This paper examines the debates surrounding recent attempts to introduce local accountability mechanisms into structures of transitional justice in politically fragile and post-conflict situations. It notes that we still know remarkably little about the role and impact of informal justice processes in post-conflict situations. Better assessment and monitoring are required. Available research findings suggest that traditional justice may be helpful in some instances, but overall results are mixed. In some cases, counterproductive consequences have been noted. However, while traditional processes may be linked to state interests or have qualities that are highly problematic from an international perspective, similar problems are also evident in formal national and international justice systems dealing with post-conflict accountability: the turn to the local and the traditional for a better approach is likely to persist.
Since the mid-1990s, there have been many attempts to adapt and institutionalise forms of traditional justice as part of post-conflict policy. Advocates of traditional justice argue that failure to integrate traditional forms of justice explains the limited effects of more formal judicial mechanisms introduced in post-conflict settings. International lawyers and human rights NGOs, however, are concerned that customary tools do not respect the duty under international law to prosecute mass atrocities, and do not ensure due process, including, for example, professional representation and rules of evidence.
This paper surveys the approach taken to traditional justice by international institutions (including the World Bank, OECD, and UNDP) and human rights NGOs (including Human Rights Watch and Amnesty International), and describes attempts to integrate traditional forms of justice in the work of the ICC and in post-conflict legal processes in Rwanda, East Timor, Uganda, Cambodia, and elsewhere. The paper also summarises arguments for and against the use of traditional justice from activist groups and academics.
- The World Bank World Development Report 2011 suggests supplementing formal justice with traditional community systems, to draw on the capacities of traditional community structures while pulling them “gradually in the direction of respect for equity and international norms”.
- Traditional justice was held up as an alternative to other international instruments, notably the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone. The Rome Statute requires the ICC to act in a way that is complementary with local procedures. Employing traditional justice may help the ICC to meet this requirement.
- Many activists and some scholars believe that traditional justice is not just an alternative or possible supplement to more established processes. They take the view that conventional legal processes should not be privileged, but “multiple pathways to justice” should be employed.
- Studies have highlighted the persistent ethnic, religious, generational and gender hierarchies and divisions that complicate and limit the effectiveness of traditional practice. Sometimes traditional justice seems to be focused on the reconstitution of preconflict structures, even where these structures were oppressive or linked to the outbreak of violent conflict.
- Ceremonies and rituals that become important at any particular time are not always old ones; they may be novel practices inspired by traditional ones. Attempts have been made to codify rituals into an ostensibly coherent form of traditional justice, sometimes without much understanding of local circumstances. Traditional structures can be weak and fragmented, with little agreement as to what traditional practices actually are, or who genuine traditional leaders are.
- While local rituals and customs are important for people caught up in violent conflict and dealing with its aftermath, those rituals and customs do not form a coherent alternative to formal national and international processes.
