Existing systems of customary justice should be seen as a continuing and important part of international efforts to support justice reform in countries hit by conflict, a group of specialists said at the January 12 public launch of a book published by the United States Institute of Peace (USIP).

The USIP book, “Customary Justice and the Rule of Law in War-Torn Societies,” offers case studies from seven countries that were authored by contributors with on-the-ground experience. Taken together, the cases suggest that customary justice systems cannot simply be judged by the standards of Western rule-of-law systems and that efforts to eliminate customary systems are destined to fail.

“Customary justice systems play a crucial role not only in the absence of accessible and legitimate state institutions, but because they fill social needs and provide a paradigm of justice that formal systems cannot,” said Deborah Isser, who edited the book while serving as the Institute’s senior rule of law adviser. She is now a senior counsel at the World Bank, where she manages the “Justice for the Poor” project. She said efforts by governments and the international community "to regulate, formalize or limit customary justice systems often backfire.”

The seven cases in the USIP volume come from Mozambique, Guatemala, East Timor, Afghanistan, Liberia, Iraq and Sudan. The book emphasizes practical approaches to customary justice problems rather than fixing on a predetermined end state, such as the abolition of systems that often offer locally legitimate processes for dispute resolution and peacefully resolving grievances.

“We’re ‘problematizing’ customary law,” Isser said, when it frequently needs to be accepted “as a social fact.”

"As lawyers we tend to look for legal problems and legal fixes. But this project drove home for me that law and legal systems are not a technology, but are deeply embedded" in complex social and political systems, she said.

Isser and some of the event’s panelists said the key now is to understand those dynamics better, and they called for comprehensive research with the aim of better understanding the entire justice landscape in such countries -- "how things actually work, as opposed to on paper," as she put it. Isser suggested that a lack of harmonization between formal and informal justice systems is not usually the main problem people encounter but rather "issues of acute power imbalance, corruption and the lack of any effective remedy, formal or customary."

The State Department is currently the primary funder of USIP’s rule-of-law programs in Afghanistan, and officials there “have become more comfortable with the idea of pluralistic justice regimes,” said Karen Hall, who serves as the rule-of-law team leader for Afghanistan in the State Department’s Bureau of International Narcotics and Law Enforcement Affairs. “This research presents a strong basis for reconceptualizing how we do business.”

Said Hall, “There’s no silver bullet for justice reform in Afghanistan or any other area.” And there is recognition that change will come through “a long-term organic process.”

Scott Worden, senior policy adviser for Afghanistan and Pakistan at the U.S. Agency for International Development, also suggested a tone of realism on the widespread use of informal justice systems. “Fundamentally, customary justice is about resolving community disputes given the people and resources at hand….The informal system is better than nothing.” Formal justice systems can also perpetrate their own violations of human rights, noted Worden, who previously worked on rule-of-law issues for USIP.

Shelley Inglis, a policy adviser on rule-of-law issues at the United Nations Development Programme, offered a similar take. “There is a need not to romanticize either system or any system,” she said.

Veronica Isala Eragu Bichetero, a Jennings Randolph senior fellow at USIP who also appeared on the panel, said the book fosters recognition that formal and informal justice systems will need to coexist. “The customary system has a process which must be appreciated,” she said.

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