Access to Justice: Access to Justice & Peacebuilding Processes
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Understanding access to justice: from grievance to remedyOne way to understand access to justice is to consider the different stages of a justice process, from recognition of a grievance to a tangible remedy that respect human rights standards. Those discrete stages are: 1
Operational and structural barriers to justiceWhile barriers to justice exist in many societies, both developed and low-income, they are especially pervasive in post-conflict contexts. Barriers to justice can be grouped into two categories: operational and structural.2 Operational barriers are the ones "related to the efficiency and effectiveness of the administration of the justice system," whereas structural barriers reflect "problems that have to do with the very basic form of societal organizations. These issues are prior to the judicial response to any specific case before a tribunal, but are inherently linked to the administration of justice."3Using this typology, the following barriers are commonly found in many low-income countries in general and in post-conflict societies in particular: 4 Operational Barriers
The growing attention to access to justiceAlthough the field of access to justice dates back to the late 1970s, it has attracted increasing attention in the last decade, in international development in general and post-conflict peacebuilding in particular. "Today, the goal of access to justice is adopted across the political and ideological spectrum, from poverty advocates seeking expanded legal assistance to reformers concerned about the impact of costly procedures on citizens ability to seek redress through the courts."5Notably, an international Commission on Legal Empowerment was created in 2005, comprising prominent international figures across the world. The Commissions final report sheds light on the urgent problem of legal identity in low-income countries.6 The shocking reality is that two in every three people around the world (or some 4 billion) lack legal identity (birth certificates). This means that an estimated 40% of five-year-old children in developing countries are not registered at birth.7 Being legally "non-existent" in turn bars people from accessing judicial institutions to claim rights, secure remedies, defend their interests, and improve their livelihoods. Therefore, restoring peoples legal identity is a crucial part of expanding and enhancing access to justice. In post-conflict settings, the problem of legal identity is particularly acute for refugees and internally displaced persons (IDPs) who have had their legal documents either destroyed or confiscated. Obtaining new documents is typically a big post-conflict challenge and a test of the governments commitment to the rule of law and peacebuilding.8 The issue of identification document is crucial for other areas of peacebuilding, in particular voter registration, as a high percentage of potential voters have no form of documentation such as birth certificates and identity cards; this often exacerbates the question of defining nationality and citizenship. It is not rare that in post-conflict societies, the electoral card becomes the first identification document people have ever had. Go to Electoral Processes and Political Parties and Constitutions Access to justice as human rightsThe growing popularity of access to justice is partly the result of changes in the field of international development. 9 First, a strictly economic conception of development gradually gave way to a broader, human rights-based understanding of development. The goal of development, in this view, is not only to better peoples economic conditions, but also their social and political well-being. In fact, economic development and sociopolitical development are perceived to be mutually reinforcing. As Amartya Sen, the renowned economist and Nobel Prize winner, stated in his pioneering work, "development can be seen...as a process of expanding the real freedoms that people enjoy."10 Access to justice is also framed in the language of human rights. As stated in a United Nations Development Program (UNDP) report on the subject, "access to justice is a fundamental right, as well as a key means to defend other rights."11 Moreover, there is a well-established right to a remedy or reparations enshrined in human rights law, which refers to violations of rights but can be interpreted more broadly to encompass access to justice. 12Access to justice as a bottom-up approach to justice reformsJudicial reform and reconstruction in post-conflict settings has received greater attention and more donors' funding in the last decade. The animating idea behind this trend is that judicial reform and reconstruction activities advance good governance, promote economic development, and contribute to sustainable peace by providing mechanisms for the peaceful management of conflicts.13 Yet rule of law assistance to developing countries in general and post-conflict countries in particular have been the subject of important criticism. Critics characterize the mainstream approach as the "rule of law orthodoxy": top-down, state-centric, and technocratic. These reform activities, whether intentionally or not, would also seek to resurrect the tangible institutions of a judicial system (courts, judges) without taking the legal needs of the poor as the starting point for their interventions. A focus on state institutions, according to critics, is highly flawed because they are usually corrupt, inefficient, and remote