Traditional & Informal Justice Systems: Traditional & Informal Justice & Peacebuilding Processes
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The literature on traditional justice in post-conflict societies is quite recent and thus in early stages of development. Yet, existing accounts of experiences and scholar works allow situating the importance and potential functions of traditional and informal justice in peacebuilding processes, in particular in post-conflict contexts. There is undoubtedly greater interest in and recognition of these systems in the international peacebuilding community, at least at a rhetorical level. But concrete support remains limited.The nature of justice issues in post-conflict settingsMost of today's wars are essentially civil in nature. They often imply a great cost for civilians who, too often, are specifically targeted and submitted to mass killings and other atrocities such as mutilation, rape, the destruction of villages and the deportation of people.1 Those who carry out the violence are not only professional combatants, but civilians who, for a variety of reasons, become agents of destruction. Child soldiers are the prototypical example of this phenomenon. In northern Uganda, for example, children have been abducted by the LRA and, usually through coercion and indoctrination, have been turned into agents of violence. In such cases, it becomes difficult to distinguish between perpetrators and victims. The proportion of crimes committed at the heart of the community, or even within single families, is also often higher than is imagined. Frequently, perpetrators come from the same areas as those they kill or harm. This "intimate violence" or "intimate crime" has been documented in contexts as different as Bosnia-Herzegovina, Cambodia, Liberia, Sierra Leone, Democratic Republic of Congo or Peru.2 But the violence is not only intimate; it is also popular in that it enlists the participation of thousands of ordinary people, and even greater numbers of people become direct beneficiaries of the violence. 3 Rwanda is the most extreme contemporary example of mass participation in violence, with hundreds of thousands of individuals suspected to have contributed directly to violence.4These features of contemporary violence carry enormous implications for post-war justice. First, the blurred line between perpetrators and victims means that criminal prosecutions (trials), with their emphasis on apportioning responsibility and meting out punishment, may be in part inadequate as they fail to consider the complexities of violence. Therefore, some analysts have called for a shift from a conception with clearly demarcated categories of "victims" and "perpetrators" to a more socially inclusive category of "survivors," defined as "all those who continue to be blessed with life in the aftermath of the civil war."5 Indeed, in many post-conflict societies, victims, perpetrators, and survivors in general continue to live in the same communities. This continued coexistence, though possibly inevitable, may be marked by residual fears, animosities, and tension. In other words, post-conflict communal life is often driven by the legacies of the violence. A central task of peacebuilding is to transform communal relations from a state of "negative peace" (usually defined as an absence of armed conflict) to one of positive peace (defined as a structural transformation towards a socio-political and economic system capable of fostering justice and ensuring a self-sustained peace). Such a transformation is beyond the scope of formal, retributive justice; rather, it requires more holistic and locally-relevant approaches that address a set of concerns, including accountability, truth-telling, reparation, and reconciliation. Second, very weak or barely functioning formal justice mechanisms are unable to process thousands of people who may have participated in war-related crimes. Furthermore, a purely retributive approach may not accord with the priorities of economic recovery. Imprisoning thousands of productive people (in particular young males who often constitute a high proportion of suspects) may adversely affect the immediate needs of economic recovery. For proponents of traditional/informal justice, the nature of justice issues faced in contemporary post-conflict settings explain the need to at least partly refer to that system. [Back to Top] The myth of a post-conflict "vacuum"Given the typically devastating effects of war, it is tempting to think of post-conflict societies as a "tabula rasa" or as a "vacuum" to be filled. The idea of a "rule of law vacuum" or a "legal vacuum" is often referred to by international actors. While a critical shortage of human capacities and material resources surely characterizes most post-conflict formal judicial systems, questioning the mere existence of some of them, this does not mean that other initiatives/efforts aimed at addressing justice issues do not exist. "Interestingly, when we approach the subject of post-conflict reconstruction of justice, there seems to be a 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.:6 As Erin Baines concludes in her study of local approaches to justice in northern Uganda, "in the absence of formal justice processes in northern Uganda and of a functioning democratic dispensation in that region, the Acholi people have coped with everyday life in a violent conflict by relying on 'culturally informed practices.'"7Go to judicial and legal reform/reconstruction These systems also assist communities to deal with post-war daily conflicts. Paying attention to them is at minimum a way to get a more accurate picture of the post-conflict justice system as it actually functions in a given context. In too many