendations 189 Recommendations for future research 190 References 191 Appendix A: Questionnaire Appendix B: List of interviews Index

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Preface and acknowledgments

This book is the result of research carried out for a PhD dissertation between 2012 and 2017. The fieldwork for this study took place in two periods in 2013 and 2014, with the latter being a crucial year for Afghanistan as NATOled international forces began to withdraw. Since then, Afghanistan has witnessed many developments, culminating in the collapse of the Kabul regime in August 2021 and the Taliban’s return to power for the second time. While the study period (2012–2017) remains the main emphasis of this work, the book has been updated with the most recent developments in land grabbing up until the fall of Kabul in August 2021. As a result, except for occasional references when applicable, it does not chronicle developments since the Taliban’s return to power in August 2021. The author wishes to express her heartfelt gratitude to the Jack Kent Cooke Foundation, which generously funded the entire study period. She also expresses her gratitude to all the research participants, particularly the war victims, whose perspectives served as the empirical foundation for this work. They enthusiastically welcomed the research project and generously shared their insights, experience and support in ways well beyond the author’s expectations.

Introduction Setting the scene

A land-grabbing case in the Sherpur neighborhood of Kabul On 3 September 2003, 100 armed police officers bulldozed around 30 homes in the Sherpur neighborhood of Kabul, Afghanistan, evicting over 250 people. The operation was, allegedly, carried out by the order of the then Chief of Security of Kabul province in collaboration with the Minister of Defense and other powerful people in the government (Kothari, 2004). Historically, the land was part of the property of the Ministry of Defense, of which a zone was allocated to the ministry’s employees who had built homes and had lived there for nearly 30 years. After the demolition, however, the land was distributed among 300 high-ranking government officials, including ministers, deputy ministers, governors and other powerful warlords (Hambastagi, 2012; RAWA, 2003). With this surge, the face of the area completely changed, from that of an old neighborhood built mainly with one-story mud houses to colorful mansions with a style that sometimes is referred to as “narco-tecture.” Labeled as Kabul’s version of Beverly Hills (Brulliard, 2010), these villas were built either with revenues from poppy cultivation and drugs (hence the other reference to them as being poppy palaces) or corruption that became a rampant phenomenon under the Karzai administrations (2001–2014) as well as the Ghani government (2014–2021). Located at the foot of the Bibi Mahro hill, about two miles north of the Old City of Kabul, Sherpur is not only a strategically important location, it is also a historically significant neighborhood. Built as a new modern citadel on a great scale (400 hectares) during the reign of Amir Sher Ali Khan in the 1870s, it was seized by the British expeditionary force and turned into their cantonment in 1879. The Afghan army besieged the cantonment during the Second AngloAfghan war, thus Sherpur became a symbol of Afghan resistance against foreign invaders. Part of the old cantonment area was later turned into the first Kabul airfield in the 1920s and later developed into the elite neighborhood of Wazir Akbar Khan in the 1970s. The rest of the original cantonment area remained the property of the Ministry of Defense, including a small corner that was DOI: 10.4324/9781003134411-1

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Introduction

turned into the British cemetery of Kabul, still in use to this day (Schinasi, 2008, pp. 64–66; Woodburn, 2014). The neighborhood took its name from the Amir who first built it.1 However, with the incidents that took place in 2003 and onwards, residents of Kabul started to call the area as “sherchur,” meaning, “looted by lions.” As such, today the neighborhood, physically and symbolically, for most Afghans embodies corruption, human rights violation and an entrenched culture of impunity. Relevance of Sherpur for the current study

The embodiment of the above mentioned concepts by ordinary Afghans, whose perceptions have been the empirical foundation for this research, is also relevant for the theoretical component of the current research that is set between the fields of transitional justice and critical criminology. First of all, those involved in the act of looting were mainly prominent warlords and Mujahideen leaders who had been part of the infamous civil war from 1992 to 1996 when Afghanistan experienced one of the worst epochs in the long decades of violent conflicts. In particular, notable among them was the then Minister of Defense Mohammad Qasim Fahim, a prominent warlord and member of a religious fundamentalist party, whose forces and followers had committed many crimes in the past, for which they have never been held accountable. As a result, at the time of the Sherpur expropriation and in the years to come they continued to intimidate ordinary citizens. As communicated in a personal interview with a chief advisor to the Ministry of Justice, the Sherpur incident took place at the direct order of Mr. Fahim (1 September 2013, Kabul). It was therefore no wonder that many equated his ministerial position with that of putting rabbits in charge of carrots, referring to an Afghan saying. Others were technocrats, many with double nationalities, who after years of residing abroad returned to the country to secure key official posts. In either case, as state representatives and officials they were part and parcel of the large scale land grabbing in Sherpur and beyond. A second point to highlight is the affected population and the way in which the event took place. As mentioned earlier, around 250 people were forced to evict. The officials involved in the incident claimed that they had notified residents months in advance, offering them alternatives, such as a plot of land elsewhere or cash in exchange for their eviction. While it is difficult to prove this claim, many reports indicate that there was no prior warning (Kothari, 2004). As a result, people resisted while many homes were bulldozed when

1 “Sher” literally means “lion,” while “-pur” is a common suffix in South Asia meaning castle, fortress or city (in old Farsi, from Avestan, “pur” literally means “son, descendant,” hence the castle or fortress as the legacy of its founder).

Introduction

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residents and their belongings were still inside. According to an account by the IRIN News: Abdul Salam and his six-member family were having breakfast quietly at home when their house was bulldozed by [the] Afghan police. ‘We thought it was a bomb explosion or earthquake,’ the 35-year-old civil servant told IRIN, adding that two of [his] children were injured when they started to escape the destruction through the windows. (IRIN, 2003) Likewise, Mohammad Hanif, one of the residents stated: We immigrated from Shamali where our homes were burned by the Taliban and built here a shelter with mud. Unfortunately, those in power have distributed the area among themselves and force us to leave. I know a number of them who already possess many houses and now they are seizing the land here too. (RAWA, 2003) The incident of forced eviction was reported and condemned by a number of national and international human rights organizations. The United Nations Assistance Mission in Afghanistan (UNAMA) condemned the act, calling it a “humanitarian emergency” where “the authorities had acted with excessive use of force” (IRIN, 2003). One of the most vocal voices of opposition came from the UN’s special rapporteur on adequate housing, Mr. Miloon Kothari,2 who stated: What has happened here is not only a serious human rights violation but also contrary to the human rights obligation of the Afghan government itself […] The very people who are responsible for maintaining law and order and for ensuring that these people have their rights, appear to be violators. (Kothari, 2004) However, considering the involvement of the high profile people from the government, the event soon receded. Even the Afghanistan Independent Human Rights Commission (AIHRC), in its 2003–2004 Annual Report on 2 Upon the agreement of the Islamic Transitional Administration of Afghanistan, from 31 August to 31 September 2003, the Special Rapporteur visited Kabul, Kandahar and Jalalabad provinces to assess the situation of land and housing, among his other mandates. Through consultations with various relevant government officials, the UN mission and the civil society, as well as visits to affected sites such as Sherpur, he presented a 64-page report to the Commission on Human Rights, as well as multiple statements and interviews.

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the human rights situation in the country, discussed the case in one page only (AIHRC, 2004, p. 28). The point raised by Mr. Kothari above gains further momentum when putting the Sherpur case in the broader perspective of the long decades of conflicts in Afghanistan, which among many calamities has produced, and continues to do so, one of the largest refugee and Internally Displaced People (IDP) populations on earth. Under the Karzai administration, over 4.7 million people were repatriated, primarily due to the promises made by the government to secure their livelihood upon return, as indicated by many interviewees during this research. As an example, according to UNHCR Afghanistan, in one month (from 1–31 August 2014), a total of 2,068 Afghan refugees voluntarily returned to Afghanistan, mainly from the neighboring countries of Iran and Pakistan (UNHCR Afghanistan, 2014). However, a large number of the already destitute returnees found themselves in refugee settlements in cities like Kabul under miserable conditions without access to basic facilities such as drinking water, toilets and heating facilities. In his report, Mr. Kothari stated: “the influx of returnees within a limited time frame following the fall of the Taliban has no precedent in other post-conflict situations” (2004, p. 8). In addition to the returnees, continuous fighting between the Taliban and the Afghan government/NATO forces, led to a massive influx of the IDPs, currently reaching over four million. A third point to underline is the lack of accountability around the whole incident. After the hubbub went beyond the national boundaries, and in particular, Mr. Kothari assessed and reported on the situation, President Karzai appointed a commission of inquiry on 17 September 2003 by issuing a Presidential Order (No. 3861). The commission was composed of five members, including a commissioner from the Afghanistan Independent Human Rights Commission. After its investigation, the commission proposed recommendations, among which was the allocation of a certain amount of money that land grabbers had to pay to the government. However, even this mild level of “penalty” was largely not implemented.3 Additionally, although reportedly the Kabul Chief of Police was discharged due to his engagement in the forced eviction, the ministers involved continued to remain in power

3 According to the sources directly involved in the investigation, the Commission decided that instead of destroying the expensive mansions built in the neighborhood, the occupiers (land grabbers) should pay an allocated amount decided by the investigation committee in consultation with property dealers. The allocated amount was US $11,000 per biswa (a common land measurement unit in Afghanistan, which amounts to 100 square meters). Each plot of land was about 3.5 biswa (350 square meters), amounting to US $38,500 per plot. Considering the importance of the neighborhood, the allocated amount was so little it could only be considered a symbolic gesture. Nevertheless, because it involved powerful people—some of whom maintained their own private army—many did not pay and no accountability mechanism could hold them accountable (conveyed to the author in interviews with two prominent Sherpur Commission members, Kabul, 3 August 2013 and 1 September 2013).

Introduction

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(Kothari, 2004). Moreover, as highlighted in the author’s interview with a Senior Advisor to the Ministry of Justice, who was then serving as the head of the Sherpur Commission, the legal status of the case was changed from criminal to civil (1 September 2013, Kabul). The lack of accountability in the case of Sherpur can be attributed to the lack of implementation of transitional justice in Afghanistan following the fall of the Taliban regime in 2001, which further cemented a culture of impunity, particularly in regard to land grabbing in the years to come. As a result, those who were previously responsible for egregious human rights violations had returned to power, although this time as “protectors” of democracy with backing from western countries. If the warlords-turned-politicians were previously primarily involved in civil and political rights violations, in the new regime as kleptocrats they were increasingly involved in what this author refers to as economic-state crime, such as land grabbing, illicit mining and drug trafficking. Sherpur and beyond

While working for the United Nations Development Program (UNDP) in Kabul, this author was captivated by the case of Sherpur as she passed through the neighborhood every day on her way to work. Although the Sherpur case alone could have been enough to warrant further investigation, given its gravity and implications, the author realized that Sherpur was only the tip of the iceberg in the face of widespread and systematic land grabbing in Afghanistan, which began in the 1990s with the seizure of land and properties belonging to the Hindu and Sikh communities in Kabul. Characterized as a failed state, Afghanistan’s central government has had minimal control over a substantial portion of the country’s territory for the past two decades. As a result, it was not surprising that locals preferred to refer to President Karzai as the “mayor” of Kabul rather than the “President” of Afghanistan. This system aided in the establishment of a nest in which nepotism, corruption, mafia rule and an ingrained culture of impunity become the norm. During this period, Afghanistan was often ranked as one of the most corrupt countries by Transparency International’s Corruption Perception Index. This was in great part also owing to the international community’s intervention, which poured billions of dollars in humanitarian aid into a country that lacked the necessary institutions and systems to absorb, let alone effectively use, such a vast sum. These conditions, combined with the lack of the rule of law and a functioning legal system, created fertile ground for huge and systematic land grabs across the country, well beyond Sherpur. It became such a widespread phenomenon as to be regarded one of the distinguishing characteristics of postTaliban Afghanistan (Rostami, 2013a; Royee, 2016). Land grabbing in Afghanistan not only became an important source of profit, but also a symbol of status. According to one of the architects of the “poppy palaces,” each mansion had to be equipped with a barbecue, a swimming

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pool and a bar (Brulliard, 2010). A property dealer in Sherpur stated: “[M]ost homeowners acquire blueprints from Pakistan and hire local engineers to do the building, which is often fairly shoddy. They rent them to foreigners and go live in Dubai. They are very powerful people, the sorts with posses of bodyguards” (ibid.). Paradoxically, the international community, such as USAID or the embassies, played a role in generating profit for land grabbers by renting their mansions, in, for example the Sherpur neighborhood, as offices or guest houses, paying rent ranging from US$25,000 to $47,000 per month. Afghanistan is just one example. There are many countries around the world going through similar experiences, namely Syria, Iraq, Colombia and others who have suffered from protracted violent conflicts, where land issues pose a significant challenge. Housing, Land and Property (HLP) is thus increasingly becoming an important concern for transitional justice scholarship and practice in recent years in “large part due to the ‘goodness of fit’ between the two fields” (Unruh & Abdul-Jalil, 2021, pp. 1–2). It is also increasingly happening in countries that are not experiencing an armed conflict or transition, but nevertheless face a violent process of urbanization that is caused by “the uneven and clumsy spatial configurations of global capitalism” (Lasslett, 2018, p. 13), thus posing new challenges also for criminology. In a thorough fouryear empirical study in Papua New Guinea, Lasslett discusses state-corporate activity in the realm of land and the property market. The political context of Papua New Guinea is different than countries experiencing violent conflict and transitional justice. Yet, harmful practices connected to HLP are strikingly similar to the experience of residents of Sherpur just discussed: Then on, or around, 8 March 2013, armed police officers, police dogs and private security were trucked to the settlement, in order to conduct home demolitions. Residents were informed that the exercise would begin in 25 minutes (John, 2013). Police alleged they were acting with Supreme Court authorisation (Yalbees, 2013a). While settlement leaders attempted to verify this claim, bulldozers demolished homes and businesses. According to the community’s Chairman, Thomas Yalbees (2013c): When they gave this 25 minute [warning], the dogs barked, guns were being fired, the bulldozer started working and the people lost all their things, a lot of men outside too came and damaged a lot of our things. The bulldozer bulldozed our things, people came and stole our belongings, damaged them, they brought chainsaws, cut down the trees, damaged the houses, all our things. We didn’t even save one thing. (Lasslett, 2018, Section: A K300 million development by Parliament House) What is relevant in both situations is the harmful and injurious acts of powerful individuals and/or corporations who are often connected with the state, that

Introduction

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infringe not only their citizens’ civil and political rights, but also their socioeconomic rights. Nevertheless, it is a largely unaddressed topic in mainstream academia (Schmid, 2011, 2015), as well as in policy and practice.

Research aim The current study, which was conducted as part of a PhD dissertation (2012– 2017), aimed to investigate HLP loss during violent conflicts through the experiences of war victims in Kabul, Afghanistan. The field research primarily relied on the locals’ perceptions who had been harmed in relation to their HLP rights, such as IDPs, returnees and those whose lands were forcibly taken, as well as local experts. The research was interested in finding out the degree to which such harms, particularly land grabbing, could amount to forms of crime and gross human rights violations concomitantly. As such, it was deemed necessary to utilize an interdisciplinary lens by combining the field of transitional justice and the discipline of criminology. In doing so, theoretically, this research also offers insights to bridge the classic gap between transitional justice and criminology. Introduction to the conceptual framework

To address the empirical inquiry, this research opted for alternative discourses of criminology and transitional justice. Criminology is not only an eclectic but also a booming and at the same time fractious discipline (Bosworth & Hoyle, 2011). In the same vein, transitional justice is a continuously growing field with—at times—divergent discourses. It was therefore important to identify the conceptual niche from the onset. While this will be further elaborated in the next chapter, the aim of this section is to provide an overall framework within which the current research, and thus convergences between the two fields, will be situated and weaved through. Critical criminology

In its view towards crime, criminals and responses to victims, criminology has come a long way. There is a big departure from its early days from classism to positivism to modernism and post modernism. From when attempts were made to explain deviant behavior by linking it to a physiological deficit (Lombroso & Ferrero, 1893) to when the approach was still one of black letter law (Tappan, 1947). One such important development—mainly in the 1960s to 1970s—was critical criminology, which initially was also referred to as radical criminology. Scholars have provided different approaches to critical criminology. One such approach is offered by McLaughlin and Muncie as follows: While the mainstream of criminology increasingly appears to be simply involved in a technocratic ‘what works’ exercise, the critical paradigm

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continues to expose the discriminatory powers and outcomes and retains a space in which alternative visions of social justice can be created, transformed into a vehicle for emancipation. (McLaughlin et al., 2013, p. xxiv) A critical criminological lens therefore was deemed as a suitable approach to address crimes of the powerful, with a focus on state crime and economic crime. Although Sutherland had already discussed corporate or white-collar crime in his ground breaking work in 1949, it was not until the emergence of critical criminology that attention was called for towards state crime. According to Barak (1991) only with the establishment of critical criminology could the study of the state with the study of crime be reunited, having been separated by positivist criminology prior to that. Although state crimes “result in more injury and death than traditional street crime,” only recently has the discipline of criminology addressed the subject empirically and theoretically (Rothe, 2009, p. 1). In other words, atrocities have been committed throughout human history, but they have not always been addressed as crime (Savelsberg, 2010), particularly as state crime. Critical criminologists have addressed subjects related to state crime as wide ranging as human rights violations (Barak, 1991; S. Cohen, 1993), nuclear weapons and foreign intervention (Kauzlarich et al., 1992), terrorism and state sponsorship (Jenkins, 1988), empires and state crime (Iadicola, 2011) and foreign policy and international intervention. Notwithstanding such critical voices and despite the prevalence of international crimes on a wide scale, including gross violations of socio-economic rights, mainstream criminology has largely remained detached from addressing such crimes. A missing link thus exists between criminology and transitional justice (Parmentier, 2011), the latter concerning itself primarily with international crimes. The criminological lens adopted here looks at the crime (the act), but also at the criminal (the actor) (S. Cohen, 2009). This view allows us to offer an analysis not only of the nature of the act, which “necessitates a much wider study of the agencies, processes and structure of social control” (McLaughlin et al., 2013, p. xxiii), but also the perpetrators, which in turn bears implications for the nature of responsibility. By doing so, the current research continues in the tradition of “transfer[ing] criminology from a science of social control and into a fully politicized struggle for social justice” (ibid.). The underdeveloped concept of economic crime, coupled with the concept of state crime, have direct relevance for the case study in this book, wherein elites, state representatives, their close associates or powerful individuals have engaged in cases of grand corruption and land grabbing, causing severe socio-economic harm to a large population. Transitional justice

Transitional justice refers to legal and non legal mechanisms, such as trials, truth commissions, reparations and institutional reforms, to address massive and

Introduction

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systematic past human rights violations during political transition to democracy. Just as the focus of transitional justice mechanisms has predominantly been on addressing civil and political rights in the practical and policy realms, so has the emphasis of academic work. However, as the discourse has moved from the “periphery to the center” and its application has become a commonplace experience for many post-conflict transitions (Teitel, 2003), its nexus with socio-economic rights and development increasingly seems to have become preordained (de Greiff & Duthie, 2009; Mani, 2008; Mottershaw, 2008; Waldorf, 2012). Following this emerging discourse, the normative take in the current work is an alternative approach to transitional justice, namely bottom-up, inclusive of socio-economic rights and victim centric. Moreover, this approach also entails the incipient discourse on transitional justice measures in situations of ongoing conflicts. Traditional examples of transitional justice as a field of theory and practice are associated with political transitions and regime changes in South America in the 1980s, Eastern Europe in the 1990s and the end of civil wars in Central America (Engstrom, 2013; Kritz, 1995). However, a number of scholars have argued for the application of transitional justice also in ongoing conflicts. Engstrom (ibid.), for example, maintains that the field of transitional justice in the last years has expanded in such a way that it should be considered part of the ongoing conflict, i.e., in the form of judicial intervention. As an example he mentions the International Criminal Court’s involvement in Libya. Likewise, Budak (2015) pursues this argument in the context of Turkey’s “conflicted democracy” and the ongoing violence between the Turkish state and the Kurdish community. The author argues that although Turkey is not a transitional country with a clear-cut regime change from authoritarian to democracy, there have been continuous efforts, particularly by civil society and NGOs, to take measures that demand truth seeking and accountability. Transformative justice, which Gready and Robins (2014) described in their critique of transitional justice as a top-down process seeking to cure the symptoms rather than the causes of conflict, is also gaining traction. An alternative understanding is important in the complex context of the current case study even if the aim of this book is not to discuss and offer potential mechanisms of transitional justice in Afghanistan (this will be a discussion for another book). While, as mentioned, the discussion of socio-economic rights violations has entered transitional justice discourse, and occasionally practice as well, a direct link between state crime and socio-economic harm has barely been established in criminology, particularly in the context of violent conflicts (Hagan et al., 2012). Moreover, although a number of critical criminologists have discussed the relationship between human rights violations and state crime (Barak, 1990; S. Cohen, 1993; Green & Ward, 2000; Karstedt, 2014; Schwendinger & Schwendinger, 1975), there is a “missing link” in the literature between criminology (including state crime) and transitional justice (Parmentier, 2011).

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While in later years, attempts have been made to bridge this gap by suggesting the “need for a criminology of transitional justice,” and by conducting serious work on mass atrocities, transitional justice continues to remain “somewhat off-piste” from mainstream criminology (McEvoy et al., 2017, pp. 3–4). Continuing in this tradition, one of the aims of the current research is to find connectivity, overlap and mutually reinforce features between transitional justice and criminology through the empirical study of socio-economic harm, land grabbing in particular, in Afghanistan. Introduction to the empirical component

The empirical foundation of this research is grounded in perspectives of war victims and local experts in Kabul, Afghanistan (more details will be discussed in the next section on research methodology). Focusing on the loss of land, housing and property during violent conflicts, this case study illustrates the relationship between transitional justice, socio-economic harm during periods of violent conflict and state and economic crime. Afghanistan has been suffering from ongoing war since 1978 with the Soviet backed coup d’état, which was followed by the Soviet invasion (1979–1989), the civil war (1992–1996) and the Taliban regime (1996–2001). Although the events of 11 September 2001 led to major changes in the country, i.e., the removal of the Taliban regime, and the transition to “democracy,” no practical steps were taken to tackle the crimes of the past regimes, starting with the Soviet backed coup of 1978. On the contrary, the power of many warlords and others, who had close contact with the previous regimes, became legitimized in the US backed Karzai interim administration and subsequently in the governments and parliaments elected in 2004–2005 and onward. Afghanistan is a country with a very high percentage of war victims in its population. According to “A Call for Justice,” a report published by the Afghanistan Independent Human Rights Commission (AIHRC, 2005) based on surveys with 6,000 Afghans, 69% of the population considered themselves or close relatives direct victims of human rights violations in the period between 1978 and 2004.4 Although the report led to a Plan of Action on Justice, Peace and Reconciliation (2005), which was drafted by the AIHRC, the UNAMA and the Afghan Government, it largely remained an inspiration on paper. Additionally, transitional justice activities were further

4 After the publication of the Call for Justice in 2005, the AIHRC has not conducted another nationwide study with war victims. However, since the fall of the Taliban in 2001 and the ongoing conflicts involving the US-led international coalition, the Afghan government, the Taliban and other insurgents such as ISIS and Al Qaida, many civilians have lost their lives. According to a latest study by the Costs of War project located at Brown University’s Watson Institute and Boston University’s Pardee Center, since 2001 at least 241,000 people have lost their lives, of which at least 71,000 were civilians. There have been many more wounded and disabled.

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hampered by the adoption of the so-called Amnesty Law in 2009 (Gossman & Kouvo, 2013). The picture gets further complicated when discussing the role of the international community, in particular the USA, in hindering the implementation of transitional justice in Afghanistan (further details will follow in the chapter on country background). Afghan civil society, nevertheless, continued its sporadic efforts to keep transitional justice somewhat on the agenda. In addition to severe violations of civil and political rights, decades of Afghanistan’s wars have had a devastating impact on the country’s socioeconomic fabric and war victims. Among these, access to land and property, or lack thereof, for millions of returnees and IDPs, and above all land grabbing, is but one phenomenon, and a largely unaddressed one at that. The empirical focus of this research thus concerns the question of access to land and property after the 2001 transition. Considering the central role of war victims in this research, with a focus on returnees, IDPs and those whose lands were forcibly grabbed, the notion of “victim” is based on Principles 8 and 9 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted in 1985 by the United Nations General Assembly (A/RES/40/34). This definition notes that a person is a victim if he or she suffered physical or mental harm, economic loss or impairment of his or her fundamental rights; that there can be both direct victims and indirect victims, such as family members or dependents of the direct victims; and that persons can suffer harm individually or collectively. The overall literature on transitional justice, as van der Merwe asserts “has not significantly advanced an understanding of victims’ perceptions of justice in its various forms” (2009, p. 123). Similarly, victims’ perception of harm, especially socio-economic harm, in situations of violent conflict remains largely unaddressed in criminology and transitional justice in part due to methodological challenges, including access to data in war zones. Although the majority of Afghans have experienced war-related losses, both in terms of civil and political rights as well as socio-economic rights, their perceptions have been marginalized not only in academic inquiries, but also in important decisions pertaining to Afghanistan’s political and social transformation. This empirical study, which has been conducted by a native speaker, builds upon the views of war victims and survivors in an effort to tackle the question of “what works” and “what does not work” (Parmentier, 2011, p. 388) in relation to their experiences of harm and ways forward.

Methodology This book is a product of qualitative methodology based on desk research and fieldwork through an interdisciplinary lens of transitional justice and criminology. The underpinning methodological approach (in particular as regards the theoretical and conceptual component) is an analytical one rather

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Introduction

than encyclopedic. This means, in reviewing literature in both criminology and transitional justice, the author has intentionally been selective in choosing those concepts and approaches that could best respond to the main theoretical and empirical inquiries of this work. Specifically, a Case Study approach (Yin, 2009) has been adopted. An “all-encompassing method,” a case study is “an empirical inquiry that investigates a contemporary phenomenon in depth and within its real-life context especially when the boundaries between the phenomenon and context are not clearly evident” (Yin, 2009, p. 18). This means conducting research with people and institutions in their “everyday situations, not within the controlled confines of a laboratory, the sanctity of a library, or the structured limitations of a survey questionnaire” (ibid., p. 83). Moreover, this method “relies on multiple sources of evidence, with data needing to converge in a triangulation fashion, and as a result benefits from the prior development of theoretical propositions to guide data collection and analysis” (ibid.). Though slightly different definitions of a case study are offered by other methodologists, what they all share in common is a “commitment to studying a situation or phenomenon in its ‘real life’ context, to understanding complexity, and to defining case study other than by methods (qualitative or otherwise)” (Simons, 2009, p. 20). A case study is a linear method in that it goes through the distinct phases of planning, designing, preparing, collecting, analysing and sharing data. It is at the same time an iterative process where, while on the one hand a set of “pre-specified procedures” is defined and planned in advance, and on the other, it gives the possibility to constantly interact between the various phases during the research process, including the analysis and writing. This implies flexibility in interaction between the theoretical and the empirical components throughout the research, an aspect that distinguishes the case study method from ethnography or grounded theory approaches (Yin, 2009). This author opted for a Case Study because the features mentioned above corresponded closely with measures needed for the fieldwork. Specifically, the following elements were important in this consideration. First, the empirical component, through qualitative research, was recognized as the central constituent of this research, given its raison d’être; and as a research method, case study is used to contribute to “our knowledge of individual, group, organizational, social, political and related phenomenon” in depth and in its real context (Yin, 2009, p. 4). Second, from the onset it was established that understanding people’s perception was crucial in answering the research questions on the nature of harm. In other words, from the beginning it was intended to adopt a bottom-up approach by understanding the views of the most marginalized and affected communities in Afghan society, i.e., war victims. A case study approach seemed to lend itself as the best tool to achieve this goal because it “allows investigators to retain the holistic and meaningful characteristics of real-life events” (ibid.). Third, in addition to interviews with locals, the author had to rely on other types of evidence, such as documents

Introduction

13

in local languages and participant observation. As a holistic approach, a case study’s “unique strength is its ability to deal with a full variety of evidence— documents, artifacts, interviews, and observation” (ibid., p. 11). Fourth, this fieldwork was carried out in the context of violent conflict, with its own challenges and limitations. Such circumstances require an additional level of flexibility and openness, given the unpredictability of the situation, particularly when dealing with war victims. A case study encompasses such flexibility: “you must cater to the interviewee’s schedule and availability, not your own. The nature of the interview is much more open-ended, and an interviewee may not necessarily cooperate fully in sticking to your line of questions” (ibid., p. 85). Desk research

Desk research has been primarily conducted in the standard literature review format, relying mainly on scholarly journals, books and reports by the UN agencies or other international organizations. As mentioned, the overall approach in conducting the literature review was analytical rather than encyclopedic. This strategy was deemed necessary following a general overview of the various criminological traditions and theories developed predominantly in established democracies in the global north rather than in contexts of violent conflicts in the global south. They thus did not present themselves as particularly pertinent for the study of a conflict/post-conflict context like Afghanistan. As such, the criminological tradition that encompassed specific concepts applicable for the empirical study was critical criminology within which literature on state crime and economic crime was explored and discussed. Moreover, it was important to further “operationalize” the concept of state crime and economic crime for the purpose of this study given the elasticity and, at times, vagueness of the mentioned concepts. Specific frameworks were thus adopted, even if, in the case of economic crime, for example, not all components of the chosen framework could apply to the empirical analysis in this research. Similarly, when it came to transitional justice literature, the author decided to concentrate on those components of the theoretical discourse that applied to and suited this research. Transitional justice is burgeoning in volume and complexity, with emerging sub-branches, such as transformative justice. As a result, it was critical to concentrate on the most important components of the literature, namely the socio-economic harm. The theoretical and conceptual section was constantly informed by the empirical work. As an example, the notion of state crime gained further prominence in the literature following the exploratory phase of fieldwork in 2013. Interviews and documentary evidence gathered during this phase suggested the critical role of the state apparatus as part and parcel in land grabbing. This led to digging deeper into the literature on state crime, and not only economic crime. In short, the conceptual framework was the result of a considerable process of reflection on the issue of land and property in

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Introduction

Afghanistan, which had prompted the study in the first place, in relation to transitional justice and criminology. Marshall and Rossman have succinctly encapsulated this process in the following: Tacit theory (one’s personal understanding) together with formal theory (from the literature) help bring a question, a curious phenomenon, or a problematic issue into focus and raise it to a level at which one might generalize about it. This complex process of conceptualizing, framing, and focusing a study typically begins with a personally defined question or identified problem. Personal observations are then transformed into systematic inquiry by reviewing the work of other scholars and practitioners on the topic, thereby building a theoretical rationale and conceptual framework to guide the study. (Marshall & Rossman, 2006, p. 31) Fieldwork

Fieldwork was carried out in two phases: from 11 July to 8 September 2013, and from 22 August to 4 November 2014. While the first phase was rather exploratory, fully fledged interviews were conducted in the second phase. The case study method encourages researchers to conduct a pilot study in preparation for fieldwork. The pilot phase helped to (a) assess the feasibility of the research plan, (b) allocate key actors as potential collaborators during fieldwork, and (c) identify potential categories of interviewees and interview sites. A number of interviews (12) with key informants were conducted in this phase mainly for two reasons. First, their insight was crucial to further clarify the research topic, which in fact led to exploring other aspects in the literature, i.e., state crime as mentioned above. Second, the unstable and unpredictable security and political situation in Afghanistan could not guarantee that key informants would remain in their position or even in the country during the next phase. In fact, a number of key informants the author had interviewed in 2013 had left the country by 2014.5 In total, during both periods, 56 interviews were conducted with 102 individuals, of which 14 were in group discussions and 43 were with individuals. The main categories of interview participants included war victims (20 interviews including 12 discussion groups), public officials (16 interviews), civil society and NGOs (12 interviews), academia and research (four interviews, including two group discussions), and international actors (four interviews). Of the interview participants, 59 were men and

5 The fieldwork component of this research was carried out at a critical time for Afghanistan. Not only did a controversial presidential election take place in 2014, but it was also the year with a significant drawdown in international military troops, which propelled a level of anxiety among people on the worsening security conditions. Many professionals during this period left the country.

Introduction

15

42 were women (for more information see Appendix C). All interviews were recorded in addition to taking notes in the field. Of the 56 interviews, 24 were transcribed verbatim in the original Dari language by an external assistant. The rest were listened to and directly translated into English by another assistant and this author. Kabul province was chosen as the data collection site because over the last two decades it had turned into a hub for returnees from Iran and Pakistan, IDPs and land grabbers alike. With a population of over five million, Kabul has literally turned into a melting pot where Afghans from different parts of the country as well as neighboring countries have settled (more details will be discussed in the relevant chapters). This was a methodologically significant factor in ensuring that the sampling population was well-represented. Specifically, the main sampling criteria, particularly in relation to war victims, were based on the following: (1) Social position: to ensure representation to the extent possible, respondents were selected from different social categories based on their education, age, gender and overall socio-professional standing from both urban and rural sites. Age diversity was an important criterion in order to gain the experience and knowledge of various generations who have experienced conflict in different ways; (2) Ethnicity: respondents were selected from the country’s major different ethnic groups (i.e., Tajik, Pashtun, Hazara and Uzbek) as self-identified, to ensure that all significant voices were heard. This is important given that, in particular during the civil war of 1992–1996, ethnic differences were used as a means to further fuel the war, which to date has left a deep scar on the Afghan society; (3) Sex: it was important to include, to the highest degree possible, both men and women in the categories mentioned in the sampling. While this aim was well achieved with war victims, it was rather challenging as regards the officials and civil society representatives. This is primarily due to the greater representation of men in the governmental and non-governmental sectors as opposed to women; (4) Experience of conflict: the sampling criteria include respondents with varying degrees of conflict experience and over different periods of war, starting from the Soviet invasion up to the Karzai administration. Snowballing was an important technique during the exploratory phase. The author’s well-established network of people in Kabul, particularly in the human rights and civil society community, played an important role during the exploratory phase in providing contacts for key informants. Snowballing continued also during the actual phase of fieldwork, especially as regards public officials in key ministries, the Kabul municipality and the directorates of certain quarters of Kabul with more prominent cases of land grabbing. Knowing well the local context and its complexities, the author was prepared to be flexible in her approach in the field, an aspect emphasized also in the case study method: “[t]he skilled investigator must remember the original purpose of the investigation but then must be willing to adapt procedures or plans if unanticipated events occur” (Yin, 2009, p. 70). Other methodology experts

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Introduction

also tend to agree with this. Marshall and Rossman call flexibility “the hallmark of qualitative methods” (2006, p. 39). The researcher used an open-ended questionnaire during interviews in the second phase (see Appendix B). Focused interviews, as opposed to in-depth interviews, were applied, where interviews were conducted for a shorter period of time—an hour, for example. According to the case study method, focused interviews can remain open-ended and conversational, but still be guided by a set of questions (Merton, Fiske & Kendall, 1990, as quoted by ibid.). Three main questions were developed with a focus on (1) people’s actual experience of war time, in particular the war impact on their socioeconomic lives, (2) the mechanisms behind the harm and violations, and (3) the way forward, with an emphasis on people’s perception about justice and their own agency. Each of these questions was developed into a number of sub-questions, always allowing for possibilities of an emerging, but relevant, issue to be incorporated. Furthermore, considering the various categories of interviewee, certain questions were relevant for one category, i.e., war victims, but not for another, such as officials or the international community. Case study research can encompass a multi-level questionnaire (up to five levels) to adapt to each category. These five levels, according to Yin, are as follows: Level 1: questions asked of specific interviewees; Level 2: questions asked of the individual case (these are the questions in the case study protocol to be answered by the investigator during a single case, even when the single case is part of a larger, multiple-case study); Level 3: questions asked of the pattern of findings across multiple cases; Level 4: questions asked of an entire study; for example, calling on information beyond the case study evidence and including other literature or published data that may have been reviewed; and Level 5: normative questions about policy recommendations and conclusions, going beyond the narrow scope of the study. (Yin, 2009, p. 87) Yin places emphasis on level 2, which are the principal questions the investigator has to answer as a whole, and the three broad sets of questions mentioned above are an example of this. In addition to interviews, the researcher collected documents in the local languages of Dari and Pashto. They included newspaper articles, especially reporting on land grabbing, specific laws of Afghanistan, books and booklets written by academics and researchers, reports by NGOs and civil society organizations, as well as certain crucial documents shared with the researcher, in confidence, by a highranking official at the Municipality of Kabul related to land grabbing. During the analysis, the mentioned documents proved essential to corroborate sources. Direct observation, which is also emphasized in the case study data collection method, was applied throughout the fieldwork, in particular in relation to the living conditions

Introduction

17

of the war victims, such as their access to housing and other circumstances related to it. Some sites were photographed, with the permission of their residents, to capture the reality of their living conditions. Data analysis

Data analysis consists of “examining, categorizing, tabulating, testing, or otherwise combining evidence, to draw empirically based conclusions” (Yin, 2009, p. 126). Case study methodology is not well-developed regarding data analysis; as such, it is up to the “investigator’s own style of rigorous empirical thinking” (ibid., p. 127). In search of this tool, the author attended a workshop organized by the University of Leuven on the Qualitative Analysis Guide of Leuven (QUAGOL), a data analysis technique developed in response to the lack of guidance on qualitative data. The QUAGOL is critical of researchers’ over-reliance on qualitative software packages rather than taking time to “read and reread the material, sit back and reflect on what one has read, trying to grasp the general themes and storylines and coming to the necessary ‘aha-erlebnis’” (Hunter et al., 2002, as quoted by Dierckx de Casterlé et al., 2012, p. 362). It is a “comprehensive and systematic but not rigid” method as the researcher can constantly move between the phases, thus making it an iterative process (ibid., p. 363). The QUAGOL resonated with the author’s inclination towards field data analysis, particularly its accentuation on a more “manual” approach rather than software program. The QUAGOL is a two-phased data analysis process, each phase consisting of five stages. Phase one starts with thorough reading and re-reading of the interviews, using only paper and pencil to make notes in the margins next to the text. The purpose of this phase is to underline key phrases, get an overall idea in relation to the research question/s and start a rudimentary phase of analysis. The second step is to draft a narrative interview report for each interview, with an eye on emerging concepts in relation to research question/s. The third stage involves developing concepts from facts and raw data. At this stage, the researcher needs to start clustering the concepts, which can be presented in a scheme (always in relation to the research question/s). At the fourth stage, the researcher needs to go back to the interview data with the conceptual scheme in mind to verify and ensure that no important concept has been overlooked by the researcher. Finally, the fifth stage is characterized by a “forward-backward movement between within-case and across-case analysis which will facilitate the identification of common themes, concepts or hypotheses” (ibid., p. 367). The second phase goes beyond paper and pencil and finally to the computer. This is the actual coding process, which starts, at stage one, by drawing up a common list of concepts without imposing a hierarchical order. Any software program can be used for this, e.g., excel. The second stage is “back to the ground” with the list of concepts at hand where the researcher examines why certain—key—concepts exist in one interview but not in another. The third stage looks at the relevance of concepts in relation to citations from the data

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Introduction

and whether one common message describing the concept can be discerned or if there is a need to develop it into sub-concepts. Stage four entails integrating concepts in a meaningful framework in response to the research questions. The final stage is a description of the results, where it “systematically and carefully describes the essential findings in answer to the research questions” (ibid., p. 368). At this stage, quotes can be added where necessary and relevant. This stage, in other words, is a move from the conceptual to the theoretical level. Although there were some limitations with the use of the QUAGOL in this research, it was overall the right choice for this empirical study given the emphasis on understanding locals’ perceptions and experiences. The QUAGOL is an intense and rather complex data analysis procedure, where it gives the possibility to the researcher to really engage with the essence of the data. It is, at the same time, a clear and step-by-step procedure, allowing the researcher to systematically analyze the data. Ethical considerations

Research involving human subjects often implies strict ethical guidelines. In protecting the human subject, the case study method emphasizes obtaining a formal approval of the plan to ensure that research is conducted at the highest ethical standard. This includes gaining informed consent, protecting participants from harm, protecting the privacy and confidentiality of the participants as well as taking special precaution as regards the protection of vulnerable groups of people, such as war victims in this case. The plan for this fieldwork was approved by the relevant authorities at KU Leuven prior to the execution of the project. At the time of conducting these interviews, KU Leuven did not request the obtaining of formal/written consent from the research participants. Furthermore, given the sensitive nature of the current research, obtaining formal consent would have been highly problematic if not outright impossible. The matter gets further complicated considering that a large number of research participants could not read and write, an issue also acknowledged as a “cultural challenge” to informed consent by Marshall and Rossman (2006). However, while much “institutionally sponsored research” requires informed consent, that is the obtaining of consent in writing, implied consent can also be applied in certain circumstances (Berg, 2007). This researcher obtained implied consent from every research participant before conducting the interview. Further to the explanation of the research aim and procedure, the author also informed interviewees, particularly in IDP/returnee settlements, that there was no monetary or material benefit attached to the process. This was crucial because the researcher heard the following comment in one of the first settlements: “many people have come here to write down our names or take our photos with the promise of aid, but at the end they have done nothing for us.” Some were even conveying a message that others, such as foreign journalists, were making a fortune for themselves out of their misery. I began conducting interviews

Introduction

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with this element in mind because I was well-acquainted with the conditions, particularly after speaking with a key informant from the community. I was upfront with the interview participants from the start, indicating that there was no monetary gain to be had from the study and that all I could do was reflect their views in articles or in the form of recommendations. They agreed to be interviewed in almost every case, sometimes even expressing gratitude for the chance to be heard by a local researcher who spoke their language. Confidentiality and anonymity were other aspects strictly followed during the research procedure. Berg defines confidentiality as an “active attempt to remove from the research records [of] any elements that might indicate the subjects’ identities” and anonymity as remaining nameless, in a literal sense (2007, p. 79). Confidentiality is also a way to “gain trust” and to “encourage participants to speak openly and honestly” (Simons, 2009, p. 106). Although, in a drop-off sheet, I gathered every participant’s information, including their names, they were nowhere in the process identified with names. I assigned a number to every participant from the moment of recording, to transcription, to data analysis and reporting. The drop-off sheets have always been kept in a secure place, only accessible by this researcher. Every piece of data entered in the computer corresponded to numbers only and when used in a textual context, I have only referred to a broad categorization of their social status, i.e., a victim of land grabbing, or a senior official at the Ministry of Justice and so on. On a number of occasions, particularly in interviews with known civil society activists or government officials, the interviewees expressed a lack of concern regarding the use of their identity in the research or even in public, stating they had already expressed such views in the media. Nevertheless, I kept the confidentiality and anonymity as a general rule for every participant. As regards the protection of participants, almost all interviews were conducted at the preferred location of the interviewees. In the case of most victims, it was at their private residences/settlements. In the case of government officials and civil society members, interview locations were almost always at their offices. I had to utilize my cultural and social compass in practically all of these decisions to assure safety and security not only for the participants but also for myself, especially as a woman. Furthermore, given the sensitive nature of the topic, prior to each interview it was communicated to research participants that they should not feel obligated to answer a question if they did not wish to and that they could terminate the interview process if they found it emotionally uncomfortable. Research limitations and challenges

Multiple challenges surfaced throughout the fieldwork and data analysis process. The case study method is a difficult endeavor despite its appearance otherwise. Yin states: Many people incorrectly believe they are sufficiently skilled to do case studies because they think the method is easy to use. In fact, case study

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Introduction

research is among the hardest types of research to do because of the absence of routine procedures. Case study investigators therefore need to feel comfortable in addressing procedural uncertainties during the course of a study […] During data collection, only a more experienced investigator will be able to take advantage of unexpected opportunities rather than being trapped by them. (Yin, 2009, pp. 66–68) While many of the challenges for this study were predictable, finding strategies to overcome the challenges were not always straightforward. I have identified a handful of challenges, and mitigating approaches, respectively, to discuss here. Security

Security is an evident challenge for every researcher in Afghanistan and for a woman in particular. Obviously, I was well aware of the situation and in search of creative ways to circumvent predicaments during fieldwork. My local connections, including the driver with whom I was cruising around, greatly facilitated—really enabled—the process. Furthermore, as mentioned already, I had identified a number of key informants with whom I could discuss my plans and rely on their advice and judgment. Afghanistan is a society where everything is facilitated through personal connections, in particular social relationships. This is not surprising considering that decades of conflict have eroded the societal fabric in many ways, in particular social trust. Thus, the prevailing social atmosphere is a trust-within-trust system, that is: I trust you because I trust the person who has introduced you to me (Saeed, 2015a). As an example, one research participant had questioned my “real” identity, and whether I would be yet another person who would write their stories and do nothing beyond that. She was relieved upon learning that I established my initial contact through an NGO she trusted and thus could trust me and the nature of my work. The positive aspect of this approach is its ability to mitigate certain security challenges, especially for a woman, and almost immediately create an environment of “trust,” which is deemed crucial for a case study (Simons, 2009). In other circumstances, I had to obtain official permission from local police and security authorities. In one IDP settlement, which had a reputation for the pugnacity of its residents towards outsiders, the local authorities felt compelled to assign an armed bodyguard to accompany me throughout the field visit, arguing that they would not be able to ensure my security otherwise. To my surprise, I found the residents of the mentioned settlement very peaceful and welcoming, expressing their gratitude for my interest in inquiring about their lives and views. It goes without saying that in all these settlements, I would go fully covered, with a long tunic and a head scarf (but not a burqa or a hijab).

Introduction

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Data saturation

Not only was the snowballing fast, but the research topic was also warmly received by interview participants. This made the interviewing process very collaborative, especially with individuals in the government and civil society sectors. Almost everyone would refer me to at least one other person or schedule an appointment for me. They were moved by the fact that this research was being carried out by a local researcher, i.e., an Afghan, rather than a “foreigner,” and a woman at that, as mentioned on several occasions. The degree of enthusiasm and collaboration I received in the field pleasantly surprised me. However, this meant devoting the majority of time and effort on conducting interviews. The analysis was postponed until later in the process. As a result, I ended up with 56 interviews, which is considered a significant quantity of data for a qualitative PhD study (Mason, 2010). The challenge for this emerged during the analysis when I reached a saturation point slightly over mid-way through the interviews. Saturation is reached when no new information emerges from the data (Mason, 2010) or “where there is enough information to replicate the study” (Fusch & Ness, 2015, p. 1413). Analyzing a number of qualitative PhD studies, Mason (2010) suggests that data may reach saturation at a relatively early stage and that in many research experiences 20 to 30 in-depth interviews are sufficient to reach this point. Nevertheless, there does not seem to be much consensus on data saturation as it remains a “neglected” field of data (Fusch & Ness, 2015, p. 1408). I discussed the issue with my supervisor and we decided that I would analyze all the data. Validity and reliability

Validity and reliability are integral parts of any social science research. Validity often refers to the degree to which a research process is able to provide answer/s to the question/s for which it was undertaken by using appropriate methods, procedures and well-defined operational measures (Kumar, 2005; Yin, 2009). In other words, “it is the ability of an instrument to measure what it is designed to measure” (Kumar, 2005, p. 153). Reliability refers to a test of whether if the same research was conducted by another investigator, following the same case study and procedure all over again, they would arrive at the same findings and conclusions. The goal here is to minimize bias and errors as much as possible (Yin, 2009, p. 45). The reliability of the instrument, i.e., research questions in a qualitative research design, is a key factor in producing consistent measurements each time (Kumar, 2005, p. 159). This means that reliability depends on validity (Marshall & Rossman, 2006); thus one cannot be apart from the other. Researchers and methodology experts agree that in social sciences, variables are not always easy to measure, given the nature of the issues that investigators try to grasp, such as perceptions on a given concept like justice (Kumar, 2005; Marshall & Rossman, 2006; Yin, 2009). This sometimes becomes a source of

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Introduction

critique, particularly for a case study method, where some scholars point out that “a case study investigator fails to develop a sufficiently operational set of measures and that ‘subjective’ judgements are used to collect the data” (Yin, 2009, p. 41). Considering such limitations, various approaches have been suggested to maximize the validity and readability in a research project. Kumar, for example, suggests two approaches to establish the validity of a research project: statistical evidence and logic. While the former can provide hard evidence “by way of calculating the coefficient of correlations between the questions and the outcome variables,” the latter can be justified by implying logic in the relationship between question/s and the objective of the study (Kumar, 2005, p. 154). For less tangible concepts, he suggests the following: When a less tangible concept is involved, such as effectiveness, attitude or satisfaction, you need to ask several questions in order to cover different aspects of the concept and demonstrate that the questions asked are actually measuring it. Validity in such situations becomes more difficult to establish. (ibid., p. 154) For a case study method, Yin suggests three tactics to construct validity and reliability: (1) use of multiple sources of evidence in response to the line of inquiry; (2) establishment of a chain of evidence; and (3) review of the draft case study report by key informants (Yin, 2009, p. 42). Moreover, many researchers emphasize the importance of internal and external validity, particularly for case studies (Simons, 2009; Yin, 2009). Internal validity refers, in particular for explanatory case studies, to how and why event x led to event y. If there is a casual factor, i.e., z, which may have actually caused the y, but the research design fails to capture it, then there is an internal validity problem. External validity relates to whether a “study’s findings are generalizable beyond the immediate case study” (Yin, 2009, p. 43). In this empirical study, the challenge of assessing intangible concepts clearly prevailed. In essence, the fieldwork was an attempt to understand people’s perceptions, particularly those connected to the concepts of harm and justice, which are subjective and context dependent, and hence difficult to quantify. Yin’s tactic number one was implied throughout the work to the extent possible, keeping this issue in mind from the beginning of the fieldwork. The collection of documentary sources, as well as other evidence, was crucial in establishing or verifying certain facts. For example, a victim of land grabbing mentioned an incident related to a certain member of Parliament. I searched for that incident to find local sources that could corroborate the event. Apart from the documentary evidence, I also relied on my direct observation in certain circumstances. This, in other words, is the process of data triangulation, the use of multiple sources of evidence “aimed at corroborating the same fact or phenomenon” (ibid., p. 116). Moreover, Kumar’s suggestion related to the research questions was also implied. For example, multiple questions were

Introduction

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posed to understand people’s perceptions of the harm implicated on them as a result of violent conflict. This research can be considered an explanatory case study; as such, internal validity applies. The essence of the argument here, demonstrated through the case study, is that the lack of accountability or transitional justice measures (factor x) has led to the economic-state crime of land grabbing in Afghanistan (factor y). Likewise, as regards the external validity, the case, arguably, can be generalizable to other main urban centers of Afghanistan beyond Kabul. This implies the predicaments of the IDPs and returnees as regards access to HLP, on the one hand, and land grabbing on the other. As to the latter, the findings of this research, through documentary evidence and expert interviews, confirm that Kabul province is just one example of the systematic and massive land grabbing that has occurred across all the main provinces of Afghanistan. Researcher’s positionality

Another challenge to acknowledge is the researcher’s positionality, which signifies the researcher’s personal interest in a situation (Bourke, 2014; Marshall & Rossman, 2006). This obviously raises questions about the researcher’s objectivity and how to minimize bias, as captured by Marshall and Rossman: “The qualitative researcher’s challenge is to demonstrate that this personal interest—increasingly referred to as the researcher’s positionality—will not bias the study” (2006, p. 30). This aspect, arguably, seems to be an intrinsic part of the qualitative data collection; thus a researcher’s subjectivity cannot be taken away from the overall setting (Bourke, 2014; Fusch & Ness, 2015). The researcher, evidently, influences the process, especially dealing with real-world events where the situation cannot always be contained and controlled as is possible in a laboratory. Yin states: In a case study, you must therefore learn to integrate real-world events with the needs of the data collection plan. In this sense, you do not have the control over the data collection environment as others might have in using the other research methods. (Yin, 2009, p. 83) Reflecting on his positionality as a white man studying a group of colored people, Bourke states: Research represents a shared space, shaped by both researcher and participants (England, 1994). As such, the identities of both researcher and participants have the potential to impact the research process. Identities come into play via our perceptions, not only of others, but of the ways in which we expect others will perceive us. Our own biases shape the research

24

Introduction

process, serving as checkpoints along the way. Through recognition of our biases, we presume to gain insights into how we might approach a research setting, members of particular groups, and how we might seek to engage with participants. (Bourke, 2014, p. 1) As suggested by Bourke, it seems that recognizing our biases, rather than placing constant emphasis on an objectivity that is not possible, is a healthy approach to making a researcher, paradoxically, more “objective.” It means acknowledging a researcher’s belief, political stance, cultural and educational background as well as socio-economic status as part of the process. This process has been referred to as “reflexivity,” involving “a self-scrutiny on the part of the researcher; a self conscious awareness of the relationship between the researcher and an ‘other’” (Chiseri-Stater, 1996; Pillow, 2003 as quoted by ibid., p. 2). During the fieldwork, I was fully aware of my “identity” as the researcher. The reflexivity and awareness, in reality, allowed me to remain objective. As Bourke states: “We can strive to remain objective, but must be very mindful of our subjectivities. Such is positionality” (ibid., p. 3). It gave me a tool to be, first and foremost, a good listener, allowing respondents to share their stories and experiences. The space between me and the respondents, and my awareness of it, served as a healthy bar to remain unbiased. I knew, and so did the respondents, that I was not there to express views, only to ask questions to steer a conversation, to let them speak. This attitude prevailed throughout the interview procedure. Upon my return from the field, and particularly during the initial stages of the data analysis, I yet again reflected on the question of positionality, especially considering my background as a human rights activist prior to entering academia. In a blog published by the Oxford University Press, I reflected on this: Many questions have come up in relation to this [fieldwork], such as: What exactly is my role as a researcher, who knows the empirical reality of my case study so well? Is there a place for me to represent the victims I interview, and if so, through which means? Does the question of representation even matter in academia or is it something to be left only to the realm of activism? How do victims perceive me as someone who, on the one hand, shares and understands their pain and suffering, and, on the other, as a researcher ought to keep a distance, thus becoming the “other”? (Saeed, 2016) Perhaps, in part due to such reflections, the data analysis procedure proved to be an emotionally challenging experience, though rewarding at the same time.

