1There are a number of reasons to be interested in the rangelands, or ‘pastures’, of Afghanistan. They constitute between 45 % and 70 % of the country’s land area (MAIL, 2012). A thousand or so pastures are distinctively named, and over 30 are between 100 and 1 000 square kilometres in size. In addition to the hardy bushes they produce and which provide winter fuel for 59 % of the population, the pastures provide green grazing and winter fodder for livestock (European Union, 2009). More families own livestock than farmland (68 % compared to 59 %), with a national herd of 30 million animals. This dependence is predictable in a country where only 5 % of the land is irrigable for cultivation. Even landless tenants and sharecroppers (who constitute at least a quarter of the rural population) usually own a few sheep and goats (Alden Wily, 2004). In an arid country which depends upon moderated snow-melt for virtually all of its water, conservation of alpine pastures play a critical role (Kamal, 2004).
2Rangeland access also influences the socio-spatial shape of Afghanistan. Over 17 million rural citizens live by agro-pastoralism and need stable access to pastures. In the mountainous Hindu Kush-Pamir mountain ranges, which run on a north-east to south-west axis in the northern half of the country, this takes the form of classical transhumance; in summer families move with their animals from valley locations to high pastures which are otherwise snowbound for up to six months of the year (Alden Wily, 2009). The location, distribution and attributes of pastures are also acutely important to the one million or so nomadic pastoralists (Kuchi) who migrate to highland pastures in spring and summer. Kuchi constitute 6 % of the population (2.4 million people in 2005) (De Weijer, 2007).
3The majority of Kuchi in Afghanistan are ethnically Pashtun, and the term Kuchi is usually synonymous with this group. Small numbers of Baluch, Aimaq and Arab communities are also nomadic, along with even fewer Uzbek and Tajik. While roughly the same numbers of Kuchi migrate long distances today as before the war (1978), they represent a declining proportion of pastoralists (52 %). Another 33 % of Kuchi now migrate only short distances. At least 15 % of Kuchi are permanently settled, usually on the edges of cities and towns in the south and east of the country, their usual winter locations (De Weijer, 2007).
4This paper focuses on the historic and continuing conflicts between Hazara and Pashtun Kuchi in relation to who has controlling rights to the alpine pastures of the central highlands, also referred to as the Hindu Kush, or Hazarajat, the land of the Hazara people. As will become apparent, this conflict may be defined in ethnic and even religious terms, overlaid by competition between different land-use regimes in a context of declining availability of resources.
5In more fundamental ways, the conflict is one of land rights. The state’s handling of this dispute has itself constituted a provocative factor in the conflict, not least because the state is the major claimant of these lands. A conflict of paradigms now exists between the Afghan state, nomadic pastoralists and settled agro-pastoral communities over how they perceive their tenure. This conflict is exacerbated by rising commoditization of land and resources and weakened rule of law. The meaning of property itself is contested. The result is that pastures are deemed unowned and unownable at one extreme and as private property backed up by state-issued deeds at the other.
6Other stresses on pastures compound the conflict. Government and conservationists highlight the fragile condition of pastures, used as justification for state capture of these precious resources over especially the last half-century. Over-grazing, over-harvesting of forbs and shrubs for winter fodder and fuel, and the expansion of rainfed farming into pasturelands are routinely cited as causes of pasture loss and degradation. Although each generation of agricultural officers and external advisers consider these to be new and alarming phenomena, these were active concerns in the middle of the 20th century (CSO, 1978; Kreutzmann and Schutte, 2011, citing Finnconsult, 1976) and even earlier, the Royal Chronicler observing in 1912 that ‘cultivation of the pastures’ was a principal source of dispute (Fayz Mohammad, cited in Ferdinand, 2006:193). Harvesting of thorny shrubs for fuel had already been commercialized by the 1970s, as evidenced in photos of lorry-loads of bushes being transported to supply local towns (Larsson, 1978).
7The doubling of population every three decades has added to pressure in the form of expanding settlements into near pastures, expansion of rainfed farming into pasturelands, and expansion of uprooting of rangeland forbs for fuelwood. Water flow has altered in many basins, with landslides, avalanches and floods an apparent consequence in highland areas. Such trends are not restricted to the Hindu Kush but apparent in the eastern hills dividing Pakistan and Afghanistan, in the famous loess dunes of north-western Afghanistan, and in the north-east Pamir (Alden Wily, 2009; Kreutzmann and Schutte, 2011). More recently there are signs that household-driven expansions are on the decline as communities suffer the impact on their valley farms (Alden Wily, forthcoming).
8In any event, other factors outweigh those mentioned above as drivers of pastureland loss and as triggers for conflict. These include weak rule of law and the large-scale displacement and ethnicizing effects of the civil war between 1978 and 2001. These have continued up to the present in the form of land grabbing by warlords and strongmen, often backed by political elites, and in bouts of large-scale pasture capture for emergent mechanised farming in some flatter, northern rangelands (Favre, 2003). Changes have more massively affected pastures in both the south and north-east of the country through the expansion of cultivation into pasture lands for opium poppy production (Mansfield, 2011; Pain, 2011; Coffey, 2012).