cases, "justice sector reformers have failed to acknowledge, and thus comprehend, the systems--which, at least in rural areas, are predominantly customary, idiosyncratic to specific sub-regional and cultural contexts, and residing only in oral form--by which many people (if not most poor people) in developing countries order their lives function."8 As one observer notes, "with increasing discussion about complementarity efforts and local ownership of development efforts, should we not also take account of and accept what the local population wants? It would be logical to build on the local perception of justice, and thus on systems that are acceptable to the local population."9 Go to transitional justice and reconciliation [Back to Top] Growing international recognition but insufficient concrete support to traditional justice in peacebuildingThere is undoubtedly greater interest in and recognition of traditional justice in the international peacebuilding community, at least at a rhetorical level. As the now seminal document in the field, the UN Secretary General's Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies recommends, "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."10Moreover, the very definition of justice used in the Secretary Generals report gives place to traditional justice. The report defines justice as "an ideal of accountability and fairness in the protection and vindication of rights and the prevention and punishment of wrongs. Justice implies regard for the rights of the accused, for the interests of victims and for the well-being of society at large. It is a concept rooted in all national cultures and traditions and, while its administration usually implies formal judicial mechanisms, traditional dispute resolution mechanisms are equally relevant."11 It is also worth pointing out that traditional justice has partial basis in international law, as articulated in Article 34 of the United Nations Declaration on the Rights of Indigenous Peoples: "Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards."12 It is important to note, however, that the term indigenous here is used as a reference to the original inhabitants of parts of the world before the onset of European colonization, and is thus different from "indigenous" as a synonym of "local" or "traditional." "Legitimacy is a cornerstone of justice, and means and priorities must be locally defined. All these ideas are now generally accepted,"13 but remain far from being always applied in practice. "Despite the prevalence of traditional and customary law, these systems have been almost completely neglected by the international development community, even at a time when justice sector reform has become a rapidly expanding area of assistance."14 "Development organizations have not only tended to ignore traditional systems, they have had a propensity to view them in fairly negative terms. Traditional systems are often seen as archaic, 'backward,' or rigid practices that are not amenable to modernization, efficient market relations, or broader development goals. In terms of reform, they are often seen as overly localized and complex, with the diversity of systems making more generalized initiatives too difficult. They are often seen as undemocratic--lacking democratic accountability mechanisms to induce reform--and lacking in legal legitimacy, authority and enforceability."15 Go to Judicial and Legal Reform/Reconstruction [Back to Top] The peacebuilding functions of traditional/informal justice systemsExisting accounts of experiences and scholar works allow situating the potential functions of traditional and informal justice in peacebuilding processes, in particular in post-conflict contexts. These concern in particular the support to the different dimensions of justice recovery:
Providing access to justice and preventing a resumption of violenceThe relevance of traditional/informal justice systems in the post-conflict settings stems from the idea that traditional/informal justice systems, albeit often seriously affected by violence, are likely to remain more intact than formal ones.16 According to a DFID report on "non-state justice systems," it is likely that those "will have operated in some form throughout the conflict period, and may play a critical role in the immediate aftermath of conflict where restoring security and rule of law is a high priority."17 Indeed, the formal justice system is often devastated or severely impaired by the war and frequently does not have the capacity or legitimacy to fill the gaps in social ordering and conflict resolution.18 It is generally estimated that rebuilding a formal justice system takes approximately two decades.19 In the interim, the traditional/informal one provides viable (if imperfect) modalities of dispute resolution, contributing to the prevention of the resumption of violence by not letting grievances accumulate, aggregate and go unaddressed.Traditional systems operating outside the confines of the state are usually the primary form 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. "Traditional mechanisms exist and have done so for years, providing a strong system of both governance and reconciliation, outside of the formal mechanisms imposed by the Western world."20 In an insightful study of local justice practices in rural Peru, Kimberly Theidon reminds us that, ultimately, "Reconciliation is forged and lived locally, and state policies can either facilitate or hinder these processes."21 Some estimates that in developing countries eighty to ninety percent of civil matters are handled by the traditional/informal justice systems. 