Should donors engage informal justice systems when developing justice related programming? And if so, how? This was the central question that was discussed during the Interactive Brainstorm ‘Understanding and Engaging Informal Justice’, which took place in The Hague on 20 October 2016.
The discussions of the day were based on the report ‘Understanding and Engaging Informal Justice’, written by Geoffrey Swenson. This report, as well as the insights from the event, will feed into a policy brief that aims to provide donors with concrete recommendations on how to best consider and engage informal justice systems when developing justice related programming in developing states.
A plea to improve inclusiveness in programming, a demand for increased applied research into what works (and what does not work) versus a call to translate the (anthropological) research that is readily available into meaningful policy advise, focus on underlying socio-economic challenges and not just on justice concerns: these are just a few of the many arguments and experiences that were shared during this interactive brainstorm. Geoffrey Swenson kick-started the discussion by presenting the main points of his report, namely the importance of the (political) context, and clarity and transparency regarding donor’s goals for engagement and the inevitable trade-offs that come with them. Are donors trying to increase the use of informal justice systems, is the aim to change these systems’ modus operandi by for example adding in international human rights standards, or is the intention to change the relationship between informal justice systems and the state system, by formalizing the informal?
The report was well received and the contributions of the participants served to fine-tune the argument. Notably, the discussion underlined the importance of an increased focus on power dynamics, not only between formal and informal justice systems and between these systems and their users, but also within the systems themselves. Linked to this, donors should also realize that whichever way they intervene, their interventions will affect power structures. As a result, if the impact of engagement cannot be fully understood, in some instances it might be better not to engage at all. However, as one of the participants argued, the question is not whether we want informal justice or not, as it is a reality that is not likely to disappear. Donors should ask themselves: what do we want to achieve, and what will be the impact of supporting informal justice systems? In addition to this, donors should be wary of using the word change because of its related high expectations. Instead, it makes much more sense to look at what actually works, what can be built upon, and gradually start introducing other groups to the process. It is only through these types of processes that incremental change can happen.
During the remainder of the day, pitches by the experts sparked debate on a multitude of issues, and experiences from Mali, Sierra Leone, DR Congo, Rwanda, South Sudan, Lebanon, Afghanistan and Bangladesh were shared. Semantics were discussed: oftentimes, it is difficult to distinguish between formal and informal systems – especially in fragile settings. Informal justice systems can be highly formalized and vice-versa. Next to this, it is important to think about how to keep all stakeholders, including the state and the wider community, involved in justice programming. Discussants suggested exploring ways in which justice provision can be seen as a public service was suggested, as was linking formal and informal systems to arrive at the closure of what was dubbed the ‘justice gap’ by one of the participants: the impunity that persists because some crimes are not targeted by either system.
During the recap of the discussion, the most pressing issues and important recommendations were shared. In order to understand informal justice systems, donors should:
- Pay thorough attention to power dynamics between all stakeholders, and including the dynamics at play within informal justice systems themselves;
- Realize that informality is not a local issue, but that it exists at all levels of society;
- Pay attention to the interface between formal and informal justice, and be cautious that the two are not always easily distinguishable;
- Comprehend what justice actually means to whom, and develop programming accordingly;
- Build on the (academic) knowledge that is available.
In order to engage with informal justice systems, donors should take care to:
- Clearly articulate policy objectives;
- Be modest in ambition and have realistic goals and expectations – and communicate honestly about these. On a scale from 1 to 10, moving from 2 to 3 is sometimes the best possible outcome;
- Realize that only incremental change is possible, and that all change is political;
- Create a safe space for innovative programming, including ample room for continuous adaptation as the programme develops;
- Promote inclusivity and involve all stakeholders, including potential spoilers;
- Identify the justice gap and put access to justice centre-stage;
- Not apply different standards for working with formal and informal justice systems, for example in terms of international human rights standards;
- Take evidence-based programming seriously;
- Be cautious not to break what is there.