9At the periphery of cities and towns, rapid urbanization also encroaches on rural community lands including rangelands, displacing traditional owners and users, in cases such as that described by Nicolle in this volume in relation to the creation of Deh Sabz-Barik Ab, or the new Kabul City. Extraordinarily, the plan for this development, which will more than double the size of Kabul (JICA, 2009), failed to investigate existing rights to the largely desert lands being urbanized, taking the Government at its word that these constituted state lands. As a consequence, the plan also failed to make provision for resettlement and compensation. In other parts of the country, notably including Mazar-i-Sharif city in the north, Kuchi and specially settled communities continue to see swathes of their local pasturelands swept out from under their feet for the creation of private housing estates (shahrak). A dramatic rise in formal lease of rangelands by the state for commercial enterprise, for public service developments, and for still largely exploratory mining, gas and oil extraction .contributes to the threat to pastures and to existing customary rights and uses (Alden Wily, forthcoming).
10Two key questions lie at the heart of this issue. The first question relates to who actually owns the pasturelands. As suggested above, a vast gap exists between local claimants and the state on this matter, the former basing their claims on historic and customary territorial and community-centric land rights. On its part, the state claims that certain resource types and rangelands and forest being among them belong to it, unless formally allocated by lease, sale or grant, or issue of use rights to individuals or groups. This position is entrenched in and supported by Afghanistan’s modern statutory law, and takes legal precedence over custom and customary law. Nomads (Kuchi) favour this position either on grounds that state ownership means the resource is free for all so that local communities have no right to restrict their entry, or on grounds that they have been recipients of formal entitlements, some of which are of very longstanding. Most settled communities do not have tenure documents for traditional pasturelands. This is because the rural sector is predominantly governed by customary law wherein ‘legal’ documentation is slight. Additionally, as described below, the historical treatment of collective rights such as to rangelands has been circumscribed.
11A second question concerns who should benefit from changing and commercialized land use, such as inherent in the flurry of privatised ‘small city’ developments (with no fewer than 100 cases in Kabul and Mazar-i-Sharif alone) and more extensive rangeland capture for poppy production. So far these trends illustrate the failure of the state to place public benefit above elite-driven and politically endorsed land capture, or, to be fair, failure in its ability to challenge these trends when led by militias or local political strongmen who play such a strong role in rent-seeking associated with these lucrative developments. As well as being indicative of the deleterious nature of the modern Afghan State, such trends also bespeak a surge in social transformation in the country, in which – at its simplest – the poor are becoming more numerous and more poor, and the rich a yet more wealthy resource-privileged elite (European Union, 2009; Kantor and Pain, 2011; The World Bank, 2012).
12Of course, deepening penetration of capitalist relations, with sharpening polarization and commoditization of land, is hardly new or unexpected. However, this is occurring at this time in Afghanistan through the most primitive route of accumulation, by simply depriving the majority poor of their lands and resources (cf. Bernstein, 2010). Moreover, the underdeveloped or ‘natural’ state (as described by North et al., 2009), its law and its use and abuse of that law, are familiar agents in the promotion of this inequitable route to economic growth.
13The latest trigger to deprivation of the poor at scale of their rights to critical natural resources like rangelands is seen in fast developing plans to exploit Afghanistan’s lucrative mineral and hydrocarbon resources, and in which foreign companies including Chinese and Indian state companies are already active players (Noorani, 2011; Saleque, 2012). The anticipated billions of dollars which can be made from these exploits for input into the needy civil budget reinforces state reluctance to concede state ownership of all but the very limited legally documented private landholding sector (less than 10% of the total land area). Given that most of the mineral deposits are found in the highland areas, rampant land grabbing by state-aligned or -supported elites can also be anticipated. Proposals to turn several key pastures into protected areas, such as the long-fought-over Nawor Pasture in the eastern foothills of modern Hazarajat, add a further constraint to local claims, by either Kuchi or local settled communities. At the same time, the potential to position themselves as deserving of compensation for at least farms which will be lost to mining enterprise is also heightening competition between these two sectors.
14Meanwhile, traditional forms of pasture use are also changing along with rural society. As cultivation provides a decreasing proportion of rural household income (Kantor and Pain, 2011; European Union, 2009), and as family members move themselves temporarily or permanently to towns to find jobs, both the composition of pasture owners and forms of use alter. This is so even outside areas of poppy cultivation, a prime driver of land-use change and of social stratification. More generally, the growing commercialization of land use and social class formation means that wealthier stock-owners from both pastoral and settled communities seek to own, access or control pastures which they themselves do not visit. Instead they send hired herdsmen to these remote areas, even trucking animals into the highland spring and summer pastures (Alden Wily, 2009). Without available labour, middle-income families with livestock are constrained to send their families and stock to the highest pastures for high-altitude grazing in high summer, torn between this investment choice and the investment choice of remaining in the village during summer so as to keep their children in school (Alden Wily, forthcoming).
