Reinventing justice in fragile contexts

Over the last couple of years I have participated in a wide-range of inspiring conferences. On peace and security, innovating justice, or aligned topics like planetary security. Some were organized at the Peace Palace in The Hague, others a bit further away in Oxford or San Francisco. It took till last week to discover a gem close to home: the Knowledge Platform Security & Rule of Law and its 4^th Annual Conference ‘Hard Contexts, Hard Choices’.

How to tackle the hard choice of access to justice policy, programming and knowledge that the hard context of fragility requires?

Fragile contexts are characterized by weak governance at best. Here access to justice is a distant reality. Lack of access to justice for all impedes security, creates uncertainty on an individual and communal level, and thereby inhibits development in a broader sense. Lack of access to justice even drives conflict: ‘every civil war that began since 2003 has been a resumption of a previous civil war’. Still, the results of many access to justice programs in fragile countries are limited. In particular state-centered rule-of-law approaches have not proven effective: the formal justice system is out of reach for ordinary citizens in terms of availability, accessibility and affordability.

Also: ‘access to courts’ is not the equivalent of ‘access to justice’. Rulings need to be complied with to render justice.The informal justice system on the other hand is more accessible, be it that it is just as likely to be subject to abuse. A customary court may look nice from the outside, but may well act in an exclusionary and discriminatory manner. Customary law is fluid, diverse and not uniformly applied. Not to forget that the enforcement of rulings of the informal justice system may be challenging. Also, having both a formal and an informal justice system may not necessarily always be ideal. It allows for ‘forum shopping’, going back and forth from the formal to the informal system to obtain the desired ruling.

Should we look at formal and informal justice providers as separate systems? The systems and their actors are often interlinked in fragile contexts. It is therefore argued that two strategies can be focused on: 1. Linking informal justice providers to formal justice providers and 2. Transforming informal justice providers, such as customary courts, from within.

In fragile and conflict-affected settings, a high volume of crimes and disputes needs to be tackled. The formal system lacks the capacity to respond to the case-load on its own. There is thus a need to strengthen the interface between the formal and the informal justice systems. For example, by letting informal justice providers assist with case-loads, where formal justice providers can check the rulings' compliance with existing legislation and human rights standards.

As for transforming customary courts from within, customary laws should be restated by the communities in fragile contexts themselves and internal accountability ought to be fostered.

So how do we go from here, can we reinvent our access to justice programs in fragile contexts?

When it comes to access to justice in fragile contexts, there is more research than programming. Research concentrates particularly on context analyses, thereby leaving ample room to further investigate best practices regarding engagement with informal justice providers. On the programming side, training of informal justice providers on formal laws is popular, but even though programs are framed as an  ‘engagement with the informal system’, they often still remain state-centered in nature.

Let’s really engage with communities and informal justice providers, and let’s restore the interaction with formal justice providers. Join Cordaid, VVI, Clingendael CRU and IDLO in building access to justice in fragile settings!

This blog was inspired by the Platform's 4th Annual Conference, and in particular related to the breakout session on "Linking formal and informal justice in fragile and conflict-affected states". This session was organized by IDLO & VVI and facilitated by Marco Lankhorst (Head of Research - IDLO). Keep an eye on our website (#srolconf #hardchoices) for the main outcomes of the conference.