1 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 19 th 2006

2 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

3 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

4 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

5 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

6 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 ?

7 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

8 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 Customary system Formal system

9 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: strategy Examples of customary-formal integration Customary system Formal system X Customary system Formal system Customary system Formal system Customary system Formal system

10 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

11 Case study: Afghanistan A jirga council meeting in a Pashtun village (2000)

12 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).

13 Case study: Liberia A typical street sign in Monrovia, calling for the use of legal means to resolve conflicts (2006)

14 Contact information Deborah H. Isser Senior Rule of Law Advisor United State Institute of Peace (202)