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Re-Imagining Customary Justice Systems: Interrogating Past Assumptions and Entertaining New Ones

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Abstract

In the early 2000s, the justice community of practice began to examine the role of customary justice systems in advancing development. This triggered a wave of research by policy and programming agencies, aimed at crafting a narrative for engagement and identifying entry points. The decades of programming that followed closely reflected these research outcomes. This paper revisits this research by comparing key findings to a dataset of 3894 interviews conducted by the Terre des hommes Foundation (Tdh) with 259 customary actors in Afghanistan, Egypt, Lebanon, Burkina Faso, the West Bank and the Gaza strip. While the data supports the validity of some research findings, others are contested, suggesting a disconnect between how the programming community believes CJS operate, and how they operate in practice. The implications for programming agencies and those intended to benefit from reforms are discussed, as well as lessons for programmatic research more generally.

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Notes

  1. The aid wings of the Australia, Dutch, British, German and US governments; the UN agencies holding mandates for development, child welfare, refugee protection and gender; and specific programming agencies the Open Societies Foundation, World Bank, Oxfam, the US Institute for Peace, Danish Institute for Human Rights and the Norwegian Refugee Council.

  2. Of the European Union states, eight set a maximum time limit between 2 weeks and 8 months before which a child’s case must proceed to trial (European Commission 2014. European Commission – Directorate-General for Justice. 2014. Summary of contextual overviews on children’s involvement in criminal judicial proceedings in the 28 Member States of the European Union. Brussels: European Union. Another commonly referenced benchmark is the USA Joint Commission on Juvenile Justice Standards (1980) which set a maximum duration for case closure of 31 or 61 days, depending on whether the child is in detention.

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Acknowledgements

The authors of this article would like to thank members of Terre des hommes teams who have played leading roles through the processes of methodological design, data collection and data analysis that were conducted in the scope of this research project, namely : Aoua Traoré, Boubacar Tchombiano, Christelle Antonetti, Claudia Campistol, Hedayatullah Rameen, Khitam Abu Hamad, Kristen Hope, Mohammad Yehia and Porgo Tasséré.

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Authors and Affiliations

  1. Van Vollenhoven Institute, Leiden University, Leiden, The Netherlands

    Erica Harper

  2. Terre des Hommes, Lausanne, Switzerland

    Yann Colliou

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  1. Erica Harper
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  2. Yann Colliou
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Correspondence to Erica Harper.

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Appendix

Appendix

Annex 1: List of literature reviewed

  1. 1.

    Department for International Development (DFID). 2004. Briefing Note: Non-State Justice and Security Systems. London: DFID.

  2. 2.

    Chopra, Tanja. 2009. “Women’s Rights and Legal Pluralism in Post Conflict Societies: An Analytical Agenda”. Presented at United States Institute of Peace, George Washington University and World Bank Conference on Customary Justice and Legal Pluralism in Post-Conflict and Fragile Societies, Washington. 17–18 November 2009.

  3. 3.

    Danish Institute for Human Rights (DIHR). 2012. Informal Justice Systems: Charting a Course for Human Rights-Based Engagement. UNDP, UNICEF and UN Women.

  4. 4.

    Harper, Erica. 2011. Customary Justice: From Program Design to Impact Evaluation. Rome: International Development Law Organization.

  5. 5.

    Harper, Erica. 2011a. Working with customary justice systems: Post Conflict and Fragile States. Rome: International Development Law Organization

  6. 6.

    International Council on Human Rights Policy (ICHRP). 2009. When Legal Worlds Overlap: Human Rights, State and Non-State Law. Geneva: ICPHR.

  7. 7.

    International Development Law Organization. 2019. Policy and Issue Brief: Engagement with Customary and Informal Justice Systems. Rome: IDLO.

  8. 8.

    Isser, Deborah (ed). 2011. Customary Justice and the Rule of Law in War-Torn Societies, Washington: United States Institute for Peace.

  9. 9.

    D. Isser, S. Lubkemann and S. N’Tow, Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options, USIP Peaceworks No. 63 (2009), United States Institute of Peace.

  10. 10.

    Kyed, Helene et al. (eds.). 2011. Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform. Rome: International Development Law Organization.

  11. 11.

    OHCHR. 2016. Human Rights and Traditional Justice Systems in Africa. New York: United Nations.

  12. 12.

    Penal Reform International. 2000. Access to Justice in Sub-Saharan Africa. PRI.

  13. 13.

    Ubink, Janine (ed). 2011. Customary Justice: Perspectives on Legal Empowerment International Development. Rome: Law Organization and Van Vollenhoven Institute.

  14. 14.

    UNDP. 2012. Sharing Experience in Access to Justice: Engaging with Non-State Justice Systems and Conducting Assessments.

  15. 15.

    Wojkowska, Ewa. 2006. Doing Justice: How informal justice systems can contribute. Bangkok: UNDP.

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Harper, E., Colliou, Y. Re-Imagining Customary Justice Systems: Interrogating Past Assumptions and Entertaining New Ones. Hague J Rule Law 15, 75–94 (2023). https://doi.org/10.1007/s40803-022-00173-x

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