Establishing an effective rule of law in post-conflict situations is a considerable challenge for the international community. Unfortunately misconceptions about the nature of local civil society, its norms and institutions, has often hindered efforts to facilitate the administration of justice. Perceptions of a post-conflict ‘power-vacuum’ are erroneous as traditional structures come to the fore in times of societal stress.
This report, prepared by the United States Institute for Peace, evaluates the United Nation’s (UN) experience in East Timor in the wake of the brutal rampage after the vote for independence from Indonesia in 1999. The report assesses the ongoing influence of local legal systems and the ways in which they interact with the UN’s official justice programme. What lessons can be learnt for future operations in locations where traditional social structures are strong?
Although East Timor has come under Portuguese and Indonesian rule traditional legal systems have maintained their local dominance. Such systems, in which ancestral powers are the dominant forces, prioritise social reconciliation in order to maintain community harmony. The prevalence of such systems, combined with a lack of recognition of their importance on the part of the UN, has been a feature of the post-conflict phase. There are significant contrasts between local and modern law:
Western law is written, whereas traditional laws are oral and are held by experts, who are deemed locally legitimate.
- In Western law people and goods are separate, whereas in traditional law they are mutually integrated within the social system. The concept of ‘the individual’ is hardly recognised in traditional society.
- The relative criminality of different acts varies between modern and traditional laws. Violence, for example, within traditional society is believed to be an inherent part of life and thus is rarely prosecuted.
These differences in cultural underpinnings are so marked that local laws tend not to be recognised by international agents. On the other hand, locals tend to ignore efforts to impose external value systems. Thus, enforcement of socially inappropriate justice systems may exacerbate tensions in fragile post-conflict situations.
A transitional process that incorporates local systems and integrates some features of traditional law into written official law is likely to bring some success. Achieving local legitimacy is important and external efforts can then focus upon eradicating elements of local laws that contradict international human rights standards.
- Elements of local laws, such as the Timorese focus upon reconciliation and rehabilitation, may have much to offer in stabilising society.
- Total abolition of local systems is rarely advisable as the resource implications for effective delivery are vast. Also, efforts to supplant local systems via blueprint approaches are very likely to exacerbate local tensions.
- Background empirical research by expert social scientists is a necessary pre-condition for any intervention. Resultant policies should be designed with broad local participation. Field personnel should be thoroughly briefed with regard to the character of local social institutions.
- Any international intervention must implicitly acknowledge the strength of local social structures. Programmes must be sustainable beyond the period of international intervention.
