Key Debates & Implementation Challenges
Last Updated: April 6, 2009
Traditional/informal justice is no panacea. Its capacity to contribute to the different dimensions of peacebuilding and social reconstruction must be assessed in relation to a certain number of limitations that can be observed in a variety of contexts, but more specifically in post-conflict situations, as outlined below.
The erosion and potential distortion of traditional authorities and norms
A key limitation of and challenge to traditional justice in post-conflict settings is that war erodes the authority and legitimacy of traditional leaders and of communal norms, and by extension of traditional justice. Many of the norms and rules embodied in the traditional/informal system may have been tainted in the process of war and some of its main actors may have been discredited, depending on the role that traditional leaders played (albeit often under duress) during the conflict and their relationships with oppressive regimes or warlords.1 The situation here is comparable to the impact and distortion effects of the colonial period: the colonial rule often used local chiefs to maintain control and established more authoritarian, rigid and ethnic based structures than previously existed.2 In some cases, the limits come more from the fact that many traditional leaders have been killed during the war, and some may have been specifically targeted for their position in the traditional justice system. Noting that the situation may vary a lot from one region to the next in each country, these elements need to be carefully assessed and scrutinized by communities seeking to re-assert a reality that is not war-based. "Here, certain 'outsider' perspectives...can be of use, when they are offered in formats and contexts that meet local needs."3Traditional/informal mechanisms may also suffer a lack or reduction of authority because of societal evolutions, most notably in urban surroundings. While rural populations may not have any alternative but the traditional justice mechanisms, this may be less true in the cities (more particularly the capital cities) where there is a formal court system, and people are exposed to new influences and ideas. Displacements of population from rural to urban areas, especially during and immediately after war may contribute to the weakening of traditional mechanisms and figures of authorities, in particular on the part of the youth. Some observers have also noted that returning expatriates or refugees are less likely to resubmit to the authority of their clan elders.4
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Traditional justice as a potential mask for domination and abuse of power
In a seminal study of informal justice, Richard Abel remarked that "the true significance of informal institutions for conflict resolution and social control is that they empower those who create and operate them."5 So a political understanding of traditional justice would lead us to such questions as: Who benefits from the revitalization of traditional justice practices in post-conflict societies, and why? Who stands to lose?Indeed, as with the state system, the community order and justice can be unfair both in the rules it enforces and in its functioning. Traditional/informal systems are often non-democratic, based on unequal power relations, subject to abuse of power and corruption. Check and balances generally exist but, in many cases, "the appearance of consensus may well be a mask for domination. Members of some sections of the community - for example women or young people - are likely to be put at a disadvantage in relation to more powerful members, such as elder men, particularly as the arbitrators themselves may be chiefs, elders, and religious leaders. This is the major weakness of the informal process. The element of compromise inherent in the system tends to reinforce existing social attitudes whether desirable or not. These include actual customary and religious norms which may discriminate on the basis of social status including gender, caste, age and marital status."6 The reality is often that "the traditional justice that falls outside of the state justice processes in many countries is tough justice. Women in particular get the worst of both systems."7 "In much of sub-Saharan Africa, traditional systems are patriarchal in nature and often systematically deny womens rights to assets or opportunities. Women are unable to own, control, or inherit land, and are only able to access land through a man (generally either their father or husband)...The situation in sub-Saharan Africa has been exacerbated by both episodes of armed conflict and the HIV/AIDS pandemic, with the widowed women making up almost 50% of the female population in places like post-genocide Rwanda."8
Go to Empowerment of underrepresented groups (women and gender issues)
Children are also often victims of an unequal and unfair treatment. Their rights are rarely addressed. When children are parties, their rights or best interests are often not taken into account. This may concern situations where girls are forced entering underage marriages by their parents, or when children stand to inherit land and property; they often face difficulties, especially if they are girls as in many customary rules they are not supposed to inherit.9
As a policy report notes, "engagement with NSJS [non-state justice and security] systems is not a neutral, technical activity, but one that raises broader governance issues...Intervention may thus have an impact on existing power relations at both local and national levels."10 Accordingly, and in line with the principle of "do no harm," it is important that potential engagements with traditional/informal justice systems make sure that their efforts do not exacerbate existing tensions and conflicts in a given society or community, and thus inadvertently hinder the prospects for peacebuilding.