Introduction

25

Emotional challenges of the data analysis

This was a rather unexpected challenge until the actual moment when I became intensely engaged with the data for a number of consecutive months. Perhaps for this reason—i.e., unpredictability—mitigation strategies were not foreseen, as in the case of the other experiences just mentioned. The most difficult part entailed reading and re-reading victims’ experiences of war time. Their stories of suffering are heart breaking, and no matter how arduous one is in trying to remain “objective” with the data, it is impossible to disentangle such stories from human emotions. As Baxter notes, such are the challenges of doing research in a transitional justice context, in particular working with people “who have survived human rights violations or systematic violence [that] requires special consideration by the researcher” (Baxter, 2009, p. 330). This was further exacerbated given the data analysis method I was using, which emphasizes pondering the data multiple times. Moreover, I realized I was being hit hard also because I know the reality of Afghanistan very well and have a close bond with my country of origin. As a result of the unpredictability of this experience, the data analysis took longer than expected. On a number of occasions, especially in the beginning, I found myself stopping my listening to or reading of victims’ narratives, and instead, I focused on something else. Initially, I thought this was not a sign of normalcy; that I must thus make myself stronger to face the challenge. But as I listened to the presentation of a researcher from Oxford University with a similar experience, and raised the concern with a few professors and colleagues at the Leuven Institute of Criminology (LINC) as well as with my supervisor on a number of occasions, I realized that this was, after all, not so aberrant, let alone embarrassing. In terms of mitigation techniques, openly discussing and accepting the circumstance was really beneficial in the first place. More specifically, I understood I needed to concentrate on the positive parts of Afghanistan. For example, when I needed a break from data analysis, I started listening to Afghan songs, particularly the Afghan Star, which is a singing competition program that celebrates youth and their achievements. I needed to create this contrast in order to cope with the realities of the victims, particularly their experiences from the civil war era. Towards the end of the data analysis, I was also able to see positive narratives because people, at the same time, were talking about their struggles to change, and their hopes and desires for the future.

Book structure This book is divided into three sections. Part I covers the theoretical and conceptual aspects of the study, with a chapter dedicated to each central topic, discussing its conceptual and definitional aspects, the main debates and arguments

26

Introduction

that characterize the fields and their relevance to the current research. The first chapter addresses socio-economic harm in times of violent conflict and its relevance to transitional justice and criminology. Chapter 2 elaborates on the violation of the right to Housing, Land and Property (HLP) in situations of conflict and post-conflict. Part II is dedicated to the case study of Afghanistan, with Chapter 3 on the conflict background, Chapter 4 on HLP in Afghanistan, Chapter 5 on land grabbing, and Chapter 6 on land grabbing as economic-state crime and its relevance to transitional justice. Part III presents a discussion in an attempt to bridge the theoretical gaps between critical criminology and transitional justice through the case study (Chapter 7). A short conclusion follows with brief sections on the research contribution, challenges and recommendations.

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Engstrom, P. (2013). Transitional justice and ongoing conflict. In C. L. Sriram, J. GarcíaGodos, J. Herman, & O. Martin-Ortega (Eds.), Transitional justice and peacebuilding on the ground: Victims and ex-combatants (pp. 41–61). Routledge. Fusch, P. I., & Ness, L. R. (2015). Are we there yet? Data saturation in qualitative research. The Qualitative Report, 20(9), 1408–1416. Gossman, P., & Kouvo, S. (2013). Tell us how this ends: Transitional justice and prospects for peace in Afghanistan (No. 2/2013; AAN thematic report). Afghanistan Analysts Network. https://www.afghanistan-analysts.org/publication/aan-papers/tell-us-how-this-ends -transitional-justice-and-prospects-for-peace-in-afghanistan/ Gready, P., & Robins, S. (2014). From transitional to transformative justice: A new agenda for practice. International Journal of Transitional Justice, 8(3), 339–361. https://doi.org/10 .1093/ijtj/iju013. Green, P., & Ward, T. (2000). State crime, human rights, and the limits of criminology. Social Justice: Race, Class, and State Crime, 27(1), 101–115. Hagan, J., Kaiser, J., Rothenberg, D., Hanson, A., & Parker, P. (2012). Atrocity victimization and the costs of economic conflict crimes in the battle for Baghdad and Iraq. European Journal of Criminology, 9(5), 481–498. https://doi.org/10.1177 /1477370812452087. Hambastagi. (2012, December 20). The looters of “Sherpur” cannot guard historic monuments. http://www.hambastagi.org/new/fa/reports-farsi/288-basir-salangi-destroyer-of -sherpur-historic-site-in-kabul.html. Iadicola, P. (2011). Do empires commit state crime. In D. L. Rothe & C. W. Mullins (Eds.), State crime: Current perspectives (pp. 122–141). Rutgers University Press. IRIN. (2003, September 4). Afghanistan: Police violently evict Kabul residents. IRIN Humanitarian News and Analysis. http://www.irinnews.org/report/20692/afghanistan -police-violently-evict-kabul-residents. Jenkins, P. (1988). Whose terrorist? Libya and state criminality. Contemporary Crises, 12, 5–24. Karstedt, S. (2014). State crime: The European experience. In S. Body-Gendrot, M. Hough, K. Kerezsi, R. Levy, & S. Snacken (Eds.), The Routledge handbook of European criminology. Routledge. Kauzlarich, D., Kramer, R. C., & Smith, B. (1992). Towards the study of governmental crime: Nuclear weapons, foreign intervention, and international law. Humanity and Society, 16, 543–563. Kothari, M. (2004). Economic, social and cultural rights: Adequate housing as a component of the right to an adequate standard of living. United Nations. http://www.refworld.org/pdfid /409100130.pdf. Kritz, N. J. (1995). The dilemmas of transitional justice. In N. J. Kritz (Ed.) Transitional justice: How emerging democracies reckon with former regimes (Vol. 1), p. 644. United States Institute of Peace. Kumar, R. (2005). Research methodology: A step-by-step guide for beginners (2nd ed.). SAGE. Lasslett, K. (2018). Uncovering the crimes of urbanisation. Routledge. Lombroso, C., & Ferrero, G. (1893). The female born criminal. Duke University Press. Mani, R. (2008). Dilemmas of expanding transitional justice, or forging the nexus between transitional justice and development. International Journal of Transitional Justice, 2(3), 253– 265. https://doi.org/10.1093/ijtj/ijn030. Marshall, C., & Rossman, G. B. (2006). Designing qualitative research. SAGE. Mason, M. (2010). Sample Size and Saturation in PhD Studies using qualitative interviews. Forum: Qualitative Social Research, 11(3), 8.

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McEvoy, K., Dudai, R., & Lawther, C. (2017). Criminology and transitional justice. In The Oxford handbook of criminology (pp. 391–415). Oxford University Press. McLaughlin, E., Muncie, J., & Hughes, G. (Eds.). (2013). Introduction: Theorizing crime and criminal justice. In Criminological perspectives essential readings (3rd ed.). SAGE Publications. Mottershaw, E. (2008). Economic, social and cultural rights in armed conflict: International human rights law and international humanitarian law. The International Journal of Human Rights, 12(3), 449–470. https://doi.org/10.1080/13642980802069674. Parmentier, S. (2011). The missing link: Criminological perspectives on transitional justice and international crimes. In M. Bosworth & C. Hoyle (Eds.), What is criminology? (pp. 380–392). Oxford University Press. http://oxfordindex.oup.com/view/10.1093/acprof :oso/9780199571826.003.0026. RAWA. (2003, October). The Sherpur crime is another disgraceful stain on the face of Qanuni, Fahim and Co. Payame-e Zan, 59. http://pz.rawa.org/59/59shirpur.htm. Rostami, A. (2013, March 31). 8] ‫‌ معادن‌ افغانستان‌ تاراج‌ می‌شوند‬:‫صبح‬۸ ‌‫یافته‌های‬am reveals: The looting of mines in Afghanistan]. Daily 8am. http://8am.af/1392/01/11/8-am-report -afghanistan-mines/. Rothe, D. L. (2009). State criminality: The crime of all crimes. Lexington Books. Royee, Z. (2016, February 22). ‫‌نود‌درصد‌ملکیت‌های‌اهل‌هنود‌غصب‌شده‌است‬:‫[ خانه‌آزادی‬Freedom house: 90% of the properties of the Hindus have been seized]. Daily 8am. http://8am.af /1394/12/03/land-grabbing-freedom-house/. Saeed, H. (2015). Empowering unheard voices through ‘Theatre of the Oppressed’: Reflections on the legislative theatre project for women in Afghanistan—Notes from the field. Journal of Human Rights Practice, 7(2), 299–326. https://doi.org/10.1093/jhuman/huu028. Savelsberg, J. (2010). Crime and human rights. SAGE. Schinasi, M. (2008). Kaboul 1773–1948: Naissance et croissance d’une capitale royale. Università degli studi di Napoli L’Orientale. Schmid, E. (2011). War Crimes related to violations of economic, social and cultural rights (SSRN Scholarly Paper ID 1932701). Social Science Research Network. http://papers.ssrn.com /abstract=1932701 Schmid, E. (2015). Taking Economic, social and cultural rights seriously in international criminal law. Cambridge University Press Saeed, H. (2016, May 2). Between research and activism: “organic intellectuals.” OUPblog. http://blog.oup.com/2016/05/research-activism-organic-intellectuals-academia/ Schwendinger, H., & Schwendinger, J. (1975). Defenders of order or guardians of human rights? In I. Taylor, P. Walton and J. Young (Ed.), Critical Criminology (p. 268). Routledge. https://doi.org/10.4324/9780203122655 Simons, H. (2009). Case study research in practice. SAGE. Tappan, P. W. (1947). What is crime? In T. Newburn (Ed.), Key readings in criminology (pp. 4–7). William Publishing. Teitel, R. (2003). Transitional justice genealogy. Harvard Human Rights Journal, 16, 69–95. UNHCR Afghanistan. (2014). VolRep and border monitoring monthly update. United Nations High Commissioner for Refugees. http://www.unhcr.af/UploadDocs /DocumentLibrary/VolRep_Border_Monitoring_Monthly_Update_Aug_2014 _635496730516340764.pdf. Unruh, J. D., & Abdul-Jalil, M. A. (2021). Housing, land and property rights in transitional justice. International Journal of Transitional Justice, 15(1), 1–6. https://doi.org/10.1093/ijtj /ijab004.

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van der Merwe, H. (2009). Delivering justice during transition: Research challenges. In H. van der Merwe, V. Baxter and A.R. Chapman (Ed.), Assessing the impact of transitional justice: Challenges for empirical research. United States Institute of Peace Press (USIP Press). Waldorf, L. (2012). Anticipating the past transitional justice and socio-economic wrongs. Social & Legal Studies, 21(2), 171–186. https://doi.org/10.1177/0964663911435827. Woodburn, B. (2014). Bala Hissar, Sherpur fortress and Arg: The architecture of power in Kabul. Afghanistan Analysts Network. https://www.afghanistan-analysts.org/bala-hissar -sherpur-fortress-and-arg-the-architecture-of-power-in-kabul/. Yin, R. K. (2009). Case study research: Design and methods (4th ed.). SAGE Publications, Inc.

Chapter 1

Socio-economic harm in violent conflicts, transitional justice and critical criminology

Violent conflicts produce colossal direct and indirect socio-economic harm and destruction, affecting individuals, communities and societies at large. Socio-economic harm includes deprivation not only of legally granted rights, such as the right to an adequate standard of living, the right to education, the right to health and socio-cultural access, but also a broader set of activities connected to the socio-economic well-being of individuals and communities. These include, for example, social networks, upward socio-economic mobility and generational consequences, all of which are affected in times of war. While the former set of rights is a more direct consequence of socio-economic rights violations, the latter is the hidden cost of socio-economic harm during violent conflicts as individuals and communities are forced to leave their homes, professions and communities behind. Notwithstanding the devastating impacts of socio-economic harm, they are rarely recognized and addressed in post-conflict justice mechanisms covered under the umbrella term transitional justice, which aims to address serious human rights violations through a set of judicial and non-judicial measures. Most transitional justice mechanisms have been known to predominantly address civil and political rights violations at the expense of socio-economic harm, despite emerging and critical debates over the last decade to challenge this one-sided approach (Carranza, 2008; de Greiff & Duthie, 2009; Mani, 2008; Miller, 2008; Muvingi, 2009). In the same vein, criminology, the discipline par excellence to engage with crimes, has hardly dealt with socio-economic harm in times of violent conflict. This chapter will address the current lacuna through the prism of transitional justice and critical criminology, arguing that in certain situations socioeconomic harm amounts not only to crime, i.e., economic crime or state crime or both simultaneously, but also to gross human rights violations, an argument that will be demonstrated in the empirical case of Afghanistan in this book. Although the focus of this book remains primarily on housing, land and property, this chapter will present a more general discussion of socio-economic harm. In doing so, it will first present a brief discussion of the socio-economic harm in question, followed by a thorough discussion of socio-economic harm DOI: 10.4324/9781003134411-2

Socio-economic harm

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through the prisms of transitional justice and criminology. This section will particularly focus on alternative perspectives in both fields, i.e., transformative justice and critical criminology. Before delving into the chapter, a terminological clarification is in order. As a legally oriented field, transitional justice scholars primarily use the language of “rights violations” in relation to socio-economic damage caused during periods of violent conflict, as opposed to social injury or harm, which critical criminologists suggest (this perspective will be discussed later in the chapter). Occasionally, in transitional justice literature, scholars utilize the language of “crime” as opposed to “violation” to denote economic damage and harm committed during violent conflicts or under dictatorships. Carranza, as a prominent example of this trend, offers his approach towards economic crime as follows “Offenses committed by both state and non-state actors that may constitute violations of the human rights enumerated in the International Covenant on Economic, Social and Cultural Rights” (2008, p. 310). Other scholars use “economic violence” (Sharp, 2014a) or “economic conflict crimes” (Hagan et al., 2012) for similar situations. Nevertheless, overall even when such concepts are used, they indicate a legal perceptiveness, as is apparent in Carranza’s definition, or they are simply used interchangeably with violation of socioeconomic rights. In this chapter the prevalent terminologies among transitional justice scholars, i.e., violation as opposed to injury and harm, will be utilized.

Socio-economic harm in times of violent conflicts Multiple situations can constitute examples of socio-economic harm on a mass scale. One such example is systematic looting of the wealth of countries by their corrupt heads of states such as Mobutu Sese Seko in Zaire (Democratic Republic of Congo), Ferdinand Marcos in the Philippines, Suharto in Indonesia, Sani Abacha in Nigeria, Hosni Mubarak in Egypt, Muammar Al-Gaddafi in Libya and, more pertinent to the current case study, many persons in power in Afghanistan who were involved in land grabbing, as demonstrated in the case of Sherpur (Carranza, 2008; Daniel, 2004). Such looting may take the form of embezzlement in huge sums from development aid projects (Daniel, 2004), massive corruption, property and land grabbing, illegal mining extraction and exploitation of natural or public resources. Illegal revenues are often utilized to fuel conflicts, fund illegal and coercive actions (Carranza, 2008) or use for personal gains. Indonesia’s Suharto and his family had amassed an estimated US $9 billion at the time of his death in 2008. In Congo, under Mobuto Sese Seko’s 32 years of power, an estimated US $12 billion in international aid, mainly from the World Bank, had vanished (Daniel, 2004). Following the US invasion in 2001, a massive amount of aid arrived in Afghanistan, which mainly benefited government officials and their extended family and network, such as former President Karzai. The embezzled international aid either ended in kickstarting construction companies and other businesses in the country or in

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Socio-economic harm

foreign businesses and banks, particularly in Dubai and Turkey (Falvo, 2021). In almost all cases, the perpetrators of such crimes have not been held accountable. Both Pinochet and Suharto died before ever being tried for economic crimes (Carranza, 2008). Another, and arguably the most widely yet ignored form is the direct violation of socio-economic rights such as forced displacement, home and property destruction and lack of access to education and health care as a result of conflict. This has been taking place on a colossal scale, affecting particularly populations in already impoverished and underdeveloped countries, such as Afghanistan, Iraq, Sudan and so on. Yet, such violations are hardly ever addressed, let alone redressed. In a study of what the authors call “conflict economic crimes” in Iraq, the analysis suggests that in a period of five years (2003–2008) more than one million households were victims of human rights and humanitarian crimes in Baghdad. In this study, respondents reported, in terms of socioeconomic damage alone, “monetary losses resulting from blackmail, payments for kidnapping/ransom, medical expenses related to violence, expenses related to moving owing to security concerns, losses of businesses, homes, furniture, or cars, and any other large, unexpected expenses since the invasion” (Hagan et al., 2012, p. 490). Converting the losses into 2008 US dollars, the authors estimate an overwhelming amount of over US $40 billion in damages in 2006, correlating with a period of intensified fighting. Pointing to the scarcity of research on the violation of socio-economic rights as a result of conflict and its subsequent implication for transitional justice, as well as for criminologists, the authors state: Although our estimates are far from definitive, they convey the enormous extent of the victimization and losses experienced by the residents of Baghdad and Iraq, and the ways in which these losses systematically vary across groups and locations. These costs are a way of understanding the scale of unmet challenges in achieving transitional justice in Iraq. Little research by criminologists or other researchers exists on the economic losses experienced in such conflicts. (ibid., p. 495) Though these are relatively recent cases of socio-economic damage, examples were also mentioned during the Nuremberg trials. Meltzer, who served as a prosecutor, used the term “economic case” in relation to his interrogative work on issues relevant to the current discussion. He states: My own work dealt primarily with what was called the “economic case.” The economic case included, first, crimes against peace by defendants who had financed the building of, or had built, the German war machine with knowledge of Germany’s aggressive purposes; and second, war crimes and crimes against humanity resulting from the systematic plundering and

Socio-economic harm

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pillaging of occupied territories and the deportation and exploitation of millions of slave laborers. (Meltzer, 1999, p. 27) The examples above indicate that economic loss can lead to gross violation of socio-economic rights; sometimes leading to more severe consequences than civil and political rights violations, as stated by Chapman and van der Merwe in the case of South Africa: “[a]partheid killed more people through its economic and social oppression than through acts of direct physical violence” (2008, p. 6). Nevertheless, during the transitional period from Apartheid to Democracy, South Africa did not address socio-economic inequalities as a structural cause of many of its problems. The challenges of not addressing socio-economic harm can be manifold. First of all, the range of human rights violations will not be addressed in full, thus providing a partial sense of justice among those whose civil and political rights may have not been violated in the conflict or under an authoritarian regime, but who may have suffered socio-economic harm, i.e., the loss of land, business or property. Calling this approach a compartmentalization of justice, Carranza writes: the predominant approach in the transitional justice field tends to view human rights as narrower than the range of human rights violations that actually occur. The field compartmentalizes the unresolved legacies faced by transitioning societies, particularly in developing countries. It constructs one compartment for human rights violations and another for economic crimes and corruption. Economic crimes thus are treated as if they do not constitute rights violations in themselves. (Carranza, 2008, p. 315) According to this view, the violation of civil and political rights is seen as justiciable and thus subject to being remedied through transitional justice mechanisms, whereas socio-economic rights violations are usually considered non-justiciable and consequently left out of the framework of transitional justice. This perspective can be linked with the prevailing understanding of justice that tends to consider civil and political rights as freedoms, “in relation to which violations can be found” whereas economic, social and cultural rights are entitlements, “which depend on available resources and are provided by the state over time, subject to priorities established in the political arena” (Arbour, 2007, p. 11). Numerous cases can illustrate this point. Post-dictatorship governments in Indonesia and the Philippines, for example, left corruption and economic crimes by Suharto and Marcos unaddressed until their death. The same holds true for Pinochet. Although they all died without being convicted of any crimes, it is reasonable to argue that their death should not have put an end to the recovery

34

Socio-economic harm

of those assets as part of transitional justice efforts. As Carranza (2008) points out, in cases where accountability for economic crimes and corruption has been included in transitional justice mandates, such as in Chad, Sierra Leone and East Timor, it has resulted in strengthening the processes and confronting impunity more effectively. Hence, some scholars and experts claim that the circle of perpetrators should be enlarged to include those who facilitated human rights violations by making it “economically feasible” and those who “knowingly benefited from those violations” (de Greiff, 2009, p. 36). According to this view, family members of heads of states such as Suharto and Pinochet should be held accountable for “knowingly benefiting” from violations. Another challenge is a return of violence as a consequence of excluding socio-economic harm. South Africa, after many years of its transitional experience, is a case in point. The country’s Truth and Reconciliation Commission (TRC), often heralded as a paradigm in addressing crimes of the past and bringing societal reconciliation, primarily addressed civil and political rights violations as part of its mandate. Although it included some reparative measures for victims and their families through the sub-committee Reparation and Rehabilitation, in practice the commission was not able to fulfil its mandate (Gibson, 2002; Stanley, 2001). As an example, an urgent interim reparation program was recommended for those with “urgent medical, emotional, educational, material and/or symbolic needs” (TRC South Africa, 1998a, p. 56). However, the first payments were made two years after the establishment of the commission, an area where the TRC has come under sharp criticism (Stanley, 2001). Moreover, while reparative measures were seen as important for the healing and reconciliation processes, they were primarily adopted with the lens to counterbalance amnesty (TRC South Africa, 1998a, p. 170) rather than tackling structural inequalities. Hence, one may argue that it was a measure adopted principally as a means to an end (achieving the goals of amnesty and therefore reconciliation), and not an end in itself (addressing structural inequalities) as the country strove for. In particular the black youth, who spent a substantial part of their lives resisting the apartheid regime, are seen as the principal problem behind much of the violence. Born during the country’s turbulent years, most of these youths were robbed of educational and training opportunities in the earlier years of their lives, an issue which has been recognized in the TRC’s final report: The South African social fabric was shaped by apartheid laws and structures that exposed the majority of South Africa’s children to oppression, exploitation, deprivation and humiliation. Apartheid was accompanied by both subtle and overt acts of physical and structural violence. Structural violations included gross inequalities in educational resources along with massive poverty, unemployment, homelessness, widespread crime and family breakdown. The combination of these problems produced a recipe for unprecedented social dislocation, resulting in both repression and

Socio-economic harm

35

resistance. This contributed to a situation that made possible the gross human rights violations of the past. (ibid., p. 253) Instead, the youth were trained in weaponry and explosives, which in the years after the fall of the apartheid regime could not serve as a “skill” to make ends meet, and the TRC had no preparation and remedies for the consequences of such projects (ibid., p. 12). Hence, a substantial number of the former combatants became engaged in criminal activity, which can “provide a substitute for armed struggle on the levels of economy and identity, with these activities providing both status and money” (Simpson, 2000, as quoted by Stanley, 2001, p. 553). A third important consequence of ignoring socio-economic harm is the reinforcement of impunity. As Carranza notes “while transitional justice promotes accountability by what it chooses to confront, it may reinforce impunity by what it chooses to ignore” (2008, p. 330). Pinochet, Marcos and Suharto used their illegal assets to fund destabilization and coercion, restrain prosecutions, postpone trials, fight extradition and sponsor political allies to thwart efforts to hold them accountable for human rights abuses. “Impunity for economic crimes” thus buttresses “impunity for human rights violations” (ibid., p. 314). Under these circumstances, the powerful elite, many of whom serve as state officials, not only continue to get away with their wrongful acts by relying on their illegal means, but also continue to thrive financially, as happened in Afghanistan in the absence of transitional justice and accountability mechanisms. The society at large, on the other side of the spectrum, continues to suffer from structural inequality and a culture of impunity, as Vuuren summarizes this in the context of South Africa: [E]vidence of these [economic] crimes will be further erased over time and money stolen will continue to enrich the beneficiaries of corruption. In taking this path, we choose to close the book on the past. Such a decision will not threaten the South African elite and will no doubt be welcomed by many. It will, however, probably always haunt us as a society. (Vuuren, 2006, p. 3)

Socio-economic harm, transitional justice and criminology This section examines socio-economic harm from the perspective of transitional justice and criminology, addressing first each field’s approach towards the issue, followed by a discussion of alternative approaches. Transitional justice and socio-economic harm

As mentioned, transitional justice has largely ignored addressing economic crime and socio-economic harm, leading to many critical voices in the field.

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Muvingi, for example, goes as far as arguing that the “exclusion of socioeconomic equity calls into question the very objectives of transitional justice” (2009, p. 165). Two broad sets of discourses offer explanation in this regard, one arising from the legal tradition and the other from the political, both however having in common the liberal and neoliberal ideology. The legal camp involves a discussion of economic, social and cultural rights as somehow “lesser” and “second class” rights in the context of human rights politics and law. The political camp, on the other hand, relates to the paradigm of the liberal peacebuilding agenda in relation to transitional and post-conflict societies. The legal paradigm

Bearing in mind the debates on the conceptual history of transitional justice emerging out of the broader human rights movement (Arthur, 2009), some scholars argue that transitional justice discourse and practice has inherited the bias of the parent field, human rights itself, with its traditional focus on civil and political rights (Miller, 2008). Calling transitional justice a “field of law” modeled on the criminal justice system, Louise Arbour argues that the root cause of the marginalization of economic, social and cultural rights is “reflected in our general understanding of the concept of justice itself” (2007, p. 4). According to this view, the current definitions of justice and transitional justice “fail to meet the real need of addressing abuses during conflict situations” (ibid.). In particular she refers to the second sentence of the definition of justice in the United Nations Secretary General’s report on The Rule of Law and Transitional Justice in Conflict and post-Conflict Societies, where it states: “Justice implies regard for the rights of the accused, for the interests of victims and for the wellbeing of society at large” (United Nations Security Council, 2004, p. 4). In Arbour’s view, the emphasis on the “victim” and the “accused” somehow restricts the concept of justice “within a more traditional dispute resolution framework that primarily focuses on violations of civil and political rights” (p. 4). Likewise, the UN’s definition of transitional justice—and those of others—with its focus on “large-scale past abuses” triggers the dominant understanding of human rights violation as merely those of civil and political rights, thus ignoring the need to “address gross violations of economic, social and cultural rights associated with conflict” (Arbour, 2007, p. 5). Others too have echoed this perspective. Kenneth Roth, for example, argues that it is easier to identify violations, violators and remedy mechanisms when it comes to civil and political rights violation as opposed to socio-economic rights violation primarily due to its collective nature, both as regards those who are responsible and those who are affected (Roth, 2004). This view is strengthened by international criminal law’s emphasis on individual criminal responsibility rather than structural causes (Miller, 2008), which has a more collective nature both as regards those committing the acts and those affected by them. This approach in international criminal law, “conceptualizes justice in narrow terms as accountability and procedural fairness” (Waldorf, 2012, p.

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173). Viewing transitional justice through this prism, it becomes evident that the discourse and practice of the field has been predominantly aligned with the overall human rights law regime, rather than grounded on the daily experiences and needs of the local population on the ground. It is precisely this vision towards transitional justice that has been challenged over the last decade, leading to more locally driven and bottom-up initiatives. Just as debates about interdependency and indivisibility of rights have surfaced prominently among scholars and practitioners in the field of human rights, so have they in the discourse and practice of transitional justice. Laplante argues that even if debates on the ranking of rights theoretically still exist among scholars, data from the field exhibit their indivisibility. Writing on the experience of Peru’s Truth and Reconciliation Commission, she maintains: “The TRC’s findings show how social and economic inequalities contributed to the eruption of political violence, which further exacerbated these conditions” (Laplante, 2007, p. 141). Moreover, a careful documentation of the “context, causes and consequences” of human rights violation can provide a rich account of the “symbiotic relationship between the different generations of rights” (ibid., p. 143). In a systematic study of socio-economic rights violations in times of conflict, Schmid demonstrates how a situation can be a violation of economic, social and cultural rights while at the same time being considered international crime. She illustrates this by providing numerous examples such as starvation as well as educational and cultural deprivation during the holocaust, the fabricated famine by the Khmer Rouge regime in the 1970s, and enslavement where the right to work and the “right to just and favourable conditions of work” are violated (Schmid, 2015, p. 110). Yet, the “mechanisms of international criminal law often marginalise or ignore those crimes that overlap with ESCR abuses,” concludes Schmid (ibid., p. 3). These and numerous other arguments and situations on the ground demonstrate that addressing socio-economic rights violations, particularly in a transitional justice context, is at least as important, if not more, as civil and political rights violations. The notion of justice in such contexts, therefore, can only become meaningful if the two sets of rights are equally treated in the eyes of the law. This calls for a paradigmatic shift in human rights discourse and practice, as captured well in the words of Muvingi: Justice in economic and social issues can and should be addressed through the lens of human rights, particularly in post repressive states, but it first requires a shift in the field of human rights itself. (Muvingi, 2009, p. 167) Liberal peacebuilding

Principles of liberal peacebuilding normally drive peace operations with the aim to avert violence from starting again when conflicts are over. These principles

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predominantly lie on a global liberal and neoliberal ideology with an emphasis on liberal democracy and market-oriented economy on the one hand (Andrieu, 2010; Katz, 2006; Paris, 1997; Sriram, 2014) and rule of law, civil society, human rights and development on the other (Richmond & Franks, 2008). Literature on the liberal peacebuilding agenda, emanating from empirical case studies, demonstrates that most such initiatives have been predominantly topdown without considering the real needs of the communities affected by war. Substantial amounts of resources have been spent on building “empty institutions” rather than tackling people’s everyday predicaments. More importantly, the top-down nature of these policies and practices has resulted in creating a façade of power relations where ordinary citizens have remained mostly “subjects and objects rather than becoming agential, liberal citizens” (Richmond, 2006, p. 326). These critical perspectives have opened up new venues to alternative discourses. Richmond and Franks for example talk about an emancipatory model of peacebuilding, which is primarily concerned with local ownership and consent, offering a bottom-up approach where locals’ specific needs should be addressed, including issues related to social justice (2008, p. 188). Others (Goodhand & Walton, 2009) follow this line of argumentation by stating that the inherent deficiencies of the model should be recognized and an alternative version, more attuned to the grassroots needs, should be advocated for. Calling transitional justice an essential component of peacebuilding operations, Andrieu (2010) and Sriram (2014) have argued that transitional justice has somewhat followed the same route as the peacebuilding agenda, largely excluding socio-economic harms and structural violence. Andrieu states: “This absence is a sign of the strength of the neoliberal paradigm’s influence upon the discipline. Liberalism, indeed, typically insists more on political rights than on economic and cultural rights” (2010, p. 554). Likewise, Sriram argues: “Minimalist, neoliberal interpretations of human rights urge the oppressed and the poor to fight their governments over freedom of movement or speech but not to demand change of the prevailing economic arrangements that impoverish them” (2014, p. 178). Gready and Robins call the liberal peace “a peace from above,” which is enforced by the powerful in accordance with a global prescription that reinforces established power hierarchies while ignoring the social, economic and political needs of the affected population (2014, p. 351). Not only is transitional justice a component of peacebuilding, and thus influenced by the liberal peace agenda, as a field in its own rights it is underpinned by liberal and neoliberal ideologies. This has persistently left its mark on transitional justice choices, approaches, policies and mechanisms. Gready, for example, faults transitional justice for having been partly co-opted by the globalized neoliberal agenda, which largely ignores economic, social and cultural rights (2011, p. 233). Likewise, Fletcher argues that liberalism has strongly influenced transitional justice, and, as such, without demanding legal accountability, states have enjoyed “moral and legal impunity for their crimes” (2016, p. 447).

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Critical literature on peacebuilding and transitional justice highlights shortcomings common to both fields. Sharp notes that in many ways the “critique of liberal international peacebuilding parallels the critique of mainstreamed transitional justice” (2014, p. 1). However, this linkage has not always been made explicit, as highlighted by Lambourne: “Many transitional justice scholars, meanwhile, have not situated their research in a peacebuilding context, focusing instead on human rights concerns and legal procedures” (2009, p. 29). She goes on to argue that peacebuilding and transitional justice can join forces towards establishing a model of transformative justice by focusing on sustainable peace and society at large from the bottom up. Doing so requires a paradigm shift in our understanding of transitional justice from a state of “transition” to one of “transformation,” an argument that has been gaining traction among transitional justice scholars. Transitional justice mechanisms with a mandate to address socio-economic rights violations

As just discussed, although addressing socio-economic rights violations or structural inequalities has not been a prevalent feature of transitional justice, nevertheless there have been some attempts through a number of mechanisms that merit an abridged discussion here. Some scholars have argued that among transitional justice measures truth commissions are particularly suitable not only to investigate socio-economic losses but also to recommend specific initiatives that should be undertaken to address such losses. Arbour, for example, states that “truth commissions lend themselves particularly well to the investigation and protection of economic, social and cultural rights” (2007, p. 14). Nevertheless, most truth commissions have “ignored corruption and economic crimes” (Carranza, 2008, p. 315). A few which have documented socio-economic rights violations or economic crimes do stand out. To say the least, they demonstrate the importance of documenting such violations, which ideally in the next stage should lead to specific policy recommendations for reparations. Peru’s Truth and Reconciliation Commission (2001) was mandated to examine the enabling circumstances of violations by delving “more deeply into the historical, social and economic causes and conditions that led to the country’s ‘dirty war’” (Laplante, 2007, p. 148). The final report, therefore, presented analysis of “how social, economic, and cultural inequalities contributed to and were made worse by political violence” thus acknowledging that poverty was a backdrop against which other atrocities could become possible (ibid., p. 153). The kind of socio-economic rights violation it included constituted anything from robberies and forced acquisition of animals and herds to looting of stores, to infrastructural damage such as housing, roads, schools, community centers and health care facilities. It also emphasized the collective nature of damage to certain communities (ibid.). Importantly, victims participated in the design

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of the Integral Reparations Plan, which was established following the report’s recommendation, thus making the process more bottom-up and oriented to the community’s needs. In East Timor the Commission for Reception, Truth and Reconciliation (CAVR), which was established in 2002, investigated violations of socio-economic rights caused by the “military operations, security concerns, and the political agenda of the government at the time (Arbour, 2007, p. 9). Considering that massive displacement was a major issue during the years of occupation, which also came out as a serious concern during the Popular Consultation, CAVR dedicated an entire section (170 pages) in its final report (Chapter 7.3) on Forced Displacement and Famine. In its introductory remarks, it states: As part of its mandate to establish the truth regarding past human rights violations, the Commission conducted an inquiry into displacement and famine in Timor-Leste during 1974–1999. This inquiry was critical to understanding the story of human suffering and human rights violations associated with the conflict because displacement was a defining feature of the years of conflict in Timor-Leste. Almost every East Timorese person who lived through these years suffered some form of displacement, and many were displaced several times. (CAVR, 2005, p. 3) Notwithstanding the many challenges concerning the implementation process, the cases above demonstrate that truth commissions can play a significant role in identifying and documenting patterns of socio-economic rights violations and economic crimes. While the examples of truth commissions mentioned here have dedicated a part of their overall mandate to investigating socio-economic violations, some scholars have suggested the establishment of a separate body of inquiry only for this purpose. Muvingi, for example, states: “As truth commissions and criminal tribunals exist, so should commissions on material deprivations, reparations and the renegotiation of socioeconomic power relations” (2009, pp. 178–179). Mani too advocates for a more active involvement of truth commissions to investigate economic crimes: “truth commissions could be mandated to investigate war economies directly related to the exploitation and atrocities committed during conflict, as well as to report on them” (2008, p. 258). Some scant reparations mechanisms also have attempted to specifically address social, economic or cultural rights violations or take measures concerning economic crimes. Going as far back as post-WWII reparations programs, Germany, for example, had to pay compensation for slave laborers. However, while this decision too was shadowed by the prevailing conditions during the Cold War, it was primarily the German government who had to pay, not the companies who had benefited from the labor. Only five companies who had been more actively involved in profiting from the labor performed at the

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concentration camps made voluntary contributions between 1958 and 1966. By 1973, in total, 14,878 former slaves were paid an amount of DM 51.9 million, the equivalent of US $3,000 per person (Authers, 2006). The importance of the latter aspect has captured the attention of transitional justice scholars during the last years, as argued by Mani: [I]ndividuals, including state officials, found to have profited from [war] economies should be forced to repay their illegal profits to state treasuries and to pay due compensation. (Mani, 2008, p. 258) Likewise, Roht-Arriaza suggests that reparations should “expand the focus of ESC rights violations to include economic crimes like corruption and spoliation” as a way to also provide funds for reparations programs (2014, p. 109). Considering that reparations can take many different forms, rehabilitation (including medical and psychosocial care) is another area where reparations can directly assist in addressing socio-economic harm. In a number of countries reparation programs have developed psychosocial services to offer help to victims/survivors to cope with the trauma and mental harms caused by the violations. As an example, in Guatemala, the Program of Reparation and Integral Health Services (PRAIS) worked with victims through trained therapists in collaboration with the NGOs. Elsewhere, such as in Sierra Leone, Chile and Peru, medical care has been incorporated as part of the reparations package. Collective reparations, such as public goods provided to the community as a whole, like schools, clinics, cultural and community centers, roads and irrigation systems are yet other projects undertaken in places such as Morocco or Latin America. Land restitution, a more relevant example to this empirical study, is another relevant area for reparations. This has happened in South Africa, Colombia, Kenya and the Guatemalan Achí Mayan community where compensation for land has been made (ibid., pp. 115–122). Trials, which are predominantly associated with the adjudication of civil and political rights, have also demonstrated that it is possible to adjudicate economic, social and cultural rights in a transitional context (Arbour, 2007). Though the number of cases is limited, it is important to mention a few examples to demonstrate its possibility, and more importantly, its expansion in various transitional contexts. This could relate to addressing directly socioeconomic rights violations, such as the right to an adequate standard of living, or investigating economic crimes such as land grabbing or mining and natural resource exploitation, which can primarily target individual perpetrators. As Mani states: “trials could take into account the war economies conducted by perpetrators and seek to establish accountability for them” (2008, p. 258). The role of trials in relation to socio-economic rights violations can be demonstrated both as regards individual criminal responsibility as well as state responsibility for human rights violations. Examples of the former can be sought

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in the Philippines, where Ferdinand Marcos, held civilly liable in the US, had to pay reparation to about 10,000 victims of human rights violations (Carranza, 2008). In another instance, a report by the US senate investigators revealed the collaboration of the Riggs Bank with Augusto Pinochet by hiding his assets from the international prosecution (O’Hara & Day, 2004). Although Pinochet died without being convicted, the disclosure of such information, as part of criminal investigations, was an important contribution towards transparency and accountability measures. A more recent example of this is the Lubanga case at the ICC in relation to reparative measures he needed to pay to his victims. Examples of state responsibility for human rights violations could be demonstrated by the trial chamber of the ICTY in the Kupreskic case where the court stated that the systematic destruction of property and homes may constitute a crime against humanity—of persecution—if committed with the “requisite intent” (Arbour, 2007, p. 15). Moreover, the Inter-American Court of Human Rights has involved a number of high profile cases where it has ordered reparations for victims of human rights violations during conflict. For example, in the Plan de Sánchez case the state of Guatemala was held responsible to provide health, education and infrastructure opportunities to the affected community that suffered from a massacre, which took place on 18 July 1982 where over 250 Achí Mayans were murdered by the armed forces and the paramilitary (Arbour, 2007, p. 16). In 2014, a communication was filed to the ICC regarding systematic land grabbing by senior officials in Cambodia, calling it a crime against humanity (Oehm, 2015). In addition to other transitional justice mechanisms, addressing socio-economic harm is also relevant to institutional measures such as lustration or vetting. For example, during the screening and appointment of officials in a new government, not only should their records of civil and political rights violations be considered, but also their role in either directly engaging in economic crimes or their support towards such acts. It could denote officials such as police officers or court representatives from the previous regime who had been engaged in cases of large-scale corruption, land grabbing and embezzlement. This consideration, on the one hand, allows for the appointment of “clean” officials in the new administration and, on the other, demands accountability. Transitional justice and development

Scholars and practitioners of transitional justice have highlighted the need to establish a nexus between transitional justice and development (de Greiff & Duthie, 2009). They argue that if development’s general aim is to improve socioe-conomic conditions, then there is a sheer logic to see the nexus with the approach to transitional justice that emphasizes addressing economic, social and cultural rights (Duthie, 2009). Some call this the “twin project” of development and transitional justice (Colvin, 2008, p. 412). Scholars and experts propose that the reinforcing effect could be pursued in the achievement of a shared goal; that

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is, in the context of transitional societies, trust building, recognition, reconciliation and rule of law, among others (Duthie, 2009). Mani suggests that effective peacebuilding initiatives should include legal, rectificatory and distributive elements of justice, which can reinforce each other. She argues that in countries such as South Africa and Rwanda, where socio-economic disparities were a factor in the conflicts, justice will remain incomplete “in the eyes of citizens” unless such factors are redressed (Mani, 2002). Moreover, de Greiff states: The interest in the relationship between transitional justice and development can be explained in many ways: a good number of transitional societies face immense developmental challenges, and a good number of developing countries face abiding “justice deficits” concerning massive human rights abuses in their pasts. (de Greiff, 2009, p. 30) Most conflicts today take place in underdeveloped countries, with weak institutional capacities. As a result, transitional justice is pursued in contexts with limited resources. Hence the issue of allocating resources is important in discussing the potential areas of convergence between the two fields. It gains further momentum when considering the interconnectedness of development deficits with generations of conflict and massive human rights violations, and the ability of transitional justice mechanisms to redress such harms. It also leads to other important questions such as the costs of implementing justice in situations of chronic poverty. As de Greiff asks, what, for example, justifies the spending of more than one billion US dollars on the International Criminal Tribunal for Rwanda to prosecute 50 people involved in the genocide while the budget for the domestic courts is well below a fifth of that amount? (2009, p. 31). These are all important issues that transitional justice discourse and practice have inadequately addressed so far, if at all. More specifically, transitional justice can have a positive impact on development by focusing on, for example, collective reparations, property restitution, rehabilitation and reintegration. Such measures may help alleviate marginalization, exclusion and vulnerability by offering economic and other opportunities to people, particularly war victims, and recognizing and empowering them as citizens. While the transitional justice and development nexus debate has been important in bringing the interdependency and interconnectivity of all sets of human rights to the forefront, it has not concerned itself with addressing structural inequalities. Transitional justice and structural inequality: A move towards transformative justice

The legal and peacebuilding critiques briefly presented above, together with practices and lessons learned on the ground, have culminated in a significant

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debate over the last years on the need to address structural inequalities in transitional justice (Laplante, 2008; Mani, 2008; Miller, 2008; Muvingi, 2009; Roht-Arriaza, 2014). Critiques have argued that in most places such as in Peru, Zimbabwe and South Africa structural inequalities caused the conflict in the first place. The conflict, therefore, will not terminate unless its root cause is treated. Structural issues can be around land distribution, abuses in mining and other natural resources, or other types of systematic inequalities resulting from regimes such as apartheid. Sometimes structural inequalities are rooted in colonial and post-colonial experiences; for example, land distribution in Africa and Latin America. In other situations, particularly in developing and/ or underdeveloped countries, structural inequalities emanate or are reinforced as a result of socio-economic harm during violent conflicts, as will be demonstrated later in the case of land grabbing in Afghanistan. However, structural inequalities are not only based on socio-economic parameters, but often also include systematic and widespread practices of discrimination and marginalization based on race, ethnicity, gender, caste and religion. This creates an intersectionality where it is not always easy or possible to disentangle one element from the other. Certain categories in a society, i.e., women, may more easily fall victims of this intersectionality (Rooney, 2010). Such are the complexities of many post-conflict societies from which transitional justice measures can no longer shy away. Increasingly, scholars of transitional justice argue that if the field does not engage with addressing structural conditions, it will lose its purpose and will mainly function to satisfy certain neoliberal agendas. Mani, for example, points out that transitional justice “will lose credibility in the predominantly impoverished and devastated societies” if it does not address structural challenges that relate to socio-economic issues and other forms of structural inequalities (2008, p. 254). Along the same line, Muvingi, in the case of Zimbabwe, states: I would argue, instead, that Zimbabwe is a classic case study for the perils of the failure of transitional justice to address deep rooted inequities that constitute the powder keg of resentment. The volatile events in Zimbabwe are historically contingent and structurally embedded in colonial rule, the transition away from colonial rule, international intervention and the failure to correct preexisting inequities. (Muvingi, 2009, p. 177) Although some scholars argue that it is neither in the mandate nor within the capacity of transitional justice to address structural conditions (Waldorf, 2012), in many situations there has been a re-occurrence of conflict due to the inability of transitional justice’s mechanisms to tackle the root cause. This failure necessitates a departure from the conventional understanding of the field as it was practised in the 1980s and 1990s, particularly taking into consideration the geopolitical shifts of many conflicts today, which predominantly take

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place in developing countries that already suffer from structural conditions of inequality. In addition, there is an overall consensus among a growing body of scholars that transitional justice has largely remained a top-down and state-centric field, focused on liberal democracy as its ultimate goal. As such, the field itself has become a “hegemonic discourse” (Gready and Robins, 2014, p. 341) in utilizing its mechanisms as a means to achieve certain ends, rather than considering local realities and their complexities: “typically those most affected by violations have little or no opportunity to impact upon the goals of the process or the nature of particular mechanisms” (ibid., p. 343). With its emphasis on liberalization (that overwhelmingly privileges civil and political rights over socio-economic rights) and marketization, such processes have often ignored the needs of the population on the ground, which in most fragile transitional contexts might well be centered around other priorities such as welfare and basic socio-economic needs. In other contexts, such as the Balkans, the societal demand leaned more towards acts of truth seeking and acknowledgement rather than a top-down international tribunal. In response, many victim groups and civil society organizations opted to establish a regional truth commission, known as the RECOM initiative, not only as an alternative solution to the top-down ICTY, but also as a bottom-up response to the needs of their communities (Kandic, 2009; Kostovicova, 2009). Carranza notes how TJ creates frustration among the local population due to its inability to address expectations (2008). Furthermore, transitional justice is a highly political and thus contested discourse and practice. This means if transitional justice goals are not compatible with certain geopolitical interests, it can easily be side-lined in political negotiations and peace processes, thus sacrificing justice for security. This was the case in Afghanistan in 2001 and onward when an opportunity for justice was sacrificed for geopolitical ends (this will be discussed with more details in the chapter on the country context). Given such foundational limitations of transitional justice, the emerging discourse on transformative justice increasingly presents itself as a promising alternative to the often liberal-legalistic approaches of mainstream transitional justice. Transformative justice is concerned with conflict transformation rather than conflict resolution. It seeks to transform relationships among parties in a conflict by addressing root and structural causes of the conflict (an aim that neither restorative justice nor reparative justice claims to achieve) while involving local communities (Mani, 2005). As an emerging discourse, there is not yet much consensus or a definition of transformative justice among scholars. However, certain underlying assumptions, such as tackling structural inequality and placing emphasis on local engagement, contrive the basis for the concept of transformative justice. Sharp (2013), for example, discusses “fourth generation” transitional justice as “a more honest accounting of the underlying politics of

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TJ work; the discourse of the local; and the invisibility of economic justice.” Gready and Robins define transformative justice as: [T]ransformative change that emphasizes local agency and resources, the prioritization of process rather than preconceived outcomes and the challenging of unequal and intersecting power relationships and structures of exclusion at both the local and global level. (Gready & Robins, 2014, p. 340) The authors state that transformative justice contains a shift in focus from the legal to the social and political and from “state and institutions” to everyday life communities. In other words, transformative justice alters the scene not only as regards the content, i.e., a shift in focus and goals, but also its context, i.e., the actors. Transformative justice, they argue, is also more future oriented, not merely dealing with the past as do transitional justice mechanisms. In their view, a core goal of transitional justice is “drawing a line under the past” whereas a core goal of transformative justice is “drawing a line between the past and present” (Gready & Robins, 2014, p. 356). While the authors do not necessarily suggest transformative justice as a complete alternative to transitional justice, they argue transitional justice can provide a platform for transformative change (Gready & Robins, 2014). In a more recent article, reviewing three published books on transformative justice, Balasco (2018) raises the question as to whether transformative justice is a “prism” or a “schism” in transitional justice debates. Some scholars suggest that transitional justice has a “transformational responsibility,” thus, as Balasco maintains, they take the “prism” approach. Murphy, for example, argues that “TJ is concerned with the just pursuit of societal transformation” (2017, p. 119). She grounds this necessity in the pervasiveness of structural inequality and “collective and political wrongdoing” (ibid., p. 83). Like other scholars, she discusses the importance of tackling pervasive structural inequality by transforming relationships among citizens and between citizens and officials. Relational transformation is necessary, Murphy argues, because of the absence of two moral values in the interaction among citizens and between citizens and officials: respect for agency and reciprocity. By respect for agency, she means “recognition of the capacity of individuals to govern their lives and to deliberate and choose courses of action” and reciprocity, in her view, is the recognition of mutual responsibility between citizens and officials (ibid., p. 121). An important point to underline, however, is the assumption in Murphy’s approach about citizens’ capability to govern their lives and exercise their agency. In other words, she suggests that the capacity already exists, but it lacks recognition, as an absent moral value, due to political circumstances. The question, however, is how to apply this formula in circumstances where the capacity does not exist in the first place, such as the empirical case examined in this research?

