Transcript – Rebuilding Justice Systems in Post-Conflict Settings

The Nuts and Bolts of Judicial Reform – Rebuilding Justice Systems in Post-Conflict Settings
World Bank Training Course – Washington DC – April 19th 2006
The Role of Customary Justice
Systems in Fostering the Rule of
Law in Post-Conflict Societies
Deborah Isser Senior Rule of Law Advisor, United State Institute of Peace1
The project
Case studies – analysis of customary system and potential for RoL strategies
Policy guidance – synthesis of lessons and guidance for programming
Operational assistance – projects in Afghanistan, Sudan, Liberia
Afghanistan
Bougainville
Burundi
Guatemala
East Timor
Liberia
Mozambique
Sierra Leone
Somalia
Sudan
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The premise: rule of law in post-conflict societies
Formal system
• Lack infrastructure and equipment
• Lack qualified personnel
• Lack legitimacy: complicit in conflict and past
oppression; captured by particular power base;
corrupt
• Barriers to access
Customary justice systems
• Survive conflict more intact
• Often more trusted as reflecting dominant
community norms
• Flexible and accessible
Child warrior, Sudan
• Used by ~80% of population, in particular the
marginalized
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Characteristics of customary justice systems
General characteristics
• Social and cultural rule-based systems
• Oral law administered by community
authorities
• Flexible and informal procedures
• Goal to restore community harmony
• No distinction between criminal and civil
Awaiting the Ngcosi (tribal king)
outside a tribal courthouse near Port
Shepstone in South Africa
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Examples
Afghanistan
Jirga
Burundi
Bashingantahe
Elders of different tribes convene a
Jirga near the Pakistani border
Village elders occupy a central
community role in Burundi
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Challenges of engaging with customary systems
Negative perceptions and realities
• Non-compliant with international human rights norms
• Undemocratic, lack, accountability, perpetuate
entrenched power
?
• Distorted by history and conflict
• Local, varied, impermeable to outsiders
• Antithetical to rule of law precisely because
are unregulated by the state
• Backward, rigid, anti-modern
The fact that it is commonly used does not necessarily mean it
is effective and legitimate -- it may be the only real option
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Customary systems: the case for engagement
Dealing with reality
• Customary systems are used by 80% of the population
• Customary system may provide order and non-violent
resolution of conflict where formal system does not
• Ignoring or abolishing customary system will not change
problematic practices
Harnessing potential
• Complement to top-down focus on formal institutions for
building culture of ROL
• Customary system may have real advantages over formal
-- accessible and relative legitimacy
-- better able to handle certain types of disputes
• Constructive engagement with customary system can
extend credibility to formal system
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Finding the right balance
Customary
system
Formal
system
Some options for harnessing the potential of customary systems
• Formal recognition of limited jurisdiction
• Substantive incorporation
• Procedural incorporation
• ADR/mediation
• Co-existence with regulation and oversight
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Policy guidance: strategy
Examples of customary-formal integration
• Afghanistan (no formal policy of
integration; ad hoc interaction at
local level)
• Burundi (customary system as
pre-trial mediation)
• Mozambique (formal recognition
of role of traditional authorities in
adjudicating land disputes)
• Southern Sudan (customary law
as source of legislation and part
of judicial hierarchy)
Customary
system
X
Formal
system
Customary
system
Formal
system
Customary
system
Formal
system
Customary
Formal
system
system
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Guidance for international interventions
General considerations
• Not a neutral, technical activity -- implications for culture, governance and power
• Avoid externally engineered integration -- process matters
• Customary interventions should be part of larger justice reform strategy aimed at
increasing access to justice
Entry points for international engagement
• Empirical analysis
• Facilitating stakeholder dialogue
• Promoting legal awareness
• Building capacity and training
• Developing intermediaries and navigators
• Sector specific entry points -- e.g. land disputes
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Case study: Afghanistan
A jirga council meeting in a Pashtun village (2000)
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Case study: Guatemala
Courthouse in Senahu, 230 miles north of Guatemala City, burnt
down by a mob of Guatemalan peasants after they contested a
judge’s ruling over a rape case. The judge was murdered by the
mob (2001).
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Case study: Liberia
A typical street sign in Monrovia, calling for the use of
legal means to resolve conflicts (2006)
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Contact information
Deborah H. Isser
Senior Rule of Law Advisor
United State Institute of Peace
[email protected]
(202) 429 3879
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