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. If there are no viable means of resolving societal disputes, the alternatives are either violence or conflict avoidance - which in itself is likely to lead to violence later."22 Numerous studies have shown that when neither formal nor informal mechanisms are functioning, human rights abuses and serious conflicts are more likely to occur. In a study of formal and informal dispute resolution systems amongst poor segments of rural Colombia, the incidence of communities taking matters into their own hands through vigilantism, "mob justice" or lynching is more than five times greater in communities where informal mechanisms are no longer functioning effectively and state presence remains limited. In other circumstances, breakdown of local frameworks can lead to different types of lawlessness.23 Through 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.24 Access to justice is defined as "the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards."25 Four main characteristics of traditional/informal justice systems explain their contribution to better access to justice:
In short, "informal justice systems are often more accessible to poor and disadvantaged people and may have the potential to provide quick, cheap and culturally relevant remedies."26 Moreover, in post-conflict societies, people may use traditional and informal justice systems not only because these systems outperform formal ones but also because they often deal with issues that the formal justice system does not, or they find solutions and deliver remedies in ways that are more relevant, effective or socially acceptable.27 Reasons for Not Using the Formal Justice System Fostering social trust and community reintegrationIt is generally believed that a unique contribution of traditional/informal justice systems is that they foster social trust and community reintegration in the aftermath of mass violence. This belief stems from the observation that traditional justice is almost invariably based on communitarian notions of order and society, meaning that the primary issue at stake is the well-being of the community at large, and not only the interests of the victim. In such communities a dispute between individuals is perceived as "not merely...a matter of curiosity regarding the affairs of one's neighbour, but in a very real sense a conflict that belongs to the community itself."29 Each member of the community is tied to varying degrees to each of the disputants and, depending on the extent of these ties, will either feel some sense of having being wronged or some sense of responsibility for the wrong. In other words, "a conflict between two members of a community is regarded as a problem which afflicts the entire community. In order to restore harmony, therefore, there must be general satisfaction among the community at large, as well as the disputants, with the procedure and the outcome of the case. Public consensus is, moreover, necessary to ensure enforcement of the decision through social pressure."30 Justice, in this view, is essentially concerned with the restoration of a community's moral order and social harmony.Justice according to local expectations and by local institutions may also be "more highly valued than that of state law and tribunals."31 Indeed, "in many contexts, the local law is no more than a paper somewhere which has nothing to do with the reality and the informal rules that have been developed, along the history, by the population."32 Acknowledging the existence of those rules and modalities may then help restoring a sense of justice for local people. Justice in a strictly retributive sense (that is, meting out punishment) is generally not the exclusive or even primary objective of traditional/informal systems. As one report on traditional justice in Africa points out, "the traditional African sense of justice is not simply about isolating the retributive aspects of justice, as it is in the Western model. Instead, retribution is but one part of an overarching process that also encompasses rehabilitation, reconciliation, compensation, and restoration. In other words, it is not just that retribution equals justice. Indeed, justice itself is one component of restoring perpetrators back into harmony with the values of a community."33 "While the more formalized Western models allow for only one form of justice - retributive, restorative, or reparative - these traditional institutions seek to combine various of these and other elements in keeping with the values of the community."34 However, it is worth noting that this distinction between retributive and restorative/reparative justice is not always so clear as both national and international tribunals (in particular the International Criminal Court) have progressively carved out a larger role for the victims and some may provide for reparations.35 This holistic approach also includes the utilization of rituals, rites and symbols. "Genuine acceptance of a ruling is recognized as essential for the ending of hostilities between disputants and the restoration of harmony within the community. In order to confirm acceptance by both parties, they may be expected to eat from the same bowl or drink from the same cup. This forms part of the reconciliatory approach intrinsic to African traditional arbitration. It confirms the agreement and makes it notorious. The public also partake in the eating and drinking as an expression of the communal element inherently present in any individual conflict and of their acceptance of the offender back into the community."36 A large diversity of rites and symbols are used in different cultures. These range from very elaborate celebrations and ceremonies to more common rituals. These may include blood pact alliances, marriage, intimate friendships, and communal celebrations to consolidate peace. Others