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The system may not always comply with international human rights standards
A crucially important critique of the traditional/justice systems is that they are seen, in some cases with good reason, as incompatible with, or at least not respecting, human rights standards established by international law. "For example, where NSJS [non-state justice and security] systems discriminate against women and marginalised groups, this has been highlighted by local civil society organisations (CSOs) as justification for reform."11 In addition to discriminatory practices, recourse to inhuman and degrading punishments are the most common issues encountered, in particular with some systems based on the application of a fundamentalist interpretation of religious principles. For human rights activists and lawyers, for most traditional and informal justice systems, a major challenge is how to adapt and reconcile them with the overarching human rights guarantees. Who makes this decision and how is equally crucial. The involvement of local civil society actors is generally perceived as crucial as they may help promote and support necessary change and adaptation in existing systems.12[Back to Top]
The system may be the target of political actors and become part of the political game
A key observation worth emphasizing is that all justice and rule of law activities are inherently and intensely political, rather than simply technical issues or fixes. Traditional and informal justice systems are no exceptions. Rather, applying, modifying, or engaging with them will inevitably affect power relations and change political dynamics, with reforms entailing winners, losers, and spoilers who may fear a loss of power, prestige and access to resources.13In terms of power struggles, traditional/informal systems are subject to political manipulation and even "state capture." "Justice after transition is part of a broader objective a new regime has to pursue, namely to consolidate its authority and legitimacy, internally and vis-à-vis the outside world. This is a question of nation and state building. New or renewed control over the justice sector is a vital factor in these processes. In countries like Rwanda, political leaders have formalized informal justice mechanisms, bringing them under closer scrutiny. Non-state actors and traditional authority structures (elders, lay judges and so on) are also important targets of 'state capture.' The politicization of the traditional leadership is often one of the consequences, resulting in problems of weakened credibility, inefficiency and corruption."14
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The question of legitimacy and effectiveness of traditional/informal justice
The erosion and potential distortion of traditional authorities and norms, the risks of abuse of power on the part of some leaders as well as non-compliance with international human rights standards are all factors having a direct impact on the legitimacy, credibility and efficiency of the system. They may in turn reduce its capacity of conflict regulation and must be carefully assessed in each specific context. Many observers consider that there should be more realistic - and sometimes drastically lowered expectations - about what local justice can accomplish after a war, in particular after mass atrocities.15The fact is that we still know little about the actual workings of traditional justice practices and their long-term effects on peacebuilding. As an IDEA report points out, In many cases we do not even have the most basic data that we would need to deal with this question. There is also the problem of their long-term impact. This is a very difficult issue, as most cases are too recent to be assessed on that particular point."16
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The limited applicability of traditional and informal justice practices
Traditional justice practices are by definition specific to a given locality and community. In some instances, practitioners have found difficulties to generalize some conflict resolution mechanisms they had identified in specific localities; "in spite of the similarities and common assumptions they involved, few, if any, strategies were generalized beyond local boundaries."17 Generally speaking, traditional mechanisms of justice are "culture-specific and, as a consequence, almost always limited to the ethnic, religious, and regional communities in which they are applied."18 If lessons learned can be learned from one case to the next it is more in terms of processes and general approach as mechanisms may not be directly replicable. This limitation has been noticed, for instance, in the case of Acholi rituals in northern Uganda who dont apply to non-Acholi and, therefore, to inter-group violence, which was widespread during the conflict. 19[Back to Top]
"Peace versus Justice" and Traditional Practices (International Retributive Justice vs. Local Restorative Justice)
"Peace versus justice" is the overarching debate in transitional justice, but it is also present in discussions about traditional justice. There is a widespread misperception that traditional justice is exclusively restorative (that is, it would only privilege the restoration of order over the quest for justice). However, in many traditional justice practices, restoration/reconciliation is preconditioned upon acknowledgement of wrongdoing and compensation/restitution. This misperception and representation sometimes arise from insufficient understanding of local languages. For example, Tim Allen shows that in the Lwo language in northern Uganda the notions of "amnesty," "forgiveness," and "reconciliation" are not conceptually distinct. Rather, the term timo-kica can mean all three things.20Inextricably linked to the "peace versus justice" dichotomy is the debate on the relative merits of "international justice" (that is, international prosecution) versus "local justice" (that is, traditional justice). In that debate, international justice is cast as essentially retributive, whereas local justice is cast as essentially restorative. This debate has been particularly acrimonious in recent times, especially given ongoing developments in northern Uganda. Proponents of traditional justice accuse those who unequivocally call for international justice of "judicial colonialism"21 and "international law fundamentalism."22 The chief criticism is that the international human rights community is more interested in upholding universal human rights standards and advancing international jurisprudence than in addressing the needs of people in post-conflict societies. On the other side of the debate, there is a feeling among advocates of international justice that traditional justice essentially means impunity for people who have committed egregious crimes in war. Yet, this debate seems to in part forget that a holistic approach to post-conflict justice requires a variety of mechanisms: formal and informal, international and national/local. Here also, there seems to be a growing urge to explore avenues of complementarity. As Erin Baines argues, it is important to explore "how local approaches to justice and reconciliation inform and shape international approaches. This might involve adapting aspects of local justice that meet international standards, but will also require that international strategies be transformed to fit local sociocultural and economic realities."23 Go to transitional justice