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In the same vein, McAuliffe (2018) also pursues the prism approach by referring to the concept of transformative transitional justice. He maintains that the pervasiveness of discourses on socio-economic concerns in transitional justice is already a transformative turn. He points out, however, that “states vary so much in terms of economies, politics and socio-cultural qualities that it is unwise and infeasible to assume a priori that transitional justice can have even minimal transformative effect” (ibid., p. 21). He thus maintains that actors and policy makers in the field should consider designing different approaches based on the analysis of the local conditions. Transformative justice’s bottom-up and actor-oriented approach towards societal transformation is an important development in the field of transitional justice. It can also consider addressing socio-economic harm, such as grand corruption and land grabbing, as one of its central aims. Critical criminology and a harm-based approach to crime

Criminology has largely ignored addressing socio-economic harm during violent conflicts with limited criminological empirical research on the subject (Hagan et al., 2012). This is largely due to the fact that criminology continues to remain a western-oriented field, engaged mainly with the types of crimes that are more pertinent to western democracies (McEvoy et al., 2017). Nevertheless, critical criminology’s approach towards crime of the powerful and economic and state crime can offer an important analytical tool for researchers of post-conflict and transitional justice. This means taking an alternative approach to crime—and response to it—that departs from the mainstream positivistic approaches in criminology. One of the goals of this research is to show how harm-based approaches to crime, state crime and economic crime can be linked to transitional justice literature on the one hand, and a case study of land grabbing in Afghanistan on the other. Indeed, one of the claims made here is that the phenomenon of land grabbing in a context like Afghanistan requires criminological understanding and analytical tools to fully comprehend and analyze the empirical inquiry. Before we get into this debate, it’s vital to provide some background on critical criminology and approaches to crime. Critical criminology

Critical criminology, as a sub-discipline of criminology, emerged in the late 1960 to 1980s in response to the established and mainstream criminology. Influenced by progressive actions in the US and around the world—civil rights movement, Vietnam war protests, feminist and students’ movements—some scholars in the US and England started to question and challenge the conventional outlook towards individuals and their actions, including criminal acts, vis-a-vis the institutions and broader society. They were also questioning

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the ongoing social injustices and views of the establishment, thus calling for a radical and revolutionary political agenda to restructure society. The roots of critical criminology, therefore, principally lie in Marxist and neo-Marxist theories, even if Marx and Engels wrote little about crime (Mooney, 2012). However, other non-Marxist intellectual traditions such as the conflict criminology of Coser (1956), Dahrendorf (1959) and Mills (1956) also influenced radical criminologists. After all, they too believed in the crucial role of social class in deciding “who would be positioned to make law and who would most likely feel its weight” (Michalowski, 2012, p. 36). In other words, they were among the first to challenge the “ontology of crime” (ibid.). Like any other discourse in the social sciences, there are different shades and colors of critical criminology. Nevertheless, as DeKeseredy and Dragiewicz assert, it has now become a “metaphor for progressive scholars who work in a common intellectual tradition with common goals” (2012, p. 1). A common thread that connects critical criminologists is political thinking and advocacy for political action for change. Jock Young, one of the pioneers of radical and later on critical criminology, pointed out in a 1988 article that this emerging field is not “politically constrained,” thus looking for causality of crime in the social structure, namely the “relationship of class and patriarchy” on the one hand and the administration of justice on the other (1988, p. 175). The new paradigm introduced politics and morality into the discipline of criminology, viewing the injustice and immorality of the system as the main causes of crime. In a seminal book, The New Criminology, the authors, Young included, stated: “The retreat from theory is over, and the politicization of crime and criminology is imminent” (Taylor et al., 1973, p. 281). Likewise, Stanley Cohen, another vanguard of critical criminology, in Against Criminology (first published in 1998) declared himself a “moral pragmatist,” arguing that “values and politics” determine our theoretical choices rather than science (2009, p. xi). This tradition continues to date. As mentioned, critical criminology emerged as a response to mainstream criminology, in particular against the dominant positivistic approach (S. Cohen, 2009; DeKeseredy & Dragiewicz, 2012; Young, 1988). Cohen has best captured this perspective in the following statement: [T]he enemy was positivism […] [P]ositivism came to symbolize everything we did not like: scientism, technology, dehumanization, reification, and (a peculiarly strong theme) the personalization of social problems by seeing them through the lens of pathology and psychiatry. (S. Cohen, 2009, p. 13) Critical criminologists challenged and opposed “official definitions of crime, official statistics and positivism” and instead rallied for social justice and human rights (DeKeseredy, 2011, p. 6). They tried to “undo the nature of false objectivity which positivism had created” and attempted to move “the study of

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crime and disorder out of the intellectual ghetto in which positivism had placed it” (Young, 1988, p. 161). They therefore went beyond theories of anomie and strain and started to look at structural inequalities and their impact on crime and criminalization. By doing so they “challenged the dominant sociology of crime and justice rooted in structural-functionalist theories that emphasized equilibrium as the normal social condition” (Michalowski, 2012, p. 35). One such theoretical trend was inspired by the ideas of Karl Marx, especially among radical criminologists who argued that capitalist societies produce crimes because of the “contradictions that are inherent in the structure of social relations” (Chambliss, 1975, p. 150). Thus the fundamental question they raised was not why people commit crime, but who becomes identified and labeled as criminal (Newburn, 2009). For example, as Chambliss states, the political actions of the proletariat against the bourgeoisie are defined as criminal by the state that supports the interest of the ruling class. The criminal law then, he argues, is not “a reflection of custom, but is a set of rules laid down by the state in the interest of the ruling class” (1975, p. 151). In this ground-breaking piece, Chambliss offers an explanation of the political economy of crime where he concludes that criminal behavior is an expression of class conflict which results from the “inherently exploitative nature of the economic relations” (ibid.). Followers of this trend continued in the later decades to focus on the crimes of the powerful, which will be discussed later in the chapter. Other authors in this tradition, perhaps less focused on political economy, highlighted the overall nature of power, the state and institutions. They took a critical view on separating the study of crime from the state (S. Cohen, 2009; Matza, 1969). As such, these critics became interested in questions of power (as exemplified in Foucault’s work) and structural conditions within which, and not outside, individual criminals and their actions ought to be situated. As Friedrichs points out, “the unequal distribution of power and material resources within contemporary societies provides a point of departure for all strains of critical criminology” (2009, p. 210). By making this organic connection between the individual, the state and society in general, critical criminologists see fundamental changes as a necessary condition to reduce crime (Young, 1988), thus advocating for radical social, economic and political changes as one of its central goals (DeKeseredy, 2011). While critical criminologists too are interested in addressing the question of why certain individuals commit crimes such as robbery or rape, unlike conventional criminologists, they seek the answer in the flaws of the “fabric of societies that breed, create, and sustain criminality rather than flaws in the make-up of the individuals who commit crime” (DeKeseredy & Dragiewicz, 2012, p. 2). In the 1960s and 1970s, in North America and Western Europe, such views manifested themselves more prominently in movements such as abolitionism, feminism and anti-racism, all of which developed not only as social actions, but also as theoretical perspectives and political strategies. The main issue each of these movements brought to the fore was de-individualizing

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crime and criminals and, instead, focusing on the social order and the broader structural ills of societies in which crimes are embedded. In short, as Scraton and Chadwick suggest “[c]ritical analysis seeks to bring to the fore structural relations, involving the economy, the state and ideology” (2009, p. 262). More importantly, critical criminologists broaden the definition of crime to incorporate crime of the powerful and human rights violation, to include the voices of the marginalized population and to contribute to the ongoing struggle for social justice. The linkages between this understanding of critical criminology and the alternative discourse of transitional justice are the main theoretical assertion that this book is trying to address. With such developments in criminology, there has been a great etiological shift in the understanding of crime, too. From a positivistic approach, with a reductionist and deterministic focus on individuals, to one that considers the broader contextual and structural circumstances within which individuals commit crime. This shift has also called for different accountability and response mechanisms to crime and alternative ways of approaching justice. Critical criminology has no doubt played a major role in this trajectory. An understanding of crime

Etiological and explanatory inquiries of crime traditionally lay at the heart of criminology. As Sparks and Loader point out, such questions have been the central element among the “raisons d’être” of the field (2012, p. 19). A conceptual and definitional understanding of crime has arguably been one of the most challenging and contentious tasks among social scientists. It would be a tedious and almost impossible mission (in the context of the current work) to delve into the different approaches to crime, as, in the words of Nils Christie, “crime is an endless supply […] [and] acts with the potentiality of being seen as crimes are like an unlimited natural resource” (2004, p. 10). At the same time, considering the central position of “crime” in this book, it is necessary to shed some light, broadly but briefly, on a few prominent discourses around the subject, taking a more genealogical approach to the development of the concept of crime, and finally leading to the approach pursued here. This will help to establish a ground upon which the notion of “state crime” and “economic crime” can better be understood and analyzed in this research. Again, in the words of Christie: So much is crime, and nothing. Crime is a concept free for use. The challenge is to understand its use within various systems, and through this understanding be able to evaluate its use and its users. (ibid., p. x) Crime has traditionally and officially been defined in the legal realm. For Michael and Adler an accurate definition of crime is “behavior which is prohibited by the criminal court” (1933, p. 5). Tappan, a lawyer-sociologist, likewise

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stated that crime is “an intentional act in violation of the criminal law (statutory and case law), committed without defense or excuse, and penalized by the state as a felony or misdemeanor” (1947, p. 100). According to this view, criminals are only those “who have been adjudicated as such by the court” (ibid.). As Quinney notes, “central to the classical school was the doctrine of nullum crimen sine lege—no crime without a legally defined harm” (1969, p. 1). Critical voices towards the legal definition of crime started to emerge among criminologists and sociologists, mainly pointing out that the legal paradigm divorces the criminal procedure from its social context. A new paradigm therefore entered the picture whereupon the emphasis rested on the fact that crime and criminal procedures are socially constructed phenomena. This view took the discourse from a rigid, one direction and linear trajectory to one that was relative, context specific and subjective. This notion is captured well in the words of Christie, who believed that acts, and thus their meanings, are created as they occur. Applying this imperative to crime, he stated: “Crime is thus a product of cultural, social and mental process” (2004, as quoted by Newburn, 2009, p. 17). Scholars in this terrain of thinking focused much on behavior, social norms and deviance, particularly paying attention to the notion of subjectivity and contextually dependent aspects of social phenomena. Some critiques of the legal approach went as far as arguing that by definition “a major cause of crime is the law itself” (S. Cohen, 2009, p. 47). In Failures of Criminology (originally given as a talk to a BBC program in 1973), Cohen argues that there should be a shift from the behavioral questions (why do they do it?) to definitional questions: “Why is that rule there? How is it enforced? What are the consequences of this enforcement?” (ibid.). Whether inspired by Marxism or other conflict-based and critical theories, the notion of crime became political; that is, bringing to the fore the connection between crime, the state and power structure (S. Cohen, 2009; Matza, 1969), a route that positivists had managed to keep apart up to that point. Obviously, once the question of power is introduced in any social context, or rather made explicit, the state’s influence through its legislative, executive and judiciary apparatuses becomes inevitable. The question then one should ask is not whether crime, as a social reality, is political. Rather, the question to pose is how was the positivist movement so successful in keeping the notions of crime and politics separate from each other for so long? Critical criminologists played a crucial role not only in initiating this debate but also in keeping the discourse thriving on the criminological agenda. Richard Quinney, for example, states that crime is a “human conduct that is created by authorized agents in a politically organized society” (1970, p. 15). Likewise, Jock Young stated: “At heart, the extent of crime is a political as well as a behavioral matter” (1988, p. 175). Stephen Schafer described crime as “not the object but the product of criminal policy” (1974, p. 71). One of the most influential works in this tradition was the Schwendingers’ approach to crime, where they placed heavy emphasis on the relationship

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between crime, politics and power structure. In particular, in their ground breaking work Defenders of Order or Guardians of Human Rights? (1975)—first published in 1970—the Schwendingers discussed a few issues that merit a brief mention here. First, stating that legal definitions of crime “do not meet standards of scientific inquiry,” because they fall in one direction and limit the “free marketplace of scientific ideas,” the authors proposed the notion of “injurious” in the discourse on crime. They argue that certain actions of people in power, such as economic exploitation or genocide, can be injurious to a large number of populations, which may have not necessarily been sanctioned by civil or criminal laws (Schwendinger & Schwendinger, 1975, pp. 112–126). In such circumstances, the law itself can become a tool at the hands of the powerful institutions, which enables them to exercise the “injurious” practices upon others. Second, the Schwendingers’ understanding of crime is based on the “conception of the denial of basic fundamental human rights” as a result of the dominance of certain socio-political order: The abrogation of these rights certainly limits the individual’s chance to fulfil himself in many spheres of life. It can be stated that individuals who deny these rights to others are criminal. Likewise, social relationships and social systems which regularly cause the abrogation of these rights are also criminal. If the terms imperialism, racism, sexism or poverty are abbreviated signs for theories of social relationships or social systems which cause the systematic abrogation of basic rights, then imperialism, racism, sexism and poverty can be called crimes. (ibid., p. 148) The Schwendingers’ proposal to consider the denial of basic human rights as a type of crime was a significant, if not outright revolutionary stand given that this articulation took place at a time when discussions around human rights protection were not as high in the international agenda as they are today. Here too, it is important to highlight the choice of the word “denial” as opposed to violation, which necessarily entails legal connotation even if the word “violation” is also used in nonlegal settings and discourses. Stanley Cohen later on further developed the notion of denial in his ground-breaking book States of Denial: Knowing about Atrocities and Suffering (2001), where, among issues, he shows how public moral passivity aids state actors to go about their business of denying citizens their basic rights. In this outlook towards crime, or as the authors call it the “reconstruction of the definition of crime” (Schwendinger & Schwendinger, 1975, p. 134), the Schwendingers introduced the notion of rights priority in criminological discourses: Once human rights rather than legally operative definitions are used to earmark criminal behavior, then it is possible to ask whether there are

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violations of human rights which are more basic than others and to designate these rights as most relevant to the domain of criminology. (ibid., p. 137) Finally, the authors highlight the role of criminologists in defending human rights. Arguing that it is no longer sufficient that criminologists only “define, adjudicate and sanction individual criminals” (ibid., p. 135), they maintained that to defend human rights, criminologists “must be able to sufficiently identify the violations of these rights-by whom and against whom; how and why” (ibid., p. 134). Arguably, inspired by this position, in the subsequent years and decades, a number of critical criminologists linked criminology with human rights violations (Cohen, 1993; Green & Ward, 2000; Savelsberg J., 2010). Michalowski (2017) argues that discussions around human rights violations—that international treaties tried to eliminate—by political and economic elites were among the contributing factors in the emergence of critical criminology. In 2017, the Routledge International Handbook of Criminology and Human Rights covered a wide-ranging contribution linking criminology with human rights. In it, Murphy and Whitty (2017) discuss the present-day patterns of human rights and criminology, identifying four trends, beginning with legal reformists who build on a longstanding tradition of rights concepts in criminal law and criminal justice. The second category encompasses the work of scholars on state crimes with two distinct strands. The first strand is characterized by “a tradition of historic distrust of state power and the alleged hegemonic nature of the rights regimes” as represented in the work of state crimes scholars such as Stanley (2007), Green and Ward (2009), Scraton and McCulloch (2009) and Welch (2009) (2017, p. 10). The second strand is represented by “genocide criminology” that emphasizes the expansion of criminology to international conflicts and international justice (with a focus on new methods of data collection and statistical analysis) while being closely allied with international criminal law. The third category refers to criminological engagement with human rights that aims to “loosen the hold of legalism” (ibid., p. 11) as represented in the work of Cohen (1996), McEvoy (2007), Jefferson and Jensen (2009) and Braithwaite et al. (2010). While they recognize human rights as a “global currency” (ibid.), they equally recognize the limits of law and human rights. The fourth category, which the authors admit to struggling to name, concerns studies such as “effects of human rights inside prison system,” the “influence of rights norms on police working practices,” and the “dynamics of victims’ rights discourses” (ibid.). Harm-based approach to crime

In recent years, scholars have increasingly accentuated the notion of harm in relation to crime by proposing that criminology must take social harm seriously

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to “focus on all the different types of harm people experience from the cradle to the grave” (Hillyard et al., 2004, p. 1). This includes harm from the state and corporations, harm at the workplace or harm that arises from poverty. Seen this way, social harm can be closely linked to violence and structural violence, particularly the way Galtung articulated: “violence is present when human beings are being influenced so that their actual somatic and mental realizations are below their potential realizations” (1969, p. 168). Galtung draws our attention to the fact that violence is not just about “somatic incapacitation” as might have been seen traditionally (i.e., the narrow concept of violence), but anything that impedes our abilities from the actual to the potential, from what “could have been” as opposed to “what is.” This way of looking at violence is relative and context specific. For example, as Galtung points out, violence was not present in a situation when many people died because of tuberculosis in the 18th century. People then simply did not have the means to prevent this from happening, therefore the difference between the actual and the potential was very limited. The same, however, cannot be argued if someone dies of tuberculosis today. Enhanced technology and other major developments in the 21st century give many options to humankind to increase the potential. Nevertheless, there are other limitations—such as lack of political will and the overall governance system—that can still keep a major part of the world population from realizing their mental and somatic potential due to structural poverty. In more recent years, Greenfield and Paoli (2013; 2015) have attempted to elaborate further on the notion of harm and emphasize its centrality to criminology. They state: Despite growing concern for victims of crime among the general public, policy makers and academics (e.g., Spalek, 2006; Walklate, 2007), neither criminology nor the adjacent social sciences have made a serious effort to systematically identify, evaluate or compare the harms associated with different crimes—broadly understood as violations of stakeholders’ legitimate interests— as distinct from the perceived seriousness or costs of crime. Policy makers and academics have tended to view crime as a ‘harm’ in its own right, making few attempts to distinguish the consequences of one criminal activity from another. (Greenfield & Paoli, 2013, p. 864) Although Greenfield and Paoli acknowledge that policy-making communities and agencies such as the Australian Crime Commission or the Belgian Justice and Home Affairs Ministries or the Dutch Ministry of Justice are increasingly considering harm-based approaches in their policies of crime control, they argue that their assessment of harm is not empirically based and mostly remains implicit. As such, they have developed a framework for harm assessment that suggest a “set of tools and a multiple analytical process, with which to systematize the empirical assessment of harm and address at least some of those

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challenges” (Greenfield & Paoli, 2013, p. 865). This framework, broadly based on taxonomy, scale and matrix and the process, is aimed at identifying, evaluating and quantifying a comparison of the harm related to a broad spectrum of criminal activities, whether at the individual level or the community or the environment. Paoli and Greenfield (2015) thus place a strong emphasis on advancing a systematic assessment of the consequences of crime, with a central focus on the harm of crime. They note that, with an over emphasis on aetiology in criminology, much attention has traditionally been paid to the causes of crime as opposed to a systematic and empirical assessment of the consequences of crime. The discussion of harm, or mass harm, has recently also found its place among scholars of international crimes. Balint et al. (2017) look at how claims to justice are formulated and addressed in relation to reports of mass human suffering, referring primarily to the reports of the commissions of inquiry or truth commissions. The Oñati Socio-legal Series has even dedicated a special issue (2011)(v. 7, n. 2, 2017) called “‘Moving on’? Official Responses to Mass Harm and the Question of Justice.” Other contributors to this issue discuss contexts such as Argentina’s disappearances, South Africa’s Truth and Reconciliation Commission and the indigenous population in Australia and Canada. Nevertheless, such authors do not refer to a framework to systematically assess harm or mass harm in contexts of violent conflict. Examining the concept of crime from a harm-based perspective, as opposed to the legalistic approach, which is state-defined and narrow, allows us to also better articulate state crime and economic crime as well as present an analysis of the field data. This is indeed the approach to crime pursued in this book. State crime

State repression is not a new phenomenon; addressing it however is rather recent. As Bassiouni states: “Crimes of state have existed, in some form or another, throughout human history and have essentially manifested themselves when a state’s organizational structure was under the control of a tyrannical ruler or ruling elite engaging in abuse of power” (2011). Examples of such crimes can go as far back as when the European colonizing powers committed genocide, war crimes and crimes against humanity between 1500 and 1900 (Karstedt, 2014). Nevertheless, mainstream criminology has offered little to enhance our knowledge and understanding of state crime (Green & Ward, 2012) because it has primarily concerned itself with scholarship on “conventional crime and conventional offenders” (Friedrichs, 1998, p. xii). Therefore, state crime continues to remain a “marginal enterprise” in criminology (Bassiouni, 2011; Friedrichs, 1998, p. xiv). Green and Ward (2012) assert that criminology has suffered from an “intimate” and “subservient relationship” with the state, which has played a crucial role in defining the research agenda for criminology where crimes of the powerful have very often been explicitly excluded.

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What, arguably, brought state atrocities to the forefront were the two world wars of the 20th century, facilitated by the “process of modernity, the accumulation of state power and a machinery of governance that could be geared towards the execution of mass atrocity crimes” (Karstedt, 2014, p. 127). Following WWII, for the first time international tribunals were established to demand accountability from heads of states and those in positions of power and responsibility, as demonstrated by the Nuremberg Trials, the Tokyo tribunal, the ICTY and the ICTR, amongst others. More importantly, the establishment of the ICC as a permanent body to prosecute heads of state was a landmark development. Notwithstanding certain criticisms towards the ICC, it symbolically remains a powerful reminder that heads of states can no longer enjoy immunity in the international legal order. This, and other developments, including those pursued at the national level such as the junta trials in Argentina in the 1980s, were important accomplishments for the human rights movement to “ensure that leaders who perpetrated human rights abuses faced justice” (Lutz & Reiger, 2009, p. 4). While the United Nations, lawyers and human rights activists, as well as victims and their families, played an important role in establishing the above-mentioned trials and tribunals, and thus contributing towards establishing a culture of accountability, critical criminologists were crucial in developing intellectual understandings and analysis of the concept of state crime, which has remained rather under-explored in the transitional justice literature. Considering the centrality of the concept of state crime in this research, which is argued to serve as the hitch between criminology and transitional justice, it is thus important to explore the different approaches to state crime in criminology. Approaches to state crime

Scholars have approached state crime from different angles; as such, the concept has been labeled—and sometimes understood—in different ways. As Friedrichs pointed out a “good deal of confusion” has surrounded the concept of state crime and governmental crime (2000, p. 53). Some have called it stateorganized crime (Chambliss, 1989), others have labeled it crimes of the powerful (Rothe, 2009) and yet others have addressed it as state corporate crime (Kauzlarich & Kramer, 1993) or state violence (Kramer, 1994), to name but a few. Regardless of how it is called, at the core state crimes are “harmful acts carried out by state officials on behalf of the state” (Friedrichs, 1998, p. xvii) and crimes of an extraordinarily serious nature that can affect a large number of victims and cause great harm (Karstedt, 2014). Rothe (2009) calls state crime the crime of all crimes. It includes genocide, human rights violation, crimes against humanity, terrorist attacks, nuclear activities and warmaking, torture, illegal domestic surveillance, illegal police violence, corruption and bribery and organized plunder of national sources (S. Cohen, 1993; Friedrichs, 1998; Green & Ward, 2012; Karstedt, 2014). Such actions take place systematically

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and on massive scales worldwide. Nevertheless, due to a “shroud of secrecy, official resistance, and an ideological/juridical culture which confines hegemonic understanding of criminality to the actions of the powerless,” statistics about state crime largely remain absent (Green & Ward, 2012, p. 717). Green and Ward (2012) provide a chronological account of the various attempts to explain the phenomenon of what today is referred to as state crime. They cite the work of the mid-19th century French Appeals Court judge and writer Louis Proal, who in his treatise Political Crime went beyond the crimes of powerful individuals as political actors and highlighted instead “crimes committed by political system” (1898, p. viii, as quoted by Green & Ward, 2012, p. 722). They then discuss the work of a journalist, writer and socialist politician, E.D. Morel, who, in 1904, denounced slavery and the brutality of King Leopold II of Belgium in the Congo Free State as criminal and provided examples of a “rigorous analysis of state crime” (ibid.). They also gave credit to the work of one of the founding fathers of criminology, Sheldon Gluek, who in 1946 wrote a monograph on the criminality of the Nazi regime. Green and Ward (ibid.) further refer to the work of Robert Merton, who provided an analysis of “machine politics” and “political corruption” (Merton, 1957, pp. 72–82, as quoted by Green & Ward, 2012), and Richard Quinney (1979 as quoted by Green & Ward, ibid.), who wrote about the Vietnam war. The New Criminology by Taylor et al. (1973), however, initially had little to say about state crimes. Only later in an edited volume Taylor et al. (1975) included the Schwendingers’ manifesto (ibid., pp. 113–146) for a criminology of human rights violation and Chambliss’s comparative analysis of urban political corruption in the US (ibid., pp. 167–180). Chambliss’s initial conceptualization of state-organized crime in his presidential address to the American Society of Criminology in 1988 is often seen as a “quantum leap in criminological thinking,” just as it happened with Sutherland’s ground-breaking work on what he coined as “white collar crime” in 1939 (Karstedt, 2014, p. 125). Both notions challenged the dominant perspective in criminology where the arena of crime and punishment was primarily limited to the acts of those in the lower ladder of society. A main difference though was that the former incorporated the “paradox of state and crime” (ibid.) where states, on the one hand, create laws and rights, and on the other they can muster their power to ignore and violate those very laws and rights they are supposed to guard. In conceptualizing the notion of state crime, Karstedt (2014) discusses two major trends in criminological literature. One offers a more legalistic approach (as represented by Chambliss) and the other is based on the notion of state deviancy and harm/injury as represented by a number of critical criminologists. Chambliss’s understanding of the concept of state-organized crime was as following: “acts defined by law as criminal and committed by state officials in pursuit of their jobs as representatives of the state” (1989, p. 184). However, some scholars (Rothe & Mullins, 2011) consider this definition rather conservative

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and legalistic as it limits the concept to being deemed illegal by the state itself. Even when later Chambliss revisited his earlier work on state crime, where he included many other categories such as crimes against humanity and human rights violations, he largely maintained the legal component, namely acts that violate international behaviors and principles as established by the courts and the international bodies/treaties. The other approach focuses more on the notion of state deviancy and the type of harm and injuries such acts generate. To start with, the Schwendingers (1975), even if not framing it as state crime, talked about crime of the powerful, highlighting the notion of an injurious as opposed to a legalistic approach. They stated: “[T]here are practices by men of power which are highly injurious to most of mankind and which are neither defined nor sanctioned by civil or criminal laws, such as, for example, genocide and economic exploitation” (H. Schwendinger & J. Schwendinger, 1975, p. 126). Green and Ward (2004; 2012) discuss a human rights-based approach, which builds upon the concept of state deviancy rather than a strictly legal definition of state crime. Like the Schwendingers, they highlight that deviant acts by states are “sometimes veiled and not always legally proscribed” or sanctioned by civil and criminal laws. This comprises a range of socially injurious activities, including human rights violations and failure to implement or monitor human rights within the boundaries of state responsibility. Using a social harm or injury perspective, “widens the scope to encompass universally defined human rights” (Doig, 2011, p. 47). In developing a human rights-based approach to state crime, Green and Ward (2012) depart from the assumption that the provision of basic socioeconomic and civil and political rights, such as rights to security and substance or freedom and well-being, is the minimum entitlement of citizens. The authors emphasize that it is important to include socio-economic issues such as state-induced famine (de Waal, 1997, as quoted by Green & Ward, 2012), the denial of a basic welfare service as a result of corruption (Ruggiero, 1994, as quoted by Green & Ward, 2012) and denial of other basic socio-economic or “welfare rights” in the catalogue of state crimes. Importantly, Green and Ward introduce the concept of corruption as a form of state crime. They argue that illegitimate state violence is only one form of state crime; the other major form is that “which involves the illegitimate use of state agencies’ power over the allocation and misuse of resources” (ibid., p. 729). This facet of Green and Ward’s approach to state crime is particularly relevant for the empirical case of this research that focuses on land and property issues where corruption plays a significant role given its widespread practice in Afghanistan. In the tradition of state crime as deviant and injurious acts, Kauzlarich (2005 as quoted by Parmentier & Weitekamp, 2007) offers a typology of state crime based on three elements. First of all, he discusses state crimes of commission, in which the state plays a direct and overt role with a purpose. Secondly, state crimes of negligence, in which the state disregards unsafe and dangerous conditions, when it has a clear mandate and responsibility to make a situation

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or context safe. Thirdly, state crimes by omission, which refers to a state’s tacit support for organizations whose activities lead to social injury (Kauzlarich, 2005, pp. 1231–1232, as quoted by Parmentier & Weitekamp, 2007, p. 116). As a concrete form of understanding state crime, this framework, or aspects of it, has already been applied in examining specific empirical cases. Collins (2014), for example, applies the notion of state crime of omission and revictimization of the IDPs in Haiti. Stating that IDPs are generally dependent on the state to meet their basic humanitarian needs such as shelter, clean water and sanitation, Collins argues that the lesser protection they receive from the government and their overall unwillingness to act can amount to state revictimization of the IDPs. State crime based on deviancy, with its focus on harm and injury as well as human rights violations, will also be applied as the analytical tool in the empirical component of this research. The added value of a harm and injury-based approach towards state crime

There are a number of advantages to approaching state crime from a harm and injury-based perspective. Relying on some scholars’ work, Doig (2011) highlights three points. First, a harm and injury-based approach allows for a much broader inquiry into who or what might be responsible for the harm done, without being constrained by the criminal justice system’s narrow “individualistic notion of responsibility or proxy measures of intent.” It also calls for demanding accountability from those with a political responsibility (Hillyard & Tombs, 2007, p. 19 as quoted in ibid., p. 48). Second, it shifts the focus away from the state’s legal framework and towards a broader—usually rights-based—framework. This entails applying international and domestic laws, as well as human rights norms, to classify a state’s actions as criminal (Kaularich et al., 2002, p. 176 as quoted by ibid.). Third, it allows the possibility to bring voices from below, i.e., those who have been harmed, therefore moving beyond the conventional understanding of crime as generally defined by the law and the state. A harm-based approach also allows one to bring state crimes victims more prominently to the discourse. Crimes of the state are far more serious and harmful than crimes committed by individuals (Stanley & McCulloch, 2012). Consequently, victims of state crime are a particular category of victims. Generally, such victims include civilians and soldiers, those targeted for genocide, individuals suffering from racism, sexism, classism, prisoners, workers, etc. (Kauzlarich et al., 2001). Moreover, quoting Kauzlarich’s work published in 1995 (p. 39), the authors refer to a specific definition of victims of state crime as follows: Individuals or groups of individuals who have experienced economic, cultural, or physical harm, pain, exclusion, or exploitation because of tacit

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or explicit state actions or policies which violate law or generally defined human rights. (ibid., p. 176) State crimes as serious human rights violations

It is of utmost importance to make a distinction between the notion of crime, including state crime, and human rights violations, for not every type of crime amounts to a serious violation of human rights, according to Parmentier and Weitekamp (2007). An act of “crime” involves the breach of national or international criminal law, while an act of “violation of human rights” directly corresponds to a misconduct of national and international human rights law. This distinction, consequentially, has implications for the nature of responsibility and justice mechanisms. While the former act entails the principle of individual responsibility for the act of crime committed, the latter leads to state responsibility for violating human rights (ibid., p. 119). This distinction, however, does not exclude one act from the other as in certain circumstances a situation may constitute an act of crime and a serious human rights violation at the same time (Parmentier & Weitekamp, 2007; Schmid, 2015). According to the typology offered by Parmentier and Weitekamp (2007), for an act of crime to be considered a serious human rights violation, two elements need to be present. The first is of a qualitative nature, which emphasizes the degree of gravity. As an example, occasional torture and ill treatment does not have the same degree of gravity as genocide, widespread torture or a policy of starvation. The second element is of a quantitative nature, one of the levels of frequency. A single case of arbitrary detention is not the same as a general policy of arbitrary detention. Moreover, in continuum of a rising tradition in the human rights community, the authors argue that there is no reason why economic and social rights cannot give rise to serious violations, “which may threaten life, the personal integrity or the personal liberty of people (e.g. policies of poverty and starvation)” (Parmentier & Weitekamp, 2007, p. 120). Leckie, a leading expert on housing and property, also states that forced eviction, as a criminal act by the state if carried out by state actors, “constitutes gross violations of human rights” (2003, p. 34). One of the main questions in this research too is the degree to which an act, such as forced eviction and land grabbing with implicit and explicit support from the state, can concurrently constitute a crime and a human rights violation. This will be discussed in detail in the empirical section. Approaches to economic crime in criminology

There is no consensus on a working definition of economic crime in criminology. As Larsson states there is enough “conceptual vagueness and elasticity” (2001, p. 121) and Friedrichs (2009) compares it to a “Chinese puzzle,” because

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it presents new challenges and conundrums whichever way one turns with it. In international law, including criminal law, and the human rights context there are not many references to economic crime as such. There are, however, increasingly references to corruption (Boersma, 2012), which is considered as a form of crime and human rights violation (Green & Ward, 2004; Ward, 2017). Ward (2017) argues that in certain contexts, as shown in an empirical study in Papua New Guinea, corruption is “central to patterns of state crime” (p. 170). They (Green & Ward, 2004) thus define corruption as “state organizational deviance involving the violation of human rights” (as quoted in ibid.). This take towards corruption is certainly applicable in the current empirical study in the context of Afghanistan. In criminology, economic crime is often discussed under white-collar crime, corporate crime, organized crime or occupational crime. Definitional problems and conflicts, however, over such terms also have been well-documented (Helmkamp, Ball & Townsend, 1996; Slapper & Tombs, 1999, pp. 1–19, as quoted by Larsson, 2001). White-collar crime has been defined as “a crime committed by a person of respectability and high social status in the course of his occupation” (Sutherland, 1949, p. 9). Corporate crime is considered an “act committed by corporations that is punished by the state” (Clinard & Yeager, 1980, p. 16, as quoted by Larsson, 2001). This definition, however, is problematic as scholars of state-corporate crimes believe that corporate crimes are either instigated or made possible by the state (Michalowski, 2017). Organized crime is one of the most frequently used concepts in criminology, but a difficult one to define in terms of its characteristics, nature, variety and types of crime (Levi & Maguire, 2004). Occupational crime is also counted as economic offences by some, which is defined as crimes committed within firms and other organizations by employees or other agents where the firm is the victim of the offences, such as embezzlement and breaches of trust (Korsell, 2002). Notwithstanding a lack of definitional consensus, what they all seem to have in common is acts committed by the powerful, whether as state officials or in corporate/private capacities, through direct and indirect means. In other contexts, in practice, the term economic crime is usually employed to refer to offences committed by businesses; crimes motivated by profit that take place within the framework of a legitimate business enterprise. In Sweden, for example, this means tax offences, accountancy offences, money laundering and offences against creditors. These are the types of crime that account for the largest volumes of offense reports and convictions in the area of economic offending (Korsell, 2002). In Australia, the concept of economic crime varies from shoplifting and theft, to identity fraud, scams and money laundering. They all can be part of organized crime (Australian Institute of Criminology, 2016). Apart from the above understandings of economic crime, earlier attempts had been made to come up with a working definition. Tiedemann, a German legal scholar, stated as following:

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Economic crime is that criminal behavior whose effects disrupt or damage economic life or the economic system in such a way that it is not only the interests of individuals that are affected. (Tiedemann, 1976, p. 210, as quoted Magnusson, 1985, p. 24). While this approach introduces a notion of collectivity—i.e., impact on community and system—another definition highlights the context, particularly the prevailing economic system in a given country: “[t]he economic crime found in a country at a certain point in time is a reflection of the economic system in operation in that country” (Svensson, 1979, p. 94, as quoted by Larsson, 2001, p. 124). On the basis of another formulation, while injury to the community is deemed important, emphasis is placed on the financial injury to the state: “illegal acts that lead to an economic loss for the community at large, i.e., crime that causes injury to the financial interests of the state” (Petrén, 1986, p. 15, as quoted by ibid., p. 127) As seen in just a few examples above, the term economic crime has a multitude of interpretations. It encompasses a wide range of illegal and harmful acts; the affected parties can be individuals, communities and states; and, sometimes the state itself can be a part and parcel in the act. Such formulations have predominantly been developed in liberal western democracies. Surely, the occurrence of economic crimes takes on a different connotation in other circumstances, such as under predatory or weak regimes. This elasticity in the understanding of the concept makes it all the more important, methodologically speaking, to find a context specific approach for the empirical analysis here. One of the most concrete discussions of economic crimes that has emerged in the literature is the framework that Larsson (ibid.) presents based on the Swedish experience. This framework, which is developed with the intention to demonstrate the economic aspect of a crime, can offer a practical guideline that can be applicable also in other contexts, including this book’s empirical component. It is thus important to take a closer look at a summary of this framework. Larsson’s framework on economic crime

Highlighting the definitional problems around economic crime, Larsson states: The differentiation between economic crime and other crime ought to involve criteria both for separating economic crimes from other crimes, and for establishing what economic crimes have in common. If this cannot be achieved fruitfully, then the only reasonable option would be to stick with the specific legal offence categories (fraud, tax offences etc.). (ibid., p. 122)

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According to Larsson, part of the definitional confusion on economic crime relates to the fact that “economy” and “economic action” are not well-defined in the first place. As a result, he argues, the “vagueness inherent in the everyday understanding of these concepts has found its way into the definition of economic crime” (ibid., p. 123). He further states that an understanding of economic crime, like all types of crimes, is connected to the fundamental issue within criminology as to whether to apply a strict legalistic approach to crime or use a “wider, social-scientific and political conceptualization” (ibid.). He then discusses a framework with seven criteria that he argues is often applied in Sweden in relation to economic crime, pointing out that in most cases several of these concepts are combined. While he is not explicit about it, the proposed framework seems to fall within the second approach to crime, beyond the legalistic interpretation. Larsson’s seven criteria for economic crimes are the following: 1. The actor: Larsson discusses two approaches with regard to actors. The first is Sutherland’s (1949) approach to white-collar crime, with a focus on the high-status individuals in the context of their positions. The second relates to juridical persons, such as companies, which can fall under the domain of corporate crime. In the context of Sweden, the latter places emphasis on the “collective” nature of economic crime in relation to perpetrators, as captured by P. O. Träskman, who refers to economic crime as “crimes of the economy”: With regard to a large part of the crimes of the economy, it is difficult to trace the liability to a single physical perpetrator or to a few physical co-perpetrators. The guilty part is usually the collective, a juridical person, a company. The crimes of the economy are most often the crimes of a corporate body. (Träskman, 1977, p. 179, as quoted by Larsson, 2001, p. 125) Larsson sees an actor-oriented approach to economic crime as having the potential to reveal asymmetries in the way deviant and harmful acts are dealt with depending on who performs them. 2. The motive: This relates to “economic motivation or objective underlying a criminal act” where crimes are motivated by “economic profit” (ibid.). Larsson discusses this in the context of capitalist and liberal states as a useful approach to “call attention to ‘the criminogenic character’ of capitalism and the profit motive” (ibid., p. 126). He goes on to say that by linking the profit incentive to economic crime, attention is drawn to the flaws in a market economy that is sustained by and fosters interaction based on logical calculations aimed at “maximizing individual utility” (ibid).

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3. The context of the action and the means employed: This aspect refers to offensive activities against rules and regulations in the sphere of economic activities. This means taking “advantage of the transactional and organizational forms of the economic sphere—contracts, monetary transactions, corporate forms, etc.—in a criminal way” (ibid.). According to Larsson this is one of the most common forms of economic crime in Sweden, often combined with the profit motive. 4. The character of the act: A fourth factor associated with economic crime according to this framework is the “character of the act in question,” which can refer to a designation, together with the white-collar crime, such as “acts that involve a breach of trust” (Sutherland, 1949, p. 13; Shapiro, 1990, as quoted by ibid., p. 127). Furthermore, for offending to be considered economic crime, it must be of a continuous nature, be carried out in a systematic, well-planned and organized manner, and occur within the context of a commercial enterprise that is not criminal and legal per se, but serves as the foundation and cover for criminal activities (ibid.). 5. Consequences/harm: This aspect relates to the consequences of the crime, which can be defined as economic offences that would “give rise to an economic injury or that damage the economic system” (ibid., pp. 127– 128). This feature can be linked to economic damage not only to the interests of individuals but also to the community at large (Magnusson, 1985, p. 24, as quoted by ibid.). 6. The legislation: This prong in establishing the economic aspect of a crime relates to the pieces of legislations that are “economic.” As examples of this, the author quotes the Swedish Economic Crimes Bureau, which can include such Acts and legislation as the Safeguarding of the Pension Commitments, the Tax Offences Act, the Joint-Stock Companies Act and so on (SFS, 1997, p. 898, as quoted by ibid., p. 129). Any offences against such Acts may be dealt with by the Swedish Economic Crimes Bureau. Larsson argues that while there can be many advantages to a definition based on legislation, the problematic aspect can relate to the fact that the “economic crime concept has no judicial status” and that most of the laws regulating the economic spheres are of a civil and administrative nature rather than criminal (ibid.). 7. Expertise: The seventh and last prong relates to the expertise “required of police, prosecutors and judges” who investigate crimes of economic nature. Larsson maintains that while this approach is rather commonly used by state authorities, there is a circularity in the definition that economic crimes “are quite simply those offences that are investigated by relevant authorities” (Ekobrottsmyndigheten, 1999, p. 3, as quoted by ibid., p. 130). As such, he argues that it does not provide a stable definition from a research perspective considering that if “the focus of the authority changes, so does the objective of the study, and the possibility of making

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comparisons over time and across national borders is reduced” (ibid.). The advantage of this approach, according to Larsson, on the other hand, can be associated with its ability to bring about a division of labor among the various parties, which in turn can be more effective for crime control. As demonstrated here, Larsson (2001) presents this framework with a number of advantages and disadvantages associated with some prongs. He concludes that the various ways of understanding the concept of economic crime are not necessarily in competition with each other as they are “integral parts of separate practices belonging to different ‘epistemic communities’” such as in the realm of the judiciary, politics, social science, administration and so on. He does, however, suggest that there has been more concentration in Sweden on a single concept of economic crime, which he sees as an advantage, in comparison with the many varieties discussed in the Anglo-Saxon tradition. The current author found that four criteria—actor, motive, context and consequences—were the most appropriate to use in analyzing land grabbing in Afghanistan. The other three criteria were excluded not because they were not applicable in Afghanistan, but because they were less pertinent to empirical data acquired during fieldwork. It is worth noting that this framework was identified as a suitable approach after the author had collected field data and was in search for an analytical tool.

Conclusion The approach to crime in this research falls into the nonlegal tradition, where elements of power, politics, state and political economy play a central role. More precisely, the general understanding of crime here is inspired by the work of Herman and Julia Schwendinger and other scholars in this tradition who focus on harm and injury on the one hand and denial of basic human rights on the other. “Injury” is the key word here. The Oxford Dictionary defines it as actions that cause or likely to cause damage or harm. “Harm,” or rather mass harm in a transitional justice context, can be a prevalent experience, especially in a context such as Afghanistan where a vast portion of the population, almost 70%, consider themselves war victims. Harm, as opposed to violation, is not a legal construct, thus allowing research participants to articulate their responses— based on their own experiences—regardless of the level of awareness of their rights as citizens and government’s role as duty bearer. This was the case with most research participants—i.e., war victims—in this study, where awareness of their rights, especially land and property rights, and the government’s duty for the large part was absent, as admitted by many research participants. With this approach, it is more feasible to place the concept of socio-economic harm in times of violent conflict as a form of economic crime, which in turn I argue to be in a symbiotic relationship with state crime. Kauzlarich’s

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typology of state crime of commission, omission and negligence offers a concrete approach to link such crimes to gross human rights violations. As Michalowski (2017) notes “from a human rights perspective, analysis of acute events and relatively bounded dangerous conditions typically focus on crimes of commission or omission by the state” (p. 94). By acute events he means state-corporate crimes that are identifiable, occur within a brief time frame, are geographically bound and produce immediate victim, such as the invasion of Iraq (Kramer & Michalowski, 2005, as quoted by ibid.) Such events entail direct responsibility of state actors who proactively violate human rights often with assistance and support from corporate actors. Relatively bounded dangerous conditions, on the other hand, are structural and ongoing conditions, such as environmental harm, where the state explicitly or implicitly facilitates “violation of the basic rights to life and bodily wellbeing” (ibid., p. 95). As this chapter has shown, criminology and transitional justice can be linked in a variety of ways when viewed through the lens of critical criminology. One of the most obvious frameworks in which this link can be established is one that demonstrates the symbiotic relationship between economic crime, state crime and human rights violations. By bringing such connections to the forefront and making transitional justice a serious concern of criminology, perhaps progress can also be made in designing more context specific and better suited transitional justice mechanisms. To put it differently, transitional justice may provide the context; criminology, as the discipline par excellence, may offer the content that the growing field of transitional justice still lacks, through its tools, expertise, theories and methodologies.

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Rothe, D. L. (2009). State criminality: The crime of all crimes. Lexington Books. Rothe, D. L., & Mullins, C. W. (2011). State crime: Current perspectives. Rutgers University Press. Savelsberg, J. (2010). Crime and human rights. SAGE. Schafer, S. (1974). The political criminal: The problem of morality and crime (1st ed.). Free Press. Schmid, E. (2015). Taking economic, social and cultural rights seriously in international criminal law. Cambridge University Press. http://www.cambridge.org/fi/academic/subjects /law/public-international-law/taking-economic-social-and-cultural-rights-seriously -international-criminal-law. Schwendinger, H., & Schwendinger, J. (1975). Defenders of order or guardians of human rights? In I. Taylor, P. Walton and J. Young (Ed.), Critical Criminology (p. 268). Routledge. https://doi.org/10.4324/9780203122655 Scraton, P., & Chadwick, K. (2009). The theoretical and political priorities of critical criminology. In T. Newburn (Ed.), Key readings in criminology. Willan Publishing. Sharp, D. N. (2013). Interrogating the peripheries: The preoccupations of fourth generation transitional justice. Harvard Human Rights Journal, 26, 149–178. Sharp, D. N. (2014). Economic violence in the practice of African Truth Commissions and beyond. In D. N. Sharp (Ed.), Justice and economic violence in transition (pp. 79–107). Springer. http://link.springer.com/chapter/10.1007/978-1-4614-8172-0_4. Sparks, R., & Loader, I. (2012). Situating criminology: On the production and consumption of knowledge about crime and justice. In M. Maguire, R. Morgan, & R. Reiner (Eds.), The Oxford handbook of criminology (Fifth). Oxford University Press. Sriram, C. L. (2014). Liberal peacebuilding and transitional justice: What place for socioeconomic concerns? In D. N. Sharp (Ed.), Justice and economic violence in transition (pp. 27–49). Springer. http://link.springer.com/chapter/10.1007/978-1 -4614-8172-0_2. Stanley, E. (2001). Evaluating the truth and reconciliation commission. The Journal of Modern African Studies, 39(3), 525–546. Stanley, E., & McCulloch, J. (2012). State crime and resistance. Routledge. Sutherland, E. H. (1949). White collar crime. Dryden Press. Tappan, P. W. (1947). What is crime? In T. Newburn (Ed.), Key readings in criminology (pp. 4–7). William Publishing. Taylor, I., Walton, P., & Young, J. (1973). The new criminology: For a social theory of deviance. Routledge and Keegan Paul. TRC South Africa. (1998a). Truth and Reconciliation Commission of South Africa report (volume five). Truth and Reconciliation Commission of South Africa. http://www.justice.gov.za /trc/report/finalreport/Volume5.pdf. TRC South Africa. (1998b). Truth and Reconciliation Commission of South Africa report (volume four). Truth and Reconciliation Commission of South Africa. http://www.justice.gov.za /trc/report/finalreport/Volume%204.pdf. United Nations Security Council. (2004). The rule of law and transitional justice in conflict and post-conflict societies: Report of the Secretary-General (S/2004/616). United Nations. http:// www.unrol.org/doc.aspx?n=2004%20report.pdf. Vuuren, H. van. (2006). Apartheid grand corruption: Assessing the scale of crimes of profit in South Africa from 1976 to 1994. Institute for Security Studies. http://www.issafrica.org/uploads /APARTHEIDGRANDC2.PDF. Waldorf, L. (2012). Anticipating the past transitional justice and socio-economic wrongs. Social & Legal Studies, 21(2), 171–186. https://doi.org/10.1177/0964663911435827.

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Ward, T. (2017). Civil society perspectives on corruption and human rights: A case of Papua New Guinea. In L. Weber, E. Fishwick & M. Marmo, (Eds.),The Routledge international handbook of criminology and human rights (pp. 169–179). Routledge. Young, J. (1988). Radical criminology in Britain: The emergence of a competing paradigm. British Journal of Criminology, 28(2), 159–183.

Chapter 2

Housing, Land and Property (HLP) loss in violent conflict

Housing, Land and Property (HLP) rights are an important element of every war and post-conflict scenario, and their management in peace efforts is critical to ensuring the long-term viability of peace. Resolving HLP concerns in the aftermath of a conflict, on the other hand, is one of the “most daunting challenges of peacebuilding” (Unruh, 2010, p. 89). While disputes over HLP are a fundamental cause of violence in many nations, typically with an ethnic or group dimension, people’s rights to HLP are infringed in conflict situations owing to aerial attacks, land mines, or forcible eviction. In either scenario, the loss of HLP is the biggest loss for displaced people after the loss of life and bodily integrity, and failing to act on restitution of these losses in peace processes increases the probability of a return to violence (Leckie & Huggins, 2013). This chapter will elaborate on land and property loss during violent conflicts. However, a discussion of HLP rights in the broader human rights framework is in order before delving into the subject in war and conflict contexts, as well as mechanisms of restitutions in such cases.

The right to adequate housing in the human rights regime International human rights law recognizes the right to adequate housing as part of the right to an adequate standard of living. Article 25 of the Universal Declaration of Human Rights (1948) refers to this right, and Article 11(1) of the ICESCR (1966) states: The States Parties to the present Covenant recognizes the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The State Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent. (Ghandhi, 2008, p. 58) DOI: 10.4324/9781003134411-3

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Other international human rights treaties and conventions also refer to the right to adequate housing or elements of it. They include but are not limited to the Convention Relating to the Status of Refugees Article 21, the ICCPR Article 17, the Convention on the Elimination of all Forms of Discrimination against Women Articles 14(2) and 15(2), the International Convention on the Elimination of all Forms of Racial Discrimination Article 5(e)(iii) and the Cairo Declaration Article 17(c) to name but a few. Regional human rights conventions, such as the African Charter on Human and People’s Rights Article 14 and the American Convention on Human Rights Article 21 also include provisions on the right to property. Despite the fact that the ICESCR includes housing as part of the right to an adequate standard of living, international human rights law recognizes the right to appropriate housing as “an independent or free-standing right” (Leckie & Huggins, 2013, p. 60). Most countries have signed and approved such international treaties, which require state parties to provide suitable housing and living circumstances for everyone. As a result, the right to appropriate housing has been enshrined as a state obligation in many constitutions, and states must make every effort to achieve the right to adequate housing as soon as possible and within their means. It is therefore a right that imposes immediate obligations on the state. The United Nations stresses that the right to adequate housing should encompass more than just a roof over one’s head, including “legal security of tenure; availability of services, materials, facilities, and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy” (UN Committee on Economic, Social and Cultural Rights, 2000). Moreover, it should encompass other provisions such as protection against forced evictions or arbitrary destruction; securing entitlements, such as land tenure as well as restitution of housing, land and property. As such, it is a right with multiple dimensions. Despite such measures, forced eviction constitutes one of the main challenges faced by the human rights community today. The OHCHR/UN-Habitat report (2009) defines forced eviction as follows: Permanent or temporary removal against [the] will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection. (OHCHR & UN-Habitat, 2009, p. 4) According to the United Nations Human Settlements Programme (UN-Habitat), at least two million people are forcibly evicted every year worldwide, and millions are threatened with forced eviction (2007). Forced evictions can take place in a variety of circumstances and for various motivations. They can, for example, constitute “[making] way for development and infrastructure projects, urban development or city beautification, or prestigious international

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events, as a result of conflict over land rights, armed conflicts or societal patterns of discrimination” (OHCHR & UN-Habitat, 2009, p. 5). Regardless of the circumstances, the report states, forced evictions can be violent and affect disproportionately the destitute population. Furthermore, forced evictions are considered a “gross violation of human rights and a prima facie violation of the right to adequate housing” (ibid.).

HLP rights violation in violent conflicts and peace settlements Violent conflicts have resulted in unprecedented mass displacement during the 20th and 21st centuries. 82.4 million people were forcibly displaced globally at the end of 2020, with the bulk (48 million) being internally displaced, followed by refugees (2.7 million) (UNHCR, 2020). In these circumstances, the affected population, especially IDPs, not only lose their right to HLP, but they may also lose their rights to education, jobs, health care and cultural resources. The loss of the right to HLP must therefore be examined not only as a standalone right, but also one which can culminate in the loss of other basic human rights. One of the key issues confronting displaced communities is access to shelter while they are displaced, as well as the damage or usurpation of their property when the crisis ends. Countries who have experienced massive displacement and HLP rights include Kosovo, Bosnia and Herzegovina, Guatemala, Cambodia, Colombia, Burma, Afghanistan, Iraq and Syria, to name but a few. In a study on the socio-economic consequences of war in Syria, a World Bank report concluded that violent conflict has inflicted significant socioeconomic and physical damage to the country and its people. Only in terms of housing and property, 7% of housing stock was destroyed and another 20% was partially damaged. Furthermore, more than half of Syria’s population was forcibly displaced (The World Bank, 2017). A number of these countries have managed to address, some even successfully, HLP rights. Whereas for others, such as Afghanistan and Syria, HLP rights is one of the main challenges that need to be to be dealt with in future political settlements. Land tenure or occupied territory disputes are a source of ongoing instability that, if not resolved during periods of transition, can jeopardize peace processes and political stabilization. In a special issue of the International Journal of Transitional Justice on HLP Rights, Unruh and Abdul-Jalil (2021) note that HLP rights “raise some of the most provocative and continuous issues in transitional justice scholarship and practice” (p. 1). They maintain that issues related to restitution for historical injustices, forced displacement and property damage and destruction constitute one of the key policy debates in transitional justice, though still evolving. Despite a relatively late realization that HLP rights do not immediately—and easily—re-establish and re-build themselves in the aftermath of a conflict, it is now recognized that “HLP rights pass through a significant transitional phase after conflict” where land conflicts in their various forms

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require “significant time to reconcile” just as with the rest of society (ibid., p. 2). In these circumstances, the harm related to HLP disproportionately affects women, children and other vulnerable groups, especially war widows, whose legal protection of tenure is often connected to a male family member. Under such conditions when wars cease and the displaced population returns home, the question of access to land and property becomes a crucial and highly challenging matter for the new regime to address. The restoration of HLP is addressed through a variety of laws, procedures and mechanisms aimed at restoring the human rights of war victims (or their descendants). This includes the Basic Principles and Guidelines on the Right to Reparation for Victims of Violations of Human Rights and International Humanitarian Law (OHCHR, 2005), which stipulates that restitution, comprising also the return of property, constitutes one of several forms of reparations. In 2005, the United Nations endorsed the Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons (UN Economic and Social Council, 2005), which highlights the necessity of HLP restitution for conflict resolution and long-term peace. The Pinheiro Principles emphasize the right to non-discrimination and equality between men and women, and urge states to take the necessary administrative, legislative and judicial steps to promote and facilitate the HLP reparation process. HLP rights are tackled in a number of peace agreements globally, with broadly three types of HLP considerations: those that generate conflict, those that emerge as a result of conflict and tenure-related problems that are critical for effective recovery (Unruh, 2004). Before designing a new framework in a peace process, it is critical to identify the “difference between pre-conflict, post-conflict, and recovery tenure issues” and to analyze the current opportunities that may involve different approaches to HLP reforms (ibid.). Likewise, several HLP concerns have regularly surfaced in numerous peace discussions. These include HLP restitution rights and mechanisms to administer restitution claims --particularly relating to refugee and IDP return--, secondary occupation of HLP, reform of relevant HLP legislation, formation of specialized bodies on HLP disputes, women’s rights to equal treatment with regard to HLP rights, and customary law arrangements among other topics (Displacement Solution & Norwegian Refugee Council, 2018). Many peace agreements have examined land and property restitution as a matter of rights and entitlement to the displaced population. They include Colombia (2016), Myanmar (2016), Darfur (2006), Kosovo (1999), Bosnia and Herzegovina (1995), Guatemala (1995), Mozambique (1992) and Cambodia (1991). Calling it a vitally important development in the international legal regime, Leckie (2003) argues that land and property restitution stands a “far greater chance of success” if it is included in peace agreements “rather than treated as a secondary after-thoughts once a post-conflict phase begins” (ibid., p. 15). One of the most well-known postconflict cases of land and property

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restitution is the 1995 Dayton Agreement in Bosnia and Herzegovina, where it states: All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of the hostilities since 1991 and to be compensated for any property that cannot be restored to them. (The General Framework Agreement for Peace in Bosnia and Herzegovina, 1995, p. 33) Apart from the inclusion of a six-page Annex on the return of the refugees and displaced persons in the Dayton Peace Agreement, a Commission on Real Property Claims (CRPC) was established in Bosnia and Herzegovina to facilitate housing and property restitution for the IDPs and returning refugees. The displaced population’s housing and property needs were assessed using a well-developed method including local specialists, which included a background check against property records. All local governments were bound by the CRPC’s decisions, and any title, deed, mortgage or other legal document produced or granted by them had to be recognized as legal throughout the country (Leckie, 2003a, p. 19). Calling it the “most dramatic success of the peace process in Bosnia and Herzegovina” Cox and Garlick state that more than half of all refugees and displaced persons were able to recover possession of their pre-war homes following the Dayton Agreement of 1995 where housing and property restitution and compensation was included as an important objective of the conflict settlement (2003, p. 65). The authors argue that while the recovery of the possession of property was a “problem of daunting complexity” (ibid., p. 68), one way to respond to the challenge was to examine each case individually through the CRPC. Through this process, destroyed houses were rebuilt and housing facilities were provided in villages for the return of the displaced communities. The funding for such projects was channeled by international donors, and implementation took place through foreign NGOs (ibid.). Another case is Guatemala, where the Commission on Historical Clarification had identified reparation to war victims, including restitution of property, as a key condition for the country’s successful transition towards reconciliation and the rule of law. Despite identifying four categories of restitution to the displaced persons, the commission was able to achieve very little in practice because of the lack of political will and a prevailing culture of impunity (Bailiet, 2003). The author states: The Commission for Historical Clarification found that of all the testimonies it received, only one case resulted in investigation, judicial processing, and provision of reparation for the harm caused. The state

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remains responsible for the displacement that occurred during the war, given that the military has been deemed the prime actor. Regardless of the regime change, the state must provide remedy for the human rights violations. The fact that the state has not succeeded in punishing violators due to its amnesty laws, calls for action by the judiciary to declare these laws inconsistent with international human rights standards and opens the door for future prosecution. (ibid., p. 184) This shows that in the absence of political will on the part of national and international actors, unlike the case in Bosnia and Herzegovina, a mechanism like the Commission for Historical Clarification could only serve as a documentation venue, which is valuable in and of itself for other aspects of transitional justice like truth-finding and acknowledgment. Nonetheless, it provides little tangible material assistance to victims. Colombia is an ongoing example of addressing HLP rights in the 2016 landmark Peace Agreement as part of its comprehensive land reform project, which constituted one of the six main components of the Peace Agreement. This includes restoring millions of acres of land to the IDP population of over five million, one of the world’s largest. Even prior to the 2016 Peace Agreement, the law on Victims and Land Restitution, signed by President Juan Manuel Santos in 2011, the government had started restituting land to the IDPs and victims of violent conflict. However, due to ongoing threats by the paramilitary forces to the IDP activists, the process faced serious problems in reclaiming lands, despite the existing de jure support. In certain instances, the extent of the threat has led to a new wave of the IDP population, thus their re-victimization (HRW, 2013). In the context of Colombia, the government has been trying to provide justice to victims, including socio-economic justice. Nevertheless, in the absence of sufficiently strong accountability mechanisms to deal with perpetrators, justice to victims, de facto, remains a far-fetched story. Despite continued challenges with the implementation of the Colombian Peace Agreement, especially land reform, the process by which negotiating parties acknowledged HLP harm in the conflict and prioritized victims’ rights to reparation provides a valuable lesson for other situations such as Afghanistan and Syria where HLP rights remain an immense challenge (Impunity Watch & PAX, 2020).