from most people, if not seen as dangerous and repressive.These criticisms of mainstream rule of law assistance led to the articulation of bottom-up approaches, which, although not entirely new, have gained increasing prominence. Along with access to justice, they focus on legal empowerment and microjustice, understood as "ways of administering justice that are affordable to the poor and alsoattractive to deliver for the providers of these services."14 While important differences exist among these approaches, they nonetheless "share a common concern that legal interventions should benefit the poor, and that their needs and preferences should form the basis for interventions...They make the poor central and try to base reforms on their practices, thus trying to bridge the gap between their needs and what the law has to offer. They are well aware of the political reality and the resistance that reforms may encounter and actually strive to change power relations."15 Bottom-up approaches seek to bridge the barriers between justice providers (courts, judges, lawyers, informal justice systems) and justice seekers (defendants, victims, litigants). They consider that "unless supply meets demand effectively, there will be no justice."16 [Back to Top] Access to justice as a central component of peace, trust and confidence-buildingAccess to justice is increasingly recognized as a key component of post-conflict peacebuilding. More international actors (international governmental organizations, donor agencies, non-governmental organizations) are incorporating access to justice programs into their peacebuilding initiatives. As a UNDP report states, "Access to justice is an integral element of any peace-building and long-term development process after conflict. Concepts of redress and justice are central to peace, trust and confidence-building."17The linkage between access to justice and peacebuilding has several dimensions. Access to justice as a factor for conflict preventionAccess to justice can play an important conflict prevention role in post-conflict societies. It is now generally acknowledged that perceived grievances, if unaddressed over long periods of time and fused with other factors such as political manipulation, play a considerable role in contributing to violent conflict. If people in post-conflict contexts feel that they cannot access justice to address their legal needs and to assert and protect their rights, then there is the risk that they may resort to violent means of dispute resolution, which would undermine the establishment and consolidation of peace. Access to justice programs, therefore, can potentially prevent the resumption of violent conflict.Access to justice as factor for peace consolidationAccess to justice is an important factor for peace consolidation. If people feel that their justice needs are adequately addressed through a variety of mechanisms, then they are likely to trust and approve of the post-conflict ordering of their society. As underlined by the UN Secretary-General in his report on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, "our experience in the past decade has demonstrated clearly that the consolidation of peace in the immediate post-conflict, as well as the maintenance of peace in the long term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice."18Access to justice as a protection of the most vulnerable groupsAccess to justice targets more particularly "the heightened vulnerability of minorities, women, children, prisoners and detainees, displaced persons, refugees and others, which is evident in all conflict and post-conflict situations [bringing] an element of urgency to the imperative of restoration of the rule of law."19 Go to Empowerment of Underrepresented Groups and Disarmament, Demobilization, Reinsertion, & ReintegrationIt can be said that "individuals enjoy access to justice when a legitimate grievance can be resolved quickly and effectively."20 But the ability to make legal claims and secure appropriate redress is severely limited in post-conflict settings, especially in the immediate aftermath of war or large-scale violence. The characteristic problems associated with post-conflict justice systems invariably mean that access to justice initiatives face formidable challenges. "Our programs must also support access to justice, to overcome common cultural, linguistic, economic, logistical or gender-specific impediments. Legal aid and public representation programmes are essential in this regard. Additionally, while focusing on the building of a formal justice system that functions effectively and in accordance with international standards, it is also crucial to assess means for ensuring the functioning of complementary and less formal mechanisms, particularly in the immediate term. Independent national human rights commissions can play a vital role in affording accountability, redress, dispute resolution and protection during transitional periods. Similarly, due regard must be given to indigenous and informal traditions for administering justice or settling disputes, to help them to continue their often vital role and to do so in conformity with both international standards and local tradition. Where these are ignored or overridden, the result can be the exclusion of large sectors of society from accessible justice. Particularly in post-conflict settings, vulnerable, excluded, victimized and marginalized groups must also be engaged in the development of the sector and benefit from its emerging institutions." United Nations Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, S/2004/616, 23 August 2004, 12, para. 36. [Back to Top] Access to justice as an inherently political endeavorAccess to justice in any society can be said to be preconditioned upon a set of norms, practices, and institutions. These norms, practices, and institutions include, but also go beyond, the justice sector. These elements are:21