15Poorer families from both Kuchi and settled communities do not have the latter option; many cannot avoid labouring for wealthier families, including taking animals to the high pastures in summer. Others migrate to towns and cities and live in shantytowns on their outskirts whilst there. Either way, these groups will see a further erosion of their already weakly acknowledged rights to home pastures. In short, future control of high alpine pastures could well be significantly less equitable than is currently the case within both Kuchi and settled communities. Accelerated land loss, displacement and dispossession of the majority are on the horizon.
16History matters in understanding land-based conflicts. In this case, the clock must be turned back a century. The conditions for the current conflict between Kuchi and Hazara were set with the creation of a fractious federation among Pashtun tribes in the southeast, within each of which nomadic pastoralists (Kuchi) constituted a significant class (Rubin, 2002). While the federation’s control over the area that is now defined as Afghanistan was gained swiftly, it was largely achieved through alliances and the payment of tribute and taxes to Kandahar (moved to Kabul in 1775), rather than though full-blown occupation by Pashtun. Old practices in such regions could consequently continue, such as in the case of Sunni Uzbek in the north continuing to tax, enslave and periodically seize the lands of Shia Hazara living north of the mountains (Gregorian, 1969). Pashtun encroachment into the central highlands, the heartland of Hazara territory, was erratic. For the most part, Pashtun presence was seasonal and confined to peripheral areas, with occasional bouts of direct colonization, such as in a (first) wave of Ghilzai Pashtun occupation of Uruzghan around 1800, forcing indigenous Hazara northwards (TLO, 2010).
17Therefore, even in 1815, travelling British emissaries still described Hazarajat, the land of the thirty-or-so Hazara tribes, as extending well beyond its mountain heartland, west to Ghorat (Herat), east to Ghazni, and south almost to Kandahar (Ferdinand, 2006, citing Elphinstone, 1815). Hazara tribes in the central mountain zone were autonomous, beyond the range of tribute payments. The majority of these tribes continued to endure poor and harsh lives under the exploitative feudal begs or mirs who controlled each valley (Mousavi, 1998). Livestock-keeping, including thousands of horses in areas where lowland grazing was available, was a mainstay during the 19th century, with fairly limited valley cultivation (Mousavi, 1998, citing Ferrier, 1857). Production of leather goods, barak (a thick woollen cloth from the famous Hazara fat-tail sheep) and iron goods like shovels, ploughs and weapons were also important in the local economy, and these goods found their way to markets far beyond Hazarajat. The location and ownership of iron ore and silver mines were jealously guarded, as were the techniques of primitive smelting (Mousavi, 1998, citing Ferrier, 1857).
18All this changed from 1880, following the Pashtun victory in the Second Anglo-Afghan War (1878–80), which prevented the British from India taking over Afghanistan completely – instead, the British settled for controlling the foreign policy of the primitive federation in Afghanistan, an arrangement or remote colonial control which would last until 1919. In the early 1880s the British bankrolled and armed Abdur Rahman, the federation’s emergent leader, setting Afghanistan on its course as both buffer and rentier state, dependent on foreigners for around half of its budget (Rubin, 2003). In return for finance and acknowledgement, Abdur Rahman was to secure the northern border, to halt the still-threatening expansion by Tsarist Russia which had troubled British India throughout the 19th century.
19As well as establishing the State of Afghanistan, Abdur Rahman became the most brutal force in the region, killing thousands and torturing and enslaving many others, earning him the sobriquet ‘Iron Amir’. This included defeating opposition clans within his own Pashtun tribe, and subordinating non-Pashtun tribes which resisted, notably including the Hazara, the Aimaq and the Nuristanis. Having adopted a religious status for himself (establishing Afghanistan as an Islamic state thereafter), Rahman justified his strategies as a noble jihad against foreigners, infidels and ‘heretical’ Shia (Gregorian, 1969).
20Rahman secured the northern boundary ultimately by forcing Ghilzai Pashtun to settle there, followed by more voluntary colonization by his own Durrani Pashtun clans, enticed with land, tools and advances to settle and farm, as well as vast pastures to graze (Tapper, 1973; Lee, 1996). Altogether, 20 000 Pashtun settled north of the central highlands between 1894 and 1903, displacing Uzbek Khanates, and squeezing Uzbek, Turkmen, Tajik, Arabs, Aimaq, and Hazara off the best farmland and pastures.
21In time, the maldars (stock-keepers) and pastoralists among the settlers established new spring and summer migration routes in the north. By the 1920s, this included the rich alpine grasslands of Badakshan in the far northeast (Kreutzmann and Schutte, 2011). These areas were owned and used by small groups of poor Shia Shughni agro-pastoralists, with whom visiting Arabs and Uzbek livestock-keepers had made summer access agreements, first inscribed in documents from the 1880s (Patterson, 2004). With the arrival of Pashtuns in the 1920s, new documents were forcibly issued favouring the Pashtun Kuchi and confining poorer Shughni residents to peripheral farm lands, further reducing their opportunities for stock-raising.
