In India, a student — still nameless — is fatally gang-raped on a Delhi bus; in Pakistan, teenager Malala Yousafzai is shot in the head for advocating girls’ education; in Afghanistan, a young woman, Lal Bibi, is abducted and raped as payback in a family feud. Elsewhere — countless other women and girls, brutalized, trafficked, denied basic rights, either in law or in practice.
“States, particularly in the developing world, have ignored their duty to extend to women the essence of the rule of law: equal protection,” says IDLO Director-General Irene Khan. “The law has, quite simply, failed women.”
For a woman who happily describes herself as a lawyer, this is a tough admission. Yet Ms Khan’s background is in human rights activism: in her, the advocate still seems to trump the lawyer. And just over a year into her leadership, IDLO is making gender justice one of its priorities.
But it is doing so in a way that may raise eyebrows. Perhaps because its culture is more intellectually exploratory than bureaucratic, the organization appears determined to turn received wisdom on its head. In its most recent report, Accessing Justice , IDLO argues that for women to be legally empowered, the world must overcome its distaste with informal justice systems — and mold them to women’s advantage instead.
The argument is simple, if unorthodox: in different ways, both formal law and customary law have let women down. Even when the right laws are in place, court systems in the developing world can be remote and unresponsive. These courts may also be corrupt; they are almost always out of sync with poor and illiterate women. Village justice, in turn, often has in-built discrimination; it tends to reinforce rather than challenge female exclusion. But it is cheap and handy. Its processes and rulings are easily understood. For this reason, the argument goes, village justice is something most women in the developing world are stuck with.
“We’re certainly not saying that we should pick informal systems over formal ones,” Ms Khan insists when asked if IDLO, in appearing to legitimize informal justice, is not playing a dangerous game. “Of course customary law can be brutal. But we’re starting from the observation that overall, informal legal systems show no sign of going away. And we think that wherever human rights standards are not compromised, we should help transform these systems so that they benefit women. The law means different things in different places. And custom is not static: it responds to intervention.”
The interventions, analyzed at length in Accessing Justice, range geographically from Africa to Asia and the South Pacific. In rural Namibia, women are being empowered to become ‘traditional’ leaders, helping tilt customary justice away from male privilege. In the Solomon Islands, women are shoring up their land tenure claims by referencing half-forgotten, pre-colonial norms and customs. These are believed to have stemmed from a culture that was once more female-positive.
In Afghanistan, by contrast, the emphasis falls on consolidating formal institutions to afford women better protection. In Morocco, where the legal culture is centered on formal procedure, NGOs have alternately invoked little-known statutes and exploited loopholes in restrictive laws to obtain official registration for the children of unwed mothers.
The conclusion, from IDLO’s perspective, is obvious: do whatever works. Let women choose for themselves what form of justice suits them best — as long as justice is what they get.
Gender justice is clearly shaping up as one of the world’s most urgent conversations. And it is one that IDLO, as both powerhouse of legal thought and international aid actor, could not afford to miss. But it seems to be joining it on its own terms, unpacking all assumptions, substituting pragmatism for dogma — almost, all told, unlawyerishly.