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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 Peace

The Nuts and Bolts of Judicial Reform – Rebuilding Justice Systems in Post-Conflict Settings

World Bank Training Course – Washington DC – April 19th 2006

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The project

Case studies – analysis of customary system and potential for RoL strategiesPolicy guidance – synthesis of lessons and guidance for programmingOperational assistance – projects in Afghanistan, Sudan, Liberia

Afghanistan Bougainville Burundi Guatemala East Timor Liberia Mozambique Sierra LeoneSomalia 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

Child warrior, Sudan

Customary justice systems

• Survive conflict more intact

• Often more trusted as reflecting dominant community norms

• Flexible and accessible

• 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 communityauthorities

• 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

Burundi Bashingantahe

Elders of different tribes convene a Jirga near the Pakistani border

Village elders occupy a central community role in Burundi

Afghanistan Jirga

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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 becauseare 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

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

Customarysystem

Formalsystem

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• 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)

Policy guidance: strategyExamples of customary-formal integration

Customarysystem

FormalsystemX

Customarysystem

Formalsystem

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Customarysystem

Formalsystem

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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

disser@usip.org

(202) 429 3879