22The situation was much worse for the Hazara in the central highlands. In response to local complaints, the Amir’s army and administration penetrated to valley level, imposing multiple taxes and indulging in periodic atrocities. Hazara leaders drew together (possibly for the first time) in armed rebellion in 1891. Furious, the Amir issued an esheha calling Afghans (Pashtun) to arms in the spring of 1892 to root out the irreligious (Shia) Hazara. Some 30 000 to 40 000 Kuchi responded to this jihad. Following their success in 1894, the Amir sent a new order to his governors in the ten central highland districts of Uruzghan, Ishkarabad, Malestan, Yakawlang, Bamyan, Behsud, Gezab, Khamard, Saighan and Ghazni:
those pastures in which up till now the animals and cattle of Hazara people were grazing and those people who were benefiting from and were living on animal husbandry, hence forward they shall be obstructed and prevented from doing so. They must not use the pastures for the fodder of their animals and must consider all the pastures, whether small or big, as state property (haq-i-daulat damand), (Fayz Mohammad, Official Chronicle, Volume III (1914/15): 986, cited by Ferdinand, 2006; 196).
23Most of Hazarajat was then distributed among the clans who had fought for the Amir. Up to this point, Kuchi had not ventured further west than the Behsud, Nawor and Jaghori pastures on the eastern outskirts of the highlands (Ferdinand, 2006:182). Now with leather-inscribed land grants (firman) in hand, the clans entered the mountains to enjoy the rich alpine grazing that had underwritten the Hazara economy for centuries. By doing so, many of them abandoned their more characteristic migrations southwards through Pakistan towards India (De Weijer, 2007). The suppression of local Hazara was rife, including forced marches to Kabul where leaders were imprisoned and poorer Hazara set to work. A vibrant slave trade of Hazara began, and the Iron Amir took it upon himself to tax this trade for the benefit of his new state (Mousavi, 1998).
24Thousands of Hazara fled, including to Tsarist Russia and Quetta in Pakistan, as well as to Iran, where large communities have remained until the present (Mousavi, 1998). Those who remained in the mountains lost their pastures and also much of their farmland. Kuchi, uninterested in farming themselves, turned these fertile areas into paddocks (Gawecki, 1980). By 1895, the Hazara were, as the Amir’s own chronicler admitted, ‘without livelihood’ (Ferdinand, 2006: 196, citing Fayz Mohammad 1914/15: 986-87). Their plight was lessened to a certain extent as a result of many Kuchi giving up life in the cold and hostile mountains and returning to the Hindu Kush only in spring and summer for the grazing, which still limited Hazara’s re-accumulation of livestock. By around 1900, Hazara had moved from being agro-pastoral to eking out a living from limited cultivation, as would remain the case until the 1980s.
25Despite being banned from owning horses or weapons, Hazara uprisings regularly occurred, even under the less-brutal rule of the Amir’s son, Habibullah (1901–1919). Deportation of Hazara landlords (begs) and distribution of farmlands to Kuchi followed each of the main rebellions which took place in 1903, 1908, 1909 and 1914 (Gregorian, 1969).
26His more liberal successor, King Amanullah (1919–1929), abolished enslavement of Hazara in 1921, and slavery in general in his Constitution of 1923 (Poullada, 1973). Amanullah also recalled the entitlements (firman) that had been issued to Kuchi clans since 1894, reissuing these to Kuchi families, but with instructions that they were to limit themselves to the high alpine pastures and leave the lower pastures and farmlands to Hazara (Fredericksen, 1995).
27The exact nature of the firman is still a matter of debate. This remains important as these deeds are still presented by Kuchi as proof of ownership of alpine pastures throughout Hazarajat (Alden Wily, 2004). King Amanullah was indeed determined to create private property as part of his modernization reforms. Rubin (2003) reports that taxes on land and livestock were significantly raised during Amanullah’s reign, accounting for five-eighths of his domestic revenue by 1926.
28However, the status of pasturelands was less clear. The deeds Amanullah issued did not specify whether they granted absolute ownership or merely access rights to lands still retained as the property of the King and/or his State. Amanullah’s successors presumed the latter. One of the early actions of the Zahir Shah reign was to enact the first land law of Afghanistan in 1935, modelled on Turkish legislation, which was in turn influenced by the French Civil Code of 1904. While that Code established the right of the state to compulsorily acquire private property, this referred only to houses and farmlands, other types of land, such as forests or pastures, being deemed to be the property of the state. The orthodoxy consolidated that pastoral rights of settled people (and not just in Hazarajat) were limited to lands immediately around settlements. This accorded with Pashtunwali (Pashtun customary law), according to which only the area that lies within hailing distance from the last house in the village belongs to the community. Beyond these domains, the Government could sell, grant or otherwise issue rights over the pastures to persons or clans of its choice. As Pashtunization emerged as a formal policy from the 1930s, Pashtun Kuchi were predictably favoured as grantees.