include eating and drinking together, the shaking of hands, and the exchange of gifts to show restoration of peace, as well as the slaughter of animals, and the exchange of dried coffee berries.37 Go to Northern Uganda case study (Acholi traditional justice system) As a result, traditional/informal justice is thought "to strengthen levels of social trust and civic engagement within these societies, for if the people believe in and trust such mechanisms, it is believed that they will participate in the activities promoted by them."38 Because traditional/informal justice systems are by definition local and community-based, it is believed that they will foster the reconstruction of social trust among survivors: "Traditional and informal justice systems are best suited to conflicts between people living in the same community who seek reconciliation based on restoration and who will have to live and work together in the future."39 Go to transitional justice and reconciliation Contributing to transitional justiceWhile a detailed discussion of transitional justice is beyond the scope of the present section, it is important to briefly address the evolution of the field and its now important link with traditional justice. Broadly speaking, the field of transitional justice can be said to have witnessed three major trends40: a) the post-World War Two internationalization of justice as exemplified by the trials of German and Japanese war criminals; b) the politicization of justice in the 1980s and early 1990s through the establishment of non-judicial instruments such as truth commissions, especially in South America; c) the present period of hybridity/hybridization, where various transitional justice mechanisms (such as prosecutions, truth commissions, and local/"traditional" mechanisms) are simultaneously applied, such as in the case of Rwanda, Sierra Leone, and East Timor.41 Go to case studiesThe current interest in traditional justice stems from this third major trend in the evolution of transitional justice and the growing sense of disenchantment with international judicial approaches to post-conflict justice, namely the international tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). As Diane Orentlicher, an international lawyer, asks, "Given the extraordinary range of national experiences and cultures, how could anyone imagine there to be a universally relevant formula for transitional justice?"42 Put differently, "transitional justice is not the monopoly of international tribunal or of states: communities also mobilize the ritual and symbolic elements of these transitional processes to deal with the deep cleavages left--or accentuated--by civil conflicts."43 But the subject of traditional approaches to transitional justice is quite new and has received little attention until recently: "Despite the burgeoning literature on transitional justice, scant attention has been paid to local justice mechanisms. The studies that do exist are mostly theoretical, macrolevel assessments of state-initiated mechanisms, rather than empirical, microlevel studies of how those mechanisms are actually functioning at the local level. There is even less scholarship on post-conflict dispute settlement mechanisms and reconciliation practices initiated at the local level, which, at times, may conflict with those initiated by the state."44 That said, some experiences with traditional justice mechanisms in a number of post-conflict settings, especially Rwanda, led some to question their legitimacy and effectiveness. In particular, some question the notion that traditional and informal justice systems can be used to deal with grave human rights violations, committed on a massive scale. Most of these systems were predominantly crafted to deal with property and commercial disputes, family matters and inheritance, not such serious crimes as murder, rape, torture, disappearances or other grave crimes inflicted on civilians in modern armed conflicts. To expect these systems to take up such matters, critics argue, is bound to lead to disillusionment and to distort their purposes and advantages.45 "Normative approaches are thus gradually giving way to more realistic, empirically based assessments of the potential role of traditional mechanisms within the broader reconciliation and transitional justice policy framework."46 Supporting judicial system reform/(re)constructionJudicial reform and reconstruction in post-conflict settings has recently received greater attention and more donor funding, stemming from the "rule of law revival" and the "rule of law consensus." 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.47 Yet judicial reform activities in developing countries in general - and post-conflict countries in particular - have been the subject of important criticism. Critics have labeled the dominant approach in post-conflict settings as "programmatic minimalism": that is, judicial reform and reconstruction activities that are "largely replicable, standardized, culturally inoffensive and politically 'neutral' or inoffensive; they focus on the technical procedures and institutions rather than laws substance and ethos."48 Critics have argued that the problem with this technical and legalistic approach is that it fails to address the key obstacles to the rule of law, which are political and cultural. 1. For an analysis of the impact of wars and mass violence on local social fabrics, see Béatrice Pouligny, "Building Peace in Situation of Post-Mass Crimes," International Peacekeeping 9, no. 2 (2002): 201-220.
Salient features of traditional justice systems:
Source: Penal Reform International (PRI), Access to Justice in Sub-Saharan Africa: the role of traditional and informal justice systems (London, November 2000), 22. |