They also illustrate how far the justice system itself is a product of its societal context. Indeed, "judicial institutions cannot be understood in isolation from their use by society."23 The state of access to justice in any society reflects its socioeconomic and political landscape, particularly the distribution of economic wealth and political power. "The ability to access and use legal institutions...is distributed unevenly in most societies...Making legal institutions accessible and responsive to poor people is one of the major challenges that confront law and judicial reform initiatives."24 Indeed, access to justice is often presented as a contribution to "the reduction of the unequal distribution of advantages in society."25 Therefore, "access to justice programming is an inherently political endeavour, and there may be strong resistance to substantive reform processes, particularly by elites and groups whose positions of power may be eroded or subject to stricter controls, as a consequence of such processes. At the same time, political controversies may inhibit donors from engaging in substantive reform processes, creating a tendency toward 'superficial' reform that does not alter the structural conditions under which the justice and security systems operate."26 Access to justice initiatives are intrinsically political in that they encourage sociopolitical change from the bottom up by raising people's awareness of legal rights and by promoting avenues (formal and informal, judicial and non-judicial, state- or civil society-oriented) for claiming and satisfying legal needs, opening up civil society, informal, and state mechanisms for claiming those rights, constructively addressing legitimate grievances, and fostering social peace. [Back to Top] Access to justice and judicial & legal reform/(re)constructionCharacteristics of post-conflict justice systemsPost-conflict situations are "frequently characterized by a complete legal vacuum, devastation of the justice sector infrastructure from courts to prisons, very low human capacity with few, if any, qualified personnel, including judges, prosecutors, defense lawyers, legislators, drafters, law professors, and legal policy experts, and a population with a deep mistrust and lack of faith in the justice sector."27
While generally weak, dysfunctional, and inefficient, post-war justice systems nonetheless differ and can be divided into a few broad categories: illegitimate but functional; corrupt and dysfunctional; and devastated and non-functional.28 Go to Judicial & Legal Reform/(Re)construction Each of the above post-war justice scenarios presents distinct challenges to access to justice. It is important however to avoid any preconception that "the conflict left a justice vacuum that now has to be filled...no such vacuum exists, even when the state structures have collapsed completely. People will always need ways of settling their disputes, and if there is no more formal way of doing so, they resort to other means."29 As some scholars have observed, "in fact, most of the security and justice in post-conflict and fragile states is not carried out by the state police and judiciary, but by non-state security and justice organisations."30 Paying attention to the plurality of mechanisms for seeking and delivering justice allows gaining a more accurate understanding of the needs of people, the obstacles and the possibilities for accessing justice in post-conflict societies. Go to Traditional & Informal Justice Systems Reasons for not using the formal justice systemA number of reasons are generally expressed by citizens for not using the formal justice system; they help understand the magnitude of the issues at stake here:31
Access to justice and reforms of the stateAccess to justice is therefore intrinsically linked to the judicial and legal reform/(re)construction, which concerns three key institutions: courts, police, and prisons.33 The fourth pillar of that reform is the civil society whose participation and engagement are crucial to the success of any reform.Access to justice complements other programs conducted under the judicial and legal reform/(re)construction, which include:
Access to justice has gained prominence largely because of the growing disappointment with mainstream rule of law (or judicial and legal) assistance programs. These are characterized by a top-down, state-centric approach that places a premium on formal institutions, particularly the judiciary. The basic assumption underlying this dominant approach is that the formal justice system is (or should be) the primary provider of justice. Accordingly, then, reforming the formal institutions of justice means improving the judicial well-being of a larger population. However, proponents of access to justice convincingly show that this understanding of change does not correspond to the realities of low-income or post-conflict societies, and that there are significant disconnections between the formal justice system and actual justice practices at the local or community level. Specifically, these proponents argue that an excessive focus on the state and its institutions is not likely to address the actual needs and problems of many, if not most, people. As Stephen