29Positions relating to private and state land were entrenched in land laws passed in 1965 and 1970 – the Survey and Statistics Law and the Pasture Law respectively. These were drafted under US influence, USAID assisting newly Republican Afghanistan (1973–1978) to identify, classify and register all property rights in the country for taxation purposes (Alden Wily, 2003). The US had its own Lockean tradition, inherited from British common law that property only comes about through man’s labour. Sharia also pays little attention to land beyond the house or farm. In this respect, Western law, Pashtun customary law (but not non-Pashtun customary law), Islamic law and, most forcefully of all, the land-acquiring inclinations of the Afghanistan state dovetailed. Pastures and other naturally collective assets, as opposed to individual/family, properties were declared by these laws to be Government Land (Alden Wily, 2004).
30The Survey and Statistics Law (1965) accordingly instructed some six hundred-plus surveyors to identify only family lands and to register the remainder as Government Land. This was completed by 1978 for one-fifth of the cultivated land area and 30 % of owners, recorded as probable owners in the Register of the new Cadastre Department. Half of the land surveyed was pasture and so-called wastelands, and was consequently lodged as Government Land (Alden Wily, 2004). Rangelands that had been allocated to Kuchi since the 1920s were not to be taken away, but their exact status was opaque. While ‘no pastureland shall pass into private ownership’, and ‘grazing rights are not transferable’, ‘past allocations shall be recognized and respected’ (Survey and Statistics Law, Article 65). The subsequent Pasture Law (1970) outlawed the purchase and sale of pastures for any purpose (Articles 6, 7 and 17), and referred to new rights granted by the Government as use rights (Article 16). At the same time, existing rights were to be clarified (Article 27).
31To complicate matters, some Governors continued to dispose of pastures in ways tantamount to privatization, with no time limit imposed, as would normally be the case when issuing use rights. Patterson (2004) examined this closely in the case of the 200 pastures of Shiwa in northeastern Afghanistan. He found that once authority was devolved in the 1940s to the Provincial Governor, allocation of pastures to specific individuals was actively pursued, strongly favouring Pashtun Kuchi and triggering complaints from Uzbek, Tajik and Arab graziers. The qawwallas (documents) evidencing allocations are mixed – some refer to the pasture being owned, whereas others are clearer in that only use rights are granted.
32For local populations in Hazarajat, the details of formal pasture allocation made little difference. Hazara continued to endure exclusion from their high pastures, along with significant discrimination and abuse. Pro-Pashtun policies afforded visiting Kuchi added dominance as the proxies of the Government, aided by taxes uniquely applied to Hazara. This included a special livestock tax introduced in 1946, allegedly intended to suppress local accumulation of animals (Mousavi, 1998). This was in response to the rising dependence of Kuchi on the alpine pastures of the central highlands during this era, reaching a tipping point in 1947, the partition of India and Pakistan severely constraining Afghan access to pastures in these countries (De Weijer, 2007).
33Kuchi also ignored the law, continuing to trade in pastures amongst themselves and often getting the transaction certified in local courts (Pederson, 1994; Patterson, 2004). From the 1960s, they acquired additional grazing lands as ‘eligible persons’ for land allocation schemes (Alden Wily, 2003). Trading and transport businesses became more important for many of their elites from the 1950s (Pedersen, 1994). Kuchi leaders also invested in valley farming lands, including for speculation, selling these on to other Kuchi at a profit. Large amounts of land in both central and outer Hazarajat and in the north were bought and farmed on an absentee landlord basis. Often Hazara were forced to sell their farms through unfavourable trading terms which exploited their naivety and poverty and put them into debt (Pedersen, 1994). Farmland acquisition gave Kuchi hegemony over pastures another anchor, for, even according to local Hazara traditions, farm ownership automatically secures access to local pastures. Rising sheep prices and the advantages of Hazarajat as summer fattening grounds increased the wealth of Kuchi elites during this era (Pedersen, 1994).
34Ferdinand’s Danish research team on nomadism during these decades observed the effects on Hazara as pauperizing (Pedersen, 1994; Fredericksen, 1995; Ferdinand, 2006). Not all Hazara suffered. In areas of low competition for pastures, a workable relationship between Kuchi and Hazara could evolve. Hazara gained goods from Kuchi trading and found a ready market for selling their few animals, along with wheat, vegetables, mats and other local products. They could also earn small payments for collecting fuel and fodder for Kuchi patrons. After harvest, they opened their fields to manuring by Kuchi animals (Alden Wily, 2008). On occasion, Hazara leaders received payment in the form of ‘sheep and sweets’, in token recognition of the fact that Hazara were the rightful owners of the pastures. This was the case in the vast high-altitude pasture of Band-i-Petab, which covers the northern half of Yakawlang District.