Land grabbing and transitional justice In violent conflicts and their aftermath, people lose access to land and property not only as a direct consequence of war such as aerial attacks, but also because their lands or properties can be confiscated either for redistribution (as happened in Afghanistan in the 1970s–1980s), used as a military base or turned for personal use. As mentioned, in such situations land disputes,

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including land grabbing, can serve as the cause of the conflict in the first place. Some three-quarters of conflicts around the world have taken place in agrarian states during the last quarter of a century (Huggins, 2009). The situation gets further convoluted when in most developing agrarian states, less than 10% of lands are registered in a formal system of documentation, especially in rural areas (ibid.). Countries hit by colonialism were particularly affected by land laws to ensure economic supremacy of the colonial elite minority. Huggins states: Many post-colonial regimes have inherited extremely skewed patterns of land distribution. Independence, in many countries, did not affect colonial property structures, with a new domestic elite sometimes taking the place of the former colonial ruling class. (Huggins, 2009, p. 339) Guatemala, which is considered a rather prominent case of transitional justice, is one such example. Following its independence in 1821, political and economic power became concentrated in the hands of a privileged powerful minority, which refused the land rights of the indigenous Maya population. The skewed situation was such that only 4% of the population controlled 80% of the arable land before the war. Land issues thus became a crucial factor for the conflict and unrest to begin. The attempts of President Jacobo Arbenz to introduce land redistribution reforms in 1952 were met by his ouster in a CIA backed coup d’état in 1954 (ibid.). Although Huggins (2009), does not refer to such circumstances as land grabbing, the appropriation and control of land by the powerful elite can arguably be referred to as land grabbing, a notion which will be explored in detail in the empirical section. Other reports, however, specifically use the concept of land grabbing or land confiscation. Human Rights Watch has conducted a number of studies in conflict and transitional countries on land grabbing and land confiscation, which demonstrate, among other issues, how in the absence of accountability mechanisms, the ruling elite can turn the economic wheels of the society (land issues in this case) to their advantage. One such study was published in 2016 on land confiscation in Burma’s Karen State. The report found out that in the last years, conflict over land in Burma has come to the forefront of the national agenda following processes of democratic transition and reform in the country. The circumstances leading to land dispute included displacement for plantation agriculture and resource extraction and infrastructure, which often take place without “adequate consultation, due process of law, or compensation for those displaced” (HRW, 2016, p. 4). This issue is particularly acute in Karen State, where on the one hand land is being confiscated by the powerful and on the other those protesting the situation become criminalized. A lawyer from the Karen State who was interviewed by Human Rights Watch researchers in August 2015, stated: “The

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businessman takes the land from the farmer, but when the farmer protests, he becomes criminal” (ibid.). Since Burma’s independence from Great Britain in 1948, Karen State suffered from decades of conflict between the Burmese military and Karen’s nationalist armed groups. As a result, large-scale human rights violations took place, leading to forced displacement and outflows of refugees. A peace agreement was signed in 2012 followed by a nationwide ceasefire agreement in October 2015. Nevertheless, the conflict still has not come to an end and many refugees continue to live on the Thai–Burma border. Likewise, the IDP population continues to be displaced as a result of conflict, violence, largescale development projects or natural disasters. Under such circumstances, the HRW report states: As peace negotiations continue and the return of refugees from Thailand gains credence, land tenure issues will likely intensify, particularly as those who return find that land they previously farmed has now been occupied by government or business interests. (ibid., p. 6) In 2016, Burma’s government adopted a cabinet resolution on National Land Use Policy to improve land-related measures, including the provision of restitution to victims of land confiscation. In effect, such laws and institutions have aided land grabbing, and arbitrary land expropriation and forceful eviction remain a major barrier to transitional justice in Burma, undermining HLP rights for the vast majority of the population (Aguirre & Pietropaoli, 2021). Another example in the context of transitional justice is the case of Cambodia. A country under the Khmer Rouge regime from 1975 to 1979, which caused the death of approximately 1.7 million Cambodians by execution, starvation or forced labor, Cambodia became a prominent example of transitional justice when in 2006 it established the Extraordinary Chambers in the Courts of Cambodia (ECCC) as a hybrid court to bring perpetrators to trial and justice to victims. While it is not the aim of this section to discuss the function of the ECCC, it is important to briefly discuss land grabbing in Cambodia by state authorities and the victims it has produced in the process. Cambodia started a land measuring and titling campaign on 28 June 2012, which was launched and financed by Prime Minister Hun Sen. The Cambodian government stated that the aim of the campaign was to provide people with proper legal authorization and documentation and to grant companies concessions for their economic projects. In practice, however, according to the findings of Human Rights Watch, the campaign has essentially benefited the wealthy and powerful whereas in the process an estimated 700,000 people have been adversely impacted by forced eviction (HRW, 2013). More importantly, protests and resistance to such land grabbing led to the arrests of over 200 land activists and human rights defenders in 2012. In its report, therefore, Human

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Rights Watch (2013) has called on the international donor community to stop its funds to the program unless it is reformed into a professional and apolitical process. In 2014, under Article 15 of the Rome Statute, a communication was filed at the ICC regarding systematic land grabbing by senior officials in Cambodia. Like in Afghanistan, senior officials in Cambodia have been accused of systematic land grabbing that could amount to, considering its gravity and extent, not only human rights violations, but also crimes against humanity under Article 7 of the Statute (Oehm, 2015). This research presents a similar position, in particular following the Cambodian precedent, regarding systematic land grabbing in Afghanistan, which will be discussed later. Despite these developments, land grabbing continues to remain a marginal concern in transitional justice. As previously stated, the inclusion of HLP rights in transitional justice discourse and practice is a substantial, albeit belated, development (Unruh & Abdul-Jalil, 2021). Nevertheless, even the special issue of the International Journal of Transitional Justice on HLP (2021), pursues a more legal and institutional approach rather than a harm-based approach, with an emphasis on the recognition, remedy and restitution elements. These are significant measures, but constitute one side of the coin. The other side of the coin, as this research seeks to address, contains criminal responsibility—with the state as part and parcel of the act—that necessarily also requires examining the matter from a criminological perspective.

Land dispute, urbanization and criminology The discipline of criminology, by and large, has not addressed land disputes in violent conflicts, much the same as its limited engagement with economic crimes in situations of violent conflicts. However, some important work in the last years has been conducted by criminologists on crimes of urbanization where illicit land transactions have been meticulously researched (Lasslett, 2018). Rooted in critical and radical criminology, this perspective links crimes of urbanization with a broader process of class struggle, urging criminologists to document, conceptualize and confront crimes of urbanization, including illicit land transactions, as a way to expose crimes of the powerful. Lasslett shows how state-corporate activity in land and property markets functions through illegal land transactions using units of analysis such as individuals, relationships, networks and transaction chains in Papua New Guinea. He uses the concept of “land grab” to describe how a well-connected and influential local sells fraudulently acquired land to a developer who in turn has close ties with government officials in the “world capital of tune.” He also shows the harmful impact of land grabbing on the residents and the resistance it generates among them. In a context such as Afghanistan, the process of urbanization and the criminality linked to it cannot be disconnected from the discourse on

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transitional justice. This is mainly because many of the warlords and former mujahideen who were not vetted in a process of transitional justice, let alone faced accountability and justice in a court of law, were the main architects and beneficiaries of crimes such as land grabbing. Nevertheless, as Hagan et al. (2012) write, while criminology as a discipline is well-positioned to chronicle and explain military and political violence that results in economic conflict crime, the “neglect of economic conflict crime” is at the same time “a failure of criminology” (p. 482). Their definition of economic conflict crimes also includes property crimes, where the authors place much emphasis on furthering knowledge about perpetrators at the “individual, group, and state levels” in order to understand better the motivations and consequences of such harms (p. 496). In their empirical inquiry in Iraq, they too accentuate the role of state crime in relation to economic conflict crimes.

Conclusion This chapter briefly touched upon the loss of HLP rights in violent conflicts. While the question of HLP rights is increasingly gaining momentum in the human rights regime and transitional justice, it continues to remain a neglected field in criminology. As such, in most cases HLP loss may get acknowledged only as a form of human rights violations, and in exceptional circumstances, as serious human rights violations and crime against humanity (Arbour, 2007). Arbour points out that in the Kupresik case, the trial chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) acknowledged that systematic destruction of houses and property can amount to a crime against humanity. While this is already good progress when it comes to victims’ rights, the “crime” element of such practices is often remained un-tackled, especially as regards the role of the perpetrators. The next three chapters are dedicated to addressing such issues in the empirical case of Afghanistan.

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UN-Habitat. (2007). Global report on human settlements 2007: Enhancing urban safety and security. United Nations Human Settlements Programme (UN-Habitat). http://mirror .unhabitat.org/downloads/docs/GRHS2007.pdf. UNHCR. (2020). Figures at a glance [Figures at a glance]. UNHCR: The UN Refugee Agency. https://www.unhcr.org/figures-at-a-glance.html. Unruh, J. D. (2004, January). Land and property rights in the peace process. Beyond Intractability. https://www.beyondintractability.org/essay/Land_tenure. Unruh, J. D. (2010). Land rights and peacebuilding: Challenges and responses for the international community. International Journal of Peace Studies, 15(2), 89–125. Unruh, J. D., & Abdul-Jalil, M. A. (2021). Housing, land and property rights in transitional justice. International Journal of Transitional Justice, 15(1), 1–6. https://doi.org/10.1093/ijtj /ijab004.

Chapter 3

Violent conflict, socio-economic harm and transitional justice in Afghanistan

This chapter aims to provide background information on the Afghan conflict of over four decades. It will include a brief reflection on the different phases of war followed by a discussion on transitional justice in Afghanistan. The chapter will then briefly examine the much-neglected topic of socio-economic harm in Afghanistan. This chapter lays an overall country context before discussing HLP rights and land grabbing in Afghanistan in the succeeding chapters.

Conflict background Afghanistan has been in consecutive conflicts for over four decades. After winning its independence from the British on 19 August 1919, Afghanistan was ruled by kings until 1973, when Daud Khan staged a coup against the king, Mohammad Zahir Shah, and announced himself as the first president of Afghanistan. President Daud himself was toppled and killed in a coup by the Soviet-backed People’s Democratic Party of Afghanistan (PDPA) on 27 April 1978. Caught in the middle of the Cold War game, after the United States established a close military tie with Pakistan in the 1950s, Afghanistan leaned towards the Soviet Union for support. After seizing power, the PDPA government launched repressive reforms often backed by the Soviet Union. These measures included land reform that led to arrest and the summary execution of thousands as well as targeting opponents, particularly disappearing them. The dissidents included political activists, university professors and students, religious figures and other minority groups. Calling such practices crimes against humanity, the Afghan Justice Project states that the number of disappearances between April 1978 and December 1979 alone is estimated to be in the tens of thousands (2005). Such unrest in the country eventually gave birth to massive uprisings of people. Realizing the fact that the situation in Afghanistan was only deteriorating and the PDPA government was not able to keep the country under its control, on 24 December 1979, the Soviet Union invaded Afghanistan with 115,000 troops. The occupation of the country resulted in further suppression, execution and torture of dissidents, the aerial bombardment of the countryside DOI: 10.4324/9781003134411-4

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and an influx of refugees. During this period alone Afghanistan lost some one million people and around five million took refuge in countries all over the world, particularly in the neighboring Pakistan and Iran. The ten-year-long Afghan–Soviet conflict finally ended with the Geneva Accord, sponsored by the United Nations in 1988 (HRW, 2001; Rubin, 2002; The Afghanistan Justice Project, 2005). While the story of the Soviet invasion of Afghanistan captured world headlines, the devastating civil war of the 1990s (1992–1996) was hardly noticed by the world media notwithstanding the level of destruction it wrought on the country and its people. After the Soviet withdrawal and the collapse of the PDPA government in 1992, various religious fanatic parties, known as the Mujahideen, started fighting each other in a deadly war for dominance that left Kabul in ruins. Before discussing the civil war period, it is important to shed some light on the origin and development of the Mujahideen movement— labeled also as “warlords” in the western media—considering their presence and role throughout the Afghan conflict, including in the period under discussion for land grabbing. This book too will use the terms warlords and Mujahideen interchangeably. The term “warlord” in Afghanistan’s recent socio-political lexicon refers to individuals who are also labeled as the “mujahideen” or “jihadi” leaders. “Warlord” is now charged with an additional, and often negative, meaning in the Afghan political context. This research adopts the definition of warlords as “military leaders who emerge to play a de facto political role, despite their lack of full legitimacy” (Giustozzi, 2004, p. 5). Often, those in opposition to the Mujahideen’s policies and ideologies, refer to them as “warlords,” whereas they themselves prefer to use the term “mujahid” or “jihadi” leaders to present a more respectable image of themselves within the Afghan society and abroad. Mujahideen, the plural for mujahid, in Arabic means those who fight for God and Islam, which is often referred to as the “jihad,” thus the “jihadi” leaders. The Mujahideen or jihadi leaders are products of the Cold War era, who started their political activities based on religious ideologies of a more radical form of Islam promulgated in Egypt by Sayyid Qutb and others of the Muslim Brotherhood community in the 1960s to 1970s. In the view of this movement, Islam is a complete system with its own guidance on economics and politics. Perceiving both capitalism and communism as unjust systems, they see it as obligatory for every Muslim to fight such systems (Rubin, 2002, pp. 85–90). Thus, with the Soviet invasion of Afghanistan, the West found a “natural” ally to confront together the threats of communism, offering a substantial amount of military and financial aid to the Mujahideen. In the 1980s, the Afghan Mujahideen leaders were organized in seven Sunni Islamic parties (“tanzim”) based mainly in Pakistan and eight Shia Islamic parties based in Iran, following the line of Khomeini. They were heavily, almost entirely, dependent on foreign support; financially, politically and militarily. As Rubin points out “[t]he Pakistani effort to aid the mujahidin received

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substantial and growing support from the West, led by the United States; from the Islamic world, led by Saudi Arabia; and from China” (2002, p. 196). In another account, referring to the Cold War era, Coll states: “For sixteen years now the CIA had routinely pursued its objectives in Afghanistan with large boxes of cash” (2004, p. 7) and “CIA supplied Afghan rebels used Stingers to down hundreds of Soviet helicopters and transport aircraft between 1986 and 1989 […] Between 2,000 and 2,500 missiles had been given away by the CIA to Afghan rebels during the war” (ibid., p. 11). Such support, especially from the 1980s to 1992, made Afghanistan the world’s largest recipient of personal weapons, where only the American aid grew from $30 million in 1980 to $600 million per year from 1986 to 1989 (Rubin, 2002). With this assistance, the Mujahideen leaders would try to mobilize their supporters inside Afghanistan in their insurgencies against the Soviet troops. As mentioned, with the withdrawal of the Soviet forces from Afghanistan in 1989 and the collapse of their puppet regime in 1992, a fully fledged civil war started among the Mujahideen leaders, which resulted in massive destruction of the city of Kabul, killing, maiming or injuring tens of thousdands of its inhabitants. As a result of a full-scale civil war among the mentioned parties, heinous crimes against humanity were committed: abduction, disappearance and execution of civilians became an ordinary routine; sexual violence, including gang rapes, became a systematic weapon of war and a means of ethnic cleansing. Moreover, the ongoing bombardment of Kabul left tens of thousands of dead and forced many to leave the city (Afghanistan Justice Project, 2005). According to a Human Rights Watch report, “in 1994 alone, an estimated 25,000 were killed in Kabul, most of them civilians killed in rocket and artillery attacks. By 1995, one-third of the city had been reduced to rubble” (HRW, 2001, p. 14). As pointed also in the Afghanistan Justice Project, while some of the above-mentioned crimes were committed based on certain individuals’ will in the lower ranks, the main responsibility rests with the senior leadership of the Mujahideen parties. Following the civil war, in 1996 the Taliban took over. The Taliban, which is the plural form for “student” in Arabic and “religious students” in the Afghan context, was a movement that emerged out of religious schools called madrasa in Pakistan (Rashid, 2010). First emerging in Qandahar in 1994, they took control of Kabul in September 1996. They did so under the name of establishing peace, security, and more importantly, their version of Islamic or Shari law. Under this extreme religious ideology, the Taliban issued a decree banning women from education, employment and going outside without the company of a close male family member (a mahram), and imposed a strict dress code. Similarly, restrictions were imposed also on men, such as wearing a long beard and refraining from wearing western dress or haircuts. Like the civil war under the Mujahideen government, the Taliban too committed crimes against humanity. In August 1998, in a northern city called Mazare-Sharif, the Taliban massacred over 2,000 people, of whom many belonged

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to the Hazara ethnic minority. A similar massacre happened in Yakawlang, a district in central Afghanistan (HRW, 2001). Despite the fact that the Taliban regime was recognized only by the governments of Pakistan, Saudi Arabia and the United Arab Emirates, it remained in power until the United States-led invasion in 2001. Following the events of 9/11, Security Council Resolution 1386 (2001) approved the US-led invasion of Afghanistan. In addition to the antiterrorism rhetoric, one of the pretexts for the invasion of Afghanistan was the appalling human rights situation under the Taliban rule, in particular the plight of Afghan women. This was most evident in Laura Bush’s “sudden interest” in the situation of Afghan women (Kolhatkar & Ingalls, 2006). Hence, human rights and women’s rights, a “self-evident good” (Gearty, 2005) became one of the tools to legitimize the invasion of Afghanistan in the eyes of the American and western public. As such, the post-9/11 developments in Afghanistan instigated a hegemonic power relationship. The United States and allied countries tried to project their plans in such a way that it not only served their interest—fighting Al Qaeda and terrorism—but was also perceived to serve a more general interest—improving the human rights situation and “liberating” women in Afghanistan. Many Afghans presumed a window of opportunity was opened shortly after the fall of the Taliban, leading to an end to the long wars in the country and their miseries (Rubin, 2003). To the contrary, far from the promises made to the Afghans, the post-2001 developments in Afghanistan have been marked by a prevalence of endemic corruption across various layers of society, an entrenched culture of impunity and a worsening security situation. Heavily backed by the international community’s neoliberal agenda, the achievements had been, at best, disappointing. Short-term stability never bought long-term security as insurgency escalated after 2006 and became far worse following the withdrawal of the majority of the NATO forces in 2014, as was evident in some of the deadly attacks against civilians (Harooni & Hassib, 2017; Jawadi, 2017; Paiman, 2017). Theros and Rangelov described the situation as “unjust disorder”: a combination of impunity and insecurity (2013, p. 1). State institutions were weak and corrupt, if not outright predatory. Economic development lagged and large sectors of the population were on the brink of starvation. Despite the fact that Afghanistan was one of the leading global recipients of official development aid for two decades, reconstruction was patchy and hardly cost effective and the country continued to rank as one of the poorest in the world. Most importantly, despite the desire of a big portion of the population towards the implementation of justice, the demands for justice and recognition of victims and survivors of almost four decades of conflict have been utterly ignored (AIHRC, 2005; Echavez et al., 2016; Saeed, 2015). As a result, one of the outcomes of the resurgence of a culture of impunity was the engagement of powerful people, many of whom were the Mujahideen with record of gross human rights violations, in land grabbing,

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of which the neighborhood of Sherpur, which opens the introduction of this book, became a significant symbol. As briefly illustrated above, multiple regimes, each supported by foreign powers and their proxies, have ruled Afghanistan in the past 40 years. While each government has been responsible for massive atrocities and destruction of the country, no accountability mechanism has been established to address past crimes. On the contrary, during every transition, which has often involved an agreement to lead to the next phase, the question of accountability has been ignored, resulting in an entrenched culture of impunity (Mani, 2003). The historical 2001 Bonn Agreement is no exception. The Bonn Agreement

Following the overthrow of the Taliban regime at the end of 2001, the United Nations-sponsored talks were held in Bonn, Germany, involving many prominent Afghan personalities and parties as well as regional and international powers in an attempt to establish an interim administration. The 2001 Bonn Agreement, some thought, would be a defining moment in a period of transition from the Taliban rule to one that would end violence and bring peace (Rubin, 2003). However, unlike the Dayton Agreement or the El Salvador Peace Accords that involved all sides of the armed conflict in an effort to end the war, the Bonn Agreement did not bring the Taliban to the negotiation table, and discussions were not about how to resolve the conflicts and bring peace. On the contrary, while the negotiations were ongoing, the United States was still bombarding Taliban positions in the South and South East of the country (ibid.). As such, the Bonn Agreement was not a peace agreement (Gossman, 2006; Rubin, 2003; Wisner, 2008). Furthermore, in an attempt to secure an agreement between different factions, some of whom were accused of gross human rights violations, The UN-led team avoided the inclusion of any references to investigate past human rights violations and war crimes (Winterbotham, 2010, p. 6). On the contrary, the Bonn Agreement helped warlords to further embolden and re-establish their strongholds around the country. The Bonn Agreement did not contain any references to transitional justice apart from the establishment of the Human Rights Commission “whose mandate was understood, though not stated, to include coping with past as well as current abuses” (Rubin, 2003, p. 571). Moreover—although to the UN’s Special Representative Mr. Lakhdar Brahimi’s credit, the initial draft included a paragraph forbidding an amnesty—the participating warlords not only fiercely resisted and eventually removed the paragraph (ibid.), but also replaced it with one that read: Expressing their appreciation to the Afghan mujahidin who, over the years, have defended the independence, territorial integrity and national

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unity of the country and have played a major role in the struggle against terrorism and oppression, and whose sacrifice has now made them both heroes of jihad and champions of peace, stability and reconstruction of their beloved homeland, Afghanistan. (United Nations, 2001) The political and security developments since the Bonn meeting painfully proved Mr. Brahimi’s point when he repeatedly warned of the danger of a blanket amnesty.

Transitional justice in Afghanistan Following the fall of the Taliban regime, Afghanistan had a chance to address the mass atrocities of the past, but a fully fledged and meaningful transitional justice measure was never implemented. Nevertheless, some steps were undertaken that merit a brief discussion here. “A Call for Justice”

Article 6 of the Bonn Agreement led to the establishment of the Afghanistan Independent Human Rights Commission (AIHRC) which, among its mandates, included a “national process of consultations on transitional justice” (Jahangir, 2003) covering 23 years of war (1978–2001) in Afghanistan. One of its first nation-wide consultations was an eight months long survey conducted among 6,000 participants, including Afghan refugees in Pakistan and Iran, in an attempt to propose a national strategy on how to address past abuses (AIHRC, 2005, p. 5). The result of this project was the publication of a 75-page document aptly titled A Call for Justice, by and for the people of Afghanistan, that stated: “To date, [the] past has not been confronted. This report seeks to explore whether the people of Afghanistan want this to be addressed, and if so, how” (ibid.). The Call for Justice was crucial in providing some ground-breaking findings, which to date continue to remain the only source as regards Afghan war victims’ perceptions. Almost 70% of the participants identified themselves or a close relative as direct victims of human rights violations. 54% of the respondents believed in the culpability of external powers in the country’s decades-long violence, including the former Soviet Union, the United States and neighboring Pakistan and Iran. Furthermore, the relative majority of respondents identified the civil war among Mujahideen factions as the conflict period during which they experienced the most violence. The leaders of those Mujahideen factions were the same who removed the paragraph against a blanket amnesty from the Bonn Agreement and who were granted key positions in the Karzai administration and in the subsequent governments. The findings also suggested that 45% of the population demanded immediate accountability in the form of

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trials, and 61% rejected an amnesty (ibid., pp. 8–20). The impact of A Call for Justice was instrumental, among other factors, in setting the stage for the next step, the drafting of the Action Plan. The Action Plan for Peace, Reconciliation and Justice

Under pressure from the international community, the President’s office, the AIHRC and the United Nations Assistant Mission to Afghanistan (UNAMA) drafted a national Action Plan for Peace, Reconciliation and Justice (Action Plan) in 2005. It took over a year for President Karzai to officially launch the Action Plan on 10 December 2006, the International Human Rights Day. The Action Plan identified five key components of justice and reconciliation for Afghanistan, including truth seeking, symbolic measures, accountability mechanisms involving vetting procedures, institutional reform and reconciliation (AIHRC, 2005). Furthermore, the Action Plan emphatically rejected amnesty provisions, stating that neither Islam nor international law allows for an amnesty for gross violations of human rights, including crimes against humanity. Although an important document containing significant measures in theory, in practice, very little, if anything, was achieved before the three-year timeline mandate of the Action Plan expired in March 2009 (Winterbotham, 2010). This was primarily due to fierce opposition from within the Afghan Parliament and important sectors of the administration. In March 2007 the Parliament passed the National Reconciliation, General Amnesty and National Stability Law (the Amnesty Law) that ensured a blanket amnesty for all perpetrators of human rights abuses of the past regimes, thus turning impunity into law (Kouvo, 2010). The status of the bill remained unclear for many months after the President sent it back to Parliament for modifications to make it more compatible with the Sharia law. A new modified version was eventually published in the Official Gazette only in late 2009, significantly after Karzai and his allies were confirmed in power in fraudulent elections. Many national and international human rights organizations condemned this act, arguing that a blanket amnesty for serious war crimes goes against the standards of international law (ICTJ, 2010). While the 2001 regime change generated some hope among Afghans that finally war would be over and the perpetrators would be brought to justice, the dim developments regarding transitional justice from the Bonn Agreement to the AIHRC’s mandate to the Action Plan remained primarily an exercise on paper. The amnesty law shattered any hope for justice that many Afghans longed to see. Moreover, this Act further entrenched the culture of impunity and virtually removed any opportunities to legally sanction past and present war crimes. As a result, with well-known perpetrators holding high positions of power, human rights violations continued to be tolerated by the Afghan government and the international community (Wisner, 2008). These also

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included pervasive economic crimes, including corruption, land grabbing and illegal minding. Bottom-up approach to transitional justice

The complexities and dilemmas of transitional justice in Afghanistan did not preclude civil society and bottom-up initiatives. Against all odds, some important developments took shape among civil society and war victims. This approach accentuates the role of the locals, their voices, perceptions and struggle. Bottom-up in this context can be understood as an approach that engages various civil society groups, including NGOs, the media, traditional village councils, religious groups, and other organized initiatives that are not top-down. In the context of Afghanistan, a bottom-up approach is important predominantly for two reasons. First, given that the majority (69%) of the population consider themselves or immediate family members as victims, it seems impossible to address past atrocities without engaging the population at large. In other words, a top-down approach, alone, will not work. Second, given the prevailing discourse and practice around transitional justice in Afghanistan, which has not just been oblivion but an entrenchment of the culture of impunity, the only hope to address past atrocities is through peoplecentered mechanisms in a transformative justice agenda. As discussed, neither national nor many international political actors have expressed a serious interest in addressing justice for war victims in Afghanistan. Therefore, the role of bottom-up initiatives, in particular that of civil society in collaboration with war victims, is critical, a phenomenon not unique to Afghanistan. In many countries, the role of civil society has been crucial in mobilizing support and generating public pressure, awareness and advocacy. One of the most widely cited civil society engagements, indeed a quintessential example of a bottom-up initiative, is the work of the Mothers of the Plaza de Mayo. Despite the fact that they decided not to co-operate with the Argentine truth commission (Hayner, 2002), their contribution was essential to addressing impunity and past abuses. This is a relevant example in the current context because the Mothers’ group in Argentina started and conducted their work at a time when the military dictatorship was still at its height (1976–1982). Their activism, despite the reign of state terror, played a crucial role in informing the western public, particularly taking into consideration that the military junta enjoyed good relations with many conservative European governments initially. After the return of democracy, specifically the shift in political power after 2004 when criminal prosecution of the perpetrators was reopened, the Mothers’ relentless struggle was crucial in demanding accountability. From December 2001 to August 2021, before the fall of the government and return of the Taliban to power for the second time, Afghanistan was not ruled by a dictatorship and “enjoyed” nominal democracy. Nevertheless, the prevalence of a hostile environment on various fronts made it very difficult for

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bottom-up initiatives. On the other hand, just like the contributions of the Mothers of the Plaza de Mayo, civil society groups in Afghanistan have played an important role in keeping the transitional justice agenda alive through “demanding accountability, focusing on documentation, and mobilizing victims” (Kouvo, 2009, p. 2). Such initiatives and advocacy efforts send a strong message to the Afghan government and the international community that the demand for justice cannot be ignored and forgotten, despite the ratification of an amnesty law, and lack of political will in general. In addition, it stresses the importance of the agency that bottom-up movements can entail in challenging the status quo, as Stammers states: “[T]he very idea that social movements can use human rights to challenge power implies both that social movements have agency and that some degree of social change is possible” (2009, p. 24). In conclusion, while it is important to soberly recognize the political obstacles to addressing past abuses in Afghanistan, it is equally important to pay attention to the contribution of bottom-up work by civil society and victims’ groups. Furthermore, the crucial role of international organizations—such as the International Centre for Transitional Justice, Human Rights Watch and others—in providing technical, financial and political support to local groups has to be acknowledged. In the meantime, it has to be reiterated that a bottom-up approach in essence entails an “Afghanization” of the process; that is, finding solutions by Afghan citizens according to Afghan realities. Part of this “Afghanization” process is the question of addressing the socio-economic rights of people, in addition to their civil and political rights, that have been utterly violated during the various phases of war, and which have been the empirical focus of this research. The next section will address this by way of providing a broader introductory context in relation to socio-economic harm during violent conflicts in Afghanistan.

The impact of violent conflict on the socioeconomic fabric of the Afghan society An Afghan military general who had witnessed the 1970s to 1990s political developments in Afghanistan published in his memoir of over 600 pages the following on the socio-economic destruction of Kabul city during the civil war: Those days, no longer any signs of civilization were left in Kabul. Electricity, water, buses, oil and telephone lines no longer existed. Shops and malls were looted or were busted from the fear of being looted. Roads and buildings were bearing holes from thousands of bullets, shrapnel, guns and canons. Deep holes existed in every nook and corner of the city. Holes that look like dark and notorious graves. They were talking of human cruelty. Doors, windows, ceilings, trees, cars, vendors, horse wagons, carpets and books, along with the heavenly lawns of Kabul, were

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reduced to ashes, thus the last spikes were being nailed into the human civilization and progress. (Azimi, 1999, p. 612) As captured in the quote above, socio-economic harm and destruction featured significantly in the Afghan conflict. Nevertheless, it has drawn little attention from academics and researchers as well as practitioners. A quick glance at books, documents and reports on the history of violent conflicts over the last four decades testifies to this fact. Most have overwhelmingly focused on civil and political rights violations. Perhaps this is in part due to the fact that the sheer magnitude of civil and political rights violations, such as the right to life and bodily integrity, was so severe and widespread that in most instances it alone became the focus of attention. At most, socio-economic questions were addressed as part of the general development and aid delivery agenda, confirming the global trend of ignoring socio-economic harm in times of war. Specific to transitional justice, so far, A Call for Justice (2005) remains the most reliable document as regards gathering people’s perceptions on the notion of justice. However, this document too has primarily targeted civil and political rights violations. The empirical data gathered for this research, on the other hand, has specifically engaged with socio-economic harm—land and property loss, in particular—as a central question during interviews with war victims and experts. This section will thus primarily rely on the data collected during fieldwork to provide a general background on the war impact on socioeconomic infrastructures and people’s lives. A more detailed discussion on HLP will follow in the next chapter. Field data confirms the devastating impact of war on the socio-economic fabric of society and the destruction of Afghanistan’s economy. In a multilayered conflict, however, this impact has not been applied uniformly across the country. For example, during the Soviet invasion (1979–1989) mainly the countryside came under heavy bombardment and was destroyed, whereas the capital city Kabul and its infrastructures remained intact. During the Soviet invasion, many countryside residents lost their lands and properties, which had a huge impact on the agrarian economy. When villagers lost their ability to work on the land, they were forced to relocate to either big cities or neighboring Iran and Pakistan, resulting in the loss of a village’s labor force as well. The civil war (1992–1996), on the other hand, wreaked havoc on the country’s major cities, particularly Kabul. A substantial section of Kabul was devastated as a result of factional conflict in which hostile parties launched rockets and used aerial bombardments, canons and heavy weapons from their opposition mountain strongholds in the city. Certain populated districts, including Afshar (western Kabul) and Chehelsetoon (southwest Kabul), whose residents were also interviewed in this research, were nearly all in ruins. Pillaging of public institutions such as the Kabul Museum as well as private residences and properties had become commonplace during the Mujahedeen rule, as several

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interview participants indicated. A professor of economics at Kabul University and a well-known media analyst expressed to the author: since 1992–2001 we cannot say there was an economy in the country in its scientific sense. 1978 is the beginning of war but 1992 was the beginning of the destruction of economic infrastructure… From 1992–1996, all the factories [were destroyed]. The stones of 460 factories were taken out and sold away. In a country that even during wartime under [president] Najibullah’s time, we could produce 120-million-meter cloth and have exports, including to Italy […] Today, Afghanistan has to import even its sugar at a cost of 450 million dollars. At the time, Afghanistan was producing its own sugar in Baghlan. Even government’s treasury was looted, there was nothing left in the bank. (Personal interview, 23 October 2014, Kabul) During the civil war, he claimed, the Mujahedeen began plundering everywhere, including Kabul and other regions where there was valuable property. They began attacking each other once they finished looting, which in turn had a significant impact on the country’s economy and labor force: When all the strategic economic reservoirs were eliminated and nothing more was left, they directly got engaged in war. The direct war transformed the economic labor force. There was no longer a factory where a person could work and earn a living, there was no longer any production of economic value, which could create salaries to feed family. The person had to become a soldier or fighter with one of the parties, the criminals who were fighting each other. Even as people were escaping conflict, the wooden beams from their rooms’ ceilings were removed and taken to the military check points where they were burning them to stay warm. We lost our mines because the big and important ones were stolen; we lost our agriculture because people in the rural areas had to escape and go to other countries. In cities, factories were looted and ruined and the labour force working in industries became daily workers in Iran and Pakistan and only the lucky ones became daily worker in Germany or Europe and America. Those reaching Europe and America have no interest to come back and they lost their skills. (ibid.) The loss of human capital exacerbated the physical devastation to state institutions, as generations of educated, talented and competent Afghans fled the fighting and migrated across the world. The impact of immigration on the country’s economy, according to a law faculty professor at Kabul University, is a “subtle but long-term damage”: In my view on top of losing infrastructure and property, people also lost work spirit, knowledge and moral towards economic activities. Either

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brain drain took place because people left, or it was not possible to train those who stayed in the country and had the potential. This has been one of the heaviest invisible war impacts. On the economic front, certain obvious damages have been made, but others are more invisible that will take time to recognize and fix. (Personal interview, 29 October 2014, Kabul) Similar concerns were echoed by another expert: One of the war calamities for us has been the transformation of skills. For example, a farmer or industrial worker had to turn into a shop keeper, a businessman may no longer be able to carry his business. He too might become a shopkeeper. (Personal interview, 23 October 2014, Kabul) The disintegration of the country’s economic fabric resulted in citizens being deprived of their most fundamental socio-economic needs. According to a scholar from the Kabul Academy of Sciences: Another impact has been economic poverty, people were left with nothing to eat. It is still going on unfortunately, especially in faraway villages and districts people are hungry and jobless; they cannot cultivate on their lands because such opportunities have been taken away from them as a result of war […] There are many orphans and widows and many orphans are engaged in heavy activities that children should not do. A child who should study and become Afghanistan’s future stands instead on the street to perform difficult jobs such as washing cars. (Personal interview, 20 October 2014, Kabul) A war victim from Chehelsetoon (one of Kabul’s most affected districts during the civil war) described the effects of the war on her socio-economic status as follows: I was born with war; I could not study and never had a proper job. One of my brothers was killed by rocket during the civil war. Our home and properties were looted and we had to start all over again. (Personal interview, 30 October 2014, Kabul) Another resident of Kabul, who was a construction engineer and once a civil society activist, described his personal experience in the case of Afshar (another neighborhood of Kabul that was devastated during the civil war): Afshar was very badly affected, mostly by Sayyaf and Shura-e Nezar forces, but mostly Sayyaf. A year after the war when we went to Afshar for a

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survey, we learned that the 1200 households that used to exist, had mostly been destroyed. All the windows, ceiling, etc. were looted too by Shura-e Nezar and Sayyaf people. Not a single house had remained intact. We found some houses still with bodies buried in them. They had even taken out electricity lines and sold them. (Personal interview, 29 October 2014, Kabul) Market economy and liberal peacebuilding in Afghanistan

As discussed earlier, the formation of a market economy is one of the constituent elements of a liberal peace building agenda. The 2004 Afghan constitution adopted a market economy as the norm for its economic activities after the fall of the Taliban regime and under the circumstances just described. Namely, massive destruction after the war, no functioning institutions and infrastructure, no administration of rule of law, increasing insecurity and lack of transitional justice implementation. Article 10 of Chapter 1 states: The State encourages and protects private capital investments and enterprises based on the market economy and guarantees their protection in accordance with the provisions of law. (The Constitution of Afghanistan 2004, Article 10) Local experts have slammed this strategy, claiming that, among other consequences, it has transformed Afghanistan into a purely consumerist society. Moreover, in the last two decades Afghanistan has heavily depended on donor funding, where foreign aid has averaged 76% of the country’s GDP since 2005, and where violent conflict and grand corruption have hampered economic growth and development. According to a Kabul University professor of economics: During the last decade it became even worse, we did not build economic capacity. We only relied on mercantilist capital, not on our traditional one. We became a consumerist only country, dependent on other countries and their exports […] They ruined everything from economic point of view, including economic thinking, we don’t have it today. We only copy the prescriptions of other countries. This is the worst situation from an economic point of view […] Open door policies have hit hard our economy, meaning it was like a bullet fired at it. (Personal interview, 23 October 2014) Other local researchers and academics have suggested that the issue was not the market economy per se, but rather that Afghanistan’s condition was not yet ready to adopt a free market economy: “In my view, the rejection of market economy altogether is a kind of madness. But at the same time, if someone

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claims that such a system can now be implemented in Afghanistan is equally a kind of madness” (Masood, 2009, p. 12). Masood further goes on to explain: Where there is rule of law, infrastructure, security and a culture of market economy—that is, the government has the culture and the person engaged in the market also knows the rule that market economy is not about creating anarchy—then it can work. The government needs to be strong enough to prevent anarchy. If one of these conditions do not exist, a market economy is not possible […] I have written elsewhere that if a country does not have such circumstances, then only colonialism can implement it […] We must ourselves create our system. (ibid., pp. 14–15) Likewise, another local researcher reaches a similar conclusion, emphasizing a greater role for the government in the control of the economy: Research indicates that the majority of people believe that the choice for a free market economy without government’s interference is mistaken. Given the current situation in Afghanistan, the government needs to interfere. Otherwise, a lack of government’s interference will lead to monopoly, hoarding, destruction of competition and interruption in infrastructural and agricultural activities as well as in the labour market where it will all lead to skewed distribution of resources […] instead of trying to aligning Afghanistan to the liberal criteria of the advanced, industrial western societies, we should try to accommodate liberal market according to the realities of Afghanistan. (Tazri, 2012, pp. 199–200) As indicated in the quotes above, some Afghan scholars and experts have reached similar conclusions as those who are critical towards the liberal peace agenda, which was discussed previously in other contexts similar to Afghanistan. As in those cases, the implementation of a free market economy in Afghanistan, which local leaders and elites as well as the international community pushed for, has had negative effects, such as widening the gap between the affluent and the poor and entrenching corruption and a mafia-like economy. Furthermore, as Afghanistan never became a stable country in the last two decades, where pockets of society especially in rural Afghanistan experienced constant war, a war economy flourished among insurgents. A Kabul University professor from the law faculty stated: with the war economy, the distance between the rich and the poor deepened. On the street, you see some people who have the mentality and the beard of a 16th century person but the car of a 21st century. They didn’t inherit this, they gained it during this period. This has caused a

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distance between such people and a person who is a physician, a teacher a shopkeeper. They got rid of the normal pace, for example one person became a very rich businessman during the last years thanks to corruption whereas in the past a businessman exporting tea would go with a slow pace, enough to sell his teas during an entire year […] Today, therefore we have economic mafia. This too is a characteristic of war, which creates such a class of people. Only those engaged with the Mafia can carry economic activities. The petit bourgeoisie who were active before the war, lost all their chances. (Personal interview, 29 October 2014, Kabul) Another analyst claims that by establishing a liberal system in the Afghan constitution, the then-Afghan cabinet, comprised of many warlords and Mujahedeen or their supporters, “legalized” looting (Masood, 2009). Arguably, one of the consequences of establishing a market economy in the absence of the rule of law and a functional state combined with an entrenched culture of impunity has been land grabbing, which in turn has produced many harmful socio-economic consequences for the society.

Conclusion It is an unrealistic task to do justice to the complex history of the last four decades of Afghanistan’s socio-political developments. It is a country, which, due to its geopolitics, has been at the heart of the regional and world scuffles, the “mirror of the world” as Rubin (2002) calls. At the same time, without understanding Afghanistan’s overall context, it is impossible to describe and make sense of any of its developments in isolation. This section, I hope, has performed the task at hand: providing an overall context within which an analysis of socio-economic harm through the case of land grabbing will be presented in the next chapters.

References AIHRC. (2005). A call for justice: A national consultation on past human rights violation in Afghanistan. Afghanistan Independent Human Rights Commission. http://www .refworld.org/pdfid/47fdfad50.pdf. Azimi, N. M. (1999). ‫[ اردو‌و‌سیاست‌در‌سه‌دهه‌اخیر‌افغانستان‬Army and politics in the last three decades of Afghanisitan] (3rd ed.). Maiwand Publishing. Coll, S. (2004). Ghost wars: The secret history of the CIA, Afghanistan, and Bin Laden, from the soviet invasion to September 10, 2001. The Penguin Press. Echavez, C. R., et al. (2016). Transitional justice: Views from the ground on how Afghanistan fares. Afghanistan Research and Evaluation Unit. http://areu.org.af/?publication=transitional -justice-views-from-the-ground-on-how-afghanistan-fares. Gearty, C. (2005). Can human rights survive? Cambridge University Press.

100 Violent conflict in Afghanistan Giustozzi, A. (2004). “Good” state vs. “bad” warlords? A critique of state-building strategies in Afghanistan (Working Paper No. 51; Crisis States Programme, p. 21). Crisis States Research Center, LSE. https://www.files.ethz.ch/isn/57516/wp51.pdf. Gossman, P. (2006). Truth, justice and stability in Afghanistan. In N. Roht-Arriaza & J. Mariezcurrena (Eds.), Transitional justice in the twenty-first century: Beyond truth versus justice (pp. 255–277). Cambridge University Press. Harooni, M., & Hassib, S. (2017, May 31). Sewage tanker bomb kills at least 80, wounds hundreds in Afghan capital. Reuters. http://www.reuters.com/article/us-afghanistan-blast -idUSKBN18R0DT. Hayner, P. B. (2002). Unspeakable truths: Confronting state terror and atrocity (1st ed.). Routledge. HRW. (2001). Afghanistan: Crisis of impunity. The role of Pakistan, Russia, and Iran in fueling the civil war (No. 3, Vol. 13). Human Rights Watch. https://www.hrw.org/reports /2001/afghan2/Afghan0701.pdf. ICTJ. (2010). ICTJ statement on Afghanistan Amnesty Law. International Center for Transitional Justice. http://www.ictj.org/en/news/features/3456.html. Jahangir, A. (2003). Report by Asma Jahangir, special rapporteur on extrajudicial, summary or arbitrary executions on her mission to Afghanistan. United Nations. Jawadi, M. A. (2017, June 2). Afghanistan: Dead-end to the fight against terrorism and its ambiguous future. BBC Persian. http://www.bbc.com/persian/blog-viewpoints -40125077. Kolhatkar, S., & Ingalls, J. (2006). Bleeding Afghanistan: Washington, warlords, and the propaganda of silence. Seven Stories Press. Kouvo, S. (2009). Transitional justice in the context of ongoing conflict: The case of Afghanistan (Fighting Impunity in Peacebuilding Contexts) [ICTJ briefing]. International Center for Transitional Justice. https://www.ictj.org/publication/transitional-justice-context -ongoing-conflict-case-afghanistan Kouvo, S. (2010, February 22). After two years in legal limbo: A first glance at the approved “Amnesty law.” Afghanistan Analyst Network. https://www.afghanistan-analysts.org/after -two-years-in-legal-limbo-a-first-glance-at-the-approved-amnesty-law/. Mani, R. (2003). Ending impunity and building justice in Afghanistan. Afghanistan Research and Evaluation Unit. http://unpan1.un.org/intradoc/groups/public/documents/APCITY/ UNPAN016655.pdf. Masood, S. (2009). ‫[ چرا‌بازار‌آزاد‌نه؟‌طرحی‌در‌پیوند‌به‌نظام‌اقتصادی‌مطلوب‌در‌افغانستان‬Why “no” to the open market economy? A congenial proposal in relation to Afghanistan’s economic system] (2nd ed.). Farhang Publishing. Paiman, W. (2017, June 3). ‫[ واکنش‌های‌جهانی‌به‌حادثه‌کابل‬International reactions to the Kabul incident]. Daily 8am. http://8am .af /1396 /03 /13 /international -reactions -to -kabul -blast/. Rashid, A. (2010). Taliban: Militant Islam, oil and fundamentalism in Central Asia (2nd ed.). Yale University Press. Rubin, B. R. (2002). The fragmentation of Afghanistan: State formation and collapse in the international system (2nd ed.). Yale University Press. Rubin, B. R. (2003). Transitional justice and human rights in Afghanistan. International Affairs, 79(3), 567–581. https://doi.org/10.1111/1468-2346.00323. Saeed, H. (2015). Victims and victimhood: Individuals of inaction or active agents of change? Reflections on fieldwork in Afghanistan. International Journal of Transitional Justice, ijv032. https://doi.org/10.1093/ijtj/ijv032.

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Stammers, N. (2009). Human rights and social movements. Pluto Press. http://sro.sussex.ac.uk /37659/. Tazri, S. A. (2012). ‫[ نظام‌اقتصاد‌بازار‌در‌افغانستان‬Market economy in Afghanistan]. Afghanistan Academy of Sciences. The Afghanistan Justice Project. (2005). Casting shadows: War crimes and crimes against humanity, 1978–2001. Open Society Foundations. https://www.opensocietyfoun dations.org/reports/casting-shadows-war-crimes-and-crimes-against-humanity-1978 -2001. Theros, M., & Rangelov, I. (2013). Unjust disorder? Impunity and insecurity in post-2001 Afghanistan. European Council on Foreign Relations. http://www.ecfr.eu/ijp/case/ afghanistan. United Nations. (2001). Agreement on provisional arrangements in Afghansitan pending the re-establishment of permanent government institutions. Afghanistan Online. http://www .afghan-web.com/politics/bonn_agreement_2001.html. Winterbotham, E. (2010). The state of transitional justice in Afghanistan—Actors, approaches and challenges (Discussion Paper, p. 34). Afghanistan Research and Evaluation Unit. http:// www.areu.org.af/index.php?option=com_docman&Itemid=26&task=doc_download &gid=760. Wisner, M. (2008). Is time ripe for transitional justice in Afghanistan? Al Nakhlah: The Fletcher School Online Journal for Southwest Asia and Islamic Civilization, Fall. https://www .ciaonet.org/attachments/10678/uploads.