Golub, a leading scholar on access to justice, writes, "particularly in a fragile, failed or post-conflict state where the government violates the rule of law, it is highly questionable whether such a government (or the forces that control it) will allow such solutions to the problems it causes...to mainly rely on them to craft, implement or approve curative strategies is to mistake the problem for the solution."35 Yet, building a rule of law-abiding state is precisely the central challenge of post-conflict peacebuilding. In sum, access to justice activities should complement, rather than seek to bypass or replace, mainstream state-centric rule of law assistance.36 There is a growing recognition among international actors of the importance of a more holistic and complementary approach to justice reform. A UNDP report notes: "Post-conflict justice reforms tend to focus on the formal institutions at the expense of national human rights institutions, traditional justice, customary law and civil society organizations. This is not only likely to diminish the overall impact of reforms (by overlooking critical components of the justice system); it also limits opportunities to strengthen the access to justice of poor and conflict-affected communities - by ignoring mechanisms which are used by, and are more accessible to, these groups."37 The Organization for Economic Cooperation and Development (OECD) Development Assistance Committee (DAC) also stresses: "A broad perspective...towards access to justice, going beyond the judiciary to include other sate and non-state, judicial and non-judicial means by which people realize their rights, solve disputes, obtain remedies (including against arbitrary or abusive conduct by officials), and affirm rules that protect individuals from injury and preserve social peace."38 [Back to Top] Access to justice and traditional/informal justice systemsTraditional/informal justice systems are generally thought to be better placed to provide access to justice and prevent the resumption of violence, especially at the local or community level. Albeit they may have been seriously affected and altered by violence, there is a general assumption that they are likely to remain more intact than formal ones.39Traditional systems operating outside the confines of the state are usually the primary forms of social control, dispute resolution, and reconciliation, especially with regard to familial matters and land tenure issues which are numerous in the aftermath of a war and are exacerbated by the displacements of population and return of refugees. As a UNDP report on informal justice systems notes: "In post-conflict countries, where formal mechanisms may have completely disappeared or been discredited, informal systems of dispute resolution may be crucial to restoring some degree of law and order, and they may be all that is available for many years."40Through its immediate post-conflict functions, traditional/informal justice systems are considered to increase significantly peoples access to justice, in particular for the poor and disadvantaged.41 Four main characteristics of traditional/informal justice systems explain their contribution to better access to justice:
That said, traditional/informal justice systems are no panacea. In fact, they often entail significant drawbacks and dangers, especially regarding human rights, gender equality and the rights of juveniles.43 In addition, their 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, more particularly: the erosion and potential distortion of traditional authorities and norms, the risk of abuse of power and domination patterns, the risk of political manipulation, the question of legitimacy and effectiveness of the system, the limited applicability across regions/ethnic groups. Go to Traditional & Informal Justice Systems: Key Debates & Implementation Challenges [Back to Top] Access to justice and transitional justiceAccess to justice plays an important role in furthering transitional justice in post-conflict contexts. Transitional justice refers to "a range of approaches that societies undertake to reckon with legacies of widespread or systematic human rights abuse as they move from a period of violent conflict or oppression towards peace, democracy, the rule of law, and respect for individual and collective rights."44 Transitional justice mechanisms include prosecutions, truth commissions, reparations, reconciliation practices, and institutional reform. Their overarching goal in post-conflict contexts is to mark a clear break with the past by confronting impunity and ensuring accountability. A successful transitional process is one that can address grievances effectively and legitimately, and provide an array of mechanisms through which people can seek remedies to their justice needs. This is especially important to victims and survivors of violent conflict.Yet, transitional justice processes often create a lot of frustration among the population. The support to a greater access to justice may help alleviate some of this frustration by sending a clear signal that even though not all grievances from the past can be addressed in a satisfactory manner, new grievances and new justice needs will find just remedies through legitimate and effective channels. [Back to Top] Access to justice and human rights promotion and protectionAccess to justice is intrinsically linked to the promotion and protection of human rights. If people can access justice institutions (whether formal or informal), then they are in a better position to have their human, political, and legal