35Needless to say, the civil war years (1978–2001) saw the Pashtun–Hazara relationship turned on its head. In fact, non-Pashtun throughout the country made recovery of their traditional pastures from Pashtun a key objective (Male, 1982). With neither controlling government nor Pashtun to fear, rainfed cultivation expanded dramatically into accessible or fertile pasturelands, often at the hands of commanders (Alden Wily, 2004). Only in the highlands of the Pamir in north-eastern Afghanistan did some Kuchi continue to take summer possession of alpine pastures, although not without significant fee-paying to commanders along the route (Kreutzmann and Schutte, 2011).
36In Hazarajat and among Hazara generally (including in Kabul), the 1978 Revolution triggered an extraordinary explosion of armed resistance, releasing a century of bitter grievance, carefully recorded by Mousavi and latterly by Ibrahimi (2009). Initial unity among Hazara gave way to the same fragmentation that had handicapped rebellion in the 1890s. However, one of the few shared objectives among the multiple armed factions and emergent political parties between 1980 and 1996 was to keep 1996 Kuchi (and other Pashtun) out of Hazarajat. This was broadly achieved in the heartland and higher Bamyan Province (Alden Wily, 2008), but not in the foothill provinces of Hazarajat, such as Nawor and Behsud, where Kuchi summer occupation continued, if with more sharing with local Hazara communities. This situation collapsed under the Taliban (1996–2001). Kuchi, an important part of the Taliban movement, seized the opportunity to regain control over pastures, and even, briefly, to enter Bamyan Province in 1998 (Alden Wily, 2008).
37Hazara reclamation of pastures within central Hazarajat was not entirely smooth, even without the Kuchi. Since their exclusion from alpine pastures a century earlier, population and settlements had multiplied many times over, factions had proliferated, new elites had been created, and the state laws of 1965 and 1970 were selectively interpreted to mean open access and the right to freely expand rainfed cultivation into pasturelands (Alden Wily, 2008). Referral of inter-community disputes to ruling governors-cum-warlords had mixed or biased results (Alden Wily, 2008). The law itself was unhelpful; local courts followed mainly the Civil Code (drafted in the 1970s on the basis of Islamic law), which failed to confirm pastures as collective property, owned by communities, as is customarily the Hazara norms.
38With multiple disputes over pasture rights raging up and down the country during the 1990s, the pro-Kuchi Taliban reissued the Pasture Law, 1970, as the Law on Rangeland and Maraa, 2000, with a small but important modification. It acknowledged that private pastures existed, more or less in the form of community pastures adjacent to settlements (Article 3). Remaining pastures were declared to be public land, not to be bought or sold unless the Supreme Leader gave his authorisation (Article 9).
39By the time of the Bonn Agreement in December 2001, the overwhelming instinct of the new Karzai Administration was to restore conditions to those of 1978. This included recovering the thousands of hectares of pastures and other lands that it believed had been wrongfully taken from the State by communities and individuals, as well as by warlords. A list of ‘stolen government lands’ was prepared, growing to nearly a million hectares by 2012 (Alden Wily, forthcoming).
40Each ministry had its own reasons for wanting state control revitalized. Recognition of customary tenure as embracing pasturelands was firmly rejected by all. Despite having almost no field staff and limited authority outside Kabul, the Ministry of Agriculture was convinced that only the reassertion of absolute state ownership of rangelands could halt the expansion of farming into these areas, its primary concern. The Ministry of Finance was equally determined to re-establish control over unfarmed lands in order to be able to allocate these under lease to foreign and local investors. The Ministry of Tribal and Border Affairs (nicknamed ‘the Kuchi Ministry’ before the Directorate of Kuchi Affairs was established under the Office of the President) wanted to restore highland pastures to Kuchi control. For all three, the prerequisite was reinforced state ownership and the limitation of local access to conditional use rights (Alden Wily, 2004).
41There was little support for this outside the Kuchi community. The dominant position of non-Pashtuns, including Hazara and populations in the north, was that they had not fought the long war and liberated themselves and their precious rangelands from Pashtun domination only to see this reinstated. For these settled populations, state control, failure to acknowledge local pasture ownership and Kuchi dominance were conjoined. Fierce resistance to the return of Pashtun to the north or into Hazarajat, even on a seasonal basis, forced many Pashtun to flee these areas, settling outside these areas. This group comprised a significant proportion of those who consider themselves still to be displaced (Alden Wily, 2009).
42Initially, Kuchi themselves were quiet on the subject, cowed by the blame heaped upon them for the various Taliban atrocities in which they had participated. Many had also lost their herds during the drought of 1999–2001. By 2004, stock were being re-accumulated and their own, Kuchi commanders were reasserting influence, agitating for recognition that Kuchi owned pastures in and around the Hindu Kush/Hazarajat and had documents to prove it. In the spring of 2004, some Hazara were killed as Kuchi attempted to re-enter pastures in the districts of Behsud I, Behsud II, Daimirdad and Nawor on the east of Hazarajat.
