Loya Jirga and the Pashtun Tribes: Can a Truth, Justice, and Reconciliation Commission Restore the Trust of the Tribal Communities of the Khyber Pass?

Abstract

The military attacks by the USA and Pakistan during the ‘war on terror’, which focused on the Pakistani-Afghan border province of Khyber Pakhtunkhwa, led to the displacement of the Pashtun tribes who inhabit the border regions and to an ongoing humanitarian crisis. 20 years after the beginning of the ‘war on terror’ it is time to address the human rights violations as well as the diaspora the tribes suffered and to restore the people’s trust in governmental institutions and the military. Due to the diaspora and Pakistan’s far-reaching criminal laws, the tribes fear an intrusion of state institutions into their tribal law, the ‘Code of Pashtunwali’. This paper examines whether dispute resolution in the aftermath of the ‘war on terror’ can take place within the framework of the local Loya Jirga (‘grand assembly’) of the Pashtun tribes. It discusses whether the Loya Jirga could - and should - serve as a platform for the establishment of a Truth, Justice, and Reconciliation Commission. The paper outlines how such a commission could be an instrument for addressing the human rights violations and establishing transitional justice. It argues that the consensus-based process of the Jirga can also lead to the recognition and effective protection of Pashtun rights as indigenous peoples under international law.