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The need for a pragmatic engagement with traditional/informal justice
Some argue that donors, governments, and formal justice systems should engage with traditional/informal justice systems precisely to address their problematic features. As one report puts it, "the fact that these may not correspond to our concept of justice, or fully comply with international standards, is in reality only another reason why we should engage them. If we are seeking to guarantee a quality of justice rather than just recreating a formal structure, work with the informal justice structures becomes an imperative."24 Another author argues that, "ignoring informal justice systems will not change the problematic practices, which may be present in their operations. Existence of these systems cannot be overlooked. We need to develop strategies to take advantage of the benefits of informal systems while encouraging appropriate reforms."25Ultimately, a pragmatic approach to traditional justice is warranted. "Neither glorifying [them] as the only cure nor relegating them to the realm of the devilish is helpful to people seeking assistance in their suffering. It is only prudent to acknowledge the positive potential of traditional rituals and beliefs, not as contradictory or competing with other approaches but as complementary to them. To ignore or discard traditional ways that have been seek to work in the past makes no sense. On the other hand, they cannot provide the cure for all ills."26
Increasingly, scholars and practitioners recognize that the central challenge associated with traditional and informal justice systems is how to support and enhance their many important positive aspects without abandoning or violating the human rights of the most vulnerable members of society, especially women and children. Adapting and reconciling these two systems so that they become mutually-reinforcing represents the new frontier of engaging with traditional and informal justice systems in post-conflict societies.27
1. See, for example, Luc Huyse, I"ntroduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies," in Reconciliation and Traditional Justice after Violent Conflict: Learning from African Experiences, edited by Luc Huyse and Mark Salter. Stockholm: International Institute for Democracy and Electoral Assistance (International IDEA), 2008 and Roberta Culbertson and Beatrice Pouligny, "Re-imagining peace after mass crime: A dialogical exchange between insider and outside knowledge," in After Mass Crime: Rebuilding States and Communities, eds. Beatrice Pouligny, Simon Chesterman, and Albrecht Schnabel (Tokyo and New York: United Nations University Press, 2007), 281.
2. Leila Chirayath, Caroline Sage, and Michael Woolcock. "Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems." Prepared as a background paper for the World Development Report 2006: Equity and Development, July 2005, 4.
3. Culbertson and Pouligny, "Re-imagining peace after mass crime," 281.
4. Kristina Thorne, Rule of Law through imperfect bodies? The informal justice systems in Burundi and Somalia (Geneva: Centre for Humanitarian Dialogue, November 2005). 6.
5. Richard L. Abel, "Introduction," in The Politics of Informal Justice, vol. 1, 12.
6. Penal Reform International (PRI), Access to Justice in Sub-Saharan Africa: the role of traditional and informal justice systems (London, November 2000), 37.
7. Wilfried Scharf, "Non-State Justice Systems in Southern Africa: How should Governments Respond?" (University of Cape Town, South Africa: Institute of Criminology), 16. On the subject of women and traditional justice, see Aisling Swaine, Traditional Justice and Gender Based Violence (International Rescue Committee, August 2003).
8. Chirayath, Sage, and Woolcock, "Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems," 4.
9. Comment by Ewa Wojwoska, 25 September 2008 and Khalid Koser. The Return of Refugees and IDPs and Sustainable Peace. The Brookings Institution, February 10, 2008.
10. UK Department of International Development (DFID), Briefing: Non-state Justice and Security Systems, May 2004, 3.
11. Chirayath, Sage, and Woolcock. "Customary Law and Policy Reform: Engaging with the Plurality of Justice Systems," 4.
12. Communication with Bill O'Neil, 28 May 2008.
13. Ibid.
14. Huyse, "Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies," 18.
15. Lars Waldorf, "Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice," Temple Law Review 79, no. 1 (Spring 2006), 37.
16. Luc Huyse, "Conclusions and Recommendations," in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, ed. Luc Huyse and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008), 189.
17. Eghosa E. Osaghae, "Applying Traditional Methods to Modern Conflict: Possibilities and Limits," in Human Rights, Peace and Justice in Africa: A Reader, ed. Christof Heyns and Karen Stefiszyn (Pretoria, South Africa: Pretoria University Law Press, 2006), 282.
18. Huyse, "Conclusions and Recommendations," 189.
19. Comment by Bill O'Neil, 28 May 2008.
20. See Tim Allen, Trial Justice: The International Criminal Court and the Lords Resistance Army (London and New York: Zed Books, 2006), in particular chapter 6 Justice and Healing, 128-168.
21. Ramesh Thakur, "East Timor: When Peace and Justice Collide," International Herald Tribune, August 31, 2005.
22. Adam Branch, "International Justice, Local Injustice," Dissent (Summer 2004).
23. Erin K. Baines, "The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda," International Journal of Transitional Justice 1, no. 1 (2007), 114.
24. Thorne, Rule of Law through imperfect bodies?
25. Ewa Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (Oslo: United Nations Development Programme, Oslo Governance Centre, December 2006), 13.
26. James Latigo, "Northern Uganda: tradition-based practices in the Acholi region," in Traditional Justice and Reconciliation after Violent Conflict: Learning from African Experiences, edited by Luc Huyse and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008), 117-118.
27. Communications with Bill O'Neil, 28 May 2008 and Ewa Wojwoska, 25 September 2008.