43Fighting between Kuchi and local Hazara in spring has since occurred annually in these areas, with most loss of life and property occurring in 2009 and 2011 (IHRC, 2011). The spring of 2008 brought the issue to public notice when a Kuchi Member of Parliament declared that only Pashtuns were Afghans and owners of pastures, provoking Hazara demonstrations in Kabul. The years have been marked by rising Hazara resistance including digging of trenches along key summits to be warned of Kuchi approaches, rising mortality, burning of villages and the flight of some thousands of Hazara. The open support to Kuchis provided by armed Taliban, supporting them with vehicles flying their white flags, and fears that Iran might respond with support to fellow Shia Hazara kept the issue on the political agenda (AREU, 2009). In 2008, President Karzai was forced to establish a Commission charged with resolving the conflict.
44This has not succeeded. By 2011 the Commission was reduced to appointing local peace ambassadors in cooperation with a US-financed pastoral project (PEACE, 2011). These ambassadors are not, however, appointed by the concerned communities, and in addition to their not being deployed in the most contested zones, they have been unable to resolve disputes pertaining to the core issue of ownership and use rights over the alpine pastures and their distribution and exercise (Alden Wily, forthcoming). Nor should these ambassadors reasonably be expected to do so, given the level of politicization of the issue, on the one hand, and its legal dimensions, on the other.
45The poor within both the Kuchi and Hazara communities complain that the issue is being used against them by commanders and politicians for their own ends, and that, if left alone, they could reach compromises on a local, community-by-community basis. Two structured attempts towards such localized resolution were halted in the critical Nawor and Behsud areas as a result of Taliban-generated insecurity (Alden Wily, 2009; forthcoming). It is fair to say that escalation is kept in abeyance only through the autumn departure of Kuchi and their supporters from the foothill areas, and by the lucrative payments made by the Government to Kuchi leaders as bribes to persuade them to limit their incursions into Hazarajat.
46Unsurprisingly, the official policy of assisting Kuchi to cease migrating and settle has also not met with success. This policy was announced in a Presidential Decree in 2010. Nine sites have been identified in the eastern Afghanistan provinces of Logar, Laghman and Nangarhar. The objective is to provide 5 000 Kuchi households with two-hectare plots to farm, including through the production of fodder crops (Alden Wily, 2009; forthcoming). Also not unexpectedly, local populations are strongly resisting the allocation of these sites, which they consider to be their own pastures, not land which government has the right to give away. For its part the state maintains the position that barren and arid lands (which it claims these selected sites are) belong to itself. There is little enthusiasm for the settlement schemes outside wealthy Kuchi elites who are regarded by many of their poorer clients as merely seeking these lands to then sell on at profit.
47Sedentarization of nomads has a poor history in general, including in Afghanistan itself during the period from the 1950s to the 1970s (Alden Wily, 2003). The Government has routinely been reminded of this by pastoralist specialists. Officialdom counters this with the sustained view that nomadism is primitive, and points to evidence that some Kuchis are settling, if only to be near services and schools for their children. Other drivers of sedentarization are less voluntary. Elites aside, Kuchi constitute the poorest group in Afghan society (European Union, 2009). Loss of animals and/or loss of patronage from leading families, as well as loss of access to the very summer grazing pastures they are fighting for, are likely to be as powerful drivers for what many still maintain is temporary sedentarization.
48The realities of declining pastures also need to be noted. This affects both highland summer and spring pastures, through the events described above, and winter pastures maintained by Kuchi in their homelands of the south and east. Even in 2003, Kuchi reported the greatest losses to grazing to be in those winter areas (De Weijer, 2007). While mainly due to insecurity, this has been exacerbated by inter-clan and inter-tribal land takings among Kuchi and other Pashtun groups, often for the private poppy and housing developments noted earlier.
49In 2012, the State remains unwilling to even the playing field by recognizing that settled communities do have longstanding customary rights to many of the pastures, and reconstructing Kuchi rights as limited seasonal access rights accordingly. While it could be argued that this sustains ethnic favouritism, the State’s dedication to change from its determination to re-establish itself as the major landowner of all but documented, private titled lands for houses and farms. This in turn stems from its conviction of the rightness of this approach, and from the lucrative returns that result, and from which privileged elites associated with the Government may benefit. No fewer than 200 orders to survey lands, including many pastures, have been signed by the President, for mainly private, not public purposes (Alden Wily, forthcoming). With each new incentive (mining has been mentioned as prominent), state possession is consolidated. The possibility that communities might become the acknowledged owners of local pastures in their own right consequently recedes.