Chapter 4

Housing, Land and Property rights in Afghanistan

Land and resource control have been a major source of concern for the Afghan government and donors over the last two decades. Land is more than ever at the center of economic and social developments in light of social changes, rising demographic pressure, displacement and the economic transformation that Afghanistan experienced following the fall of the Taliban regime in 2001 and subsequent advances, including the repatriation of many Afghans from neighboring countries. At the same time, the legal framework for land governance has been in many ways inconsistent, vague and inappropriate to the realities of Afghanistan (AREU, 2017; UNAMA, 2014). This factor, combined with unclear boundaries, including between state and private entities, contested definition of property pertaining to the state, public and private land, regional variations and patterns in land tenure, corruption and weak governance, as well as customary practices make the situation of land tenure in Afghanistan very nebulous (Ministry of Urban Development and Land, 2019b). The majority of Afghan land remains unregistered and unmapped. According to AREU (2017), the last countrywide cadastral land survey, which covered just 34% of the country’s land, took place between 1970 and 1978, and only 33 to 36% of the country’s land has been legally recorded, with the earliest documents going back to President Daud Khan’s rule (1973–78). Even in regions where land-related issues are documented to varying degrees, documents are not kept up to date. At the time of the Bonn Agreement in 2001 only 10% of rural properties and 30% of urban properties were in possession of formal, court-prepared documents (AREU, 2017). The lack of systematic documentation and records since the beginning of war in 1978, together with other factors that will be presented later, played an important role in facilitating large-scale land grabbing in Afghanistan (MEC, 2014). This chapter will provide an overall framework for HLP rights in Afghanistan that will include the legal framework, HLP in practice and conflict impact on HLP, including insights from affected communities who were interviewed for this research. DOI: 10.4324/9781003134411-5

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Background and legal framework for HLP rights in Afghanistan HLP rights is a complex discussion in Afghanistan due to a pluralistic legal framework and customary practices on the ground. The application of various legal systems in a community is referred to as legal pluralism, in which a state may apply “different bodies of law to distinct groups of people” (Unruh, 2003, p. 350). Land tenure, which refers to “various sets of rights and duties involving land and property,” (ibid., p. 351) has played a critical part in the formation of legal pluralism. In Afghanistan, HLP rights are largely governed by a combination of state, civil, religious and customary law, with substantial overlaps and ambiguity as to which law applies in any given situation (AREU, 2017; Foley, 2008). Over 30 laws, decrees and documents exist for land administration and management in Afghanistan. These include the Civil Code of 1970, the Survey and Cadastre Law of 1988, the Forest Law of 2012, the Municipal Law 2000, the Minerals Law 2015, the Land Tax Law of 1976, the Income Tax Law of 2007, Presidential Decree 99 of 2002, Presidential Decree 83 of 2003, the Law on Land Acquisition of 2017, and the Land Management Law (LML) of 2008, which was amended in 2017. In 2007, Afghanistan adopted the National Land Policy (NLP), which incorporated international best practices and, if implemented, could significantly enhance Afghan land administration. However, neither the 2008 LML nor any other legislation passed after 2007 has taken the NLP into consideration, leaving the implementation of several requirements unfulfilled (AREU, 2017; UNAMA, 2014). In theory, the first source to be used is state law (constitution and sector legislation). When an issue is not addressed by state legislation, the Civil Code of 1970, which is primarily based on the Hanafi school of Islamic jurisprudence, is used. When the Civil Code does not address a problem, religious law, or Sharia (laws based on the holy Quran and Islamic scholarly sources), is implemented (Alden Wily, 2003). Despite multiple political transitions and regime changes over decades, the close connection between the Afghan Civil Code and Islamic jurisprudence has guaranteed consistency in adjudicating most land and property disputes in a similar fashion (Foley, 2008). Afghanistan has regulated land-related rules and reforms at various times throughout its history. Since the early 1900s, the Afghan government has been involved in land administration, largely to collect taxes. It started to witness the influence of a western land administration in 1965 with support and funding from the United States Agency for International Development (USAID). This reform included the establishment of a Directorate of Cadastre Survey in Kabul, a Survey Institute in Kandahar, which trained 640 surveyors, the passage of a Survey and Statistics law with the aim of establishing a title system and an ambitious initiative to survey land in Afghanistan between 1965 and 1978 until the change of regime to the Soviet-backed PDPA rule. It was

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during this period that 34% of land across Afghanistan was surveyed, which to date remains incomplete. Furthermore, President Daud Khan imposed land ceilings, limiting farm sizes to 20 hectares and requiring extra property to be sold privately or transferred to the Afghan government. This ceiling was drastically decreased by the PDPA regime, limiting it from 20 to six hectares. Additionally, they distributed land among the landless, impoverished farmers and nomads. Land tenure became particularly challenging during the civil war (1992 to 1996) since property rights in urban and rural areas depended on the commanders in charge of the area. After the Taliban took over in 1996, they attempted to change land laws; however, many of their attempts were merely re-enactments of previous legislation (Wily, 2003; AREU, 2017). The contemporary land reform began in early 2000 with significant constitutional, legal and policy reforms. Article 40 of the 2004 Afghan Constitution created the legal foundation for property rights, safeguarding individuals’ right to property ownership and prohibiting abuses against it. Over the last decade, the Afghan government created a plethora of laws, Presidential decrees, policies and plans, culminating eventually in the formation of the Ministry of Urban Development and Land (MUDL) in 2018 to oversee HLP management. Prior to this, the Afghanistan Land Authority (ARAZI) existed as an independent directorate with an extensive mandate over land administration. The 2017 law on Managing Land Affairs (MLA) was another significant step towards land management consolidation. The MLA law was initially published in 2008 but went through a series of changes and amendments until its final publication on 15 April 2017. Some of the initial shortcomings in the 2008 version, for example, included inadequate definition of ownership and land use rights (UNAMA, 2014). The MLA governs all aspects of private, public and state-owned land and property, and appoints ARAZI, per Article 4, as the main body to implement and oversee the law. The most significant aspects of the MLA law include provisions for distinction and regulation of state, public and private land (Chapter 2), registration of ownership in property books (Chapter 3), state land distribution provisions and requirements (Chapter 7), land distribution to the needy (Chapters 8), land grabbing and penalties for land grabbing (Chapters 11 and 12), establishment of provincial settlement commissions (Chapter 5) and conditions for the lease of public land and properties (Chapter 10) (Law on Managing Land Affairs, 2017). The MLA law, however, does not address conditions and specific needs of vulnerable groups of people who lost their land and property due to war, such as displaced communities, or families of martyrs and the disabled. Neither does it does make any reference to the role of warlords and other powerful individuals in land grabbing, even if the return of appropriated land is cited as one of the main aims of the law. Different authorities over time have been granted the responsibility to collect land and property tax (as was the case initially) and/or carry out other landrelated activities. Historically, the Ministry of Justice and Ministry of Finance

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were in charge of this effort. Land reform was entrusted to the Afghanistan Land Affairs (AMLAK) inside the Ministry of Finance in 1963, and then moved to the Ministry of Agriculture, Irrigation and Livestock (MAIL) in 1978. By resolution of the Council of Ministers in 2010, the AMLAK was renamed “ARAZI” after merging with the Independent Commission for the Restitution of Illegally Occupied Land. This, however, did not include the municipal AMLAK offices because the Municipality Law grants authority to municipalities over land. However, by executive decision in 2013, ARAZI became independent of MAIL (UNAMA, 2014). As of 2018, the MUDL oversees HLP management, of which ARAZI became a part. With support from the World Bank, the MULD developed the Afghanistan Land Administration Systems Project (ALASP) with the aim (1) to support the development of the Afghanistan land administration system and (2) to improve land registration services and facilitate the issuance of title deeds and occupancy certificates (Ministry of Urban Development and Land, 2019b). In practice, HLP rights in Afghanistan get even more complicated. The de facto exercise of HLP rights is hampered by the country’s unique landscape (i.e., primarily mountainous), as well as a variety of rules and regulations. A mismatch between the present legal framework and the reality of HLP on the ground hinders a significant portion of the people from having their HLP rights accredited. In practice, land tenure has been mostly informal and customary, and legal measures will take a long time to take effect. Rapid urbanization (at 5% yearly, Afghanistan has one of the fastest urbanization rates in the world), informal settlements, land grabbing, corruption and long procedures are all elements that challenge the legal framework and impact policy execution. The poor have been denied their right to adequate housing, and those living in informal settlements are at risk of eviction, due to the government’s failure to address these concerns, particularly in the face of fast urban development, which has exacerbated the problem, with slum-like conditions affecting 87% of the urban population (AREU, 2017; UNAMA, 2014). Another difficulty is Afghanistan’s remoteness, with 14% of families living more than 6km from the closest drivable road. Only 14% of the population—45% of urban and 5% of rural residents—live in permanent housing, while roughly 37% live in overcrowded houses (AREU, 2017). HLP rights, women and the marginalized population

An inconsistent and ill-suited legal framework for HLP rights, combined with customary practices, has borne particularly harmful impacts on women and other marginalized communities. The Afghan Constitution, Islam and the international human rights instruments that Afghanistan has ratified, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), all recognize women’s legal rights to inheritance and property. Nevertheless, de facto discrimination against women in accessing

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land and property is severe, including threats and violence. Not only do male family members deny women their right to inheritance, but corrupt judicial organs also take advantage of the situation by asking women to pay a bribe in return for a more favorable resolution of the case (one piece of research indicates that 33% of women experienced this) (Ministry of Women’s Affairs, 2019). According to the Ministry of Women’s Affairs, rural women are more vulnerable to rejection of their inheritance rights, which can sometimes lead to violent conflicts (ibid.). Afghanistan has one of the highest rates of widowhood in the world, with over two million war widows recorded (NRC, 2014). This circumstance, along with displacement and other difficulties, puts individuals in a very precarious position when it comes to claiming HLP rights. Access to HLP, on the other hand, is one of the most important elements impacting women’s economic and social well-being, particularly when their rights are violated on a large scale in conflict circumstances. In addition to women, other vulnerable groups of people who have faced challenges with realizing their HLP rights include IDPs, returnees, the disabled population, families of the martyrs of the defence and security forces, the nomads (kuchis) and their historic tension on land issues with the Hazara communities in central Afghanistan, the Jaat communities who are considered stateless in Afghanistan and thus deprived of access to land rights and those whose lands have been grabbed forcibly. Notwithstanding such obstacles, over the last years, the government drafted a number of policies and regulations with the aim of providing urban land tenure security and addressing HLP rights of disadvantaged communities. In particular, the 2019 National Housing Policy (NHP) targets low-cost housing for families of the martyred and disabled, security and defence personnel, IDPs and returnees, single-headed women’s households and Kuchis who wish to live in metropolitan areas (Ministry of Urban Development and Land, 2019a). In addition, Article 2(2) of the Committee Procedure to Identify and Select Lands (2018) further specifies that lands should be identified and selected for IDPs, returnees and relatives of security and defence forces martyrs (Afghanistan Land Authority, 2018). Presidential Decree 104, adopted in 2005, regulated the provision of land and housing to eligible returnees and IDPs. This was further reinforced in the National Policy on Internal Displacement (2013), where Article 7.1.3 addressed the right to adequate housing of IDPs and IDP returnees (Islamic Republic of Afghanistan, 2013). The Human Rights Based Approach (HRBA) principles of participation, accountability, non-discrimination and empowerment are emphasized in the NHP and the Urban Upgrading and Redevelopment Policy (Ministry of Urban Development and Land, 2019c). Nevertheless, these policies and plans have primarily remained on paper and, as mentioned before, many provisions were not incorporated into the amended MLA law of 2017. For example, under Chapter 6 of the 2017 MLA law (Articles 51–53) individuals who lost their property after 1978 are entitled to land recovery (isterdad). It does not,

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however, provide any particular measures for returning refugees or IDPs. As a result, securing tenure rights, particularly for the IDPs and returnees who are mainly settled in major urban areas due to opportunities and access to services, continues to remain difficult. Land grabbing has been another key impediment to urban dwellers obtaining tenure rights.

Land titling and registration As mentioned, only 33–36% of land in Afghanistan has formally been registered. Due to frequent regime changes in Afghanistan, each of which administered their own land strategy, a range of procedures has been in place to record and/or register land in Afghanistan. These procedures and techniques are not always interlinked. AREU’s research (2017) found three distinct ways to register/record land and property rights in Afghanistan. These include: (a) the land clearing procedure (tasfiya) through ARAZI; (b) the attainment of a title document through the courts; and (c) the cadastral survey. The only uncontested means of registering land in Afghanistan, according to the experts interviewed in AREU’s study, are through ARAZI’s land clearance procedure and court registration and acquisition of a deed. Only after registering the deed in the land management system is land ownership recognized under the law and taxed (UNAMA, 2014). Historically, land titles and deeds were registered and recorded in tax books. This process had started in the 1960s, though never completed. Tax books are kept in Kabul, provincial capitals and sometimes also in districts and municipalities. They continue to be considered legally valid documents to establish ownership. Nevertheless, as this process was not completed, many deeds are not registered and owners have to provide other documents and testimonies to claim customary ownership and tenure (UNAMA, 2014). Importantly, information is dispersed among several ministries and agencies because Afghanistan lacks a central registry. With only sporadic synchronization, this includes ARAZI’s Book of Private and State Land, the courts’ Deeds Registration Book, the Survey and Cadastre Directorate’s Land Statistics Registration Book, the Ministry of Finance’s Land and Property Taxation Book and municipal safayi tax registration books. As a result, the accuracy of land data and access to it are jeopardized (AREU, 2017). Whether proving the possession of land with customary tenure or registering a new deed, the process has never been straightforward. Sometimes registration in tax books has led to multiple entries in different places with overlapping plots of land and different owners for the same plots (UNAMA, 2014). Or, in most circumstances, individual lands have never been registered and recorded. As such, according to the UNAMA report, the “majority of those occupying land in Afghanistan are legally ‘landless’” (2014, p. 36). Furthermore, at times titles have been fabricated, or gained from the courts by bribery or political incentives or obtained through force. In particular this

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has been quite prevalent in the last two decades where pervasive corruption of government agencies, which necessitates the payment of bribes, is apparently one of the causes for the poor registration and formalization of land. Another factor is the complexity and length of the administrative process. According to a 2015 World Bank report, as quoted by AREU (2017), land tenure recognition in Afghanistan takes between 250 and 360 working days to complete. Tax payment is another deterrent factor to formal registration, which many resent having to pay in addition to all the “informal” payments they have to make due to pervasive corruption.

Land dispute mechanisms in Afghanistan Different bodies have been granted the authority to resolve land disputes in Afghanistan. In most provinces, the Huqooq (the legal department in the MoJ and its directorates in provinces) handles civil complaints from individuals, including those involving private properties, and has authority at both the provincial and district levels. When the Huqooq receives a property complaint, it gathers evidence and papers from ARAZI and the courts to verify title, and it resolves land disputes between private individuals or entities. If mediation fails, the Huqooq determines the value of the land and refers the matter to the civil courts (UNAMA, 2014). The MoJ’s Government Cases Department (GCD) works under the direction of the Department of Justice in virtually all of Afghanistan’s provincial capitals, giving some coverage for the whole country. The GCD is in charge of safeguarding public lands from unauthorized use or possession, as well as fraudulent land acquisitions. District governors are in charge of safeguarding government property in their districts. If they are unable to address a problem on their own, they report it to the GCD for settlement. When at least one party to a dispute is the state or government, the GCD pursues the government’s land interests (i.e., its claim and title to the property). Land disputes are brought before the GCD by government provincial agencies, individuals and district governors. When the GCD gets a complaint, it works with ARAZI to establish who owns the property in question. The GCD does not have jurisdiction over the matter if the property is privately held, and the dispute is referred to the Huqooq or directly to the civil courts. In the same vein, if there is any doubt regarding whether the contested area is government land, the civil courts may refer matters to the GCD (ibid.). In addition to the MoJ and the courts, land disputes are also referred to and resolved by municipalities because the Municipality Law gives jurisdiction to municipalities over municipal lands. This, however, gives rise to many challenges, especially as urbanization accelerates. The inherent tension between the state and municipalities over state lands and the administration of public projects has become increasingly significant. Specific concerns such as land grabbing and governmental land distribution schemes are quickly becoming national problems that jeopardize security, economic growth and private property ownership, particularly in light of local powers and authorities.

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Attempts to resolve HLP issues in special courts have also been undertaken in the past. Presidential Decree 136, issued in 2002, established the Special Property Dispute Resolution Court inside the Supreme Court to resolve property issues involving returning refugees. The Special Courts were abolished by the Supreme Court in 2007, and there are presently no special judicial procedures in place to deal with such issues. The Special Courts ran into a number of problems throughout their mandate, and they were largely seen as being badly run and perhaps corrupt. They were overloaded because of a backlog of cases, and many attorneys felt that certain parties used judges to their advantage. In early 2000, the Norwegian Refugee Council (NRC) created the Information and Legal Aid Centre (ILAC) to help Afghan refugees with their repatriation, particularly with HLP. The ILAC had registered 1,106 cases of HLP rights by the end of 2004, representing over 250,000 beneficiaries. NRC’s legal advisors mediated or acted as guarantors in HLP conflicts, as well as representing clients in shuras and jirgas. They were able to settle instances involving tribal conflicts as well as disputes over land grabbing by warlords (Aursnes & Foley, 2005). According to a World Bank study (2019), in 2019 the government was working on a special law on Land Dispute Resolution Outside of Courts (The World Bank, 2019). Due to the aforementioned challenges, combined with systematic corruption particularly in courts and a lack of access to formal mechanisms, alternative methods of resolving HLP issues through community leaders, family members, shuras and Taliban courts in disputed regions are more prevalent among Afghans, particularly in rural areas. According to estimates, land disputes account for more than 60% of all cases presented before a shura or jirga, the traditional councils for dispute resolution and conflict settlements. Enforcement is typically effective and occurs through community consensus and support since shuras and jirgas are informal, community-based and restorative rather than punitive in nature (UNAMA, 2014). According to the Norwegian Refugee Council, which has been engaged in land disputes in Afghanistan over the last two decades, many of their successful HLP cases were settled through the customary system, including the recognition of women’s property rights (Foley, 2008). Furthermore, locals, according to some reports, preferred to take their land disputes to the Taliban courts, who rely mainly on local religious scholars to resolve land disputes, since rulings are made quickly and the courts are less corrupt than government courts (HRW, 2020). Communities and shuras seldom codify customary law (rawaj), but it is typically based on Sharia and local norms, which also explains their popularity and effectiveness. However, while long-held traditional mechanisms provide a solid basis, they may also benefit the elites, men and dominant ethnic groups. Furthermore, land grabs and illicit land transactions can be facilitated by such exercises. As a result, it is critical to ensure that traditional practices are transparent, responsible, gender sensitive and respectful of human rights. Another challenge pertains to the lack of recognition of shura and jirga decisions by the

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official system, which means they cannot be registered with AMLAK, ARAZI or the courts. As a result, any land rights or land tenure security resulting from shura and jirga decisions from the land legal framework are not legally available to the land owner. The revised MLA law of 2017 in Chapter 10, Article 18(10) recognizes customary documents (urfi) that meet certain criteria, e.g., the signature of both parties, but it does not refer to decisions of shura or jirga.

Conflict impact on HLP rights in Afghanistan Unlike countries such as El Salvador, Zimbabwe and Somalia, where land tenure generated violence as a result of historical grievances against the landed class and the state dating back to colonial times, most HLP issues in Afghanistan have been a result of violent conflict rather than the cause of it. However, inequitable and unjust land ownership, ethnic strife over land access and poorly managed land reforms have all contributed to the emergence and maintenance of conflict in the past (Alden Wily, 2003). Land is the most prevalent source of community conflict in Afghanistan, which has been intensified in wartime and during natural disasters, such as drought. Despite a recent reduction, several variables suggest that the number of land disputes (42%) is significant when compared to other types of community conflict, especially in rural regions where communally held land such as mountains, woods and pastures are common. In urban areas, frequent migration and relocation, along with rapid population increase, have put a strain on resources, particularly in constructable areas, over the last two decades. This has produced conditions that are particularly prone to land conflicts, especially when combined with a lack of documentation on both public and private land, as well as inconsistent boundary markings (AREU, 2017). Decades of continuing violence in Afghanistan, like all armed conflicts throughout the world, has resulted in serious HLP rights violations. This refers to the loss of HLP as a result of direct war (airstrikes, artillery, land mines) or arbitrary land grabbing and/or unlawful occupancy of homes and property, which frequently involves forcible eviction or land disputes. As a result, largescale displacement of refugee and IDPs, loss of cultivatable lands due to land mines and unexploded devices, destruction of homes and properties, ethnic or minority discrimination in HLP disputes and secondary occupation of refugees’ or IDPs’ homes by powerful people and members of opposing groups or relatives have occurred. Given that the majority of Afghans rely on land and agriculture for survival, land concerns, particularly regarding cultivable land, have long been a source of contention in Afghanistan, and have been exacerbated during times of conflict (Wily, 2003; Foley, 2008). Following the return of the Taliban on 15 August 2021, yet again thousands of ordinary Afghans suffered from forced eviction as the Taliban government compensated its fighters with land “for years of military service, amid a crumbling economy and lack of cash” (Gibbons-Neff et al., 2021).

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In Afghanistan, the challenges of property restitution to returning refugees and displaced people, as well as those who have lost their HLP due to conflict, are enormous, given the extensive physical destruction over time, the destruction of official records as a result of conflict and the challenges faced by legal institutions. Field interviews for this research show that while, for many war victims, after the loss of life and bodily integrity, the loss of HLP is considered the most serious form of human rights violation—and criminal act in the case of land grabbing—the issue has received little systematic attention from researchers and practitioners alike. As a result, estimating the damage to HLP as a consequence of violent conflict, as well as the precise mechanisms behind the harm and the culpable party, is challenging. Nevertheless, interviews with war victims—mostly IDPs and returning refugees—from various periods of conflict indicate that HLP rights in the countryside were primarily violated during the Soviet invasion and subsequently in the NATO war on terror led by the United States. HLP damage in major cities, such as Kabul, happened largely during the civil war in the 1990s. Land grabbing, on the other hand, is distinct since the identities of many of the land grabbers and usurped territories are known and recorded (the next chapter is dedicated to land grabbing). It is therefore important to present the perceptions of war victims, such as IDPs and returnees, on the question of loss of land and property. The returnee IDPs’ perception on HLP harm

Over the last few decades, massive population displacement in Afghanistan has resulted in land conflicts in at least two forms: secondary HLP occupancy and informal settlements. During war or in post-conflict settings, secondary HLP occupancy refers to the illegal and irregular occupation of (often vacant) HLP (Leckie, 2005). Many returnees in Afghanistan, particularly those from Pakistan and Iran, experienced this problem upon their return. IDPs or returnee IDPs, due to conflict, natural catastrophe, or both, predominantly occupy informal settlements. In addition to Kabul, such settlements exist in all of Afghanistan’s main cities, especially Herat and Balkh. Settlements can be found on public, governmental or private properties, and while they are intended to be a temporary solution, they can last for up to a decade (referred to as protracted settlements). Protracted settlements with successive waves of displacement over time complicate HLP disputes even further. At times, this is combined with the long-held tension over pasture and cultivable land between settled and nomadic land users. One of the repercussions of the Afghan conflict, combined with natural disasters such as drought, as mentioned previously, has been the creation of a huge number of IDPs, which has already reached nearly four million. Some people became IDPs more than once at different stages of the wars. Others were refugees from previous conflicts in Iran or Pakistan who returned to Afghanistan following the fall of the Taliban regime only to flee violent conflict again in their province of origin such as Helmand. They were caught in conflicts between the Taliban/Al-Qaeda

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insurgents on the one hand and the NATO and Afghan forces on the other. I thus refer to this group of people as the returnee IDPs as, in almost all the interviews conducted during fieldwork, they bore this status. Informal settlements have become a prominent feature in many parts of Afghanistan. In Kabul province alone, there are at least 55 informal settlements in and around Kabul city, with over 56,000 IDPs and returnees residing in temporary or mud brick structures. While settlers claim to live on state or public properties, people may urge settlers to leave while claiming ownership of the property. In other cases, especially in protracted settlements, settlers acquire property—frequently with customary tenure papers—but experience continued tenure insecurity due to ambiguity over the land’s real ownership (Abdoh & Hirsch-Holland, 2019). During fieldwork in 2013 and 2014, this researcher carried out interviews and focus group discussions in three settlements in Kabul. An initial, in-depth key informant interview was conducted with the representatives in each settlement. The settlements’ residents chose their representatives, based on their seniority, wisdom, good reputation and overall knowledge of the settlement, to represent them and their concerns to local authorities, the UN and humanitarian NGOs. Key informants provided background information on the settlement they were representing, in particular on its demographics and the overall history of the settlement. I then followed with individual interviews or focus group discussions that were mostly segregated by gender, as requested by participants, but occasionally they were also mixed. Around 850 households from Helmand, a southern province, made up one of the settlements. On average, ten people lived in each household. They had resided in the settlement for seven years at the time of the interview in 2014. They were forced to flee due to ongoing fighting between the Taliban and NATO-led forces. Several respondents reported having lost close relatives due to “American bombardments.” Prior to displacement, they were mostly involved in agricultural labor in Helmand, producing opium and marijuana (until Karzai outlawed it), which they said paid well. Since their displacement, they either worked in brick kilns or did daily jobs in Kabul, earning three to four US dollars on good days. Among thousands, only a few men in the settlement could read and write. Their living conditions were dire: they either lived in improvised tents or in rudimentary muddy quarters, where one household only could have access to one room in the best of circumstances. Without running water, the hygienic situation was severe, leading easily to diseases such as diarrhea especially among children. Most families could not afford basic foods like bread and sugar; fruit was considered a treat to be enjoyed every now and again, while virtually no one could afford meat. They had to face Kabul’s very cold winters without access to heating, which claimed the lives of the elderly and children in some cases. Furthermore, most settlements were located in the peripheries of the cities, thus they were far away from basic services such as schools, health care, drinking water and so on.

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The loss of HLP was cited by respondents in this settlement as the greatest challenge of their lives. One participant remarked that if they owned property, they would be able to defend their honor and have access to their own cemeteries, schools, mosques and other facilities in the area. Some research participants reported that they experienced hostility from locals when carrying departed relatives to a Kabul cemetery for burial. They claimed to have lost 400 people in seven years due to cold weather, heat and illnesses, but they were having trouble finding land in which to bury them (Personal interview, 17 September 2014, Kabul). This group responded, in terms of loss of land and property, that they had been mostly affected first under the Soviet invasion and later under the American occupation. One participant remarked that the Russians bombarded without considering whom they were hitting; a mujahid or a farmer. During this period, some of them were forced to migrate to Pakistan. Upon their return to Helmand, for the second time, they were affected by the American bombardments. Despite several promises made to them by the Karzai government, participants reported little government assistance. Only once in the course of two years did they receive a bag of wheat and oil. The government asked them to return to Helmand, but they were adamant about returning since nothing was left in Helmand for them to do; they had lost their home, land and property, and believed their families would perish from starvation, if not bombardment. While they never received any compensation from the state for the loss of HLP, the government remained their main source of expectation. A similar situation was uncovered in a second IDP/returnee IDP settlement on the outskirts of Kabul, which was on public land owned by the Ministry of Defence previously utilized as a storage facility. In this scenario, many inhabitants lived in Kabul before the conflict, but were forced to flee to Iran or Pakistan after the civil war. They could no longer access the property and home they used to own when they returned to Kabul under the Karzai government. Most participants, however, responded that they never owned any land or property. They reported to have lived a peaceful life prior to the war, despite their destitute conditions. They were mostly affected by the civil war, which drove them to flee their homes and return only to find nothing resembling their prior lifestyles. At the time of the interview, they had already lived in the settlement for 13 years. The settlement’s representative, the only one with a primary school diploma, said there were 91 households in the settlement, totaling 560 individuals. This settlement’s living conditions, including their working circumstances, were identical to the one just detailed. The 40-year-old representative of the settlement recalled the turbulent odyssey of his life as follows: Originally, we are from Kabul. We were poor, like the servants to the rich. We never had any land and house. We always rented; at the time it was very cheap. Our fathers didn’t have the money to buy land, even if it

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was not so expensive. I was in the military service for seven years during the government of Najibullah [Afghanistan’s president from 1987–1992]. After that [during the civil war], we migrated to Jalalabad, then to Pakistan followed by Iran. Iran, even as a Shia country, speak our language and didn’t interfere with us. We were in a camp in Zahidan and voluntarily went to the UNHCR to return. My parents got very old and they said our country is now free, let’s go so we die there. We came because of our parents, no one forced us to leave. We were hoping we could secure some land; the UNHCR promised us land, they are in our forms, but so far we have received nothing. The Ministry of Returnees and Refugees can’t do much, they try, but it is not only their job. The poor is everywhere under the foot, why shouldn’t they have built sky scrapers? Only the rich who have money can get land here. (Personal interview, 11 October 2014, Kabul) Almost every IDP/returnee IDP participant expressed similar concerns. In general, while they cited HLP loss as the main harm inflicted on them as a consequence of war, they were unable to identify perpetrators or the responsible party. Regardless of who inflicted the harm, they all agreed that the government was responsible for compensating them for their loss, and demanded the allotment of a plot of land in Kabul. Key government officials I spoke with, on the other hand, expressed the view that IDPs should return to their province of origin, where the government would help them settle, find them work and provide basic services. IDPs, however, were not happy with this solution because the government would place them in faraway locations where access to basic services and jobs would be difficult. In a big city like Kabul, they could reach a hospital within kilometers and would have a better chance to receive other services. Some human rights and civil society advocates maintained that as Afghan citizens, IDPs and returnees had the constitutional right to choose where they wanted to settle. At the time of the interviews, an inter-ministerial task force was created, which included the UNHCR and the Norwegian Refugee Council, to find a solution to the IDP problem in Afghanistan. The issue, however, had still not been resolved in the years to come (Bhattacharjee et al., 2019). The returnees’ perception on HLP harm

Many refugees from neighboring Pakistan and Iran returned home when the Taliban government fell. While some chose to settle in their home provinces, others repatriated to large cities, either because they had lived there before the war or because they could find better jobs and other possibilities there. This trend was especially prevalent among the younger generation, who had studied and received university and technical degrees in Iran and Pakistan and might easily have found work with a UN agency or another international

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organization. Nonetheless, when they returned to or settled in major cities such as Kabul, they were confronted with HLP challenges deriving from an enormous amount of physical destruction over a long period of time, destruction of official records as a result of conflict and the challenges faced by legal institutions (Foley, 2008). Challenges related to the restitution of HLP rights came across in all the interviews conducted with the returnees in Kabul during fieldwork. Chehelsutoon, a neighborhood in the south of Kabul, was one of the areas where I conducted interview and focus group discussions with men and women. During the civil war, this part of Kabul was in rubble, including the Chehelsutoon Palace that was built in the late 1800s. Rockets were launched from all sides by different parties, including Hezb-e Islami and its notorious leader Gulbuddin Hekmatyar, who has a reputation among citizens of Kabul as the “butcher of Kabul” and “Roketyar,” the latter referring to the frequency of rockets launched during the civil war by his party. The rockets not only leveled the neighborhood, but also killed many of its residents. Stating that during the civil war, particularly in the first year (1992–1993), between ten and 20 rockets were hitting Chehelsutoon on daily basis from all sides, participants in a focus group discussion expressed the following: During the civil war, our area, Chehelsutoon, was in the center of the war. No house was left intact. We gave so many martyrs here, every family at least one member. I lost two of my own brothers. We suffered a lot. (Personal interview, 15 October 2014, Kabul) Our window glasses were gone, clothes were gone, people’s livestocks were gone. In this area, there were the Hazaras hitting Shura-e Nezar. Everyone was involved. Hikmatyar was also part of it. (Personal interview, 15 October 2014, Kabul) The situation was so bad. On the one hand we had four dead people in the house, four at once. On the other, we had injured people in the hospital. We always stayed in Kabul. Our house was also destroyed. After the situation became rather quiet, bit by bit we rebuilt it. We have received no help from anyone. Who listens to our voice? (Personal interview, 15 October 2014, Kabul) Survivors had to relocate to either safer areas of Kabul, such as Khair Khana in the north, or those with more resources to Iran and Pakistan. They returned to Kabul under the Karzai government to find, at best, an empty land. Several participants expressed their gratitude for the fact that their land had not been seized by a warlord. They began re-building their homes, depending on the few resources they had, including the family’s human resources—women, men

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and even children to collectively erect a wall or build a roof. During one of our interviews at a participant’s home, some family members were constructing another part of the house as we were talking in another corner. Almost all interviewees stated they had received no assistance or compensation from the government. Only in a few cases had the UNHCR provided them with some of the construction materials. Participants in the Chehelsutoon focus group discussions uniformly claimed to have been affected mainly during the civil war. However, for the same reason as the IDP groups, they were unable to identify individual perpetrators for the HLP destruction. Afshar was another neighborhood in the western hillside of Kabul that was damaged during the civil war. I interviewed three key informants in this area who, like the last group, reported widespread destruction and harm, including large-scale human loss. Like those in Chehelsutoon, Afshar residents had returned and begun the process of re-building their lives. A key informant, who was a construction engineer and had witnessed the destruction and subsequent repair operations of Afshar, stated the following: Afshar was very much affected, mostly by Sayyaf and Shura-e Nezar forces, but mostly Sayyaf. A year after the war when we went to Afshar for a survey, we learned that 1200 households that used to exist, had mostly been destroyed. All the woods from windows and ceilings woods were looted too by the forces of Shura-e Nezar and Sayyaf. They had even taken out electricity lines and sold them. Not a single house had remained intact. We found some houses still with bodies buried in them. (Personal interview, 29 October 2014, Kabul) Given that I had not heard such comments in earlier interviews, I questioned the survey’s objective. According to the key informant, the assessment was conducted with the aim of offering restitution to victims. The gesture, however, was made with an entirely political intention rather than reacting to the needs of victims. He went on to explain: Well, there were some elements, such as Mostafa Kazemi, within Wahdat party that wanted to amend the relationship between the two parties [Wahdat party and Shura-e Nezar]. At the time, Rabbani’s government [belonging to Shura-e Nezar] was in power. So, one way to do this was to assess the damage of Afshar and offer reparation. Our project was called Gharjistan Project Construction. So, we had a contract with Wahdat Party. But people were not interested in this project because they did not want to deal with Shura-e Nezar. Afshar people protested against this, they even attacked Akbari’s house and killed some of his body guards. They were protesting to say that they did not want just the reparation for the physical damage, they were also demanding accountability for the dead and the

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disappeared members. But Kazimi was very much in favor of reparation. So, we surveyed 1200 household, all of whom reported to being looted. 50% of houses were entirely destroyed. The damage to houses amounted to 6 billion afghanis (at the time 5000 AFA was equivalent to 100 USD). The government ended up paying 600 million afghanis (12,000,000 USD, this makes it 10,000 USD per household). This was in 1994. The reparation was paid to people who lived there. But the majority were still not back after they had escaped the neighborhood. Those who lived in Kabul and was notified of the news would come to get the reparation. (Personal interview, 29 October 2014, Kabul) The key informant further explained that Iran was suspected of being behind the deal because both Kazimi and Shura-e Nezar were supported by Iran at the time. As a result, they were attempting to reduce the number of enemies for Shura-e Nezar, which at the time included the Wahdat party. Even if the gesture behind paying reparations was political, it helped victims to partially build and access their homes. Throughout the field research, it was the only instance of a reparations measure mentioned in relation to HLP harm. Perceptions of victims of land grabbing

As presented in the case of Sherpur, the third and most serious element of HLP in Afghanistan has been the widespread practice of land grabbing in the city of Kabul and across Afghanistan. The matter exacerbates further when juxtaposed with the prevalent situation of people’s access, or lack thereof, to HLP as in the examples just discussed. Land grabbing began in Kabul during the civil war in the 1990s. As residents fled heavy fighting and left their properties behind, warring factions appropriated HLP of the Sikh and Hindu community in Karte Parwan—a prosperous neighborhood in the north west of Kabul and home to the Hindu and Sikh community and their gurdwara—as well as valuable lands and properties elsewhere, such as in Wazir Akbar Khan. This went on and became a defining feature of post-Taliban Afghanistan, especially under the Karzai administration. A civil society activist—an engineer by training with an MA in road planning—who had witnessed such developments throughout the conflict, captured well this notion: During the war [civil war], initially houses were not grabbed, they were destroyed. At some point, when people saw that many left their homes and seemed they were not coming back, they took over. Also, house sales dropped down significantly, so many Mujahideen bought houses during this time. Often, they would forge documents, or buy them from people who were planning to leave. The Hindu population was mostly affected. They often had good lives, so when they left, their homes went into Mujahideen hands, often making forged documents [of ownership]. During

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the Mujahideen time, up to the Taliban period and even in the beginning of the Karzai’s government, most of the deals around land and housing were done based on forged documents. During Karzai, some people dared to come back and take over their home/land, but others did not. This goes on until today. Many have come back to take over, but due to corruption in the courts, they have not been able to. So, many had to give up. (Personal interview, 29 October 2014, Kabul) While the next chapter will go into greater detail about land grabbing in Afghanistan, this section will highlight the experiences of two—rather prominent—cases of land grabbing in order to highlight similar situations that other interview participants, particularly researchers and civil society members, mentioned. In in-depth interviews with the researcher, the two main informants recounted their ordeal in light of the conditions under which their lands were seized. Identifiable facts are withheld or presented with an (x) for reasons of safety and confidentiality. I will also refer to the interviewees as key informant (5) and (19). Key informant (5), an elderly man, belonged to a well-off family that had founded and owned a private company with 2,000 employees decades before the war had started in Afghanistan. Over the years, they had amassed land and homes in several good areas of Kabul. Most of his family members fled the country during the civil war and the Taliban years. His son moved to Germany, other cousins relocated in the Central Asian republics while he moved to Pakistan and later on to Iran. Following the fall of the Taliban regime in 2001, the family decided to repatriate as one of the first returnees, unaware that they would have to deal with the issue of land grabbing on their return, facing land mafia, and corrupt politicians and judiciary. In 2004–2005, the 3,500 square meter land and property (including a big garden) of key informant (5) and his family was grabbed by a jihadi commander whose brother was serving as a member of the Parliament under Karzai rule. The ordeal started when the commander had summoned key informant (5) to a property dealer, where he was erroneously informed that his land had been seized by the government of President Daud Kahn for public use in the 1970s, thus it was not his legal property. Key informant (5) countered the claim by showing documents to prove his family’s legal ownership since 1975, arguing that they had lived there and enjoyed the fruits of their garden until 1998, when the situation deteriorated and the family was compelled to escape to Pakistan and elsewhere. After several discussions with documented proof of ownership, he was able to persuade the commander that the land belonged to his family. The commander then inquired if they might purchase the land from the family. He replied that his family consisted of 61 members, including four brothers and several nieces and nephews, who had to make a collective decision. Some family members still lived abroad. Furthermore, he reasoned to himself that because he was dealing with a land mafia, they might pay him

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a modest sum of money up front, such as US$ 50,000 to $100,000 for a property worth ten million dollars. He was aware that the land mafia frequently promised to pay the balance in a few days, but as soon as they got access to property, with the presence of their armed men and connections to corrupt politicians and judges, he would never be compensated with the rest of the payment. He stated: They have a mafia office around here [referring to a neighborhood of Kabul] under the name of a property dealer where they have hired people from different ethnic groups. This way they get their information about owners of the house, particularly interested to find out if they are abroad. This is how they also found out about our land. They put a person by the name of [x] in charge to find out this information about us. For each ethnic group they have a person to find this out. It is not the question of one person’s land only. There are tens of such lands that have been taken by force and the owners have not been able to face and take them back. (Personal interview, 19 August 2013, Kabul) When he turned down the offer, the commander threatened him, stating that “the consequences would be bad.” The jihadi commander and his men broke into his property a few days later and demolished everything inside: the walls, the trees, the two wells, and appropriated the land. They accomplished it with the help of the local police. They then called key informant (5) to notify him that someone had seized his property. When they called me, I went there and then to the police who promised to kick the men out of our property, but they didn’t. I took the order of the ministry of interior affairs and then these men were kicked out of my land. However, they retook the land many times by force of their guns. Finally, we decided to take the issue to the court. They had made fake documents for the land. Whenever I was being proved as the real owner of the land, the land grabbers would bribe and threaten the court officials and the case would get reversed. (ibid.) At the time of the interview, key informant (5) had been pursuing the matter in different courts, the attorney general’s office and other public offices for nearly a decade, risking his life to prove his family’s ownership of the land. During the interview, he repeatedly mentioned that the courts and other government institutions are all corrupt, and that officials regularly collaborate with land grabbers: The ministry of internal affairs previously issued an order proving that the land was ours. The matter was also moved to the attorney general’s office,

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where it ordered the arrest of the persons who had seized my land, as well as the restoration of my property to me. The major issue is administrative corruption, which is obstructing our efforts to reclaim our property. We are also scared of these individuals since they are armed, and we don’t want to be killed. (ibid.) In addition to this land, key informant (5) and his family faced another battle with Marshal Fahim, a former warlord who served as Karzai’s Minister of Defence, the very official under whose authority the Sherpur destruction and subsequent land grabbing took place. Marshal Fahim and his forces had confiscated 16,000 square meters of the property of informant (5) in Parwan-e-Seh, a wealthy Kabul neighborhood where Fahim and his family had seized a variety of private and public properties. In this situation, they were fortunate to be able to resolve the issue and reclaim their land by following merely a “lengthy bureaucratic procedure.” Key informant (5), a self-described national merchant (his definition: someone who is loyal to his country’s interests in addition to his own economic interests), and his family were eager to continue their business so that, like in the past, they could employ a large number of people and contribute to their country’s development. However, due to the difficulties they experienced with HLP, their commercial activities were significantly hampered, and their financial resources were severely depleted as they had to pay a significant amount of money to secure access to their properties. They were thus “forced to delay all their projects in the past ten years” in the face of many threats and challenges: We would have started our investment 10 years ago. We could have invested 20 or 30 million US dollars then instead of one million now. Hundreds of businessmen and investors have faced similar problems, who have eventually either left the country or have been threatened to death or have been killed. We have just received a death threat a few days ago. (ibid.) Another prominent case of land grabbing was key informant (19) and his family. Despite owning more than 150 jeribs (approximately 30 hectare) of land in Kabul city and a nearby district, he and his family lived in poverty because the family lost land during decades of conflict under various regimes, most notably under Karzai, when their land was seized by 17 armed people who belonged to a notorious warlord and member of Parliament. Key informant (19) and his brothers had inherited the land from their deceased father, who had acquired it over decades. There were approximately 5,000 vines on the property, as well as numerous big gardens. The tax office and the district court were able to provide the family with ownership documents.

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Nonetheless, land grabbers produced fake paperwork to prove they were the rightful owners. “Their weapon forces us to be silent,” said key informant (19), who was intimidated with a pistol to give up the family estate and remain silent. He went on: X is a x commander and because he is also an MP, he has power and authority, he controls all of the district. Talking against such people is committing suicide […] He once said to me: ‘look, leave such [land] issues. Your father was a good guy, you have children yourself […]’ When I consulted and thought to myself, I said what can the power of a teacher be apart from his pen? Therefore, I just put a cover on the issue from that day on. This was a warning and a threat. He basically told me to look after my children because he could do anything to them. And because of my children, I remain quiet. In x there are 17 of them and I am alone. (Personal interview, 20 September 2014, Kabul) Unlike key informant (5), key informant (19) and his brothers chose not to pursue the matter in court or by any other means since they lacked financial resources and did not have any significant contacts. In the “absence of government” and “rule of law,” he believed there was no protection for him and his family: “In their absence, one should just keep silent, there is no other alternative” (ibid.). Silence, on the other hand, forced him to confront other dilemmas with his own conscience: I suffer a lot because God says that one should not act like a victim, that we should fight our oppressors and demand our rights. But when I look at myself, unfortunately, I don’t see this ability in me that God talks about. Therefore, I suffer, and I have no one else who can support me on this and help me reach this goal. I suffer […] Believe me many nights when I wake up in the middle of the night I can’t go back to sleep. Why can’t you fight for your rights? Why? But there is no such ability. (ibid.) These two exemplary cases highlight a widespread system of land grabbing in Kabul and Afghanistan as a whole, largely driven by a lack of implementation of transitional justice and accountability mechanisms, which in turn has solidified impunity at all levels of society. Land grabbing was mentioned in almost all interviews, testifying to the severity and pervasiveness of the act, which will be discussed with further details in the next two chapters.

Conclusion HLP rights in Afghanistan are a complex matter considering the practice of legal plurality on the one hand and the discrepancy between the legal framework

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and actual practices on the ground, on the other. Over the last decade, HLP rights were regulated in a number of laws and policies; nevertheless land dispute resolution continues to remain an important challenge. Given the scale of HLP harm to Afghan war victims, as well as other challenges mentioned above, customary law will have to be considered in the design of any future restitution law, policy or mechanism in order to successfully determine ownership of land and property and implement a restitution policy. NRC recommends incorporating traditional dispute resolution mechanisms into a reparation strategy, in line with the UN Special Rapporteur’s recommendation and based on its vast expertise in the field of HLP rights (Aursnes & Foley, 2005). It should especially address the restoration of HLP to returnees, IDPs and those who were unlawfully stripped of their land and possessions as a result of violence, such as the Hindu and Sikh minorities. In addition, restitution for combatants should be offered as part of the demobilization process (Unruh, 2010). While this chapter presented mainly an overall discussion of HLP rights in Afghanistan and the perceptions of those who have been harmed as a result of violent conflicts, the next chapter provides a detailed discussion of land grabbing.

References Abdoh, M., & Hirsch-Holland, A. (2019). Stuck in the mud: Urban displacement and tenure security in Kabul’s informal settlements (Global Report on Internal Displacement, pp. 1–17) [Background paper to the main report]. Internal Displacement Monitoring Centre and Norwegian Refugee Council. Afghanistan Land Authority. (2018). Committee procedure to identify and select land (Decree No. 305, 29 August 2018). Islamic Republic of Afghanistan. https://mudl.gov.af/uploads/ document_files/document_1562495609.pdf. Alden Wily, L. (2003). Land rights in crisis: Restoring tenure security in Afghanistan. Afghanistan Research and Evaluation Unit. AREU. (2017). Land governance assessment framework (LGAF): Afghanistan. Afghanistan Research and Evaluation Unit. https://landportal.org/node/95933. Aursnes, I. S., & Foley, C. (2005). Property restitution in practice: The Norwegian Refugee Councils’ experience. Norwegian Refugee Council. https://www.globalprotectioncluster .org/_assets/files/tools_and_guidance/housing_land_property/By%20Themes/HLP %20Restitution/Property_Restitution_in_Practice_2005_EN.pdf. Bhattacharjee, A., Saeed, H., et al. (2019). The combined evaluation of the European Union’s humanitarian interventions in Afghanistan 2014–2018 and DG ECHO’s partnership with the Norwegian Refugee Council (pp. 1–184). European Commission, Directorate-General for Civil Protection and Humanitarian Aid Operations Directorate E – General Affairs. https://ec.europa.eu/echo/sites/echo-site/files/combined_evaluation_of_the_eu _humanitarian_intervention_in_afghanistan_2014_2018_and_dg_echos_partnership_ wiht_nrc.pdf. Foley, C. (2008). Housing, land, and property restitution rights in Afghanistan. In S. Leckie (Ed.), Housing, land, and property rights in post-conflict United Nations and other peace operations:

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A comparative survey and proposal for reform (pp. 136–178). Cambridge University Press. https://doi.org/10.1017/CBO9780511575471.006. Gibbons-Neff, T., Akbary, Y., & Huylebroek, J. (2021, December 3). In Afghanistan, ‘Who Has the Guns Gets the Land.’ The New York Times. https://www.nytimes.com /2021/12/03/world/asia/afghanistan-land-ownership-taliban.html. HRW. (2020). “You Have No Right to Complain” education, social restrictions, and justice in Taliban-held Afghanistan. Human Rights Watch. https://www.ecoi.net/en/file/local /2032628/afghanistan0620_web_0.pdf. Islamic Republic of Afghanistan. (2013). The national policy of the Islamic Republic of Afghanistan on internal displacement. https://www.internal-displacement.org/sites/law-and-policy/ files/afghanistan/Afghanistan_national_policy_English_2013.pdf. Law on Managing Land Affairs, Pub. L. No. 1254. (2017). http://law.acku.edu.af/fa/ download/file/fa/20036/74001. Leckie, S. (2005). Housing, land and property rights in post-conflict societies: Proposals for a new United Nations institutional and policy framework. United Nations High Commissioner for Refugees. https://www.unhcr.org/425683e02a5.pdf. MEC. (2014). Report of the public inquiry into land usurpation. Independent Joint AntiCorruption Monitoring and Evaluation Committee. https://adsp.ngo/wp-content/ uploads/2018/12/A-72_REPORT-OF-THE-PUBLIC-INQUIRY-INTO-LAND -USURPATION.pdf. Ministry of Urban Development and Land. (2019a). Housing policy. Ministry of Urban Development and Land, Housing Management Directorate, Islamic Republic of Afghanistan. https://mudl.gov.af/uploads/document_files/document_1562495069.pdf. Ministry of Urban Development and Land. (2019b). Afghanistan land administration system project (ALASP): Social management framework final report. Goverment of the Islamic Republic of Afghanistan and the World Bank. https://www.landportal.org/node/95896. Ministry of Urban Development and Land. (2019c). Urban upgrading and redevelopment policy (draft). Islamic Republic of Afghanistan. Ministry of Women’s Affairs. (2019). Policy on women’s access to inheritance and property (2019– 2023). Islamic Republic of Afghanistan. https://mowa.gov.af/sites/default/files/2019 -09/%D9%BE%D8%A7%D9%84%DB%8C%D8%B3%DB%8C%20%D8%AF%D8%B3 %D8%AA%D8%B1%D8%B3%DB%8C%20%D8%B2%D9%86%D8%A7%D9%86%20 %D8%A8%D9%87%20%D8%AD%D9%82%20%D9%85%DB%8C%D8%B1%D8%A7 %D8%AB%20%D9%85%D8%A7%D9%84%DA%A9%DB%8C%D8%AA.pdf. NRC. (2014). Life can change: Securing housing, land and property rights for displaced women. Norwegian Refugee Council. https://gbvguidelines.org/en/documents/life-can -change-securing-housing-land-and-property-rights-for-displaced-women/. The World Bank. (2019). Afghanistan land administration system project. The Wrold Bank. https://documents1.worldbank.org/curated/en/623821547623421846/pdf/Project -Information-Document-Integrated-Safeguards-Data-Sheet-Afghanistan-Land -Administration-System-Project-P164762.pdf. UNAMA. (2014). The stolen lands of Afghanistan and its people: The legal framework (part 1 of a 3 part series). UNAMA Rule of Law Unit. https://unama.unmissions.org/sites/default/ files/unama_rol_unit_part_1_legal_framework_final-2.pdf. Unruh, J. D. (2003). Land tenure and legal pluralism in peace process. Peace and Change, 28(3), 348–373. https://doi.org/10.1111/1468-0130.00267. Unruh, J. D. (2010). Land rights and peacebuilding: Challenges and responses for the international community. International Journal of Peace Studies, 15(2), 89–125.

Chapter 5

Land grabbing in Afghanistan

Before discussing land grabbing in Afghanistan, including its definition, this section casts a quick glance at a global definition of land grabbing. Despite the pervasiveness of land grabbing across the world, with its impact on the environment, human rights, the economy and social welfare, it is not a very well-defined concept (Baker-Smith & Szőcs Boruss, 2016). The Cambridge Dictionary defines land grabbing as “the act of taking an area of land by force, for military or economic reasons” and “the act of taking control of part of a market very quickly and forcefully” (Cambridge Dictionary, n.d.). According to this definition, land grabbing bears an economic and political motivation and significance, and often involves force. Eco Ruralis, a Romania-based organization that works for peasants’ rights in Romania and internationally, including work on land grabbing, defines the concept of land grabbing as follows: Land grabbing can be defined as being [in] control (whether through ownership, lease, concession, contracts, quotas, or general power) of larger than locally-typical amounts of land by any person or entity (public or private, foreign or domestic) via any means (‘legal’ or ‘illegal’) for purposes of speculation, extraction, resource control or commodification at the expense of peasant farmers, agroecology, land stewardship, food sovereignty and human rights. (Baker-Smith & Szőcs Boruss, 2016, p. 2) Eco Ruralis places emphasis on five criteria for an act to be considered as land grabbing. These include (1) size, which should be considered differently in each context depending on the average plots of land owned by people; (2) people (actors), which can include individuals, companies, nationals and internationals; (3) control, which consists of the central aim of land grabbing, and can be in the form of lease or sharecropper; (4) legality, which refers to the fact that laws tolerate land grabbing, thus they become tools to abuse human rights by allowing acts of land grabbing; and (5) usage, which places emphasis on the harmful use of land for exclusive purposes.

DOI: 10.4324/9781003134411-6

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Civil society organizations take a slightly different approach towards land grabbing, with emphasis on the violation of human rights, women’s rights, the environmental effect and overall lack of consideration for a human-rights based approach, such as lack of consent or participation of the local population. This is well-reflected in the Tirana Declaration (2011), which was issued by 150 representatives of civil society organizations, grassroots organizations, social movements and members of the International Land Coalition. According to the mentioned declaration, land grabbing has the following characteristics: (i) in violation of human rights, particularly the equal rights of women; (ii) not based on free, prior and informed consent of the affected land-users; (iii) not based on a thorough assessment, or are in disregard of social, economic and environmental impacts, including the way they are gendered; (iv) not based on transparent contracts that specify clear and binding commitments about activities, employment and benefits sharing, and; (v) not based on effective democratic planning, independent oversight and meaningful participation. (International Land Coalition, 2011) In the same vein, government and corporations present yet another perspective on land grabbing. Instead of land grabbing, they prefer to apply such terms as “large-scale land acquisition” or “land consolidation.” They tend to imply that the issues discussed pertain to agricultural land and are hence primarily relevant in developing countries. Furthermore, in their view, land grabbing is not necessarily a harmful practice, but can instead produce economic benefits and opportunities to disadvantaged communities (Baker-Smith & Szőcs Boruss, 2016). Such understanding of land grabbing has been challenged by others. The Transnational Institute (TNI), for example, argues that the framing offered above does not capture the real practice of land grabbing. In their report (2013) they highlight three problematic aspects with the conventional approach: (1) focus on land ownership exchange rather than its control and who actually is benefiting from it; (2) focus on scale rather than impact; and (3) focus on the process with an emphasis on the principles of transparency and accountability. As to the latter, the report asks: “But if companies or governments claim that the desirable formal principles and technical procedures were upheld, which many do, then is it no longer a land grab?” (TNI, 2013, p. 4). The TNI report suggests examining land grabbing through the lens of political economy, which essentially becomes about the power to decide how to control: From this perspective, land grabbing is essentially control grabbing. It refers to the capture of power to control land and other associated resources like water, minerals or forests, in order to control the benefits of its use. (TNI, 2013, p. 3)

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A few common characteristics may be derived from the various approaches outlined above for all situations of land grabbing, regardless of the context and geographical location. This includes the involvement of powerful actors, governments’ tacit backing, legal or illegal usage, involvement of force, human rights breaches and the pursuit of personal gain and profit.

General background and definition of land grabbing in Afghanistan Although property and land grabbing in Afghanistan began during the civil war in the 1990s, particularly the seizure of the properties of the Hindu and Sikh minority in Kabul (Ibrahimi, 2003), it became a defining feature of post-Taliban Afghanistan, especially under the Karzai administration. A 2016 investigation by the Freedom House of Afghanistan revealed that 90% of land and property of the Hindu and Sikh minority was seized, which subsequently forced a large percentage of this community—already a minority—to leave Afghanistan (Royee, 2016). The same report, titled “The black season of land grabbing in Afghanistan” (2016), found that the majority of land grabbing took place between 2002 and 2016. According to a report by ARAZI (2014), the usurpation of state and public property began at the end of President Najibullah’s regime in the early 1990s, but it rapidly progressed under the Mujahidin regime and accelerated in the postTaliban period (ARAZI, 2014). The potential for illicit land transfer is significant in Afghanistan primarily due to the traditional tenure of Afghan land, with just a small percentage being registered or surveyed. Much of Afghanistan’s population lives in informal settlements, outside a master plan. In Kabul, for example, it is estimated that 70% of the population lives in informal settlements (AREU, 2017). Furthermore, as a profitable industry, land grabbing has been largely enabled thanks to widespread corruption and impunity. Other enabling factors have included the lack of the rule of law and the failure to pursue the cases of people accused of land grabbing, the lack of criminalization of land grabbing, the lack of coordination between government departments, and so on. Land grabbing in Afghanistan has had irrevocable consequences, significantly harming economic and development efforts, notably in connection to HLP, as well as causing social and political instability. The hindrance to development initiatives such as schools, legal settlements and public parks, as a result of land grabbing, in practice has severely curbed people’s access to public and basic services. It has furthermore led to environmental degradation, human rights violations, ethnic strife and the destruction of historic sites and monuments. In some areas, land grabbing has sparked clashes between certain tribes in different provinces, killing and injuring dozens. Significantly, land grabbing in Afghanistan has always been accompanied by violence, threats and the power of the gun (Gibbons-Neff et al., 2021; Nazar & Siddique, 2021). In one

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case, a former member of the Parliament, who also served as the head of the Parliamentary Environmental Commission, was accused of grabbing 70 slots of land allocated to disabled persons, using violence and force. With the help of the police force, he beat up a number of the disabled persons and sent three of them to jail (Daily Italaat Roz, 2014). In the absence of proper documentation, ubiquitous corruption and other procedural issues, statistics differ on the amount of land grabbed throughout Afghanistan or the number of people harmed as a consequence of it. According to ARAZI, approximately 1.2 million jeribs (240,000 hectares) of public and state land have been seized. In June 2013, the Commission on Monitoring Government’s Acts of the Afghan Parliament reported that around 1.5 million jeribs (300,000 hectares) of land, at a value of US$ 7 billion, had been grabbed by the powerful over a period of 12 years (BBC Persian, 2013b). A study from Afghanistan’s Ministry of Agriculture, Livestock and Irrigation (MAIL), also confirmed that approximately 1.5 million jeribs of land have been seized in the country, accounting for over 15% of all arable land (UNAMA, 2014). In 2016, the Afghanistan Freedom House conducted a study on land grabbing relying on documents and interviews with over 70 individuals from governmental and non-governmental sectors. The report found out that in only 18 provinces of Afghanistan, 1,966,411 jeribs of land (around 393,282 hectares) have been forcibly seized. Citing a number of former advisers to Karzai who were delegated to investigate land grabbing, the report states that in total 4.5 million jeribs (900,000 hectares) of public land had been grabbed across Afghanistan by people in positions of power for personal use (Khetab, 2016). This position was also confirmed during fieldwork in an interview with a key government official who had worked for a number of years on land grabbing. Citing a survey by the Government’s Affairs Attorney, he stated that 4.7 million jeribs of land (940,000 hectares) had been appropriated in 23 provinces between 2004 and 2008 alone. He further stated: We have documented those public lands, which have been grabbed. But I had to run for years in different provinces, holding my head in my hand to collect data [a local reference to denote taking great risk]. What we say is based on such documents, but still no one, except God, knows the truth about the millions of jeribs of land that have been seized. (Personal interview, 2 November 2014, Kabul) Experts’insight and other evidence suggest that the amount of land grabbed across Afghanistan is likely to be on the higher end, and, as suggested in the quote above by a key government official, the actual statistic may be even higher. In the same vein, the number of those affected by land grabbing (directly) or its consequences (indirectly) can be very large. This problem, however, is not unique to Afghanistan. According to TNI (2013), in almost all contexts, it is difficult to know how much land grabbing is taking place because

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many land deals go unreported or they take place in secret and are not covered by the media. Research shows that most of the grabbed land in Afghanistan belongs to the state and public sector. For example, the findings of the Afghanistan Freedom House (2016) reveal that 75% of the usurped lands belong to the state, which has been grabbed by powerful individuals. About 5% of the total usurped land belonged to individuals, which was taken by the government, especially during the PDPA regime. The report adds that 10% of the total usurped lands were the personal lands of individuals, which were usurped by other people. The other 10% were state-owned properties seized by other government agencies. While different actors have grabbed land, by far the majority of land grabbers are powerful and influential individuals. Data suggests that over 17,000 individuals have reportedly partaken in land grabbing. This was confirmed, and synchronized, by the list of the special parliamentary Commission mentioned above and one already produced by ARAZI (AREU, 2017). These individuals consist of warlords and other local commanders, ethnic leaders, village leaders, affluent individuals with illicit funds, the Afghan National Police and corrupt and opportunistic government officials, such as the brother of former President Karzai who is accused of large-scale land grabbing and embezzlement of millions of dollars (Choudhury, 2019; Liagat, 2021). More importantly, land has been taken by force, but it is also—and increasingly—taken through forging documents with the help or cooperation of the courts and government authorities (Liagat, 2021; UNAMA, 2014). Most of the usurped land was used for personal gain and profit. As an example, the parliamentary Commission found out that much of the occupied land had been turned into more than 350 Shahrak (townships), of which only 94 had been constructed based on legal standards (BBC Persian, 2013a). While lucrative lands were the prime targets of land grabbers, nowhere in Afghanistan was safe from the scourge of land grabbing. The powerful have seized thousands of acres of land belonging to mosques, schools, kindergartens, industrial parks, cinemas, cemeteries, refugee and teacher settlements, historical sites and lands belonging to the minority groups, such as the Hindu and Sikh, according to Afghanistan Freedom House. The report (2016) shows that 2,052 jeribs of land belonging to industrial parks, 10,000 jeribs of land belonging to teachers’ settlements, and tens of thousands of jeribs of land belonging to returnees’ communities have so far been taken. The land mafia has taken over around 11,000 jeribs of land in the Nangarhar Canal to develop residential settlements. Definition of land grabbing in Afghanistan

Despite the pervasiveness of land grabbing in Afghanistan, it was not defined and operationalized for a long time. Illegal land sales were already referred to as “land grabbing” or “land usurpation,” as it was mentioned in Presidential

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Decree 45 on curbing corruption, including measures against land grabbing, and subsequent documents and reports (AREU, 2017). However, land grabbing was not defined even in the Land Policy of 2007 that made references to it. One of the first, and rather comprehensive, definitions was offered in the UNAMA report “The stolen lands of Afghanistan and its people: The legal framework” as follows: [L]and grabbing is defined as the use, control, occupation, or ownership of land by one without a bona fide right […] Land grabbing includes, but is not limited to, occupying, using, controlling or claiming ownership of the land of others, whether state or private, by force or intimidation; illegally obtaining title to state or private lands through fraud or force, or as political or economic patronage or reward; obtaining title to property legally owned by a wife, sister, or daughter through inheritance; and occupying unoccupied lands. (UNAMA, 2014, p. 38) The UNAMA definition was also adopted by the AREU in its Land Governance Assessment Framework report of 2017, which remains one of the most comprehensive reports on land rights in Afghanistan. A draft policy paper on “Addressing land grabbing through the criminal justice system” (2014) also relied on the UNAMA definition. It was only in 2017 that the phenomenon of land grabbing was defined in the MLA law, Article 3, 39, as follows: Land grabbing refers to possession, use, transfer, mortgage, lease or rent of state, public and private lands and endowments without credentials or legal order, and is punishable under the relevant laws. (Law on Managing Land Affairs, 2017) While the UNAMA definition incorporates also the use of force or intimidation, the MLA law leaves this aspect out, notwithstanding the widespread use of force and intimidation by land grabbers in Afghanistan.