rights recognized and protected. Conversely, deprivation of access to justice generally equals the denial of human rights, socioeconomic vulnerability, legal uncertainty and political discrimination.Access to justice does not only mean accessing judicial institutions. It also suggests the ability to access other (quasi-formal or nonofficial) institutions such as national human rights institutions (NHRIs), ombudspersons office, mediators, and paralegals who help people address their justice needs by claiming their rights and securing remedies. Last but not least, access to justice includes the guarantee of a certain quality of the justice process: the conformity to human rights principles and standards. As such, it functions as an important mechanism to ensure the respect of those rights and the supply of remedies. Go to Human Rights Promotion & Protection 1. UK Department for International Development (DFID), Safety, Security and Accessible Justice: Putting Theory into Practice, 37. 2. Martin Abregu, "Barricades or Obstacles: The Challenges of Access to Justice," in Comprehensive Legal and Judicial Development: Toward an Agenda for a Just and Equitable Society in the 21st Century, ed. Rudolf V. Van Puymbroeck (Washington, D.C.: World Bank, 2001): 69-85. 3. Ibid., 57, 59. 4.Drawn from the World Bank, “Barriers to Access to Justice;” United Nations Development Programme (UNDP), Access to Justice: Practice Note (New York: United Nations Development Programme, 2004), 4; Michael R. Anderson, “Access to justice and legal process: making legal institutions responsive to poor people in LDCs,” (Brighton, Sussex: Institute of Development Studies, February 2003): 16-20. We also thank Bill O’Neill for his comments (11 July 2008). 5. Shirin Sinnar, "Access to Justice - Topic Brief," (World Bank, Law & Justice Institutions). 6. Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone (New York: United Nations Development Programme, June 2008). 7. The Economist, "Law Poor," June 5, 2008. 8. Comment by Bill O'Neill, 11 July 2008. 9. Benjamin Van Rooij, "Bringing Justice to the Poor, Bottom-up Legal Development Cooperation," Paper presented at the annual meeting of the The Law and Society Association, TBA, Berlin, Germany, Jul 24, 2007. 10. Amartya Sen, Development as Freedom (New York: Anchor Books, 1999), 3. 11. United Nations Development Programme (UNDP), Programming for Justice: Access for All-A Practitioners Guide to a Human Rights-Based Approach to Access to Justice (Bangkok, Thailand: UNDP Regional Centre, 2005), 3. 12. Comment by Bill O'Neill, 11 July 2008. 13. See Neil J. Kritz, "The Rule of Law in Conflict Management," in Leashing the Dogs of War: Conflict Management in a Divided World, ed. Chester A. Crocker, Fen Osler Hampson, and Pamela Aall (Wahsington, D.C.: United States Institute of Peace Press, 2007): 401-424. 14. Maurits Barendrecht and Patricia van Nispen, "Microjustice," (February 1, 2008) TILEC Discussion Paper No. 2008-010, 10. 15. van Rooij, "Bringing Justice to the Poor: Bottom-up Legal Development Cooperation," 1. 16. Barendrecht and van Nispen, "Microjustice," 10 17. UNDP, Programming for Justice, 180. 18. Report of the Secretary General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (August 23, 2004), 3, para. 2. 19. Ibid. 20. DFID, Safety, Security and Accessible Justice: Putting Theory into Practice, London:2000, 35. 21. Ibid., 36. 22. Anderson, "Access to justice and legal process," 7-9. 23. Ibid., 1. 24. Ibid., 1. 25. William L.F. Felstiner, Richard L. Abel, and Austin Sarat, "The Emergence and Transformation of Disputes: Naming, Blaming, Claiming?" Law & Society Review 15, no. 3-4 (1980-1981), 637. 26. UNDP, Programming for Justice, 182-183. 27. Kristi Samuels, "Rule of Law Reform in Post-Conflict Countries: Operational Initiatives and Lessons Learnt" (Social Development Paper No. 37, World Bank, October 2006), 15. 28. Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (Cambridge: Policy/Blackwell, 2002),73. 29. Kristina Thorne, Rule of Law through imperfect bodies? The informal justice systems in Burundi and Somalia (Geneva: Centre for Humanitarian Dialogue, November 2005). 30. See Bruce Baker and Eric Scheye, "Multi-layered justice and security delivery in post-conflict and fragile states," Conflict, Security & Development 7, no. 4 (December 2007): 512. 31. Ewa Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute (Oslo: United Nations Development Programme (UNDP) - Oslo Governance Centre, December 2006), 13. 32. Comment by Bill O'Neill, 11 July 2008. 33. See Mani, Beyond Retribution: Seeking Justice in the Shadows of War. 34. Comment by Bill O'Neill, 11 July 2008. 35. Stephen Golub, "The Rule of Law and the UN Peacebuilding Commission: a Social Development Approach," Cambridge Review of International Affairs 20, no. 1 (March 2007), 53. 36. Comment by Bill O'Neill, 11 July 2008. 37. UNDP, Programming for Justice, 181. 38. OECD Development Assistance Committee (DAC) Issue Brief, Equal Access to Justice and the Rule of Law (2005), 3-4. 39. See Tracy Dexter and Philippe Ntahombaye, The Role of Informal Justice Systems in Fostering the Rule of Law in Post-Conflict Situations: The Case of Burundi (Geneva: Centre for Humanitarian Dialogue, July 2005); see also Andre Le Sage, Stateless Justice in Somalia: Formal and Informal Rule of Law Initiatives (Geneva: Centre for Humanitarian Dialogue, July 2005). 40. Wojkowska, Doing Justice: How Informal Justice Systems Can Contribute, 5-6. 41. Ibid., 6. 42. Ibid., 5. 43. Comment by Bill O'Neill, 11 July 2008. 44. International Center for Transitional Justice. |