50The tenor of land legislation in the Karzai Administration since late 2001 suggests as much. Firstly, in 2003, Karzai issued a law to prohibit occupation or sale of unoccupied or uncultivated lands, declaring these to be state property (Decree 99). He then amended the Land Management Law, 2000, (a Taliban reissue of the 1965 Land Survey and Statistics Law) to reinforce the Government’s right to lease such lands (Amending Decree of 2003), and increased the lease period to 90 years for arid lands – most of which also embrace pastures. A further decree (No. 83 of 2003) rendered to the State any property that has been under its control for more than 37 years (that is, since 1966). The Government may lease by auction lands shown to be without documented proof of private ownership. In respect of pastures, this leaves Kuchi in a much stronger position than title-less Hazara, the former having obtained firman through direct royal grants and purchases. In 2008, further changes made to the Land Management Law confirmed much of the above and added incentives for foreign direct investment on unfarmed lands like rangelands. Further amendments are currently being mooted in mid 2012. These suggest no shift in resistance to recognizing customary rights as having force as property rights when these rights are not documented, the situation affecting the vast majority of rural Afghans. Provision is made for the first time for collective tenure, but it is structured in such a manner as to only apply to shared houses or farmlands, not to pastures. Nor do draft proposals to amend the equally important Land Acquisition Law, 2000 suggest that communities will be compensated when the State takes their pasture assets for mining developments. The most developed resettlement plan for villagers to be evicted is for the Aynak copper mine to be developed by a Chinese state-private partnership, and even with significant inputs from donors, fails to include such provisions (Ministry of Mines, 2011).
51It is interesting that refusal to recognize customary land rights or to provide for collective community ownership of pasturelands runs counter to the Government’s own new National Land Policy, 2007. This Policy was significantly influenced by projects that demonstrated the logic of recognizing pastures as respectively private, community or public properties, depending upon the case. These pilot projects also developed simple procedures for certifying these rights and in ways which could be applied at scale (Alden Wily, 2008; Stanfield et al., 2008). Within these paradigms, Kuchi access rights were not forgotten. A procedure was embedded for state-supported negotiation to enable their seasonal access. The National Land Policy pledged that provision for legal communal ownership would be made (Policy 2.1.1) and that ‘all land will be classified as public, private, community or state owned land’ (Policy 2.2.1). Additionally, conflicts over pasturelands are to be resolved at provincial and lower levels, and pastures as a whole are to come under facilitated community-based management (Policy 2.2.6).
52Specifically, a new Rangeland Law was to lay out how rights between pastoralists and settled agro-pastoral communities would be ordered and regulated. Development of this law began in 2007 and continues to the present. Drafts of the law in 2008–09 distinguished between private, community and public pastures. Kuchi were to have access to the last category through provincially agreed arrangements, and access to community pastures by agreement with their owners. However, a redraft of the law in 2011–12 has removed the class of community pastures entirely, and makes it difficult for any community to manage a public pasture without representatives of Kuchi who claim rights to those areas being on its Committee.
53It may be concluded that following a brief flirtation with liberal land policy development, which might rightfully have increased the legal recognition of majority customary rights, the old alliance of Kuchi determination to secure high pastures with state determination to keep as much land as possible under its own tenure, has reasserted itself.
54The prognosis for resolving the land conflict in Afghanistan between Hazara and Kuchi (or between settled and nomadic communities generally) is not good. Windows of opportunity have been repeatedly lost over the last decade. Both legal and practical routes have been identified and tested but not adopted. The State’s own land-grabbing inclinations gain annually in force, impeding progress. The refusal to countenance the devolution of rights relating to at least some of the vast pasture estate to communities will likely prove counter-productive. Despite proclaimed governance strategies to the opposite, devolution of authority over rangeland resources meets with fierce resistance at every turn, whether it is associated with attempts to create settlement schemes, new towns, livestock schemes, or to take presumed ‘un-owned’ rangelands for private mining and hydrocarbon enterprise. The notion that communities could themselves be lessors of their pastures, with conditions, seems to have passed policy makers by.
55Most importantly, majority customary land rights continue to be ignored and suppressed where these apply to what is the most expansive and arguably the most valuable asset of rural communities – their pasturelands. By failing to address the battle over ownership, the post-conflict administration is encouraging longstanding and bitter grievances around this issue to fester yet further.
56Inaction over the last decade has already allowed the conflict to take on stronger ethnic dimensions, instrumental in what could be a more broadly based rift between Pashtun and non-Pashtun communities. This cannot serve peace. The prospect of armed and fragmented factionalism adds concerns, particularly given the historically strong loyalty of many Kuchi to the Taliban. Depending upon how well ‘insecurity’ is managed in the near future, Hazara in the mountains may find their imagined new security of tenure to be no more than a mirage. Even with peace, both Hazara and Kuchi could well find their interests utterly subordinated to the higher claims of expanding mineral exploitation, the benefits of which are likely to be token in their respect, as well as resulting in lost resources and livelihood. This too can be expected to provide fodder for an accelerated battle over pastures, fuelling land war in Afghanistan.