Land grabbing in the Afghan law Despite the severity of the situation with regard to land grabbing, the Afghan legal system did not address land grabbing as a crime until the modified MLA in 2017. The Afghan Penal Code of 1976, which was in use until its major revision and amendment in 2017, did not address land grabbing as such, but rather categorized it for criminal investigation and punishment as a theftrelated crime. In early 2014, attempts to pass a draft land-grabbing law with a focus on state land protection failed in the Afghan Parliament. The outcome could not have been expected to be any different considering that many parliamentarians were themselves either land grabbers or beneficiaries of land

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grabbing, thus fearing the promulgation of a law with effective criminal provisions (UNAMA, 2014). Currently, both the Penal Code (2017) and the MLA law (2017) criminalize and penalize land grabbing. The MLA law includes provisions on land grabbing, and also sets out punitive measures in Chapters 11 and 12. Article 91(1) of the MLA law puts ARAZI in charge of identifying appropriated land and land grabbers and referring them to the relevant judicial authorities. Article 92 asserts that idle seized lands should be returned and registered as state land (when the land grabber does not voluntarily return it within three months of the MLA promulgation), while affairs related to lands which have already been used for commercial activities (i.e., built as settlements, business centers or for agricultural purposes) should be regulated based on a separate decree (Article 93). According to Article 95, only state lands are not subject to the passage of time before the enactment of the MLA law, and the Land Administration and other relevant departments are obliged to take action for its return (Law on Managing Land Affairs, 2017). In addition to the return of appropriated land, the MLA law includes provisions for punishment, with the following as some of its main provisions: (1) The amount of land grabbed (Article 96): if the value of the seized land is up to 300,000 AFN (around US$ 3,300), the offender will have to face a short term of imprisonment (the law does not specify how short). If, on the other hand, the value of the seized land is up to five million AFN (around US$ 55,000), the offender will have to face a long imprisonment term of up to ten years. In between, depending on the value of the land grabbed, the term of imprisonment is decided. Thus, the proportionality of the punishment matches the amount of grabbed land. In addition, based on this provision, compensation must also be paid if land grabbers cause any damage to the land or property. The amount of damage will be decided by a technical team. (2) Aggravated cases of land grabbing (Article 97): these include the use of force and threats, the continuation of land grabbing despite written or oral warnings by relevant authorities and ordering, financing or forcing others to engage in the act of land grabbing. Under these circumstances, the offender will face the maximum punishment as provided for in the MLA law. (3) Multiplicity of crime in land grabbing (Article 98): in addition to the crime of land grabbing, this provision includes other crimes such as the use of forged documents or deceptive methods, and importantly, misuse of one’s power, influence and official position. The use of forged documents for land and property acquisition also has been emphasized as a separate provision in Article 103 that should be followed up by relevant judicial authorities. Article 96 of the MLA law also states that those convicted of crimes of land grabbing cannot benefit from Presidential decrees offering amnesty or a reduction in prison sentences. The Penal Code of 2017 deals with land grabbing in Articles 715–719. In addition to providing a very similar definition of land grabbing (Article 715) as that of the MLA law, the punishment and other provisions also largely replicate the MLA. In fact, given the promulgation of both laws around the same time

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(the MLA in April 2017 and the Penal Code in May 2017), except for small changes and extra provisions in the MLA, the two pieces of legislation provide almost identical approaches towards the crime of land grabbing. Nevertheless, when the enforcing authorities themselves are corrupt officials and land grabbers, the promulgation of such laws and other measures amounts to (as the saying goes) putting rabbits in charge of carrots (Saeed & Parmentier, 2017).

Tackling land grabbing in practice The Strategic Plan to combat land grabbing

In addition to criminalizing land grabbing, as previously noted, the Afghan government has taken certain steps to tackle the issue in recent years. One of the most important and concrete actions by the government was the development of a five-year Strategic Plan (2014–2019) to “avoid further land grabs.” The Afghanistan Independent Land Authority (ARAZI) devised this strategy based on Presidential Decree 45 (2012), particularly Article 27(2), which established ARAZI as the principal authority to investigate land grabs across Afghanistan. In addition, the Council of Ministers agreed at its meeting on 14 October 2014, that ARAZI should identify small, medium and large land grabbers and, with the help of the Ministry of Interior and the judicial branch, reclaim lands from the large land grabbers. The five-year Strategic Plan therefore is an important document not only because it provides important information based on its research and investigation, but also because it offers insight on how to prevent further land grabbing (ARAZI, 2014). ARAZI established a six-member working group to monitor the Presidential Decree provisions and propose activities in response to Article 27(2). It devised an action plan and two different procedures (forms 1 and 2) to collect information from all provinces across the country, one for public confiscated properties and the other for private seized lands, among other issues. To carry out this action, ARAZI worked closely with the Ministry of Justice, Ministry of Interior, Attorney General Office, High Office of Oversight Against Corruption and the Independent Directorate of Local Governance, as well as ARAZI directorates in all 34 provinces. As a result of these collaborations and research, a database was created with the names and characteristics of usurpation of land and land grabbers. The working group conducted an inquiry in six zonal provinces, including Kabul, Herat, Balkh, Kunduz, Kandahar and Nangarhar, in coordination with competent authorities. They classified land grabbers into eight groups depending on the quantity of public and state land they had seized (as demonstrated in Table 5.1). Although the data in the ARAZI Strategic Plan (2014–2019) is based on its investigation in six zonal provinces, it has also covered other provinces.

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Table 5.1 Categories of land grabbers based on the amount of appropriated land Category

Amount of land/category

Total land grabbed/category

1 (big land grabbers) 2

138,996 jeribs (28,000 hectares)

Unknown

1,000 jeribs (200 hectares)

3 4 5 6

100–999 jeribs 10–99 jeribs 1–9 jeribs Up to 1 jeribs

7

Land for legal and illegal townships

8

Public land grabbed by 139 first and second government units across the country

109,631 jeribs (21,926 hectares) 65,810 jeribs (13,162 hectares) 18,284 jeribs (3,656 hectares) 4,384 jeribs (876,8 hectares) 275,187 jeribs (55,000 hectares) 262,537 jeribs (52,500 hectares) 30,829 jeribs (6,165 hectares)

In all, 1,279,708 jeribs (255,941 hectares) of public and state land have been taken in Afghanistan, according to this assessment. As noted above, this data may not represent the actual amount of grabbed land in Afghanistan, but it does represent a well-investigated and documented piece of information. In addition, the then Ministry of Urban Development, ARAZI, Kabul Municipality and local directorates issued a report on the legal and unlawful shahraks (townships) in response to a request from the Parliamentary Commission on Monitoring Government Acts. They discovered that out of 355 shahraks across the country, those built according to the city plan consumed 109,262 jeribs (21,852 hectares), while the rest of the shahraks were built unlawfully on 262,537 jeribs (52,507 hectares) of land. Some of the shahraks had already been built, sold, and were in use, while others were still in the works (see Table 5.2). The majority of land grabs for shahraks happened in the provinces of Nangarhar, Kabul, Balkh and Herat respectively, as seen in the list above. The ARAZI study does not go into detail about the circumstances that made it more feasible to grab large swaths of land in some provinces, such as Nangarhar, compared to other provinces, such as Paktia, Khost and Helmand, where no figures for unlawful land grabs are given. It also does not acknowledge the limitations of its inquiry and research. However, one possible explanation might just be that provinces like Pakita, Khost and Helmand were at war at the time of the probe, making it difficult to conduct an investigation. As a result, the reason for the void in terms of unlawful land grabbing is not so much that it did not happen in those provinces as that there is a lack of data. ARAZI, in collaboration with relevant authorities, was able to investigate and document the amount of public land grabbed by individuals in each of

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Table 5.2 List of legal and illegal shahraks in 12 provinces as provided by ARAZI No.

Location of the shahraks

Land (in jeribs) used Land (in jeribs) grabbed Number of for legal shahraks for illegal shahraks shahraks/province

1 2 3 4 5 6 7 8 9 10 11 12 Total

Kandahar Kunduz Takhar Paktia Khost Helmand Ghazni Parwan Nangarhar Balkh Kabul Herat

20,512 2,580 594 60 80 3563 3,500 400 6,333 41,571 22,741.3 7,335 109,269

72 47 270

7,000 1,100 140,842 54,222 55,083 3,901 262,537

5 7 2 1 1 7 4 5 126 99 85 13 355

30 out of 34 provinces. This documentation is important because it shows the role of each individual vis-à-vis the amount of land they have grabbed. Table 5.3 captures this data. As Table 5.3 demonstrates, the biggest numbers of land grabbers were concentrated in Baghlan, Takhar, Kapisa, Nimroz and Logar, respectively (above 1,000 individuals in each of these provinces). However, the biggest amount of public land was grabbed in Balkh, followed by Nimroz, Helmand and so on. This illustrates that while many individuals were involved in the act of land grabbing, there were some main “land eaters,” as the common expression goes in Afghanistan. The ARAZI report categorizes these individuals in the following main groups: (1) tribal chiefs, village elders and influential people; (2) wealthy people with access to black and illegitimate money; (3) municipalities; (4) police officers; and (5) corrupt public officials. These individuals would use the grabbed land for construction of township (shahraks), small residential complexes, commercial areas, agricultural use and construction of personal residences and villas. ARAZI also revealed that 15,331 people grabbed the bulk (986,334 jeribs) of the total 1,279,700 jeribs (255,940 hectares) of appropriated land. This included virgin and barren lands, agriculture and grazing fields, farms, forests, seabed, reeds, mountain slopes, and hills across districts, villages and city centers. ARAZI highlighted that the figures were rising as more information from other regions became available. In fact, in August 2021, the MUDL announced that it had registered over 17,000 land grabbers (Rawnaq, 2021). Following this are 262,537 jeribs of seized land for 355 shahraks and 30,829 jeribs of seized land for 139 public structures. For the latter two categories, ARAZI does not present information about individual and/or group land grabbers. Importantly, the ARAZI investigation only covers public and state

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Table 5.3 Public land grabbed across the country (excluding lands grabbed for shahraks) by individuals No.

Province

Amount of land grabbed per Number of land province (in jeribs) grabbers

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 Total

Balkh 194,756 Nimroz 138,719 Helmand 125,400 Saripul 80,313 Herat 70,698 Khost 45,295 Takhar 44,726 Samangan 33,339 Baghlan 33,002 Nangarhar 30,584 Urezgan 27,587 Kabul 25,990 Badghis 23,495 Ghazni 19,566 Logar 16,639 Jawizjan 10,444 Farah 8,719 Kunduz 7,792 Faryab 7,082 Zabul 6,793 Kunarha 6,131 Paktiya 5,800 Wardak 5,324 Parwan 4,945 Nangarhar canal directorate 4,489 Badakhshan 3,210 Kandahar 2,215 Kapisa 1,464 Bamyan 1,393 Laghman 424 986,334

901 1,168 36 568 626 56 1,647 633 1,812 740 13 212 59 132 1,126 473 117 965 204 271 469 16 287 167 888 148 69 1,473 37 518 15,831

seized lands. Private lands that were grabbed are not mentioned in any of their statistics or analysis. ARAZI’s five-year Strategic Plan recommended taking a variety of steps to prevent “further land grabs.” These included convening an academic symposium to analyze land grabbing from the perspectives of the Afghan legal system and Islamic jurisprudence, which it suggested should culminate in the issuing of a fatwa (a decree or legal pronouncement by Islamic legal scholars) against land grabbing. Other proposed activities included the criminalization of land grabbing in Afghan law, a Presidential Decree incorporating provisions for relevant authorities, such as the Attorney General’s Office, to follow up on the cases of identified land grabbers, awareness raising through the media and local

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councils, the imposition of limitations on land grabbers, such as travel bans, bans on business activities and bans on political and public appointments, and the incorporation of a subject on land rights into the Afghan curriculum. The Strategic Plan recommended foundational plans for long-term activities, such as the registration of all government properties and land, as well as the registration of all public lands such as forests and deserts; the completion of the land survey and registration of all public, state and private lands, which was only 34–36% completed; as well as long-term leases of state land for national and international investment projects. In addition to the Strategic Plan, the Policy and Planning Directorate of the Ministry of Urban Development and Land produced a Regulation on Tackling Public and State Seized Land and Property (2020) in four chapters and 28 articles based on Presidential Decree (1377) of 13/7/2019. The Regulation emphasized, among other things, the significance of establishing specialized committees in all provinces to monitor and combat land grabbing in their respective provinces, as well as coordinating their efforts with relevant authorities in Kabul. Article 11 proposed the creation of a Land Grabbing Unit inside the Attorney General’s Office’s Judicial Center for Combating Serious Crimes of Corruption. According to this, incidents of land grabbing for more than 5,000,000 AFN shall be investigated by the Unit, and cases worth less than this amount should be investigated by the legal authorities in the relevant provinces (Ministry of Urban Development and Land, 2020). Other measures by the government to tackle land grabbing

To bolster and exert pressure on the aforementioned steps, the Presidential Palace became engaged in land grabbing cases. A Coordination and Follow-up Committee for Cases of Usurped Public and State Land was created at the Presidential Palace under the supervision of Sarwar Danish, the former Second Vice President. President Ghani backed the concept of establishing a specialized unit under the Attorney General’s Office, and the Council of Ministers approved it. According to an expert from the Ministry of Urban Development and Land in Kabul, the President was supposed to sign a decree on it, but as of January 2021, it had yet not materialized (Long distance interview, 17 January 2021). Such measures were effective to some extent, but not nearly enough to combat the pervasive problem of land grabbing. They slowed the process and served as a deterrent, but they were ineffective in reclaiming the seized lands and properties or punishing the culprits. Only 400,000 jeribs of public and state land have been recovered by the government in 30 provinces, out of an estimated 4.5 million jeribs of confiscated lands. This translates to a 9% return of the appropriated lands at best. As of January 2021, around 600 instances of land grabbing had been adjudicated—or were being considered—in civil and criminal courts throughout the country. In an

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interview, a government expert noted that the approach to land grabbing in Afghanistan has mostly been political, pointing to the fact that big land grabbers have always managed to get away. Importantly, the expert stressed that the Afghan government lacked the competence to handle big land grabbers, most of whom were warlords or persons close to them, who had their own militias and armies (ibid.). The government’s inability to confront big land grabbers and enforce the law resulted in the subject being treated as a civil rather than a criminal matter in practice. According to a government expert: We are now focusing more on how to get out of the problem. The government is unable to put the law into effect. Purification is now the focus of our efforts. This implies that we demand land grabbers to either return the land or pay a fee in exchange for it. We place a greater emphasis on forgiveness. For example, land grabbers who have taken up to 10 jeribs of land have been forgiven in some situations. (ibid.) Other initiatives have included “formalizing” the confiscated lands in some areas, especially in unplanned areas like the mountain foot. This involves distributing ownership certificates to people who constructed their own house and lived there for a long time. As of January 2021, the government granted roughly 20,000 ownership certificates in eight provinces, and the process was still proceeding. In another case, the government granted certificates for a small quantity of confiscated land in exchange for a symbolic amount of money, likewise in unplanned regions. This approach was inspired by the Turkish model in situations of unlawful land grab. The government had also begun exploring ways to “purify” the shahraks (ibid.).

Conclusion Despite some advances in criminalizing land grabbing and identifying key land grabbers, usurped lands and properties, land grabbing “continues at full tilt,” according to Integrity Watch Afghanistan, and the government has failed to meet its objectives (Rahimi, 2020). Land grabbing has become a “blind knot” for the government, according to a report by the Center for Regional and Strategic Studies, a Kabul-based independent organization, because land grabbers have managed to fabricate counterfeit credentials for much of the stolen land (Center for Regional and Strategic Studies, 2020). They subsequently sold the majority of these plots to ordinary citizens after developing them into settlements and/or other profitable businesses. It is now incredibly difficult for the government to evict citizens from the land they have purchased. Furthermore, the vast majority of land grabbers are based outside of Afghanistan, making it difficult to track them down. In the face of such challenges, many people

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whose lands have been taken have given up the fight to reclaim their land or property over time.

References ARAZI. (2014). A five-year strategic plan to prevent further land grab. Afghanistan Independent Land Authority (Arazi), Islamic Republic of Afghanistan. AREU. (2017). Land governance assessment framework (LGAF): Afghanistan. Afghanistan Research and Evaluation Unit. https://landportal.org/node/95933. Baker-Smith, K., & Szőcs Boruss, M.A. (2016). What is land grabbing? A critical review of existing defintions. Eco Ruralis. https://www.farmlandgrab.org/uploads/attachment/ EcoRuralis_WhatIsLandGrabbing_2016.pdf. BBC Persian. (2013a, August 25). ‫( توقف‌ساخت‌بیش‌از‌صد‌شهرک‌غیر‌قانونی‌در‌افغانستان‬Halting the construction of more than one hundred illegal settlements in Afghanistan). http://www.bbc.co .uk/persian/afghanistan/2013/08/130825_k04_afg_illegal_townships.shtml. BBC Persian. (2013b, September 23). Afghan parliament passed a law to take back the grabbed lands. http://www.bbc.co.uk/persian/afghanistan/2013/09/130923_zs_afghan_land _confiscation_law.shtml. Cambridge Dictionary. (n.d.). Land grab. In Cambridge dictionary. Retrieved December 10, 2021, from https://dictionary.cambridge.org/dictionary/english/land-grab. Centre for Regional and Strategic Studies. (2020). ‫غصب‌زمین‌های‌دولتی‌ادامه‌دارد‬.(Public land grabbing continues). https://csrskabul.com/?p=6688. Choudhury, N. (2019). Power, inequality, and local land conflict in Afghanistan: A study of Kabul’s peri-urban areas [Research report]. Afghan Institute for Strategic Studies and Knowledge Management Fun. https://www.kpsrl.org/publication/research-report-power-inequality -and-local-land-conflict-in-afghanistan-a-study-of-kabuls-peri-urban-areas. Daily Italaat Roz. (2014, November 18).‫‌نمره‌زمین‌ما‌را‌غصب‌کرده‌است‬70‌‫‌عبیدهللا‌رامین‬:‫معلوالن‬ (The disabled people: Abdullah Ramin has grabbed 70 plots of our land). Daily Itlaat Roz. https://www.etilaatroz.com/16177/‫ر‬-‫ما‬-‫زمین‬-‫نمره‬-70-‫رامین‬-‫عبیدهللا‬-‫معلوالن‬/ Daily Italaat Roz. (2016, February 22). ‫‌از‌مسجد‌تا‌قبرستان‬:‫( ردپای‌غاصبان‌زمین‬The footprint of land grabbers: From the mosque to the cemetry) .https://www.etilaatroz.com/34456/ ‫قبرستان‬-‫تا‬-‫مسجد‬-‫از‬-‫زمین‬-‫غاصبان‬-‫ردپای‬/. Gibbons-Neff, T., Akbary, Y., & Huylebroek, J. (2021, December 3). In Afghanistan, ‘Who Has the Guns Gets the Land.’ The New York Times. https://www.nytimes.com /2021/12/03/world/asia/afghanistan-land-ownership-taliban.html. Ibrahimi, N. (2003). Report on the Hindu/Sikh community in Afghanistan. Afghan Professional Alliance for Minority Rights. International Land Coalition. (2011). Tirana declaration. International Land Coalition, Global Assembly 2011, Tirana, Albania. https://d3o3cb4w253x5q.cloudfront.net/media/ documents/Tirana_Declaration_2011_EN.pdf. Khetab, M. H. (2016, February 21). The findings of a research: Karzai’s administration was the black season of land grabbing in the country. Pajwak News Agency. http://www .pajhwok.com. Liagat, L. (2021, August 2). ‫‌گزارش‌ تحقیقی؛‌ اختالس‌ ده‌ها‌ میلیون‌ دالری‌ و‌ غصب‌ زمین‌ در‌ پروژه‌ی‬ ‫( شهرک‌عینو‌مینه‬Investigative report: Embezzlement of tens of millions of dollars and land grabbing in Aino Mina settlement project). Daily Itlaat Roz. https://www.etilaatroz.com /129602/research-report-embezzlement-of-tens-of-millions-of-dollars-and-usurpation -of-land-in-aino-mina-town-project/.

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Law on Managing Land Affairs, Pub. L. No. 1254. (2017). http://law.acku.edu.af/fa/ download/file/fa/20036/74001. Ministry of Urban Development and Land. (2020). Regulation on tackling public and state seized land and property. Policy and Planning Directorate of the Ministry of Urban Development and Land. Nazar, Z., & Siddique, A. (2021, December 9). Taliban accused of forcibly evicting ethnic Uzbeks, Turkmen in Northern Afghanistan. RFE/RL. https://gandhara.rferl.org/a/ taliban-evictions-uzbeks-turkmen/31601904.html. Rahimi, Z. (2020, August 14). Almost 16,000 land-grabbing suspects in 2 years: Ministry. TOLOnews. https://tolonews.com/afghanistan/almost-16000%C2%A0land-grabbing -suspects-2-years-ministry. Rawnaq, J. (2021, August 4). ‫‌ هزار‌ غاصب‌ زمین‌ شناسایی‌ شده‌اند‬۱۷ ‌‫‌ بیش‌ از‬:‫وزارت‌ شهرسازی‬ (Ministry of Urban Development: More than 17,000 land grabbers have been identifed). Daily Itlaat Roz . https://www.etilaatroz.com/129879/17000-land-grabbers-have-been -identifed-in-afghanistan/. Royee, Z. (2016, February 22). ‫‌نود‌درصد‌ملکیت‌های‌اهل‌هنود‌غصب‌شده‌است‬:‫[ خانه‌آزادی‬Freedom House: 90% of the properties of the Hindus have been seized]. Daily 8am. http://8am.af /1394/12/03/land-grabbing-freedom-house/. Saeed, H., & Parmentier, S. (2017). When rabbits are in charge of carrots: Land grabbing, transitional justice and economic-state crime in Afghanistan. State Crime Journal, 6(1), 13–36. https://doi.org/10.13169/statecrime.6.1.0013. TNI. (2013). The global land grab. Transnational Institute. https://www.tni.org/files/ download/landgrabbingprimer-feb2013.pdf. UNAMA. (2014). The stolen lands of Afghanistan and its people: The legal framework (part 1 of a 3 part series). UNAMA Rule of Law Unit. https://unama.unmissions.org/sites/default/ files/unama_rol_unit_part_1_legal_framework_final-2.pdf.

Chapter 6

Land grabbing in Afghanistan, economic-state crime and transitional justice

The previous chapter presented a discussion of the available data and information on land grabbing in Afghanistan. This chapter offers an analysis of land grabbing through an interdisciplinary prism. As discussed, the phenomenon of land grabbing in Afghanistan must be viewed and evaluated both as a form of crime (individual criminal responsibility) and as a form of human rights violations (state responsibility) at the same time. This necessitates analysis and comprehension of land grabbing through a criminological and transitional justice lens. A critical criminological study employs an economicstate crime framework to address this relevance. However, I will first describe each component (economic crime and state crime) separately, while relying heavily on field data, before combining the two concepts. The chapter will then proceed to illustrate the relevance of land grabbing in relation to gross human rights violations and transitional justice.

Land grabbing as economic crime The first chapter discussed several approaches to economic crime, with a focus on Larsson’s (2001) framework, which includes seven criteria for demonstrating the economic aspect of a crime. I have chosen to apply four of Larsson’s seven criteria to explain why land grabbing in Afghanistan is an act of economic crime. These include the actor, the motive, the context and the harmful consequences. The actor

As previously stated, high-status persons have amassed vast quantities of public and private lands in every nook and corner of the country as a result of their political and economic power, military prowess or tribal prominence in society at large (BBC Persian, 2013; Rostami, 2013). The introduction to this book notes that the majority of people involved in land grabbing in Sherpur, and the many Sherpurs that followed in subsequent years, are either warlords per se or commanders, members of Parliament or politicians linked with them. In many DOI: 10.4324/9781003134411-7

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instances, however, members of Parliaments or government officials are also prominent warlords at the same time, such as Abdul Rasul Sayyaf, who has served as an MP and whose name is tied with massive land grabs in Paghman, a district of Kabul. Interviews with public officials, experts and victims of land grabbing, as well as desk research, consistently confirm the involvement of such individuals in land confiscation. ARAZI and other investigations have identified as many as 17,000 individual land grabbers, as mentioned in the previous chapter. While there are numerous petty land grabbers among the 17,000 people, many of the larger and more profitable plots of land have been grabbed by powerful individuals. In a comprehensive investigative report published by the Daily 8am, the newspaper accessed documents that show the involvement of individuals as “relatives of high-status government officials, members of parliament and other powerful and influential people in land grabbing” (Rostami, 2013). One example, among many, is Mullah Ezat, a former jihadi commander who was a member of the Parliament at the time of the act. The Daily 8am report reflected on his role as follows: Mullah Ezat Ullah Atif has acquired 500 jeribs of land in the Khawja Jam hill, which is located near the Qargha dam highlands close to Kabul’s district five. Mullah Ezat is selling this piece of property, which is a lush place. This person has also created a residential shahrak around the Qargha Lake called “Mullah Ezat” and sells residential land to locals. Mullah Ezat was able to claim tenure over 45 jeribs of land before grabbing hundreds of jeribs of land. He also owns a real estate in the Qargha area. (ibid.) Referring to a document accessed from the Presidential Advisory Board on Construction, the Daily 8am report stated: “courts, attorney offices, municipalities, Directorate of Government’s Affairs [within the Ministry of Justice], members of parliament, council members, responsible in the ministries of Urban Development, Defence [Ministry], Interior [Ministry] and the National Security Directorate are among supporters and collaborators of land grabbers” (ibid.). The publication described land grabbing as a “land eating oligarchy,” arguing that it had become such a powerful practice in the country that those who engaged in it feared no authority or accountability mechanism. A Parliamentary Commission made the same claim after conducting its own inquiry into land grabbing and issuing a report. “A number of prominent persons who are sponsored by the government have grabbed land under the pretext of creating residential zones,” the investigation’s chief told BBC Persian. The seized lands are estimated to be worth US$ 7 billion (BBC Persian, 2013). In the same BBC story, an adviser to Karzai, the country’s then-president, on economic and construction projects expressed similar concerns about highprofile government officials’ involvement in land appropriation. He went on

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to say that the problem of land grabbing is more severe and concerning than the country’s precarious security condition. Land grabbers have been affiliated with the executive, the judiciary, and the legislative branches of the state, as sources show, whether as warlords or otherwise powerful people. During interviews, however, many respondents said that all three branches were often complicit in supporting the act, which was aided in part by an ingrained culture of endemic corruption, a lack of accountability, impunity and a patronage system (with an overwhelming influence of the warlords horizontally and vertically across the various layers of the power structure). A high-ranking official in the Ministry of Justice, who proudly declared that he had never accepted a bribe or bowed down to power, said in an interview with the author: Four MPs once approached me; one of whom claimed to have made ten Hajs [Muslim pilgrimages to Mecca] and to be such a good Muslim and innocent, etc. I told him that I wished he had instead gone to Dharamshala or a Church ten times, but spoke the truth. I had caught him stealing right there and then […] These are the people who exert pressure on others. The MPs have come here to utilize their contacts to help other people, but I refuse to surrender to them. (Personal interview, 14 October 2014, Kabul) Another senior adviser to the Ministry of Urban Development spoke of a synergy between different levels of government where corrupt acts were exploited as a catalyst for “political gift” exchanges: In a nice neighborhood of Kabul, our ministry-built houses on public land belonging to the government. Warlords were not involved in this “project,” but the ministry gave the houses to the warlords who are members of parliament as a “political gift.” This way, the ministers can ensure to earn their vote in the Parliament. Or if a minister is caught in corruption and bribery, and his/her case goes to the Parliament, the MPs will support him due to bribes they have received (the house in this case). (Personal interview, 20 August 2013, Kabul) It is important to note that such acts occurred and thrived in an era when the international community was heavily active in Afghanistan, providing military, political and financial “assistance” to the country. Following the fall of the Taliban regime, as indicated in the country background, the jihadi leaders were once again at the forefront of Afghanistan’s political structure; aided, supported and sponsored by the international community, primarily the United States (Khalilzad, 2016). With the backing of the international community, warlords gained confidence and reassurance, particularly after the passage of the

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2009 Amnesty Law, that they would not only be immune from prosecution for the crimes and serious human rights violations they had committed in the past, but that they would also be able to continue their crimes in economic forms this time. This idea was well-expressed by a member of Parliament in an interview with the author: The major issue was that those who were part of the previous regimes came back to power. This was the biggest treason to the people of Afghanistan. Our people did not expect this. They [the warlords] themselves did not expect this. They thought they would be side-lined like the Taliban or brought to trial. But to the contrary, they were brought back to power, giving them authority and even more value. (Personal interview, 2 November 2014, Kabul) While Larsson presents two approaches in relation to the actor, that of highstatus individuals based on Sutherland’s (1949) discussion of white-collar crime and legal persons such as companies, for this analysis, the focus remains on individuals within the political system and the wider society. As this empirical research did not focus on companies that occupy a role in land grabbing, the category of legal persons is not included in the analysis. Thus, field data reveals a strong and systematic involvement of high-status individuals such as (a) warlords and/or influential local powerbrokers; (b) technocrats and public officials actively or passively participating in the act; and (c) members of the international community who overlooked such crimes in favor of their geopolitical and other hegemonic interests. As a result, the “actor” component of Larsson’s paradigm for determining whether an act is constituted economic crime matches the facts from the field. The motive behind the act

Land grabbing in Afghanistan tends to be primarily motivated by personal gain and status, money laundering and economic profit. Land grabbers have constructed residential palaces known as poppy palaces or narco-palaces since many of them have been financed by the revenues from poppy cultivation and the poppy business. It is also a reference to the Pakistani style architectural taste, with bright and flashy colors and decorations standing out. The Sherpur neighborhood is the most conspicuous example, with a symbolic significance given that it was one of the first instances of systematic land grabbing by many high-profile warlords and government officials. However, similar villas and palaces have been constructed across Afghanistan (Liagat, 2021). Following the fall of the Taliban regime in 2001, a large quantity of international money was poured into Afghanistan, resulting in pervasive, systematic and institutional corruption (SIGAR, 2021). In addition, the poppy trade and

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other illegal businesses benefited a large number of people who needed a venue where the money could be laundered. Building settlements or other businesses on often-grabbed land became commonplace as a way to clean up illicit revenues. In an interview, a civil society activist who had researched land issues in various Afghan districts said: Many people found money and did not know what to do with it, in particular the warlords and commanders. They learned that land was the most reliable investment, which will always be there and the prices will only go up […] In Kabul, if there was a slightly good area, they asked people to leave the area. I know of an example myself. A petrol pump which is located under the Intercontinental Hotel used to belong to someone by the name of (), who was a close friend of my uncle. Sayyaf’s nephew forced him to leave the place. He was threatened and could not make any claims out of fear. (Personal interview, 4 August 2014, Kabul) By and large, the principal motive for land grabbing is economic profit, although there is no information about the overall profit generated from land grabbing—such record may not exist due to the nature of the activity. According to a report compiled by a governmental commission established under Presidential Decree 45 (2012), land grabbers frequently use the territory to build shahraks (residential settlements), gas stations and markets, or use it for private agricultural purposes in addition to building residential palaces (Rostami, 2013). In his investigative report, Rostami (ibid.) found out that between 2002 and 2012, 228 shahraks were built in Afghanistan, with 230,000 jeribs of land being illegally taken. As mentioned in the previous chapter, apartments in shahraks were frequently sold and distributed among ordinary citizens, resulting in significant profits for land grabbers. In an interview with the author, a deputy mayor of the Kabul municipality corroborated this fact, handing over a document that had listed all the shahraks in Afghanistan’s major cities. Only 21 of the 85 shahraks built in Kabul had been certified by the Kabul municipality, according to this document. The deputy mayor confirmed that shahraks were routinely sold or rented out to people, despite the fact that construction activity is frequently carried out without the approval of the required authorities. Likewise, the director of legal affairs at the Ministry of Justice, expressed his view as follows: As a result of war, a substantial number of people have grabbed land and built shahraks and sold them to other people. Obviously, a land grabber today has accumulated huge amount of wealth, which affects the society and its structure very negatively. (Personal interview, 14 October 2014, Kabul)

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A similar notion was echoed by a former Afghan human rights commissioner turned politician: Land grabbing perhaps can’t be categorized as a war crime or a crime against humanity, but it is organized crime with the aim to gain economic profit. Land mafia in some cases can be individual, but often they are organized in particular when it comes to the seizure of public property that then they turn into their personal profit. Sherpur is a good example of this. (Personal interview, 21 October 2014, Kabul) However, some government officials regard the construction of the shahraks as a positive development, even if they disagree with the overall modus operandi. In the face of the government’s incapacity to meet the HLP need of the millions of returnees and IDPs, a senior adviser to the Ministry of Urban Development remarked that the shahraks served a function. He acknowledged, however, that land grabbing profited mainly warlords and other powerful people, who frequently acquired it through unlawful and criminal means (Personal interview, 20 August 2013, Kabul). It is also important to note that the international community aided land grabbers in generating economic profit. Many poppy palaces were rented out to the international community, according to research. The monthly rent for a villa varied from US$ 25,000–100,000, depending on whether the space was used for embassies, offices or guesthouses (Freston, 2013; Lekic, 2015; Starkey, 2011). Even if edifices were utilized for legitimate purposes, the international community has had its share of culpability in producing illegal profit to fill the pockets of such individuals. For example, the United States Agency for International Development (USAID) had a number of offices in narco-villas in Kabul’s Sherpur neighborhood (author’s direct observation). According to Larsson, for criminal conduct to be classified as an economic crime, it must have an “economic motivation or objective underlying a criminal act,” with offenses motivated by “economic profit” (Larsson, 2001, p. 125). Land grabbing in Afghanistan is mostly motivated by economic profit and maximizing individual utility, as evidenced by fieldwork data. Larsson’s criterion of economic motivation therefore applies in the context of a kleptocratic and predatory state in a conflict/post-conflict setting where, above all, a strong culture of impunity and an entrenched system of corruption enabled such practices. The contextual factors and means employed

Contextual circumstances have been pivotal in enabling land grabbing in Afghanistan. In addition to some factors, such as the low rate of public land registration and the non-criminalization of land grabbing until recently, which was discussed in the preceding chapter, field data, comprising personal

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interviews as well as documents collected by the author, unequivocally demonstrates a variety of other contextual factors that facilitated a vast and systematic practice of land grabbing. The lack of the rule of law and impunity provided ample opportunities for individuals and networks to carry out their land-grabbing plans. As stated in the “actor” section above, this author primarily focused on the role of individuals, rather than legal persons, in land grabbing. Due to security concerns and other limitations, it was not possible to include companies and businesses in the research. However, it became evident in interviews with research participants that such a ubiquitous act would not have been conceivable without the development of a network spanning multiple strata of society. This was made possible by a pervasive culture of impunity, in which many warlords and prominent individuals maintained their own militias and armies. In this context, many research participants mentioned the presence of a “land mafia network,” a local term to refer to a variety of inter-linked—overt and covert—activities towards land and property appropriation. In Kabul, a victim of land grabs said: They have a mafia office here, disguised as a real estate business, where they have hired employees from several ethnic groups. This is how they learn who owns what land and where, especially if owners reside outside the country or if they were associated with the communist regime. Through this system they learnt about us and our properties. They assigned the task of locating this information about us to a Hazara named (). There is a person assigned to each ethnic group who is responsible for determining this. It is not just about one person’s property. Hundreds of such lands have been acquired by force, and their owners have been unable to confront and reclaim them. We are one of the rare cases that have taken a stand and are frequently cited as an example. Others are watching to see how our case plays out. (Personal interview, 19 August 2013, Kabul) While the mafia network in this case functioned under the pretense of a real estate agency that was presumably registered and operated “legally,” the networks also used other methods to achieve their goals, including exploiting vulnerable populations such as the disabled. A member of civil society whose organization has investigated land grabs spoke of this approach: They put a luchak [local term for a villain] forward to advance with land grabbing, and then send a commander as a threatening force. In some places, such as Paghman, some of the luchaks belong either to the commander in chief or the mayor or a relative of Sayyaf. If luchaks are not effective, they use disabled people. For example, they put them on a public land, and there is not much that can be done about it. A lot of lands

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in the Paghman area were deserts belonging to the government, which were taken this way. The disabled people never built a house, it was just a deal between them. (Personal interview, 4 August 2013, Kabul) Another contextual factor that considerably facilitated land grabs was widespread corruption. Corruption, in particular, played a key role in the production of counterfeit documents, which were vital in granting de facto “legal” approval to land grabbing. Officials in the judicial sector, one of the most corrupt state organs in recent decades, as well as officials from other state organs, coordinated such corrupt practices amongst themselves to pocket financial gain and enrich themselves. The words of a district director in Kabul capture well the notion of endemic corruption in the system: Due to corruption in the court and the administrative system, they forge documents to show property ownership. In the last two years, I have rejected a number of such qabala [land ownership document]. The land belongs to the government and they have forged this document to show ownership. This is a crime. (Personal interview, 30 September 2014, Kabul) Another testament to this statement is a stack of documents obtained by the researcher on the illegal construction of Mirwais Mina shahrak in Kabul. The land grabbers seized about 700 jeribs of public land, where they built the shahrak illegally and began selling it to the general public. Official communications addressed to and exchanged among various government offices are among the documents in the stack. They include the Governmental Affairs Directorate at the Ministry of Justice, the Supreme Court, the Ministry of Interior, the High Office of Oversight and Anti-Corruption and Kabul municipality. Notable among them is an official letter (maktoob) addressed to the Supreme Court, signed by the Director of Governmental Affairs at the Ministry of Justice. A section of the letter (number 1640/1042, dated 12 May 2012) referring to previous communications with the lower courts, states that the seized land belonged to the government and should be returned, and reads as follows: […] but those in charge of the Mirwais [Mina] shahrak, each […] have constructed a shahrak by the name of Mirwais [Mina] on government land and have started selling them to people without any legal documents and permission. This action is grabbing public land, the investigation and follow up of such cases, according to Article 134 of the Constitution, falls under the responsibility of the Attorney General’s office. In the report by the Legal Directorate of Kabul province the truth has not been reflected because according to the lower level courts, which was also confirmed by the Civil and Legal Tribunal of the Supreme Court, the 109 cadastre piece

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on which now the Mirwais Mina shahrak has been built, is a government’s property. But the report of the Legal Directorate of Kabul province does not mention that land (109) piece belongs to the government. I therefore ask you, referring to previous communications and establishing facts, to follow up the matter so that the illegal construction of the Mirwais Mina shahrak stops and the 109 cadastre piece, which is documented as the government property, should be returned to the government and land grabbers should be legally investigated. With thanks and respect, […], Director of Governmental Affairs. This is one of many such exchanges in the pile of documents that shows not only the cumbersome bureaucracy surrounding such matters, but also the corrupt system that allowed systematic forgery and fabrication. It is likely that the authorities at the Legal Directorate of Kabul province were bribed not to reveal the government ownership of the mentioned land. Afghanistan’s corruption, particularly in relation to land grabbing, is sometimes shown sarcastically in reality TV shows, rap songs and other forms of entertainment. In an interview with a high-ranking official at the Ministry of Justice, this irony was well-captured: Corruption is so entrenched that, for example, once five people were appointed by the president to assess a situation. Instead of trying to stop an illegal contract based on a presidential decree, they requested the president to reconsider his decree […] All because they [the five people appointed to carry out the task] had received money from the powerful and rich people on the other side. (Personal interview, 14 October 2014, Kabul) The falsification of documents in the original sources (konda), which makes it impossible for the actual owner to claim ownership, was one of the most alarming issues raised by research participants. While expressing their frustration, they alluded to the fact that fabrication of original sources is done with such skill that it leaves no trace for the actual owner to authenticate tenureship. According to a senior adviser of the Ministry of Urban Development, They have even forged documents in their very original source, i.e., at the Ministry of Justice. Land grabbers have gone even this far. These are the kind of challenges that a government project faces. They go to develop a plan, but instead face such obstacles. (Personal interview, 20 August 2013, Kabul) Similar views were expressed by a deputy mayor of the Kabul municipality, who had received several such requests. On one occasion, land grabbers had offered him US$ 100,000 in exchange for his signature “approving” a fake

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qabala (tenureship). He declined to sign, as he had done previously (Personal interview, 13 August 2013, Kabul). Last but not least, the land grabbers’ ability to employ force and intimidate their victims or authorities who refused to comply with their demands was another crucial contextual component. In the absence of the rule of law and the presence of impunity, many individuals as powerful warlords and former jihadi leaders could do as they pleased, including using violence. In an interview with the author, a land-grabbing victim described how he was threatened by Allah Gul Mujahid, a powerful jihadi commander from the Islamic Party of Afghanistan (Hezb-e Islami Afghanistan, led by Gulbuddin Hekmatyar), who was also a member of the Parliament at the time of the interview. The victim and his family lost more than 100 jeribs of land in Kabul province that his father had acquired over decades, including five gardens with 5,000 vines. Because “their weapon forces us to stay silent,” the respondent said he had to rely on his teaching income of $200 to maintain his extended family. He went on to say: Allah Gul Mujahid is a jihadi commander. Because he is also a member of the Parliament, he has power and authority and controls all of Deh Sabz [a district of Kabul.] Talking against such people is tantamount to committing suicide. He once came to me and said: “look, leave such [land] issues. Your father was a good guy, you have children yourself.” When I consulted and thought to myself, I said, what can the power of a teacher be apart from his pen? Therefore, I closed the issue from that day on. This was a warning and a threat. He basically told me to look after my children because he could do anything to them. And because of my children, I remain quiet. In Deh Sabz there are 17 of them, armed, and I am alone. (Personal interview, 20 September 2014, Kabul) As previously stated, the use of violence and threats against officials and authorities who refused to comply with land grabbers’ illegal requests was a widespread occurrence, as evidenced by interviews with research participants. Several authorities stated that they faced consequences, including physical threats, when attempting to protect properties, notably public lands. A district director talked about his ordeal in relation to a handful of public properties in his jurisdiction that powerful armed individuals wanted to capture by force and that he guarded against numerous threats, including physical assaults. He had to make audacious declarations to the land grabbers on numerous occasions, emphasizing that no agreement would be struck unless they provided reliable paperwork from necessary authorities: This is a public and national land; I am not going to make a deal on this. The district needs it; the nation needs it. The district needs it for building a school, a day care or a mosque. (Personal interview, 30 September 2014, Kabul)

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Likewise, a deputy mayor of Kabul remarked, emphasizing also the complicity of police forces in the act: In district one, three of our district directors were beaten. They did not even take them to a hospital. They were eventually taken to the hospital by a passer-by; one of them has since become crippled. The first district director’s arm was broken, and he was hospitalized for three months. Without the support of the police, what kind of force can we use? The police are complicit with powerful land grabbers. (Personal interview, 22 September 2014, Kabul) Even senior officials stated they were not safe from intimidation if they refused to participate in land grabbing. “Be cautious, if you don’t want to lose your head, don’t meddle with our work.” A high-ranking official at the Ministry of Justice received such threatening letters under his office doors on a regular basis. He said, boldly, that he did not submit to them because he was protected by God (Personal interview, 14 October 2014, Kabul). Individuals were affected by violence and threats as shown in the examples above, but public institutions were also harmed as a whole if they did not comply with the demands of the powerful. This subsequently left its mark on the overall function and service delivery of such institutions, particularly in tackling land grabbing. According to an attorney at the Ministry of Justice: The courts cannot deal with such [powerful] people. Whenever we have asked the court such questions, they respond: “but how can we face Mumtaz?” This is what the judges of the trial courts (first instance courts) said. The point is that the courts do not have the power to face the main land grabbers, such as Mumtaz, Mollah Ezat, Almas, etc. No one can tell them they are land grabbers. They are all armed, they have body guards. (Personal interview, 2 November 2014, Kabul) In Larsson’s (2001) framework, the context of the action and the means employed refer to taking “advantage of the transactional and organizational forms of the economic sphere—contracts, monetary transactions, corporate forms, etc.—in a criminal way” (ibid.). This also means “the context of societal resource management processes, offenses against the rules, organizational forms and institutions with whose help this resource management is carried out” (Larsson, 2001, p. 124). As this section depicts, clearly land grabbers in Afghanistan have taken advantage of the organizational forms of the economic sphere, such as forged documents, money transfers through bribery and so on, in a criminal way. It also demonstrates the kind of offenses they commit against the rules, organizations and institutions to secure land grabbing (a societal resource), mainly through violence and force.

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The economic sphere in Afghanistan is organized in such a way that it can easily facilitate criminal activities. Entrenched corruption in the Parliament, the executive and, especially, in the judiciary sectors serves as a “natural” conduit in the system to facilitate unlawful economic activities. This in turn impacts the societal resource management processes, as evidenced by the functions of ministries such as Mining and Petroleum or Refugees and Repatriates Affairs. The situation is further exacerbated by a prevalent culture of impunity due to the lack of implementation of transitional justice (to be discussed later in this chapter). Analyses showed that many officials in the government, including those in senior positions, were peeved by the existence of such a system in which they had to function. Interviews with such officials may lead to the conclusion that, while some courageous, candid and patriotic individuals inside the system refuse to comply with corrupt practices, the system as a whole must alter in order for better practices to emerge. The consequences and harm

On both an individual and societal level, land grabbing has had a number of adverse consequences. While the first category is primarily concerned with the seizure of private property, the second is concerned with the appropriation of public property and the myriad negative implications it has had on communities and society at large. In terms of the first category—individuals—millions of Afghans fled their homes and lands to escape violence over the previous 40 years, as evidenced by practically all victim interviews. Some interview participants said when they returned to their hometown years or decades later, they could no longer access their property because a warlord or powerful person, sometimes with military force, had seized it. As a result, in Kabul city alone, which witnessed the return of millions of refugees over the last two decades, many were forced to cohabit either with other family members in inconvenient situations, or in temporary settlements, which often lacked basic facilities such as water (as discussed in detail in an earlier chapter). In many cases, shelters were built from makeshift “walls” and “doors” with plastics and other fragile material, as was observed by this researcher in October 2014. For example, a high school teacher and her family, who opted to return to Afghanistan under the UNHCR’s repatriation program after 12 years of exile in Pakistan, reported that her parental home was demolished and robbed during the civil war, and the land was grabbed by a powerful person during the Karzai regime. She was living with eight other families at her in-laws’ house at the time of the interview, with only one room available for her family. She was reminiscing about her happy life before the civil war, when she was able to save money from her salary (Personal interview, 13 October 2014, Kabul). According to a Norwegian Refugee Council (NRC) employee in Kabul, the NRC received 2,000 legal complaints from returnees, like the example

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just mentioned, over land, housing, property and inheritance rights (Personal interview, 26 October 2014, Kabul). From a single family’s story, one can move on to the previously mentioned IDP/returnee settlements. Those interviewed in the settlements did not own any land or property that could be subject to land grabbing during the Karzai regime, but they did talk about the looting of their homes and belongings during the civil war in the 1990s. They are still victims of the consequences of land grabbing because adequate residential settlements might have been supplied to them in areas of Kabul city where a powerful person has instead grabbed the property and built a shahrak to benefit only those who could afford it. In an IDP/returnee settlement, the community representative expressed his outrage in relation to the negligence of their situation: Sayyaf [a powerful warlord and jihadi figure] passes by here, we are under his walls, he sees us. Doesn’t he? Karzai doesn’t see us? What can we do apart from eating stale bread in water, not even in oil […] He [Sayyaf] has a ten-story building; we have only one room for the entire family. Still we thank our God for this one room. (Personal interview, 8 September 2014, Kabul) Beyond such settlements, at a broader societal level the harmful consequences of land grabbing can be assessed at least on three fronts. First, as the Daily 8am investigative report on land grabbing found out, 20% of land grabbing has taken place in the planned parts of major cities across Afghanistan (Rostami, 2013), thus affecting directly the construction of public projects. This issue came up repeatedly during interviews with research participants, particularly with public officials and experts. As an example, an official from the Ministry of Refugees and Repatriates stated: The powerful have taken advantage of the gaps in the government and seized lands in the best parts of the city; those areas allocated for parks or other public services […] This has produced harmful consequences for people because they no longer have access to green areas or parks and other public spaces. (Personal interview, 8 October 2014, Kabul) The New Kabul project, which began in 2006 with support from the Japan International Cooperation Agency (JICA), is one of the best examples relevant to this discussion. Following the fall of the Taliban regime and the return of many Afghans from neighboring countries and other provinces to Kabul, the city was overwhelmed with the new arrivals. Kabul city was originally built for 1.5 million people, but it hosted nearly six million people. The New Kabul project, which is located in Deh Sabz north of Kabul airport, was designed to accommodate around three million people to reduce population concentration

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in Kabul. The presence of armed power brokers and land grabbers, including Alla Gul Mujahid, posed significant challenges to the project’s implementation, including the kidnapping of its international engineers (Foschini, 2013). To this day, the New Kabul project has not been completed due to such obstacles. Second, as previously stated, the majority of shahraks constructed in the past two decades do not meet basic construction standards. For example, in an earthquake-prone city like Kabul, they do not fulfill internationally accepted criteria used in areas with tectonic activity. Not surprisingly, residents of Kabul have labeled such structures the “death buildings” (Khamosh, 2015). Given the proliferation of such residential settlements built without regard for construction regulations and norms, the negative repercussions, such as a severe earthquake, could affect hundreds of thousands of people. Third, land grabbing has further deepened the economic and class divide in society. This has meant widening the gap between the rich and the poor, a topic that came up in many interviews with participants. A civil society activist expressed: Today, out of five million of Kabul’s population, 70% do not have their own homes. What used to be only one family a while back, has now grown to 4–5 families, but they all live in the same house. The majority today in Kabul city do not own a house. Given an acute level of need for housing, when land or house grabbing takes places, it is really very cruel, a crime in itself. Today, in Kabul city you can find someone who owns ten very luxurious houses, and on the other side of the spectrum, five families live in one mud-built house. One of the reasons that housing prices have gone up, is because the corrupt people cannot put their revenues in the banks, they will become exposed that way. They therefore buy properties. This way, every commander, every minister, deputy minister, etc., have five to six homes, all very expensive, around half a million US dollars each. They then rent them. (Personal interview, 29 October 2014, Kabul) According to Larsson, “economic offenses would be those that give rise to an economic injury or that damage the economic system” (ibid., pp. 127– 128), thus focusing on the consequences of the offense. This can damage not only the interest of individuals, but also the community at large (Kauzlarich & Kramer, 1993, p. 20). Field data from Afghanistan fully corroborates this aspect of Larsson’s criteria, where land grabbing has produced harmful consequences to the interest of individuals, communities, the economic system and society at large. Moreover, it has led to destructive conditions as described by Michalowski (2017) where the harms are often continuing, rather than being limited to the immediate aftermath of a single catastrophic event. Land grabbing in Afghanistan has produced “a chain of harmful consequences” (ibid., p. 94) that goes beyond one single or original event.

