Customary and informal justice systems represent some of the most complex and even controversial aspects of the justice dialogue. To some, they hold the key to unlocking inclusive societies – to others, they perpetuate inequalities and serve to further marginalize those seeking justice.
This was the subject of conversation at the Global Conference on SDG 16 during a side event organized by IDLO and the Office of the High Commissioner for Human Rights (OHCHR).
An often-overlooked dimension of access to justice in international conversations, it is estimated that 80 – 90 per cent of disputes in developing, fragile and post-conflict states are resolved using customary and informal systems, making any deliberation of Sustainable Development Goal (SDG) 16 incomplete without understanding their role, scope and nature.
Perspectives from Somalia, Sierra Leone, Afghanistan and Bangladesh were shared during the side event, speaking to the relationship between customary and informal justice systems and the State, human rights and the 2030 Agenda for Sustainable Development.
Customary and informal systems carry many benefits, such as physical proximity, speedy resolution and low cost. Customary and informal mechanisms tend to be more accessible compared to the formal justice sector – especially to vulnerable and marginalized populations – and enjoy high levels of trust within communities.
“It is at the heart, at least in my country, of seeking the ‘inclusive’ part of the Goal, the ‘just’ part of the Goal, and creating of institutions that are just in the sense that people trust them,” said Hon. Dr. Priscilla Schwartz, Attorney-General and Ministry of Justice of Sierra Leone, invoking the objectives spelled out in SDG 16. “The aim is not adversarial, where you win or lose. The aim is an inclusive society.”
At the same time, it is well-recognized that customary and informal justice systems are deeply rooted in cultural, traditional or religious norms that are not always in line with international standards of human rights and some national Constitutions.
In fact, in some contexts, customary and informal justice systems work to the detriment of justice seekers, particularly women and marginalized groups.
“Justice can be bought and sold,” remarked Dr. Sima Samar, Head of the Afghanistan Human Rights Commission. “In the case of Afghanistan, the local or informal system is not immune to that. The one who is on the side of the warlord is the one who receives justice.”
Is customary and informal justice then a means to inclusivity or agent of injustice? For many, the response lies in the “how” of engagement. This includes the imperative to contextualize, examine linkages to the formal system, and explore ways to ensure alignment with international human rights standards.
While widespread and critically important to many individuals and communities across the globe, customary and informal justice systems are often left out of conversations held at the international level.
“It shows there is a huge gap in understanding of realities on the ground,” remarked IDLO’s Director-General, Irene Khan. “What is missing is the way ordinary people – everywhere, every day, rich, poor and everything in between – find justice.”
As the international community prepares for the upcoming review of SDG 16 and races to realize the 2030 Agenda, continuing the conversation around customary and informal justice systems – their value added, tensions and complexities – will be critical to ensuring no one is left behind.
IDLO launched Global Consultations on customary and informal justice in February 2019 and has since held discussions at the Commission on the Status of Women in New York and the World Justice Forum in The Hague, with plans for regional consultations in Africa and Latin America.
The Consultations are backed by a series of Briefs, Navigating Complex Pathways to Justice, that overview the unique advantages – and disadvantages – of customary and informal justice systems, as well as lessons learned from programming and research about engaging for better access to justice for all.