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Applying these four criteria, in lieu of the data analysis, one can assert that the act of land grabbing in Afghanistan constitutes a form of economic crime.

Land grabbing as state crime One of the claims offered in this book is that not only land grabbing in Afghansitan a form of economic crime, but it is also a form of state crime. Different approaches to state crimes have been examined in considerable detail in the first chapter, just like economic crimes. Although other approaches to state crimes, such as those of Green and Ward, can be used to demonstrate land grabbing in Afghanistan as a state crime, Kauzlarich’s (2005 as quoted by Parmentier & Weitekamp, 2007) framework of state crimes of commission, state crimes of negligence and state crimes of omission can better capture the essence of the argument in relation to the empirical evidence. However, when discussing state crime in the context of Afghanistan—and other similar situations—it is important to note that personal motivations and gains are just as important as organizational ones, and perhaps even more so when discussing the phenomenon of state crime in the context of a weak and failed state with kleptocrats in positions of power. State crimes of commission

State crimes of commission refer to direct, overt and purposeful action by the state. An analysis of land grabbing in Afghanistan suggests the involvement of many state officials in a direct, overt and purposeful manner. As previously indicated, state officials such as ministers, senior advisers and members of Parliament have either been directly involved in land grabbing or have played a key role in assisting it. The Sherpur neighborhood is a well-documented case, where its destruction was carried out under the instruction of Mr. Fahim, the then-Defense Minister, while people were still residing in their homes. Officials from the Kabul municipality, the Chief of Security of Kabul and the police forces were also directly involved in issuing and enforcing instructions. According to empirical analysis, Sherpur and numerous other cases like it demonstrate the role of state authorities such as legislators, ministries, the police and high-ranking court officials in land grabbing across Afghanistan. A senior expert and adviser at the Ministry of Justice (who chaired the Commission on Sherpur’s investigation) expressed his frustration regarding the legal and political compromises on the Sherpur case in a conversation with the author: Upon the completion of our investigation, we concluded that the action was a crime, and those who had committed this crime must be put on trial, including Marshal Fahim, his assistant and all others who were involved in the Sherpur scandal. We completed the documents and handed them over to the court. Then President Karzai decided that since these men

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had already seized the lands, and millions of dollars were spent on the houses built there, they must not be destroyed. Instead, the president sent a delegation led by Karim Khalili. Q. Had Khalili seized land in Sherpur as well? A. He had, in fact. The delegation then determined that, rather than demolishing the houses, the Sherpur land grabbers should pay the government the land’s cost per biswa (100 square meter) according to market value. The land rate per biswa was reported at $11,000 after receiving information from property dealers, equating to about $38,000 for each piece of land which was 3.5 biswa (350 square meter). The delegation asked land grabbers to pay the agreed amount in exchange for land ownership. It was never paid and that is how Sherpur became Churpur [looted by lions]. Q. Did any of the Sherpur land grabbers eventually pay the allocated money? A. Well, the case was handed over to the Attorney General’s Office and the Ministry of Justice. The Attorney General’s Office was responsible to take the land money from these individuals by force, but it did not succeed since these men were influential and powerful. (Personal interview, 1 September 2013, Kabul) An attorney interviewed at the Ministry of Justice expressed his view on the government’s support towards corrupt practices: The government itself is the opportunity provider of such cases. For example, Hotel Serena has to pay a huge amount of taxes (a case I have been engaged with), but the Ministry of Finance advised them to take the issue to the court instead of insisting on making their payment. This way, they themselves encourage a corrupt situation. (Personal interview, 2 November 2014, Kabul) Furthermore, the attorney, visibly agitated and overwhelmed by the circumstances, added that the courts are incompetent due to the slow pace, overburdening of cases and inadequate capacity of the employees. He said, for example, that the court system has no internet and that very little is digital. This makes it simple to falsify documents, even in konda (the original source), and provides ample opportunities for corruption. He went on to remark that despite being a member of the legal system, he did not have a single ounce of faith in it (ibid.). While there has been considerable direct and indirect involvement of Afghan state authorities in land grabbing, there was also a strong voice of dissent within the public authorities themselves, as field data show. At the same time, it is important to state that I was able to meet either western trained technocrats or

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those without the support of prominent individuals in the system who, according to their own accounts, did not have a lion’s share. State crimes of negligence

State crimes of negligence allude to a situation whereby the state disregards unsafe and dangerous conditions when it has a clear mandate and responsibility to provide a safe and functioning environment to its citizens. Based on empirical data, land grabbing in Afghanistan is a state crime of negligence because it was unable to provide safety—let alone accountability—not only to direct victims of land grabbing, but also to its indirect victims such as IDPs and returnees. This condition was most obvious in the IDPs and returnees’ settlements where many interviews for this research took place. In terms of direct victims of land grabbing, the government failed to fulfill its obligations to citizens whose lands were taken by force. The government was unwilling and unable to act in the circumstances of two direct victims of land grabbing discussed previously in Chapter 4. On the contrary, repeated demands and pleas in the case of one victim of land grabbing led to no avail because of the state’s own compromises with land grabbers, particularly the judicial branch. The state also neglected the harmful consequences of the illegal construction of the shahraks, when it had a clear responsibility and mandate to take action. Protection of the IDPs and returnees, as indirect victims of land grabbing, constitutionally falls under the government’s mandate. This includes not only provision of resources, but also their protection from harm. Articles 6 and 24 of the 2004 Afghan constitution oblige the state to preserve and protect human dignity and human rights, while Article 14 relates to the state responsibility to “adopt necessary measures for provision of housing and distribution of public estates to deserving citizens” (The Constitution of Afghanistan, 2004). Even a cursory visit to one of the IDP/returnee settlements in Kabul city is enough to reveal a dearth of government presence in the area. Living conditions were severe, according to research participants and the researcher’s direct observation, and many lived in makeshift tents or mud huts with no running water— let alone drinking water—food, or sanitary facilities, such as adequate toilets. Furthermore, in Kabul’s harsh winters, when temperatures can drop down to –25°C, there is no access to heating, resulting in numerous deaths, particularly among youngsters and the elderly. There has been no systematic aid to IDPs and returnees, let alone plans to structurally transform their conditions, save from a few times when humanitarian aid was distributed by the government and some NGOs. Almost all of the IDPs and returnees interviewed expressed that they expected the government to provide redress measures, regardless of who is accountable for the HLP harm. However, research participants (most of whom were war victims) by and large reiterated the government’s ineptitude

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to meet its obligations, especially in contrast to its tolerance for land grabbers. One of the settlements’ 65-year-old residents, who also functioned as their representative, expressed his dissatisfaction as follows: It was the year 1984 when we immigrated to Iran. In 2004, Karzai announced that all refugees should come back, whether from Iran, or Europe, Japan, Italy, America, any country. He promised to give us ID and land. We left for Iran with black beard. We became refugees because of the Soviet invasion. To safeguard our honor (nang and namoos), we lived in a foreign land and came back in 2004, but after ten years, we have received nothing. (Personal interview, 8 September 2014, Kabul) He further stated that before relocating to Iran, he was a mujahid who fought the Russians. He had lost close family members during the war, and expected the government to compensate him for his harm: We can’t expect anything from the Mujahedeen with whom we fought. They only care about how to make buildings; that too they have done out of the assistance that has been allocated for our needs. They construct buildings one after another, and we live here under a tent. In the summer we die from heat and in the winter from cold. What happened to all the assistance that came under our names? But we expect from the government, not from these jihadis. We only have our hopes in God […] We just want a small piece of land, even if we have only one room, we want it to be our own […] They come many times, have asked questions from us, but have done nothing for us so far. (ibid.) Similarly, participants in another discussion group with four IDP men from Helmand province, who had escaped fighting between the Taliban and American forces in 2009, claimed that the government had only delivered certain items such as flour, cooking oil and other necessities once in two years. They, too, stated that many promises had been made but that none had been kept. One respondent stated: They make many promises, but once in power, they get rich and forget about the poor and the destitute […] Under the name of refugees and IDPs, Afghanistan gets lots of aid, but Karzai give it all to the powerful, to the commanders. They construct buildings with it or embezzle the money […] They don’t care about us, neither the government, nor the businessmen […] In thirteen years, Karzai didn’t do anything for us. We want to demand accountability from Karzai and ask: are you a Muslim or infidel? So many young people here live under tents, all of them can be useful in some ways. You became Karzai, but this shouldn’t mean that you

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don’t care about anyone; that you don’t know people are hungry, thirsty, have no land, nothing. (Personal interview, 17 September 2014, Kabul) The quotes above demonstrate the government’s disregard for potentially dangerous and unsafe conditions. As previously stated, a lack of sanitation, food and heating facilities has resulted in unsafe conditions, particularly for children and the elderly, including loss of lives. When conveying victims’ views about the negligence of their condition by the state to the officials I interviewed, their narrative did not corroborate that of the war victims, although they too largely acknowledged the structural problems IDPs and returnees were facing. Their side of the narrative emphasized that the government provided aid to the settlements but that the IDPs and returnees were not grateful. Officials, too, however were referring to sporadic humanitarian aid rather than any plans that would structurally transform the settlements’ condition. In their view, especially that of the mayor of Kabul, the IDPs and returnees did not belong to the city culture, thus the solution was their return to the provinces of origin, which are often unsafe (itself a reason for people to escape in the first place). The director of the Emergency Situations and the IDPs at the Ministry of Returnees and Refugees (MoRR) expressed: Both within the Kabul municipality and governors of other provinces, the overall approach is that IDPs should go back to their own provinces. The mayor of Kabul even believes that such people are not used to the city culture and don’t know how to behave. (Personal interview, 28 September 2014, Kabul) According to him, the government constructed 62 shahraks in 29 provinces for IDPs and returnees based on Presidential Decree 104 and the UNHCR’s Verification Refugee Form, which establishes that a returnee does not own land. They were, however, located in remote areas, practically in deserts, where beneficiaries lacked access to job markets and other basic services like healthcare and schools. As a result, they returned to settlements that were closer to cities with access to facilities. One of the reasons the government had to establish IDP and returnee settlements in such remote areas, according to empirical data, was that public land in good locations was seized in practically all provinces. Another government official, the director of the MoRR’s Legal Support Department, acknowledged that the government is responsible for providing shelter to its citizens based on Afghan laws and international treaties to which Afghanistan is a party. However, it has failed to do so because it lacked sufficient capacity, and it has permitted land grabbers to grab lands and utilize them for personal gain (Personal interview, 8 October 2014, Kabul). Another form of state crimes of negligence is the state’s inability to either compensate or resolve citizens’ disputes over land grabbing, as shown in the two

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notable examples of land grabbing discussed previously in Chapter 4. According to a legal adviser at the Ministry of Refugees and Repatriates, the law dictates that when citizens’ private property comes in the way of a public project, the government is responsible to provide another piece of land or property. Recognizing the government’s incompetence due to a culture of impunity, he stated: The government itself is incompetent […] We have had situations where a warlord or commander had taken over a construction project to benefit himself, i.e., building a road towards his own residence, and has destroyed private properties without any compensation. Obviously in such situation, people were harmed, they perhaps were not aware of the law or were simply too afraid to speak up. (Personal interview, 8 October 2014, Kabul) State crime by omission

State crime by omission refers to tacit support for organizations whose activities lead to social injury. Many governmental institutions, particularly the courts, have implicitly assisted land grabbers by accepting their lucrative bribery offers, as shown in the data analysis. Furthermore, in order to garner political support from prominent warlords, the state explicitly or tacitly permitted them to construct shahraks on state lands, regardless of their histories as human rights violators or of corrupt and criminal practices. The state’s incompetence—or, more likely, unwillingness—to establish legislation criminalizing land grabbing and punishing its perpetrators is another illustration to show the state’s continued support, de jure and de facto, allowing the practice to thrive.As evidenced by the data,Afghan laws do not have strong enough provisions to make land grabbing a severe offense. In fact, for a long time the only provisions concerning land grabbing were based on old civil and criminal statutes.The officials I spoke to acknowledged that even a law on land grabbing (at the time of the fieldwork, the Afghan government was working on a law on land grabbing, which was eventually published in 2018) will not be able to counter the phenomenon of land grabbing given its gravity and pervasiveness.The Director of Governmental Affairs at the Ministry of Justice remarked: The main reason that land grabbers get land with so much courage is that there is no serious punishment for it in our laws. For example, we deal with a land grabbing case, and resolve the issue. We let the person [land grabber] go. (Personal interview, 14 October 2014, Kabul) In practice, even existing laws criminalizing land grabbing have not been enforced in important cases involving powerful warlords and commanders. This was mostly due to corruption, incompetence of the courts and fear of retaliation. As seen in the data, in a high-profile case like Sherpur, which was

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condemned by the UN and examined by a commission of inquiry appointed by former President Karzai, the case gradually shifted from criminal to civil.

Land grabbing as economic-state crime So far, the attempt has been to understand the question of land and property in Afghanistan as an economic crime and state crime in two separate frameworks, examining mainly its injurious and harmful impacts on citizens and the society at large. With regard to the application of the two frameworks in practice in Afghanistan, a stern level of convergence can be seen due to overlaps among various elements of the two frameworks. For example, “actors,” which is discussed under economic crime, is directly connected to state crimes of commission, which also focuses on the role of state actors. Similarly, harmful consequences relate to state crimes of commission, omission and negligence where the state’s implicit and tacit support has borne harmful consequences. At the same time, each framework offers its distinct features, such as an emphasis on economic profit in Larsson’s framework for economic crimes, or the central role of state actors and institutions in state crimes. As empirically demonstrated, in Afghanistan many actors involved in land grabbing, with a motive to generate economic profit, were at the same time in positions of power as state officials. One can therefore discern that land grabbing in Afghanistan is a form of economic crime in which the state apparatus at various horizontal and vertical levels in the country’s power structure was involved. In other words, state crime under such circumstances, especially considering the weak and kleptocratic nature of the state, can better be explained through the lens of economic crime and vice versa. I thus refer to this phenomenon as economic-state crime, where individuals in positions of power in the state—and society at large—engage in illegal and injurious acts or disregard their mandates and responsibilities in such a way that it leads to socio-economic injury to individuals and communities at large. Importantly, in this context the main motivation behind the act is personal—and sometimes organizational—gain and economic profit. This creates a symbiotic link between economic and political spheres, which is also discussed by scholars of state-corporate crimes (Kauzlarich & Kramer, 1993; Kramer et al., 2002; Michalowski, 2017). Michalowski (2017), for example, writes: Neoliberal globalization has also made it apparent that the relationship between capital and state is not one between separate, though often colluding actors, but rather a relationship among many nodes within global networks of economic and political power that create and condition one another in multiple ways. That is, capital and political states are mutually constitutive, or ‘symbiotic’ networks. (p. 98) Interestingly, Michalowski highlights the significance of the dash in statecorporate crime (as opposed to state corporate crime) to denote the “unity of

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the state-corporate entity” (ibid.). The same logic and approach are applied in this research as regards economic-state crime. Although issues of land and property, including land grabbing, have been discussed by some criminologists, there are hardly any references to it as economic-state crime. Michalowski (2017, p. 98) places land grabs in the category of social harms, together with wars, economic exploitation, structural inequalities and so on, that bear devastating consequences for the people. In this sense, land grabbing can also be considered a form of state-corporate crime. Lasslett’s research on crimes of urbanization (2018) is a significant criminological contribution towards the phenomena of land grabbing. He too demonstrates empirically, in the case of Papua New Guinea, the symbiotic link between the economic interest and the state apparatus through politicians’ support towards the construction of informal settlements on state land in order to garner political support during their electoral campaigns. Other references to land theft or land grabbing, with empirical research particularly in the global south, mainly originate from green criminology. Green criminology was coined in the 1990s, and it concerns itself principally with environment and animal related crimes (Hall et al., 2017). In this tradition, White (2012), for example, discusses land theft in relation to green criminology and environmental justice, thus referring to it as eco-crime. In the same tradition, Zaitch et al. (2014) refer to land grabbing in the broader context of environmental harm in Brazil and Colombia. They, however, place a strong emphasis on the human rights violations aspect and the importance of understanding the nature and mechanisms behind the violations. Interestingly, they propose a Human Rights-based Approach in relation to the exploitation of natural resources, including land grabbing in the global south. Goyes and South (2016), likewise, have reflected on a series of land-related issues in Colombia in the broader context of erosion of environmental sustainability and biopiracy. While the abovementioned work on land grabbing from a criminological point of view is important, criminology by and large has not engaged with land grabbing in violent conflicts. This research, therefore, introduces a new angle in criminological discourses, that of economic-state crime in relation to land and property loss, particularly land grabbing, in situations of violent conflict.

Transitional justice and land grabbing There are at least three ways to link land grabbing in Afghanistan with the discourse and practice of transitional justice, even if the latter is largely considered a failed project in Afghanistan (Saeed, 2021). Land grabbing and impunity

As the data illustrates, many human rights violators of past regimes have been involved in land grabbing. The most visible examples of this are prominent

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jihadi leaders, commanders and warlords and/or their close associates and relatives, whose forces committed gross human rights violations throughout Afghanistan’s brutal civil war in the 1990s. During Afghanistan’s transition in 2001, despite the development of a national strategy for the implementation of transitional justice (2005), including measures to demand accountability in “accordance with the nationally and internationally accepted norms on war crimes, crimes against humanity and obvious violations of human rights” (GoIRA et al., 2005), no serious steps were taken to remove such individuals from power, let alone demand accountability. On the contrary, human rights abusers from previous regimes acquired political and financial muscle and impetus as a result of the Amnesty Law and substantial support from the international community. As noted in an earlier chapter, the US-led coalition forces relied on the warlords to achieve their geopolitical objectives because of their resistance to the Taliban and Al Qaida. They thus reinvigorated the warlords by providing them with military, political and financial support. Their human rights records were irrelevant as long as they could suit the US’s interests (Saeed, 2021). By entrenching them in the post-Taliban regime, they found new opportunities to commit other forms of crimes, such as land grabbing. The Director of Government Affairs in the Ministry of Justice echoed this concern: If only some people were punished from the beginning of the Karzai government for the crimes, they had committed […] During the first 10 months after Karzai came to power, it was very peaceful here, not even the beak of a bird was hurt. After they saw that there was such immunity, land grabbing started, from the door of the presidential palace. Mr. Karzai’s brother grabbed land in Kandahar to build shahrak, those lands belong to the Ministry of Defence. But who dares to demand accountability and to bring this on paper? I tried to authenticate this information, we even sent a delegation, but they deny their involvement. (Personal interview, 14 October 2014, Kabul) The failed opportunity to enact transitional justice measures at the start of the Karzai administration, as indicated in the statement above, created a fertile climate for a culture of impunity not only to take root but also thrive in the years ahead. As a result, powerful individuals could act as they wished without fearing consequences, including land grabbing, perpetuating the cycle of violence and human rights violations. Land grabbing and property restitution/ provision to the IDPs and returnees

The importance of transitional justice procedures addressing socio-economic rights, including HLP rights, was examined in relative detail earlier in the

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book. In at least two respects, the issue of land grabbing is important in relation to the overall provision of HLP to displaced communities in Afghanistan. First, empirical evidence obtained from interviews with war victims (primarily IDPs and returnees) shows that some perpetrators of land grabbing, such as jihadi commanders and leaders are also responsible for the HLP destruction of many war victims from the civil war era in the 1990s. However, as previously noted, individual responsibility for the destruction of HLP in Afghanistan during violent conflicts has never been established. In discussions with the author, many war victims could only refer, at best, to the political party or faction who were responsible for the destruction of their HLP, not a particular individual who could be held accountable. The only reparation project connected to land and property that emerges from field data was the Afshar initiative, which was discussed in Chapter 4. However, the aim of this gesture, too, at the core, was political rather than repairing victims’ harm, which is frequently emphasized in transitional justice. The Afghan government not only failed to demand accountability and restitution from perpetrators of socio-economic harm, it also failed to prevent further harm to this population. Research in other war torn countries such as Bosnia and Herzegovina suggests that mechanisms behind the destruction of homes and property during war time is not necessarily a determining factor in granting restitution or compensation (Cox & Garlick, 2003). The Afghan government, therefore, had a responsibility to grant this basic need to its citizens. Not only did it fail to fulfil this mission, it inflicted further harm on war victims through its direct and indirect involvement in land grabbing. Despite the adoption of a national policy on IDPs in 2013, the Afghan government did not have a plan of action for IDPs and returnees until 2014. The UNHCR and UN-Habitat took several steps, sometimes in partnership with the Norwegian Refugee Council, but there were no formal policies or implementation procedures in place to structurally address the issue for millions of people. The government’s limited efforts failed due to the remote locations of some IDP and returnee settlements, as previously noted. In the absence of government action, people took matters into their own hands. They relied on sporadic assistance from international agencies to either reclaim their property or dwell as IDPs wherever the land would allow them. Second, and most importantly, land grabbing has directly impacted IDP and returnee communities either because their land and property were appropriated by a powerful person during their absence from the country due to violent conflicts. Or, as discussed in the previous section, land grabbing has had a significant impact on various development efforts, including HLP for displaced communities. In either case, empirical analysis demonstrates that those who have been harmed, i.e., war victims, have not only not received compensation or restitution for their losses, but that those who violated their human rights during the civil war have been given ample opportunity to deprive them of their HLP rights once more.

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As discussed in Chapter 2, transitional justice mechanisms can play an important role in restoring HLP rights, as they did in Bosnia and Herzegovina. The Dayton Agreement specifically addressed the return of refugees and displaced persons as one of the mandates of the new government. The closest to the Dayton Agreement in the context of Afghanistan is the Bonn Agreement, which unlike the former did not place much emphasis on human rights protections, let alone addressing the question of refugees and returnees. At the same time, in the absence of political will by the national and international community (as in the case of Guatemala) it is an illusion to think that the establishment of a mechanism alone could resolve a complex operation such as home and property restitution after periods of conflict. Land grabbing as serious human rights violations

Before delving into whether land grabbing in Afghanistan could also amount to serious human rights violations, it is important to distinguish between the concept of crime and human rights violations, because not every type of crime, according to Parmentier and Weitekamp (2007), amounts to a serious violation of human rights. An act of “crime” involves the breach of national or international criminal law, while an act of violation of human rights directly corresponds to a misconduct of national and international human rights law. This distinction, importantly, leads to consequences as regards the nature of responsibility. While the former act entails the principle of individual responsibility for the act of crime committed, the latter leads to the state’s responsibility for violation of human rights (ibid., p. 119). This distinction, however, does not exclude one act from the other, as, in certain circumstances, a situation may constitute an act of crime and a serious human rights violation at the same time (Parmentier & Weitekamp, 2007; Schmid, 2015). According to the typology offered by Parmentier and Weitekamp (2007), for an act to be considered a serious human rights violation, we need to take into consideration two elements. The first is of a qualitative nature, which emphasizes the degree of gravity. As an example, occasional torture and illtreatment do not have the same degree of gravity as genocide, widespread torture or a policy of starvation. The second element is of a quantitative nature, one of the level of frequency. A single case of arbitrary detention is not the same as a general policy of arbitrary detention. Moreover, the authors, in continuum of a rising tradition in the human rights community, argue that there is no reason that economic and social rights cannot give rise to serious violations, “which may threaten life, the personal integrity or the personal liberty of people (e.g., policies of poverty and starvation)” (Parmentier & Weitekamp, 2007, p. 120). Leckie, a leading expert on housing and property, also states that “forced eviction constitutes gross violations of human rights” (2003, p. 34). Land grabbing in Afghanistan constitutes both a criminal act (as already discussed) and a violation of human rights, according to empirical study based

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on interviews with experts and war victims, as well as desk research. This could have consequences for the form of accountability and response mechanism, particularly in the context of transitional justice. Parmentier and Weitekamp’s (2007) taxonomy of serious human rights violations clearly illustrates this. Quality (the degree of gravity)

The context surrounding HLP in Afghanistan, particularly land grabbing, as demonstrated through the case study of Kabul, provides evidence from which we can discern a level of gravity that amounts to serious human rights violations, i.e., endangering people’s lives, personal integrity and deprivation of basic socio-economic rights. Data analysis, notably in the preceding sections on means, contexts and harmful consequences, as well as the perspectives of war victims, including victims of land grabbing, show how the issue of land and property has posed a threat to people’s basic human rights. In particular, field data reveals that powerful warlords and commanders, many of whom served as public officials as well, have used force and violence, resulting in major human rights abuses, including death. Furthermore, the state’s continued disregard for the deplorable living circumstances in the IDP and returnee settlements has resulted in situations that amount to serious human rights violations, such as death or severe disease as a result of frigid winters or a lack of essential health care. Several times during interviews and data collection, references to human rights violations in relation to land grabbing were made. A long-time civil society and human rights activist in Kabul described the fate of a friend, highlighting the systemic nature of land grabbing in the city: An ordinary person cannot do this. From top down there is a system that enables certain people to violate people’s rights to land. As an example, there was the story of () whose land was seized in (). He was arrested under the order of the government, was imprisoned and after some time nobody knew anything about him until we heard that he died there [of natural causes], but nobody believes this. Everyone thinks that he was killed. This was about four or five years ago. It was done by the brother of () who has built (). () was a rich person, but not a political figure. He had no link with any of the parties. And because he didn’t have any political backing, his fate had to meet dead. Parts of () land was located where currently the mentioned shahrak is built. They quarreled over land, and this is how they got rid of him. (Personal interview, 29 July 2013, Kabul) Another victim of land grabbing in Kabul, whose lands were appropriated by a member of Parliament, expressed his helplessness, relating it to his integrity, as follows:

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If I have the ability, I would like to fight for my rights. This way, my conscious will be in peace in the eyes of God and society. I suffer a lot because God says that one should not act like a victim, that we should fight our oppressors and demand our rights. But when I look at myself, unfortunately, I don’t see this ability in me that God talks about. Therefore, I suffer, and I have no one else who can support me on this and help me reach this goal. I suffer […] Believe me many nights when I wake up in the middle of the night I can’t go back to sleep. Why can’t you fight for your rights? Why? But there is no such ability. (Personal interview, 20 September 2014, Kabul) In response to whether he is afraid, he stated: “Yes, and on top of that I have family responsibilities. If they don’t bother me, tomorrow they may kidnap my child or bring another misery to my life. These people, well, don’t care about human value. They only see their own interest” (ibid.). Apart from the cases of land grabbing, many IDPs and returnees who took part in this research reported violations of their basic rights, although most of them would not employ the language of “rights violations” as such. They would often use the term “denial” or “taken away” in relation to their rights. Quantity (level of frequency)

Land grabbing in Afghanistan has been widespread, systematic and structural. The focus of the case study in this research has been Kabul province only. The phenomenon of land grabbing, however, has been widely practiced across Afghanistan as attested empirically and through a number of local investigative reports (Azad, 2013; Qiam, 2013; Rostami, 2013, 2015; Royee, 2016). Azad (2013), somewhat sarcastically, reflects on this: Land grabbing in Afghanistan has crossed the level of a “problem” and has turned into a “cross-country looting.” In this God given land, there are God given territories that are not allocated legally to the deserved ones, but only awarded to those who have power, have friends in the government, they come and go to the Presidential Palace, they are members of Parliament, they are national businessmen or they are friends with the governor or are governors themselves. They can appropriate more than 100,000 jerib of land, build a shahrak for themselves, fill in their pockets from the stolen money and no one will demand accountability from them. If I don’t exaggerate, such actions are possible only in Afghanistan under the leadership of Mr. Hamid Karzai, the President of the Islamic Republic of Afghanistan. The land grabbing and property seizure from the Sikh and Hindu minority in Afghanistan is a particularly notable example of widespread looting. According

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to a report issued by Afghanistan Freedom House, 90% of this community’s property has been seized over the last 14 years, forcing the majority of Hindu and Sikh members to flee the country (Royee, 2016). If properly investigated and addressed, the case of land grabbing from the Hindu and Sikh community alone could serve as one among many to highlight the gravity and prevalence of the practice, resulting in serious human rights violations. An Afghan human rights commissioner turned politician stated that such a widespread crime targeting a particular religious minority could even amount to a crime against humanity: So far, in international law there is no definition for economic crimes, but if, as in the case of Hindus in Afghanistan, land grabbing and other economic damages to them, becomes a systematic and widespread activity with the intention to harm a religious minority, then it can be considered crime against humanity. The economic crime dimension here becomes one element to prove the attack against a religious minority as a form of crime against humanity. (Personal interview, 21 October 2014, Kabul) That systematic and extensive land grabbing could amount to crimes against humanity already has a precedent. An important precedent in relation to state responsibility for human rights violations regarding HLP was set at the trial chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY). In the Kupreskic case the court stated that the systematic destruction of property and homes may constitute a crime against humanity— of persecution—if committed with the “requisite intent” (Arbour, 2007, p. 15). Moreover, in 2014, a communication was filed with the International Criminal Court (ICC) outlining systematic land grabs by senior officials in Cambodia as a crime against humanity (Oehm, 2015). Senior authorities in Cambodia, like those in Afghanistan, are accused of a systematic land grab that could amount to not just human rights abuses, but also potentially crimes against humanity under Article 7 of the Rome Statute, given the gravity and scope of the situation (ibid.). This study takes a similar stance on systematic land grabbing in Afghanistan, arguing that it could potentially constitute a crime against humanity, thus falling under the the ICC jurisdiction, where Afghanistan’s situation has been under investigation since 2007. Further research and attention by transitional justice researchers and practitioners is needed to systematically document and address land grabbing as a gross human rights violation and potentially a crime against humanity. In a recent study on Brazilian transitional justice, Telo et al (2021) contend that land dispossession was not recognized as a serious human rights violation in addressing violence against peasants and indigenous populations during the 1964–1985 dictatorship. It is encouraging that transitional justice has started to take addressing HLP harm more seriously (Unruh & Abdul-Jalil, 2021), but a further paradigm shift is required to put the issue more forcefully on

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the transitional justice agenda. Perhaps transformative justice, as an emerging discourse, could include HLP harm as one of its central agendas and a point of departure from mainstream transitional justice.

Conclusion Empirical evidence demonstrates the relevance of land grabbing to the discourse and practice of transitional justice, on the one hand, and criminology on the other. We can better understand a complex phenomenon like land grabbing in the intricate context of Afghanistan by dissecting it from several perspectives and demonstrating its significance to the domains of criminology and transitional justice. The issue of land and property, particularly land grabbing, can be inextricably related to conditions and discourses directly pertinent to transitional justice and critical criminology, as has been noted in various segments of this chapter. None of the frameworks, alone, could have grasped the issue of land grabbing in its entirety without the other frameworks, necessitating therefore an interdisciplinary study. This in turn has important implications for the nature of responsibility. If an accountability mechanism to address land grabbing in Afghanistan is ever established, the distinction between the nature of the act, such as criminal vs. human rights abuse, is especially significant to the notion of responsibility, i.e., individual vs. state responsibility. Data analysis suggests that, while determining the nature of responsibility for the destruction of homes and property during conflict, particularly during the civil war, is a difficult undertaking, many land grabbers are identified through interviews, documents gathered by the Afghan authorities or investigative journalists. Prominent land grabbers are well-known, with sufficient evidence to establish individual criminal responsibility. The Afghan government has put in place some measures and initiatives, including the Land Management Law that criminalizes land grabbing. However, in the absence of political will and in an entrenched culture of impunity, such systems are akin to putting rabbits in charge of carrots, as the Afghan proverb goes (Saeed & Parmentier, 2017). Beyond individual criminal responsibility, empirical analysis shows that serious human rights breaches in Afghanistan were committed in relation to HLP. As a result, the state too bears responsibility for compensating its victims and being held accountable.

References Arbour, L. (2007). Economic and social justice for societies in transition. New York University Journal of International Law and Politics, 40, 1. Azad, S. (2013, October 21). ‫[ وحدت‌و‌همدلی‌در‌«چور‌زمین‬Unity and solidarity in “land grabbing”]. Daily 8am. http://8am.af/1392/07/29/unity-land-parliament/. BBC Persian. (2013, September 23). Afghan parliament passed a law to take back the grabbed lands. http://www.bbc.co.uk/persian/afghanistan/2013/09/130923_zs_afghan_land _confiscation_law.shtml.

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Cox, M., & Garlick, M. (2003). Musical chairs: Property repossession and return strategies in Bosnia and Herzegovina. In S. Leckie (Ed.), Returning home: Housing and property restitution rights of refugees and displaced persons (pp. 65–81). Transnational Publishers. Foschini, F. (2013). Land grabs in Afghanistan (2): Deh Sabz, the new and the old. Afghanistan Analysts Network. https://www.afghanistan-analysts.org/land-grabs-2-deh-sabz-the -new-and-the-old/. Freston, T. (2013, January 9). The poppy palaces: Architecture can tell you a lot about a place. So welcome to the narco-villa district of Kabul, where scarface meets Scarsdale. RAWA News. http://www.rawa.org/temp/runews/2013/01/09/the-poppy-palaces.phtml. GoIRA, AIHRC, & UNAMA. (2005). Peace, reconciliation and justice in Afghanistan: Action plan of the government of the Islamic Republic of Afghanistan. Government of the Islamic Republic of Afghanistan. http://www.aihrc.org.af/media/files/Reports/Thematic %20reports/Action_Pln_Gov_Af.pdf. Goyes, D. R., & South, N. (2016). Land-grabs, biopiracy and the inversion of justice in Colombia. The British Journal of Criminology, 56(3), 558–577. https://doi.org/10.1093/ bjc/azv082. Hall, M., Wyatt, T., South, N., Nurse, A., Potter, G., & Maher, J. (2017). Greening criminology in the 21st century: Contemporary debates and future directions in the study of environmental harm. Green Criminology Series. Routledge. Kauzlarich, D., & Kramer, R. C. (1993). State-corporate crime in the US nuclear weapons production complex. Journal of Human Justice, 5, 4–28. Khalilzad, Z. (2016). The envoy: From Kabul to the White House, my journey through a turbulent world. St. Martin’s Press. Khamosh, S. W. (2015, October 28). ‫[ ساختمان‌های‌مرگ‌آفرین‬Buildings that generate death]. Daily 8am. http://8am.af/1394/08/06/buildings-death-last-earthquake/. Kramer, R. C., Michalowski, R. J., & Kauzlarich, D. (2002). The origins and development of the concept and theory of state-corporate crime. Crime & Delinquency, 48(2), 263– 282. https://doi.org/10.1177/0011128702048002005. Larsson, B. (2001). What is “Economic” about “Economic Crime”? In L. Sven-Åke (Ed.), White-collar crime research: Old views and future potentials: Lectures and papers from a Scandinavian seminar (pp. 121–136). National Council for Crime Prevention; https:// www.bra.se/download/18.12305534131e173a7f180001915/1371914735809/2001 _white-collar_crime_research.pdf#page=121. https://www.bra.se. Lasslett, K. (2018). Uncovering the crimes of urbanisation. Routledge. Leckie, S. (2003). New direction in housing and property restitution. In Returning home: Housing and property restitution rights of refugees and displaced persons (pp. 3–61). Transnational Publishers, Incorporated. Lekic, S. (2015, March 15). Departure of foreigners collapses housing market for Kabul’s megamansions. Stars and Stripes. http://www.stripes.com/news/departure-of-foreigners -collapses-housing-market-for-kabul-s-mega-mansions-1.334681. Liagat, L. (2021, August 2). ‫‌ گزارش‌تحقیقی؛‌اختالس‌ده‌ها‌میلیون‌دالری‌و‌غصب‌زمین‌در‌پروژه‌ی‬ ‫( شهرک‌عینو‌مینه‬Investigative report: Embezzlement of tens of millions of dollars and land grabbing in Aino Mina settlement project). Daily Itlaat Roz. https://www.etilaatroz.com /129602/research-report-embezzlement-of-tens-of-millions-of-dollars-and-usurpation -of-land-in-aino-mina-town-project/. Michalowski, R. (2017). Conceptualizing human rights in state-corporate crime research. In L. Weber, E. Fishwick & M. Marmo (Eds.), The Routledge international handbook of criminology and human rights (pp. 91–101). Routledge.

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Oehm, F. M. (2015). Land grabbing in Cambodia as a crime against humanity – Approaches in international criminal law (SSRN Scholarly Paper ID 2841165). Social Science Research Network. https://papers.ssrn.com/abstract=2841165. Parmentier, S., & Weitekamp, E. G. M. (Eds.). (2007). Crime and human rights (Vol. 9). Elsevier Ltd. http://www.emeraldinsight.com/doi/book/10.1016/S1521-6136(2007)9. Qiam, M. H. (2013, October 21). ‫[ غاصبان‌زمین؛‌فهرست‌واقعی‌یا‌ظاهری‬Land-grabbers: A real or imaginary list]. Daily 8am. http://8am.af/1392/07/29/real-list-land-afghanistan/. Rostami, A. (2013, January 16). ‫[ افشای‌نام‌زمین‌خواران‌بزرگ‬Investigative report discloses the names of major land grabbers]. Daily 8am. http://8am.af/oldsite.php?option=com _content&view=article&id=29458:1391-10-27-01-57-16&catid=1:title&Itemid=553. Rostami, A. (2015, April 20). ‫[ افشای‌اختالس‌های‌گسترده‌در‌وزارت‌کار‌و‌امور‌اجتماعی‬Disclosure of huge amounts of embezzlement at the Ministry of Labour and Social Affairs]. Daily 8am. http://8am.af/disclosure-wide-akhtlas%C2%B7hay-the-ministry-of-labour-and -social-affairs/. Royee, Z. (2016, February 22). ‫‌نود‌درصد‌ملکیت‌های‌اهل‌هنود‌غصب‌شده‌است‬:‫[ خانه‌آزادی‬Freedom House: 90% of the properties of the Hindus have been seized]. Daily 8am. http://8am.af /1394/12/03/land-grabbing-freedom-house/. Saeed, H. (2021, September 16). The failure of transitional justice in Afghanistan: Impunity turned into law. Just Security. https://www.justsecurity.org/78252/the-failure-of-transitional -justice-in-afghanistan-impunity-turned-into-law/. Saeed, H., & Parmentier, S. (2017). When rabbits are in charge of carrots: Land grabbing, transitional justice and economic-state crime in Afghanistan. State Crime Journal, 6(1), 13–36. https://doi.org/10.13169/statecrime.6.1.0013. Schmid, E. (2015). Taking economic, social and cultural rights seriously in international criminal law. Cambridge University Press. http://www.cambridge.org/fi/academic/subjects /law/public-international-law/taking-economic-social-and-cultural-rights-seriously -international-criminal-law. SIGAR. (2021). What we need to learn: Lessons from twenty years of Afghanistan reconstruction (p. 140). Special Inspector General for Afghanistan Reconstruction. https://www.sigar.mil /pdf/lessonslearned/SIGAR-21-46-LL.pdf. Starkey, J. (2011, November 7). The fairytale world of ‘poppy palaces’ ends in a price crash as Western money moves on. The Times (London). http://www.thetimes.co.uk/tto /news/world/asia/afghanistan/article3218065.ece. Sutherland, E. H. (1949). White collar crime. Dryden Press. Teló, F., Gasparotto, A., Medeiros, L. S. de, & Saraiva, R. C. F. (2021). Land and transitional justice in Brazil. International Journal of Transitional Justice, 15(1), 190–209. https://doi.org /10.1093/ijtj/ijaa035. Unruh, J. D., & Abdul-Jalil, M. A. (2021). Housing, land and property rights in transitional justice. International Journal of Transitional Justice, 15(1), 1–6. https://doi.org/10.1093/ijtj /ijab004. White, R. (2012). Land theft as rural eco-crim. International Journal of Rural Criminology, 1(2). https://kb.osu.edu/dspace/bitstream/handle/1811/53698/IJRC_White_vol1 -issue2_pp203-217.pdf?sequence=1. Zaitch, D., van Solinge, T. B., & Muller, G. (2014). Harms, crimes and natural resource exploitation: A green criminological and human rights perspective on land-use change. In M. Bavinck, L. Pellegrini, & E. Mostert (Eds.), Conflicts over natural resources in the global south: Conceptual approaches. CRC Press, Taylor and Francis Group.

Chapter 7

Transitional justice and criminology Bridging the gap

The empirical findings of this research substantiate the theoretical hunch that not only are there generic areas of overlap between critical criminology and transitional justice, but also that a nexus between the two fields is rather intrinsic, if somehow implicit. What this research hopes to have performed is to make this relationship explicit. The aim of this chapter is to expound on the connections between the two fields through a number of issues raised in this study’s theoretical and empirical findings, which point to the direction at which certain alternative discourses of the fields of transitional justice and critical criminology can converge, revealing novel analytical and interpretative potentials. In this chapter, I will demonstrate this overlap through (a) the prism of crime and (b) the methodological prism.

Through the prism of crime While the study of crime and its nature lies at the center of criminology, the issue has received little attention in transitional justice discourses in its epistemological and etiological forms. Rather, as the legal paradigm dictates, transitional justice researchers frequently use the terms “rights violations” and, more precisely, “human rights violations.” Given the accretive criticism of transitional justice as being overly legalistic, opening a platform for an understanding of the nature of crime from the perspective of another discipline will be of added value to the field of transitional justice. This, I maintain, is one domain where transitional justice can benefit from critical criminology. Critical criminologists, on the other hand, need to test new waters by extending their research in situations of conflict and post-conflict where a wide range of crimes are committed, including those breaching socio-economic rights. Criminology, as the discipline par excellence to study crime, can provide epistemic insight into the nature of crimes in situations of violent conflicts. The question then arises as to why this nexus is important and what is the gap? One way to answer this query is through the empirical component that has just been presented. In 2011, this researcher was confronted with a conundrum in the Sherpur land grabbing case in Kabul. Because the Sherpur episode DOI: 10.4324/9781003134411-8

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involved powerful warlords who had perpetrated serious human rights atrocities in the past, I could almost immediately understand the implications of the Sherpur experience for the field of transitional justice. However, I was certain from the start that the transitional justice lens, alone, could not adequately describe the phenomenon at hand. To fully comprehend the case of land grabbing in Sherpur, an additional prism was required. It also became evident that not only was Sherpur merely the tip of the iceberg, but also that land grabbing was taking place in a dire HLP context for millions of returnees and IDPs. Criminology thus emerged as a promising lens through which to investigate land grabbing in conjunction with the field of transitional justice. The gap between criminology and transitional justice

As discussed, the field of transitional justice has started to faintly label socioeconomic harm as a form of crime (Carranza, 2008; Vidlicka, 2014; Vuuren, 2006) or economic violence (Sharp, 2014). While such scholars refer to “economic crime,” there is little to no clarification as to what this concept entails in their understanding beyond referral to practices such as grand corruption or plunder of natural resources or filling warlords’ pockets in times of conflict and transitions. In other words, the concept exists more as a matter of labeling certain facts rather than explaining the constituting elements of what make those facts economic crime. In the same vein, scholars of transitional justice discuss the rise of criminality in transitional or post-transitional countries without necessarily taking a criminological perspective into account. Post-apartheid South Africa is a good example. The country has been beset by crime and violence since its widely lauded endeavor of reconciliation with the establishment of a Truth and Reconciliation Commission. However, much of the research on the problem by transitional justice researchers focuses on the deficiencies of justice as a failure of transitional justice measures (Stanley, 2001; van der Spuy & Dixon, 2004), rather than a focus on crime and criminality within a structure that has historically made them possible. Carranza’s definition of socio-economic crimes—violations of socioeconomic and cultural rights as enumerated in the ICESCR by state and nonstate actors—is one of the best attempts made by transitional justice scholars to conceptualize socio-economic rights violations as a form of crime (Carranza, 2008). However, this definition too bears its limitation in that it is legally oriented and thus constricted in explaining the various prongs involved in an act, such as personal profit, that can potentially be labeled as economic crime. As such, while initially this research approached Carranza’s definition as a starting point, its constraint soon became apparent in the context of empirical data analysis. Field data also illustrates the role of the state in being complicit, through the acts of commission, omission or negligence, in a criminal act such as

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land grabbing. Transitional justice literature, however, remains inadequate to address crimes committed by the state. As Fletcher states “transitional justice largely ignores legal accountability for states” given that it is primarily grounded in liberal philosophy, which emphasizes individual criminal responsibility (2016, p. 447). Without legal accountability, she writes, “states enjoy moral and legal impunity for their crimes” (ibid.), thus getting away with the legal obligations to repair the harm they cause. She further states that both international law and transitional justice have developed in such a way as to “effectively prevent legal accountability for States that commit atrocity crimes” and thus argues for a new politics of transitional justice with a focus on state legal responsibility (ibid., p. 448). Despite such references to state crime by transitional justice scholars, the concept itself, like economic crime, remains rather broad and vague. Often it seems to be used to label certain situations, such as forced disappearances, without elucidating the constituent elements of what make those situations a crime of the state. It appears that they suffice to provide a broad definition of state crime, without getting into detail or discussing the various approaches to state crime that have been debated by critical criminologists. This has been reflected in the work of a number of scholars of transitional justice who have specifically addressed state crime in the context of political transitions. Stanley, for instance, in her analysis of the role of truth commissions in the recognition of state crime, expresses her approach to state crime in a footnote, only, as follows: Regarding a definition of state crime, debates have swung from a strict interpretation of legally defined rights (e.g. Cohen 1993; 1996) to those on the ‘criminal’ social systems that uphold structured inequalities and broader social harms (e.g. Barak 1991; Schwendinger and Schwendinger 1975). This author concurs with the analysis that ‘state crime’ as a category falls somewhere in between these opposing ideas. It seems necessary that state crime should be recognized as either violations of international and national law or as practices that deviate from the fundamental premises that underlie that law and that may be viewed as being ‘subjectively deviant’ or illegitimate (Green and Ward 2000:110). (Stanley, 2005, p. 582) While Stanley (2005) makes broad references to some of the major trends as regards state crimes, her own approach, in this author’s understanding, remains rather obscure and legally oriented. Similarly, Balint, in her article titled “Transitional Justice and State Crime” remarks: State crimes involve the use and transformation of a state structure and its institutions, both civil and state. The destruction wrought is in the name of the state and part of state policy. The recognition of these acts

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as state crime is critical for our understanding of them and for their legal redress. (Balint, 2014, p. 147) In Fletcher’s view (2016), an example of the state’s role includes the Syrian state’s sponsorship of mass violence as a result of a systematic state policy. Another example is the work of scholars on “system criminality” (Drumbl, 2010; Nollkaemper, 2009). What they mean by system criminality is the orchestrated role of an entire system of state and non-state actors that allows systematic acts of large-scale violence, as captured by Drumbl: International criminal law conceptually situates itself upon a fiction, namely that wide-scale atrocity is the crime of individuals. Such it may be, but it also is much more. The sum is larger than the parts. Atrocity is the product of groups, of acquiescent bystanders, of collective action, of colonial histories, of blood diamonds and coltan, and of the passivity of powerful foreign governments and international organizations. Yet the criminal law pins blame only on those few who are most evidently, most notoriously, or most immediately responsible. International criminal law thereby offers a simple, reductionist lens that flattens the complex etiology of atrocity. (Drumbl, 2010, p. 374) The core argument of such scholars does not differ in essence from what is being argued in this book as regards the role of the state in committing certain crimes or violating certain rights. Fletcher, for example, presents a view which closely corresponds to this researcher’s approach: “State policies shape and maintain structural inequalities that in turn produce and maintain political, social, and economic marginalization, which contribute to conflict” (2016, p. 451). A point that has also been critically raised by other scholars of transitional justice who place emphasis on addressing structural inequality (Laplante, 2008; Mani, 2008; Miller, 2008; Muvingi, 2009). Nevertheless, even when scholars of transitional justice come across as being very critical of the international criminal law for accentuating individual criminal responsibility, this discussion is hardly connected with the growing literature on state crime by critical criminologists, many of whom see the law as the source of crime itself. Thus, the debate still continues to primarily remain in the legal domain—albeit critical—rather than criminological. In other words, while they criticize the legal paradigm for its shortsightedness in addressing the collective nature of international crimes, they continue to remain within the legal domain, questioning the necessity of emerging new legal concepts and frameworks (Balint, 2014). Critical criminology, on the other hand, has developed a whole subparadigm on state crimes, as discussed in relative detail in Chapter 1. This can be one way to address the missing link between transitional justice and

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criminology (Parmentier, 2011) and to get into a criminology of transitional justice (McEvoy, 2007). Bridging this gap, however, is not as simple as it may appear, because, as McEvoy et al. (2017) point out, criminological science is primarily developed in stable democracies and favors theories, assumptions and methodologies formed in the global north, while most of the debate and practice of transitional justice is centered in the global south. On the basis of the Afghanistan case study, it is arguable that if transitional justice and critical criminology embrace one another’s lenses, they will mutually enrich each other’s analyses and understandings of crime in conflict and post-conflict situations. Towards bridging the gap by combining fieldwork and an interdisciplinary approach

Under the circumstances just described, the criminological lens, especially the work of researchers on economic crime, state crimes and crimes of the powerful bestowed itself as a valuable framework to understand and analyze people’s perceptions of the harm in relation to their access to HLP. As the empirical analysis in this research suggests, the question of housing and property, highlighted through the act of land grabbing, could not sufficiently be comprehended if relying solely on the discourse of transitional justice. The nature of the act was more clearly articulated through the use of a criminological lens, including the role of the actors, the context and consequences, as well as the implications for the state and the extent to which they can amount to serious human rights abuses. A new framework has thus emerged as a result of empirical data analysis on the one hand and the application of an interdisciplinary framework on the other. This model integrates economic crime and state crime, resulting in economic-state crime. Economic-state crime demonstrates how an act, such as land grabbing, can be both an economic crime and a state crime concomitantly, with human rights violators from previous regimes playing a key role in their facilitation and implementation. Furthermore, the framework demonstrates how such actions can amount to grave human rights violations. The economic-state crime framework places emphasis on the nature of individual criminal responsibility as well as the state’s responsibility for human rights violations. The latter aspect falls in line with the argument of a number of legal scholars who are critical of the international system’s neglect of state crimes (Balint, 2014; Drumbl, 2010; Fletcher, 2016; Schmid, 2011). The suggested framework, therefore, offers the potential to be applied in other violent conflict or transitional situations similar to Afghanistan, such as Iraq or Syria, to address socio-economic harm. Furthermore, the economic crime framework, based on Larsson’s (2001) classification and the state crime approach, based on Kauzlarich’s typology (2005 as quoted by Parmentier & Weitekamp, 2007), can be used in non-violent conflict contexts that are nevertheless corrupt and/ or considered failed states.

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The economic-state crime framework can also be placed within a broader criminological trend that shows how organized criminality gets incorporated within the state (Briscoe & Kalkman, 2016; Van de Bunt et al., 2014). These academics refer to organized crime in countries with weak and failed states, where criminality has become a “living organism” in their public and business affairs (Briscoe & Kalkman, 2016, p. 3). Van de Bunt et al., in a similar vein, observe: [I]n nations lacking an effective political structure, so-called failed states, organized crime is bound to be embedded in society in ways that differ from countries where the power of the state is effective and experienced as legitimate. In failed states, the members of criminal groups will take advantage of the absence of formal state power by focusing on duties neglected by the state, such as offering protection (Gambetta 1988). (Van de Bunt et al., 2014, p. 323) Van de Bunt et al. (ibid.) demonstrate how social relationships and ties based on ethnicity, neighborhood and occupation can provide the social milieu within which organized criminal activities can function. Briscoe and Kalkman further reiterate this perspective by arguing that in many post-conflict, transitional and failed states in various parts of the world, organized crime and corruption should not be treated as a “foreign body, but as an integral part of governance and economic systems” (Briscoe & Kalkman, 2016, p. 6). Although in this research, the angle of organized crime and criminality has not been adopted, empirical data gathered for this study shows how economicstate crime can be facilitated and carried out within an embedded structure based on ethnic or political affiliations, as the power structure has been in Afghanistan. As such, there are clearly areas of overlaps in the characteristics of such concepts, i.e., economic crime and organized crime. Moreover, while the mentioned authors do not make references to transitional justice per se, they refer to countries and contexts where the paradigm of transitional justice has been present in one form or another, such as post-communist countries of Central and Eastern Europe or Central America. Such examples from the literature, combined with the empirical evidence in this study, show that there is not just potential but also obvious frames of reference between the two domains. As McEvoy et al. (2017) argue transitional justice and criminology have something to contribute to each other. For example, if critical criminologists rely on transitional justice literature—and relevant empirical data—per se, the criminological approach to state crime can be enhanced; that is, expanding beyond their common inferences to the greater realm of human rights. The paradox here is that the kind of crimes studied by transitional justice experts often fall under the category of state crimes. However, criminologists seldom study transitional justice, and transitional justice experts rarely apply criminological insight to state crime.

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Furthermore, when applied in transitional circumstances, which have frequently resulted in weak and failed states with kleptocrats in office, the concept of state crime must go beyond its connections to organizational structure. As the case of Afghanistan has shown, personal motives and gains are just as significant and relevant, if not more, than organizational ones under such circumstances. In certain conditions, kleptocratic leaders like Hosni Mubarak in Egypt, Suharto in Indonesia and Marcos in the Philippines embody the state in such a way that their economic profit and gain reign supreme. As a result, such crimes can be classified as economic-state crimes, an area which calls for a sharper gaze of scholars of state crimes. Beyond such broad observations, two specific elements have emerged from this study’s empirical data, which I argue are central to both fields and for which an interdisciplinary lens is deemed important in furthering our understandings: the concept of injury and harm on the one hand, and state crime victims on the other. Crime as injury and social harm

As discussed in the literature, in a move away from the legal paradigm, critical criminologists place emphasis on the notion of injury and harm in relation to crime. This tradition is often credited to the renowned work of the Schwendingers reflected in Defenders of Order or Guardians of Human Rights? (1975). The authors suggest the notion of “injurious” in the discourse on crime, arguing that certain actions of people in power, such as economic exploitation or genocide, can be injurious to a large number of populations, which may have not necessarily been sanctioned by civil or criminal laws (1975, pp. 112– 126). Other criminologists have further reiterated this perspective, going as far as suggesting that the notion of crime should be replaced with social harm, thus moving away from the concept of crime to zemiology, the study of social harm (Hillyard et al., 2004). Furthermore, Paoli and Greenfield argue that criminology should take the consequences of crime seriously, proposing that it should even become a new branch of criminology (Paoli & Greenfield, 2015). By placing emphasis on the notion of harm, while recognizing it as a “blindspot” within criminology, they suggest a comprehensive framework to assess the harms of crimes based on the “criminal activity, a taxonomy of the types and bearers of the harms, scales for evaluating the severity and incidence of harms, and a matrix for prioritizing harms.” The framework was initially developed as part of a larger project with a focus on organized crime. However, the authors note, it can be applicable to other types of crimes as well. Although I did not utilize the Paoli and Greenfield (2015) framework (it had not yet been developed at the time) to assess harm during fieldwork in Afghanistan, when gathering respondents’ perceptions, I used expressions such as harm, injury and denial during interviews rather than the legally oriented language of “rights” and “violations,” especially with war victims.

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Under such circumstances, as Capeheart and Milovanovic note, “harms are reconceptualized as conflict, victims rights are reconceptualized as victims needs” (2007, p. 62). Understanding how people experienced injury and harm as a result of their loss (sometimes denial) of land and property during times of conflict necessitated adopting such perspective. This empirical approach was critical to developing the concept of economic-state crime, which emphasizes notions of harm, injury, negligence and denial. This approach, I argue, has implications for the discourse of transitional justice as well. As previously noted, those looking into the field from a different perspective tend to be critical of transitional justice’s legal fervor. While there is obvious merit, strength and inevitability in employing the vocabulary of “human rights violations” in transitional justice situations, one way the field might move away from the legal paradigm and closer to criminology is to emphasize harm, injury and denial in its discourses and practice. In their writings, some transitional justice scholars allude to such concepts (Balint, 2014; Fletcher, 2016; Stanley, 2005). Still, they appear to refer to them as a matter of linguistic choice rather than an intentional decision as advanced in criminological studies. While the circumstances referred to by these authors may not differ in essence from those suggested by critical criminologists, bringing the issue to the forefront of the transitional justice debate could be an example of how the two fields can intersect. This lens could be especially useful for academics and practitioners who have a nonlegal background and proclivities to stay away from the legal paradigm when it comes to post-conflict and transitional challenges. As McEvoy (2007) argued one of the reasons for the dominance of a legalistic approach in transitional justice is because a criminological approach to transitional justice is lacking. The approach proposed by Greenfield and Paoli (2015), for example, might be plausibl to assess the harms inflicted on victims of international crimes. State crime victims

Victimology has grown in prominence in criminology, with academic journals and centers dedicated to the subject. State crime victimology, on the other hand, is less developed than victimology in other domains such as street crime, corporate crime and domestic violence (Kauzlarich et al., 2001; Rothe & Kauzlarich, 2014). According to Kauzlarich et al.: [B]eyond brief descriptions, there has been no attempt to establish the nature, extent, and distribution of victimology of state crime. Incredibly, this lack of attention continues in the wake of state atrocities in Rwanda, the former Yugoslavia, Kosovo, and East Timor. Hundreds of thousands of people have been killed, physically assaulted, rendered homeless and hungry, raped, or emotionally abused by the actions and policies of governments and state officials. (Kauzlarich et al., 2001, p. 175)

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Kauzlarich et al. cite civilians and soldiers in conflicts as examples of state crime victims, as well as genocide victims, immigrants, prisoners and even “countries and nations oppressed by powerful states” (ibid., pp. 175–176). While the authors agree that such approaches are useful in portraying victims of state crime, they contend that scholars have failed to address the “structural pattern and relationships” that typically facilitate state crime victimization. This includes the poor, the racial and ethnic minorities as well as women who are “explicitly and tacitly victimized by the state partly because of its support of larger structural and cultural definitions of worth, status, power, authority and prestige” (ibid.). Rothe and Kauzlarich note that within the growing fields of victimology and state crime, it is increasingly important to consider how “victims and offenders differ from one type of crime and circumstance to the next” (2014, p. 3). Kauzlarich et al. present their working definition of state crime victims as follows: Individuals or groups of individuals who have experienced economic, cultural, or physical harm, pain, exclusion, or exploitation because of tacit or explicit state actions or policies which violate law or generally defined human rights. (Kauzlarich et al., 2001, p. 176) This definition provides a typology of victimization that encompasses the various types of harm as well as human rights violations that individuals or communities may experience as a result of state actions. It provides a set of concepts, which have been important in the empirical analysis of crime in this research, such as harm, tacit and explicit state actions or emphasis on socio-economic rights. Furthermore, the approach is broad enough to also encompass human rights violations. As empirical data in Afghanistan illustrates, state policies and actions—tacitly or explicitly—have caused large-scale socioeconomic harm to categories of victims such as the IDPs, returnees and those whose lands have been forcibly grabbed. This approach could also be valuable for transitional justice scholars and practitioners. As previously stated, the field of transitional justice is increasingly stressing the role of victims, particularly in terms of acquiring their perspective firsthand. The International Journal of Transitional Justice, for example, has devoted an entire special issue to “Reconsidering Appropriate Responses to Conflict Victims” (2016). Even a top-down mechanism like the ICC takes pride in having established the Trust Fund for Victims as one of its functions (Rome Statute of the International Criminal Court, 1998, Article 79). While the field of transitional justice has already benefited from the “rich criminological literature on the politics of victimhood,” (McEvoy et al., 2017, p. 19) the concept of state crime victims, as such, does not appear prominently in transitional justice discourse and practice.

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If the goal is to advocate for an agenda to hold the state, as an entity, accountable in perpetrating mass violence (Balint, 2014; Drumbl, 2010; Fletcher, 2016), transitional justice practitioners and scholars can benefit from addressing victims of state crimes—as a distinct typology of victimization. After all, mass violence creates a large number of victims, who must be acknowledged and addressed as such. This can have implications for various transitional justice mechanisms, including addressing the HLP claims of war victims, as noted by Unruh and Abdul-Jalil: “significant work remains to be done in the application of mass claims processes as a transitional tool for HLP rights, with the field of transitional justice seeming to have a great deal to offer” (2021, p. 3). Scholars of state crime, on the other hand, might broaden their understanding of state crime victimology by exploring the growing—critical—literature on transitional justice with an emphasis on victims of violent conflicts. Importantly, Kauzlarich et al. (2001) broaden the discussion to include victims of both domestic and international state crimes. Domestic state crime, they claim, occurs when “a government acts to undermine the social, economic, or political rights of its own citizens” (p. 177). International state crime, on the other hand, happens when “a government violates the economic, political, or social rights of citizens in other countries” (ibid.). I briefly examined the role of international players, primarily the United States of America, in transitional justice in Afghanistan in the empirical section of this study. Under the guise of prioritizing peace over justice, they assisted in the restoration of warlords to power, who engaged in economic-state crimes, including land grabbing, in addition to their human rights records from the civil war. Furthermore, investigations led by the ICC have “determined that there is a reasonable basis to believe” that international actors, in particular US military forces, have allegedly committed “war crimes of torture and related ill-treatment” in Afghanistan (ICC, 2014, p. 44). This implies that the international community has created its own victims, which fall in the category of international state crime victims mentioned by Kauzlarich et al. (2001). The reference to victims of international crimes can be extended to other situations, such as Iraq and Syria, where the international community has played a major role in causing or sustaining violent conflicts and mass harm to civilians (Khan & Prickett, 2021). While I did not take an international state crime perspective in this study, I did stress the explicit or implicit role of international actors in promoting domestic economic-state crimes or denying justice to Afghan war victims. Transitional justice scholars can address in a more systematic way the criminal involvement of international players, such as those analyzing the role of US foreign policy in encouraging authoritarian regimes in Argentina, Chile, Guatemala, Peru and Uruguay during the Cold War (Esparza et al., 2010). To that end, transitional justice scholars and critical criminologists may work together more effectively to address not only the crimes of international actors in conflict and post-conflict circumstances, but also the type of victims they produce.

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Finally, as Rothe and Kauzlarich point out, there is a direct link between our understanding of crime as harmful and injurious that also includes actions of the state, as opposed to the legal definition of crime offered by the state, and the types of victims that we include in our analysis: [I]f we use a legalistic framework, many victims of state crime would be omitted from research, leaving only those that can be identified through direct violations of domestic or international law-making a causal link to the act a condition. On the other hand, using a social harm standard can broaden the scope to include victims directly and indirectly harmed by states’ actions (e.g. victims of state immigration policy). (Rothe & Kauzlarich, 2014, p. 7) The empirical findings of this research corroborate the premise above by demonstrating that socio-economic harm—caused by explicit and implicit state actions—can amount to both economic-state crime and serious human rights abuses at the same time, resulting in a separate category of victims, namely state crime victims. This rationale can also be applied to victims of international state crimes.

Through the methodological prism Based on the findings of this study, a second component that can help bridge the gap between transitional justice and critical criminology is the methodological approach. Both transitional justice and criminological literature lack bottom-up perspectives, particularly that of victims of international crimes and serious human rights violations. From a criminological perspective, this study gathered bottom-up views— of primarily war victims—on the nature of crime and harm inflicted on affected communities concerning HLP. Ample criminological research exists in gauging victims’ perceptions on issues such as murder (Goodrum, 2007), police behavior, legitimacy or cooperation (Koster et al., 2016) or, last but not least, domestic violence victims (Spruin et al., 2015). However, most of this empirical work falls under the purview of conventional criminology. Just as criminology’s normative arm has hardly addressed international crimes, so has its empirical arm, particularly in terms of victims’ perceptions on socioeconomic harm. Experts in transitional justice have emphasized the necessity of empirical research in measuring the impact and effectiveness of transitional justice approaches in countries that have already implemented a measure such as a truth and reconciliation commission (van der Merwe et al., 2009). The methodological approach used in this study was prospective in nature, with a focus on future transitional justice measures. As previously noted, with the exception of the Action Plan (2005), which largely remained on paper,

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Afghanistan has not yet experienced a tangible mechanism of transitional justice. In addition to collecting perceptions on crime and harm, this research has attempted to evaluate the perceptions of the affected communities concerning viable ways to go forward given the existing pragmatic reality. As a result, it found that a transformative justice agenda is better suited in Afghanistan that will be grounded on local realities, including addressing socio-economic harm as an important pillar. On the ground, an interdisciplinary lens was critical in comprehending the nature of harm and crime, on the one hand, and the mechanism/s for moving forward, on the other. In order to gather such perceptions, the questionnaire used during the empirical research in Afghanistan was vital. The use of the QUAGOL (Dierckx de Casterlé et al., 2012) as a data analysis approach that allows the researcher to thoroughly engage with the data is also worth highlighting (or recommending). Based on this experience, I believe the QUAGOL can provide a useful framework to empirically comprehend and assess the concepts of harm, crime and justice in both domains. Last but not least, both transitional justice and criminology, including critical criminology, have largely shaped normative debates through the eyes of western scholars, who have been—essentially—restricted to engage empirically with affected communities due to security concerns, language and cultural barriers, or simply due to Eurocentric views. This, according to Baxter, is one of the issues that has restricted transitional justice researchers: Another challenge for research in this area is the current dominance of academics from the developed world. Their experience and access to grants have resulted in their being able to set the agenda regarding what should be studied and how the studies should be conducted. This raises the question of whether the research reflects the needs of those in the transitional society. (Baxter, 2009, p. 329) Conversely, Cohen expresses a similar stance, though his argument is more general rather than specific to research: Criminologists have either ignored the Third World completely or treated it in a most theoretically primitive fashion, and the general literature on development and colonialism is remarkably silent on crime. (Cohen, 2009, p. 172) Given this researcher’s access to local communities, where language, connections—particularly with civil society—and cultural and political compass served as enabling factors for the research project’s implementation, one could argue that there is a pressing need for more native-born researchers to engage in fieldwork and theoretical reflections in both fields in order to

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broaden empirical and normative perspectives beyond western democracies. Lundy and McGovern make a similar point: That non-Western scholars, living and working in resource-poor and war-torn societies, have little voice in Western dominated and generated academic theories and debates, may itself be seen as an injustice impacting upon the study and practice of transitional justice making. (Lundy & McGovern, 2008, p. 275) This is a critical consideration for both western and non-western scholars. Otherwise, as Lundy and McGovern (2008) warn, we risk turning into a new type of neo-colonialism if we continue to allow transitional justice—and I add criminology—to be a part of the neoliberal global agenda.

Conclusion This research has presented alternative perspectives in two fields: critical criminology, which challenges conventional criminology, and transitional justice approach, which opposes the prevailing legalistic and liberal agenda in dealing with the past after mass atrocities. Importantly, both of these traditions have confronted dominant legal paradigms and argued for alternative approaches to crime and justice. The research has also aimed to demonstrate that if the mantra of conventional paradigms is removed in both fields, not only does their nexus manifest itself, but it also becomes clear how the two fields may reciprocate and strengthen one another’s approaches to crime and justice. This interdisciplinary approach, with a strong emphasis on the empirical component, can potentially be pursued by researchers and practitioners in contexts similar to Afghanistan. Two issues in particular emerged from the data and the overall study that merit a brief reiteration. First of all, criminologists and transitional justice experts can work together to better comprehend the nature of crime and harm in situations of conflict and post-conflict. In particular, attention is called for towards the much neglected issue of crimes related to socio-economic harm. While transitional justice discourse and, to a lesser extent, practice have attempted to address this neglect in recent years, the subject does not appear to have made it into the critical criminology realm outside of a few limited studies. On the other hand, as this empirical study shows, the reality on the ground is dire when it comes to socio-economic harm caused by armed conflict. Second, the necessity of understanding local views of harm and injury, particularly when the state is involved, as well as their justice demands, is another area of collaboration between the two fields. Not only that, but also to actively involve stakeholders in the design, decision-making and implementation of justice mechanisms. This is what transformative justice seeks actively, where initiatives and actions should be embedded in local reality; in their political

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agency and mobilization; in their act of participation; and in their vision of change (Gready & Robins, 2014).

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184 Transitional justice and criminology ICC. (2014). Report on preliminary examination activities 2016 (p. 73). International Criminal Court. https://www.icc-cpi.int/iccdocs/otp/161114-otp-rep-PE_ENG.pdf. Kauzlarich, D., Matthews, R. A., & Miller, W. J. (2001). Toward a victimology of state crime. Critical Criminology, 10(3), 173–194. https://doi.org/10.1023/A:1015744304749. Khan, A., & Prickett, I. (2021, December 20). The human toll of America’s air wars. The New York Times. https://www.nytimes.com/2021/12/19/magazine/victims-airstrikes -middle-east-civilians.html. Koster, N.-S. N., Kuijpers, K. F., Kunst, M. J. J., & Leun, J. P. V. der. (2016). Crime victims’ perceptions of police behavior, legitimacy, and cooperation: A review of the literature. Victims & Offenders: An International Journal of Evidence-Based Research, Policy, and Practice, 11(3), 392–435. https://doi.org/10.1080/15564886.2015 .1065532. Laplante, L. J. (2008). Transitional justice and peace building: Diagnosing and addressing the socioeconomic roots of violence through a human rights framework. International Journal of Transitional Justice, 2(3), 331–355. Larsson, B. (2001). What is “economic” about “economic crime”? In L. Sven-Åke (Ed.), White-collar crime research: Old views and future potentials: Lectures and papers from a Scandinavian seminar (pp. 121–136). National Council for Crime Prevention; https:// www.bra.se/download/18.12305534131e173a7f180001915/1371914735809/2001 _white-collar_crime_research.pdf#page=121. https://www.bra.se Lundy, P., & McGovern, M. (2008). Whose justice? Rethinking transitional justice from the bottom up. Journal of Law and Society, 35(2), 265–292. Mani, R. (2008). Dilemmas of expanding transitional justice, or forging the Nexus between transitional justice and development. International Journal of Transitional Justice, 2(3), 253– 265. https://doi.org/10.1093/ijtj/ijn030. McEvoy, K. (2007). Beyond legalism: Towards a thicker understanding of transitional justice. Journal of Law and Society, 34(4), 411–440. https://doi.org/10.1111/j.1467-6478 .2007.00399.x. McEvoy, K., Dudai, R., & Lawther, C. (2017). Criminology and transitional justice. In A. Liebling, L. McAra, & S. Maruna (Eds.), The Oxford handbook of criminology (6 ed., pp. 391–416). Oxford University Press. Miller, Z. (2008). Effects of invisibility: In search of the “Economic” in transitional justice. International Journal of Transitional Justice, 2(3), 266–291. Muvingi, I. (2009). Sitting on powder kegs: Socioeconomic rights in transitional societies. International Journal of Transitional Justice, 3(2), 163–182. Nollkaemper, A. (2009). Introduction. In A. Nollkaemper & H. van der Wilt (Eds.), System criminality in international law (pp. 1–25). Cambridge University Press. https://doi.org/10 .1017/CBO9780511596650.002. Paoli, L., & Greenfield, V. A. (2015). Starting from the end: A plea for focusing on the consequences of crime. European Journal of Crime, Criminal Law and Criminal Justice, 23(2), 87–100. https://doi.org/10.1163/15718174-23022062. Parmentier, S., & Weitekamp, E. G. M. (Eds.). (2007). Crime and Human rights (Vol. 9). Elsevier Ltd. http://www.emeraldinsight.com/doi/book/10.1016/S1521-6136(2007)9 Parmentier, S. (2011). The missing link: Criminological perspectives on transitional justice and international crimes. In M. Bosworth & C. Hoyle (Eds.), What is criminology? (pp. 380–392). Oxford University Press. http://oxfordindex.oup.com/view/10.1093/acprof :oso/9780199571826.003.0026.

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Rome Statute of the International Criminal Court. (1998). http://www.preventgenocide .org/law/icc/statute/part-c.htm. Rothe, D. L., & Kauzlarich, D. (2014). Towards a victimology of state crime. Routledge & Keegan Paul. //book2look.co.uk/book/h2j5IJH7gP. Schmid, E. (2011). War crimes related to violations of economic, social and cultural rights (SSRN Scholarly Paper ID 1932701). Social Science Research Network. http://papers.ssrn.com /abstract=1932701. Schwendinger, H., & Schwendinger, J. (1975). Defenders of order or guardians of human rights? In I. Taylor, P. Walton and J. Young (Eds.), Critical Criminology (p. 268). Routledge. https://doi.org/10.4324/9780203122655 Sharp, D. N. (2014). Economic violence in the practice of African truth commissions and beyond. In D. N. Sharp (Ed.), Justice and economic violence in transition (pp. 79–107). Springer. http://link.springer.com/chapter/10.1007/978-1-4614-8172-0_4. Spruin, E., Alleyne, E., & Papadaki, I. (2015). Domestic abuse victims’ perceptions of abuse and support: A narrative study. Journal of Criminological Research, Policy and Practice, 1(1), 19–28. https://doi.org/10.1108/JCRPP-10-2014-0002. Stanley, E. (2001). Evaluating the truth and reconciliation commission. The Journal of Modern African Studies, 39(3), 525–546. Stanley, E. (2005). Truth commissions and the recognition of state crime. The British Journal of Criminology, 45(4), 582–597. https://doi.org/10.1093/bjc/azi039. Unruh, J. D., & Abdul-Jalil, M. A. (2021). Housing, land and property rights in transitional justice. International Journal of Transitional Justice, 15(1), 1–6. https://doi.org/10.1093/ijtj /ijab004. van der Merwe, H., Baxter, V., & Chapman, A. R. (Eds.). (2009). Assessing the impact of transitional justice: Challenges for empirical research. United States Institute of Peace Press (USIP Press). van der Spuy, E., & Dixon, B. (2004). Justice gained? Crime and crime control in South Africa’s transition. University of Cape Town Press. Vidlicka, R. (2014). Severe economic crimes committed in transitional periods—Crimes under international criminal law? (SSRN Scholarly Paper ID 2905153; pp. 467–498). Social Science Research Network. https://papers.ssrn.com/abstract=2905153. Vuuren, H. van. (2006). Apartheid grand corruption: Assessing the scale of crimes of profit in South Africa from 1976 to 1994. Institute for Security Studies. http://www.issafrica.org/uploads /APARTHEIDGRANDC2.PDF.

Conclusion

This study began with the assumption that there is a dearth of attention paid to socio-economic harm during periods of violent conflict. In order to understand the extent to which such harms can amount to form(s) of crime and human rights violations, this research has taken an interdisciplinary approach by combining alternative perspectives from the fields of transitional justice and criminology while examining empirically the case of land grabbing in Afghanistan. On a broader theoretical and normative level, the research has attempted to connect the seemingly disconnected fields of transitional justice and critical criminology. Theoretically, the main question the research posed concerned the relationship between transitional justice and criminology in studying socioeconomic harm, with the following sub-questions: • • • • •

Which criminological and transitional justice lenses can be used in establishing a connection between criminology and transitional justice? What type of—alternative—understanding of crime and justice can help us in understanding this linkage? What kind of understanding and framework of economic crime and state crime can help our analysis of socio-economic harm in the context of violent conflict and transitions? What is the place of socio-economic rights violations in transitional justice discourse and practice as well as in criminology as a discipline? What is the place of Housing, Land and Property (HLP) loss, particularly land grabbing, in contexts of violent conflicts?

The research found that it was necessary to adopt an alternative view in criminology—that of critical criminology—in examining the harm inflicted on people in situations of violent conflict. An alternative understanding of crime—based on injury and harm—was better suited in a study of this nature than the legal approaches to crime. This decision was primarily opted for in consideration of the research’s focus on state crime and economic crime in the case of land grabbing in Afghanistan. Likewise, transitional justice literature DOI: 10.4324/9781003134411-9

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pointed to a direction that an emerging alternative discourse—moving away from the dominant legal paradigm—could serve as the lens to apply to the empirical case and to establish a connection with critical criminology. This discourse places emphasis on the bottom-up approaches to justice, accentuating the crucial role of victims in the process with a transformative outlook in addressing historical as well as current HLP harm. At its core, this research has concentrated on socio-economic harm through the discourse on HLP rights in periods of violent conflict. While transitional justice scholars and practitioners have started to address socio-economic rights violations to a certain degree, the research found that socio-economic harm in times of violent conflict has hardly been investigated and analyzed by criminologists, including those working in the realm of critical criminology. In either case, however, the study shows that land grabbing, despite its prevalence in other post-conflict/transitional countries such as Cambodia and Burma, is not well-studied. The empirical component of the study was primarily concerned with understanding the perspectives of victims of land grabbing and other forms of land and property loss in Afghanistan as a result of conflict (covering the 1978–2014 conflict period). Empirical data shows that Afghanistan’s long-running violent conflict has wreaked havoc on people’s civil and political rights, as well as their basic socioeconomic rights. The loss of land and property, which comes after the loss of life and/or severe bodily injuries, is the most devastating injury inflicted on the participants of this study. Many victims have been victimized and re-victimized over various stages of the Afghan conflicts, with consecutive political transitions without justice and, especially, transitional justice measures. As a result, a vicious cycle of violence has been going on in the country with the main impact being on the lives of ordinary Afghans. This has also had ramifications in terms of HLP harm. Some participants, for example, lost their land and property as a consequence of Soviet bombing (and were forced to flee to a neighboring country), only to face the same situation again upon their return during the Karzai government as a result of American aerial attacks, where they were forced to be displaced as IDPs. During interviews, many victims stated that compensation for land and property was their most pressing socio-economic need. This element of the research supports the rising trend in transitional justice discourse that emphasizes socio-economic rights violations as a key concern.

Main argument and research contribution This research has presented and supported two key arguments based on a thorough analysis of the theoretical and empirical components. First, certain types of socio-economic harm, such as those borne by victims whose perceptions are reflected here, can amount to economic-state crime, a framework which

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this research has developed based on existing criminological typologies. In many post-conflict and transitional settings, such as Afghanistan, a symbiotic relationship between economic crime and state crime exists in the contexts of weak, failed and corrupt institutions, where the ruling class is complicit in such crimes and where “accountability” mechanisms are tantamount to the popular Afghan saying of putting rabbits in charge of carrots. Second, the research argues that considering the gravity and frequency of such acts of economicstate crime, it is also a serious form of human rights violation and a potential crime against humanity. The findings and arguments of this research can offer a number of contributions to the fields of transitional justice and critical criminology. Chapter 7 has already presented a discussion on the ways in which the two fields can intersect, and thus contribute towards an interdisciplinary study of crime and justice. Here, I will highlight, briefly, a few specific issues regarding the contributions of this research to the broader field of critical criminology on the one hand, and alternative discourses in transitional justice on the other. First and foremost, by conducting empirical research in Kabul, the study has contributed to a better understanding of economic and state crime in conflict/ post-conflict contexts, thus making a contribution to the field of critical criminology. Second, by putting the concept of crime more prominently into the human rights discourse, it has opened up a new vista for the domain of transitional justice. As Cohen notes: “We seldom frame human rights violations in criminal terms” (1993, p. 652). From a criminological standpoint, the perspective of state crime, or economic-state crime for the purpose of this study, can only buttress the debates among transitional justice scholars who criticize the dominant approach, which emphasizes individual criminal responsibility at the expense of crimes with a more collective nature of responsibility, such as state crimes. Third, the research has drawn the attention of both fields towards the much neglected issue of socio-economic harm during periods of violent conflict. As empirical data demonstrates, socio-economic harm, in a context already plagued by poverty, is deemed as severe by the research participants as civil and political harm, if not more. As a result, this study, particularly through its empirical component, contributes to the burgeoning voices among transitional justice scholars and practitioners, and explains why the issue should also be of concern to critical criminologists. Last, but not least, the study contributes to the importance of bottom-up perspectives, which are anchored in the existential reality of the afflicted communities—victims of violent conflict in this case—through its methodological approach. The study emphasizes the importance of contextspecific measures that must be tailored to each transitional society’s distinctive traits. This research concludes that transitional justice and critical criminology, contrary to their apparent disconnect, can mutually inform and reinforce each

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other. This, however, necessitates a deeper dive into criminological literature and knowledge, as well as the application of its methodology, theories and concepts to transitional societies. In the same vein, to be able to engage further with the field of transitional justice, critical criminologists must step outside of their “comfort zone” and employ their critical lens in contexts of violent conflict and post-conflict, beyond established liberal democracies. Looking forward, the findings underscore the need for a framework to comprehensively analyze socio-economic harm in contexts of ongoing violent conflict. Such empirical findings further underline the vital role that transitional justice and critical criminologists may play in not only diagnosing the nature, magnitude and complexity of the harm and its consequences, but also in proposing appropriate accountability and reparations mechanisms tailored to the demands of the local population. This may include, for example, a recognition of state crime and international state crime victims as a separate category in victimology. Importantly, as in Afghanistan and elsewhere, perpetrators of serious human rights violations have frequently been able to move freely not only within their own country (as long as the situation permits), but also abroad. In addition to violating civil and political rights, many of these culprits have perpetrated economic-state crime and caused socio-economic harm to their citizens without ever facing accountability. As a most recent example, following the fall of the Kabul regime on 15 August 2021 that led to a mass exodus, many of Afghanistan’s most powerful land grabbers and corrupt officials fled Afghanistan. They now live in luxury in Dubai, Turkey or another country where they have not only been granted protection but also the opportunity to invest with stolen Afghan assets. Many Afghan kleptocrats had constructed a life of luxury for themselves and their families overseas well before the fall of the Kabul regime, often departing the country with millions of dollars in cash (McClain, 2021; Pannett, 2021; Purkiss, 2019). The international legal system seems incapable of holding such perpetrators accountable. One explanation for this, arguably, is that socio-economic harm is not yet recognized as a significant form of human rights violation at the international level. While the principle of universal jurisdiction has been utilized in a number of cases involving civil and political rights violations, it has hardly ever been applied, if at all, in situations involving socio-economic harm that can equally amount to gross human rights violations. This is another area where transitional justice scholars and criminologists can join forces and resources to meaningfully contribute towards holding such perpetrators accountable.

Recommendations This section presents general recommendations related to the situation of Afghanistan as discussed in the case study, as well as recommendations for future research.

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First, it seems plausible to suggest the formation of a commission of inquiry in relation to land grabbing in Afghanistan. As this research demonstrates, the phenomenon of land grabbing is extensive across the country; however, while everyone in Afghanistan talks about land grabbing as an entrenched and pervasive practice, limited documentation exists. A commission of inquiry— which can be a hybrid model with both national and international experts— can systematically document, archive and suggest mechanisms of recuperation based on good practices. In a transitional justice context, if Afghanistan ever gets to experience one, this can be a significant contribution. Second, since the case of Afghanistan is being investigated by the International Criminal Court, international and local civil society and human rights activists can advocate for the inclusion of land grabbing as a systematic and expansive practice that, as this study has shown, can result in serious human rights violations. As a consequence, it could be classified as a crime against humanity, which is subject to ICC jurisdiction. Land grabbing in Cambodia has already set a precedent in this regard, as discussed earlier. Third, any future Afghan government that is serious about implementing transitional justice measures should include cases of economic-state crimes, particularly systematic and large-scale land grabs, as part of its screening for official appointments in its institutional reform programs. Furthermore, through the establishment of an official procedure, the government should compel individuals to return stolen public and private property or pay restitution to individuals and communities who have been harmed. As Roht-Arriaza suggests, reparations should “expand the focus of ESC rights violations to include economic crimes like corruption and spoliation” as a way to also provide funds for reparations programs (2014, p. 109). This aspect is particularly important in Afghanistan, where numerous kleptocrats have embezzled millions of dollars meant for Afghan development initiatives, or have profited handsomely from poppy cultivation or land grabbing. While a future transitional justice mechanism of reparation may take this into account, civil society and the international community could already begin lobbying for the establishment of a framework for the recovery of such embezzled profits as part of a reparative strategy. As argued by Transparency International UK, asset recovery in Afghanistan, as elsewhere, can be a route to reconciliation (Falvo, 2021). Recommendations for future research

In the advancement of knowledge in both critical criminology and transitional justice, further research can be suggested for future studies as follows. First, as previously stated, transitional justice scholars have rarely considered crimes committed by the international actors during periods of violent conflict or dictatorships. Similarly, critical criminologists have paid little attention to the subject. However, as discussed in Chapter 7, some

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critical criminologists have developed the concept of international state crime (Kauzlarich et al., 2001), which can be further investigated in future research in transitional contexts. The case of Afghanistan alone could possibly generate a number of research projects with a focus on crimes of the international actor, such as the role of the US, the UK, Australia and other forces, the role of NATO and the role of private security contractors. The same argument can be presented about other contexts, such as Iraq, where the US forces carried out gross human rights violations, including significant destruction of city infrastructure, e.g., the center of Qaiyara and residential areas (Khan & Prickett, 2021). This could be yet another arena where criminologists and transitional justice scholars can utilize their critical lenses. Second, I have briefly alluded to the nexus between economic-state crime and organized crime in this research. Scholars of organized crime and state crime could investigate this linkage in transitional contexts of weak and failed states, where kleptocrats frequently exploit existing gaps in the system, on the one hand, and their criminal networks, on the other, to profit politically and financially. Third, it would add value, in particular to the field of criminology, to include the views of the perpetrators of economic-state crime, especially given how little has been written with a “methodological focus on the process of researching the powerful” (Whyte, 2000, pp. 419–420). Due to critical security concerns, it was not possible to incorporate perpetrators’ perspectives in the current study. The perpetrators of the most heinous cases of land grabbing in Kabul are influential individuals who, thanks to their links with the government, can act with impunity and the threat of violence.

References Cohen, S. (1993). Human rights and crimes of the state: The culture of denial. Australian and New Zealand Journal of Criminology, 26, 97–115. Falvo, R. (2021, May 12). Asset recovery as a route to reconciliation in Afghanistan. Transparency International UK. https://unishka.com/wp-content/uploads/2021/06/Asset-recovery -as-a-route-to-reconciliation-in-Afghanistan.pdf. Kauzlarich, D., Matthews, R. A., & Miller, W. J. (2001). Toward a victimology of state crime. Critical Criminology, 10(3), 173–194. https://doi.org/10.1023/A:1015744304749. Khan, A., & Prickett, I. (2021, December 20). The human toll of America’s air wars. The New York Times. https://www.nytimes.com/2021/12/19/magazine/victims-airstrikes -middle-east-civilians.html. McClain, J. (2021, October 7). Son of Afghanistan’s former defense minister buys $20.9 million Beverly Hills mansion. https://www.yahoo.com/lifestyle/son-afghanistan-former-defense -minister-172358560.html?guce_referrer=aHR0cHM6Ly90LmNvLw&guce_referrer_s ig=AQAAAIWbePeLbZwZXqlwl-QauTWEaeEobwNwJ8b7Nuy_vH2p6IhVr2muW APVaIosiuwDWtxvuKR0ASZvSqHo_FKYh7usQqWnqmFdqUkPuvsV6i3kRCG2b Po5LRBCL_Fx3xlYNLM16cs0YVXeMtPOG8wkJYjHI0eDPfObF0_eDUTyJXyq &guccounter=2.

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Pannett, R. (2021, October 7). U.S. probes claim former Afghan president Ashraf Ghani fled with millions. The Washington Post. https://www.washingtonpost.com/world/2021 /10/07/ghani-afghanistan-fled-millions-stolen/. Purkiss, J. (2019, November 4). The Afghan officials’ families with luxury pads in Dubai. The Bureau of Investigative Journalism. https://www.thebureauinvestigates.com/stories /2019-11-04/the-afghan-officials-families-with-luxury-pads-in-dubai. Roht-Arriaza, N. (2014). Reparations and economic, social, and cultural rights. In D. N. Sharp (Ed.), Justice and economic violence in transition (pp. 109–138). Springer New York. http://link.springer.com/chapter/10.1007/978-1-4614-8172-0_5. Whyte, D. (2000). Researching the powerful: Towards a political economy of method? In R. D. King & E. Wincup (Eds.), Doing research on crime and justice (pp. 419–429). Oxford University Press.

Appendix A Questionnaire

Centreal research questions 1. What are victims’ experiences with the violation of their Housing, Land and Property (HLP) rights? 2. How do they understand the mechanisms behind the harms inflicted related to HLP? 3. What is the way forward from the victims’ perspective as regards justice and remedy mechanisms?

Questionnaire Introduction

1. Opening questions: demographic information, family, age, ethnicity, occupation, etc.; description of the project (drop off) 2. How do you think the war has affected the country in the last 40 years? Transition

3. Which period of the war do you see as having the most impact on people’s lives, particularly in terms of socio-economic loss? 4. How has the war affected your socio-economic life in the last 40 years? (a) Which period has affected you the most? i. The Soviet occupation? ii. The civil war of 1992–1996? iii. The Taliban regime? iv. The Karzai administration? 5. Which aspect of your socio-economic life has been affected the most? 6. Did you have land/property before the war? (a) Did you own it? (b) What happened to it? 7. Do you think this was similar for others? (a) i.e., neighbors, your relatives, those living in your city?

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8. How did you respond to the situation? (a) Did you take refuge to another country? (b) Did you build another house? (c) Did you move to another part of the country? (d) Other possibilities? (e) Did you demand compensation? 9. How do you think others have responded to the situation? Central questions

10. How has your life changed now as a result? 11. What do you think is the cause of your economic loss (land and property)? 12. Who do you think is responsible? (a) The government? (b) A particular individual? (c) A militia or another non-state force? (d) Others? 13. What are the reasons behind it? (a) Land grabbing? (b) Destruction? (c) Bombing and rockets? (d) Other? 14. What would be justice for the socio-economic loss you have endured? 15. Which aspect of your socio-economic life is the most urgent for you now to be addressed? (a) Housing? i. If yes, how come housing is the most important aspect of your socio-economic life? 16. In which form do you expect justice to be provided as a compensation for your economic loss? (a) Monitory compensation? (b) In kind? (c) Restitution? (d) Rehabilitation? (e) Apology (f) Other, e.g., community service? 17. Who can provide you this justice? (a) What do you expect from the government? (b) What do you expect from the non-state actors? (c) Is there an individual from whom you expect a remedy? (d) Do you expect anything from the international community? 18. Do you see any role for yourself to improve the situation? (a) If yes, in which way? (b) If no, how come not?

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19. Do you see any role for others like you to improve the situation? (a) In which way? 20. Do you see an improvement in your socio-economic situation as a step to become involved in other aspects of society? (a) e.g., voting? Concluding remarks

21. A summary of what we have discussed and clarify any point that may not be clear Anything else you want to share/add to our conversation?

Appendix B List of interviews

ID 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33

Research participants

M

F

Date

Category

4

01-Sep-13 03-Aug-13 13-Aug-13 23-Jul-13 19-Aug-13 29-Aug-13

Government Independent public body Independent public body Civil society organisation Victim Victim

04-Aug-13 28-Jul-13 29-Jul-13 28-Jul-13 12-Aug-13 27-Aug-13 20-Aug-13 07-Sep-14 08-Sep-14 08-Sep-14 17-Sep-14 18-Sep-14 20-Sep-14 22-Sep-14 23-Sep-14 23-Sep-14 25-Sep-14 25-Sep-14 27-Sep-14 28-Sep-14 28-Sep-14 30-Sep-14 30-Sep-14 08-Oct-14 09-Oct-14 10-Oct-14 11-Oct-14

Civil society organisation Civil society organisation Civil society organisation Civil society organisation Civil society organisation Government Government Victim Victim Victim Victim Victim Victim Government Victim Victim Victim Victim Victim Government Victim Government United Nations Government INGO Semi official Victim (Continued )

1

G0 (G stands group discussions)

G1 G2 G3 G4

G5 G6

G7

1 1 1 1 1 1 1 1 1 1 1 1 4 1 1

1 1 1 1 1 1 4

3 2 2 1 1 1 1 4 4

Appendix B ID

Research participants

34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56

G8 G9

G13 G11

G11 G12

M 5 1 1 1 1 1 3 1 1 1 1 1 1 1 4 1 3 2

197

F

Date

Category

4 4

11-Oct-14 11-Oct-14 12-Oct-14 13-Oct-14 14-Oct-14 14-Oct-14 15-Oct-14 19-Oct-14 19-Oct-14 20-Oct-14 21-Oct-14 21-Oct-14 23-Oct-14 24-Oct-14 25-Oct-14 25-Oct-14 26-Oct-14 26-Oct-14 29-Oct-14 29-Oct-14 30-Oct-14 02-Nov-14 02-Nov-14

Victim Victim Government Victim Government Government Victim Civil society organisation United Nations Academia Civil society organisation Academia Academia INGO Independent public body Academia INGO INGO Academia Civil society organisation Victim Government Government

1 8

1

1

Index

Note: Page numbers in italics indicate figures and page numbers in bold indicate tables. Abdul-Jalil, M. A. 75, 179 accountability, lack of 4–5 Action Plan for Peace, Reconciliation and Justice 10, 91–2 actor, Larsson criteria of 63, 139–42 Adler, M. J. 50 Afghanistan Freedom House 127, 128 Afghanistan Independent Human Rights Commission (AIHRC) 3, 4, 10, 90 Afghanistan Justice Project 87 Afghanistan Land Administration Systems Project (ALASP) 105 Afghanistan Land Affairs (AMLAK) 105 Afghanistan Land Authority (ARAZI) 104–5, 126, 127, 128, 140; Book of Private and State Land 107; five-year Strategic Plan 131–5 Amnesty Law see National Reconciliation, General Amnesty and National Stability Law Andrieu, K. 38 Arbour, A. 36, 39 Australian Crime Commission 54 Balasco, L. M. 46 Balint, J. 55, 172–3 Barak, G. 8 Bassiouni, C. 55 Baxter, V. 25, 181 Berg, B. L. 19 Bonn Agreement 89–90, 91, 102, 163 Bosnia and Herzegovina 76–7 bottom-up initiatives, role of 92–3 Bourke, B. 23–4 Briscoe, I. 175

Budak, Y. 9 Burma 79–80 A Call for Justice (2005) 90–1, 94 Cambodia 80–1 Capeheart, L. 177 Carranza, R. 31, 33–5, 45, 171 Case Study approach 12–13 Chadwick, K. 50 Chambliss, W. J. 49, 57–8 Chapman, A. R. 33 Christie, N. 50, 51 Civil Code (1970) 103 civil war 2, 9, 86, 87; damage of Afshar 116; frequency of rockets launched during 115; Housing, Land and Property damage during 111; Land grabbing and 117, 126, 150; land tenure during 104; socio-economic destruction of Kabul 93–7 Cohen, S. 48, 51, 52, 53, 181 collectivity, notion of 62 Colombia 78 Commission for Reception, Truth and Reconciliation (CAVR) 40 Commission on Historical Clarification 77–8 Commission on Monitoring Government’s Acts of the Afghan Parliament 127 Commission on Real Property Claims (CRPC) 77 Committee Procedure to Identify and Select Lands 106 compartmentalization of justice 33 confidentiality, defined 19

Index Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 105 Coordination and Follow-up Committee for Cases of Usurped Public and State Land 135 corporate crime 61, 177 corruption 33, 57, 98, 108, 147; as contextual factor 146; administrative 120; definition of 58, 61; government’s support towards 154; political 57; political gift and 141; systematic 109, 142 Coser, L. A. 48 Cox, M. 77 criminology: critical and radical 81; failure of 82; green 160; and transitional justice 171–4; see also crime; critical criminology critical criminology 7–8, 47–9, 81–2, 173–4; approaches to economic crime in 60–5; crime, understanding of 49–53; harm-based approach to crime 53–5; see also crime customary law 109–10 Dahrendorf, R. 48 Daily 8am (newspaper) 140, 151 data analysis 17–18; emotional challenges of 24 daunting complexity, problem of 77 Dayton Agreement 77, 163 de Bunt, H. V. 175 Deeds Registration Book 107 Defenders of Order or Guardians of Human Rights? (1975) 176 de Greiff, P. 43 DeKeseredy, W. S. 48 desk research 13–14 Directorate of Cadastre Survey in Kabul 103 displaced person see Internally Displaced People (IDPs)/refugees Doig, A. 59 Dragiewicz, M. 48 Drumbl, M. A. 173 Dudai, R. 53, 177 eco-crime 160 economic crime 31, 32, 50, 82, 171, 174, 175; actor criteria 63, 139–42; approaches in criminology 60–5;

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character of act 64; consequences/harm 64; context of action and means 64; contextual factors and means 144–50; economic motivation 63; expertise 64–5; land grabbing as 139–53; Larsson’s criteria for 63–5; legislation 64; motive for 142–4; harmful consequences 150–3 economic motivation 63, 142–4 economic profit 143–4 economic-state crime 5, 174–6; land grabbing as 159–60 economy: impact of immigration on 95–6; market 97–9; role for government in 98; violent conflict on 95; see also socioeconomic harm and destruction Eco Ruralis 124 ethical considerations 18–19 Evans, J. 55 external validity 22, 23 Extraordinary Chambers in the Courts of Cambodia (ECCC) 80 Ezat, M. 140 Fahim, Mohammad Qasim 2 Fletcher, L. E. 38, 172, 173 Forced Displacement and Famine 40 forced eviction 110; circumstances for 74–5; defined 74; incident of 3 Franks, J. 38 Friedrichs, D. O. 49, 56, 60–1 Galtung, J. 54 Garlick, M. 77 Gasparotto, A. 166 Geneva Accord 86 Gluek, S. 57 Government Cases Department (GCD) 108 Goyes, D. R. 160 Gready, P. 9, 38, 46 green criminology 160 Greenfield, V. A. 54, 55, 176–7 Green, P. 53, 55–8 Guatemala 77–8 Hagan, J. 82 Hanson, A. 82 harm-based approach 53–5, 59–60 Housing, Land and Property (HLP) rights 6; background for 103–5; conflict impact on 110–21; harm, returnee IDPs’ perception on 111–14; harm, returnees’

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perception on 114–17; land grabbing, perceptions of victims of 117–21; legal framework for 103–5; loss 75–8, 110, 113; peace settlements 75–8; resolving issues in special courts 109; women and marginalized population 105–7 Huggins, C. 79 Hughes, G. 7–8 Human Rights based Approach (HRBA) 58, 106, 160 Human Rights Watch 79–81, 87 humanity, crime against 87, 166 illegal land sales see land grabbing illicit land transfer 126 impunity 2, 5, 88, 91, 92, 144, 145, 148, 150; for economic crimes 35; for human rights violations 35; land grabbing and 160–1 informal settlements 111–12 Information and Legal Aid Centre (ILAC) 109 injury-based approach 59–60 injury, crime as 176–7 institutionally sponsored research 18 Integral Reparations Plan 40 Internally Displaced People (IDPs)/refugees 4; challenges of property restitution to returning 111; establishing settlements 155–7; forcible eviction or land disputes 110; HLP rights violation 75; Housing, Land and Property rights and 106–7; property restitution/provision to 161–3; restoration of 76; returnees 111–17 internal validity 22, 23 International Covenant on Economic, Social and Cultural Rights (ICESCR) 73–4 international criminal law 36–7, 60, 163, 173 International Journal of Transitional Justice 81 Japan International Cooperation Agency (JICA) 151 Justice and Home Affairs Ministries 54 justice, defined, 36 see also transitional justice Kaiser, J. 82 Kalkman, P. 175 Karstedt, S. 57

Kauzlarich, D. 58, 59–60, 153, 177–80 Kothari, M. 3–4 Kumar, R. 22–3 labor force, violent conflict on 95 Lambourne, W. 39 land and property restitution 76–7 land dispute 81–2, 108–10 Land Governance Assessment Framework 129 land grabbing 124–5; in Afghan law 129–31; background of 126–8; case in Sherpur 1–7; characteristics of 125; criteria for 124; critical criminology 7–8; data analysis 17–18, 24; data saturation 21; definition of 124, 128–9; desk research 13–14; disputes over, compensating or resolving 157–8; as economic crime 139–53; as economic-state crime 159–60; harmful consequences of 150–3; as human rights violations 163–7; and impunity 160–1; by individuals 134; land grabbers, categories of 132; legal and illegal shahraks 133; lucrative lands and 128; measures by government to tackle 135–6; non-criminalization of 144; perceptions of victims of 117–21; political economy and 125; and property restitution/provision to IDPs and returnees 161–3; qualitative methodology 11–25; as state crime 153–9; Strategic Plan 131–5; transitional justice and 8–10, 78–81, 160–7; validity and reliability 21–3 Land Grabbing Unit 135 land mafia network 118, 119, 128, 144, 145 Land Management Law (LML) (2008) 103 land reform 103–5 land registration: land titling and 107–8; rate 144; in tax books 107; ways to 107 land tenure 75, 104, 105, 110; defined 103; recognition 108; security 106; violence and 110 land theft, as eco-crime, 160 see also land grabbing land titling 107–8 Laplante, L. J. 37 Larsson, B. 60, 62–5, 139, 142, 144, 149, 152, 159, 174 Lasslett, K. 81, 160

Index Lawther, C. 53, 177 Leckie, S. 76, 163 liberal peacebuilding: market economy and 97–9; transitional justice and 37–9 Loader, I. 50 Lundy, P. 182 Managing Land Affairs (MLA) law 104, 129, 130 Mani, R. 40, 41, 43, 44 market economy 97–9 Marshall, C. 14, 18, 23 Marx, Karl 49 Mason, M. 21 mass violence: state crime victims and 179; Syrian state’s sponsorship of 173 Matthews, R. A. 177–80 McAuliffe, P. 47 McCulloch, J. 53 McEvoy, K. 53, 175, 177 McGovern, M. 182 McLaughlin, E. 7–8 McMillan, M. 55 McMillan, N. 55 Medeiros, L. S. de 166 Meltzer, D. M. 32 Merton, R. 57 Michael, J. 50 Michalowski, R. 53, 152, 159–60 Miller, W. J. 177–80 Mills, W. 48 Milovanovic, D. 177 Ministry of Agriculture, Irrigation and Livestock (MAIL) 105, 127 Ministry of Finance’s Land and Property Taxation Book 107 Ministry of Justice and Ministry of Finance 104–5 Ministry of Urban Development and Land (MUDL) 104, 105 Ministry of Women’s Affairs 106 money laundering 142–3 Morel, E. D. 57 Mujahideen leaders 86–7 Muller, G. 160 Muncie, J. 7–8 municipal safayi tax registration books 107 Murphy, T. 46, 53 Muvingi, I. 37, 40, 44 National Housing Policy (NHP) 106 National Land Policy (NLP) 103

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National Land Use Policy 80 National Reconciliation, General Amnesty and National Stability Law 11, 91, 142, 161 negligence, state crimes of 155–8 Newburn, T. 51 New Kabul project 151–2 non-criminalization of land grabbing 144 Norwegian Refugee Council (NRC) 109, 150–1, 162 occupational crime 61 omission, state crimes by 158–9 Oñati Socio-legal Series 55 open-ended questionnaire during interviews 16 organized crime 61, 175 Paoli, L. 54, 55, 176–7 Parker, P. 82 Parmentier, S. 60, 163–4 peace settlements 75–8 Penal Code (2017) 130–1 People’s Democratic Party of Afghanistan (PDPA) 85–6 physical threats, economic crime and 148–9 Pinheiro Principles on Housing and Property Restitution for Refugees and Displaced Persons 76 Policy and Planning Directorate of the Ministry of Urban Development and Land 135 political gift 141 poppy palaces 142–3, 144 Presidential Advisory Board on Construction 140 prism approach 46, 47 Proal, L. 57 Program of Reparation and Integral Health Services (PRAIS) 41 Qualitative Analysis Guide of Leuven (QUAGOL) 17–18, 181 Quinney, R. 51, 57 Rangelov, I. 88 refugees see Internally Displaced People (IDPs)/refugees Regulation on Tackling Public and State Seized Land and Property (2020) 135 rehabilitation 41, 43 reinforcement of impunity 35

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reliability 21–3 reparations mechanisms 40–2 researcher’s positionality 23–4 research limitations and challenges 19–20 Richmond, O. P. 38 right to adequate housing 73–5 Robins, S. 9, 38, 46 Roht-Arriaza, N. 41 Rome Statute 81 Rossman, G. B. 14, 18, 23 Rostami, A. 143 Rothe, D. L. 56, 177–8, 180 Rothenberg, D. 82 Roth, K. 36 Rubin, B. R. 86–7 Rule of Law and Transitional Justice in Conflict and post-Conflict Societies 36 Saraiva, R. C. F. 166 Sayyaf, A. R. 140 Schmid, E. 37 Schwendinger, H. 51–3, 57, 58, 176 Schwendinger, J. 51–3, 57, 58, 176 Scraton, P. 50 secondary HLP occupancy 111, 113 shahraks (townships) 128, 143–4, 155, 157; illegal construction of 146–7, 152; legal and unlawful 132, 133 Sharp, D. N. 45–6 Sherpur neighborhood of Kabul 139, 170–1; and beyond 5–7; economic motivation 142; land-grabbing case in 1–7; relevance of 2–5; state crimes of commission 153–4 Siegel, D. 175 social harm, crime as 176–7 societal reconciliation 34–5 socio-economic harm and destruction 93–7; role of trials in 41–2; in times of violent conflicts 31–5; see also critical criminology; economic crime; state crime; transitional justice South Africa, socio-economic harm in 34–5 South, N. 160 Soviet-backed PDPA rule 103 Soviet invasion of Afghanistan 10, 15, 85–7, 94, 113 Sparks, R. 50 Special Property Dispute Resolution Court 109 Sriram, C. L. 38

Stanley, E. 53, 172 state-corporate crime 159–60 state crime 50, 55–6, 171, 174, 176; approaches to 56–60; of commission 153–5; harm and injury-based approach to 59–60; as human rights violations 60; land grabbing as 153–9; of negligence 155–8; by omission 158–9; truth commissions in recognition of 172; victims 177–80 Strategic Plan, ARAZI 131–5 street crime 177 structural inequality 43–7 Survey and Cadastre Directorate’s Land Statistics Registration Book 107 Survey and Statistics law 103 Survey Institute in Kandahar 103 Sutherland, E. H. 63, 142 Tappan, P. W. 50–1 tax books 107 Taylor, I. 57 Teló, F. 166 Theros, M. 88 Tirana Declaration 125 transitional justice 7, 8–10; accretive criticism of 170; Action Plan for Peace, Reconciliation and Justice 91–2; approach for 178; bottom-up approach to 92–3; Call for Justice 90–1; criminology and 171–4; defined 36; and development 42–3; implications for discourse of 177; issues restricting researchers 181; land grabbing and 160–7; legal accountability and 172; legal paradigm 36–7; liberal peacebuilding 37–9; methodological approach 180–2; and socio-economic harm 35–42; socioeconomic rights violations 39–42; state crime by scholars 172; and structural inequality 43–7; victims of state crimes and 179; violent conflicts 78–81 Transnational Institute (TNI) 125, 127–8 Truth and Reconciliation Commission (TRC): Peru 37, 39; South Africa 34–5 underpinning methodological approach 11–12 United Nations Assistance Mission in Afghanistan (UNAMA) 3, 129 United Nations Development Program (UNDP) 5

Index United Nations High Commissioner for Refugees (UNHCR) 114, 116, 162; repatriation program 150; Verification Refugee Form 157 United Nations Human Settlements Programme (UN-Habitat) 74, 162 United States Agency for International Development (USAID) 6, 103, 144 Universal Declaration of Human Rights (1948) 73 Unruh, J. D. 75, 179 Urban Upgrading and Redevelopment Policy 106 urbanization: crimes of 81–2, 160; rates 105 validity 21–3 van der Merwe, H. 11, 33

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van Solinge, T. B. 160 victimology, state crime and 177–80 Vuuren, H. 35 Walton, P. 57 Ward, T. 53, 55–8, 61 Weitekamp, E. G. M. 60, 163–4 White-collar crime 57, 61 White, R. 160 Whitty, N. 53 women: Housing, Land and Property rights and 105–7; terrorism and 88 Yin, R. K. 16, 19–20, 22, 23 Young, J. 48, 51, 57 Zaitch, D. 160, 175