Over the last couple of years I have participated in a wide-range of inspiring conferences. On peace and security, innovating justice, or aligned topics like planetary security. Some were organized at the Peace Palace in The Hague, others a bit further away in Oxford or San Francisco. It took till last week to discover a gem close to home: the Knowledge Platform Security & Rule of Law and its 4^th Annual Conference ‘Hard Context, Hard Choices’.

How to tackle the hard choice of access to justice policy, programming and knowledge that the hard context of fragility requires?

Fragile contexts are characterized by weak governance at best. It’s there where access to justice is a distant reality. Lack of access to justice for all impedes security, creates uncertainty on individual and communal level, and thereby inhibits development in a broader sense. Lack of access to justice even drives conflict: ‘every civil war that begin since 2003 was a resumption of a previous civil war’. Still the results of many access to justice programs in fragile countries are limited. Especially in fragile contexts state-centered rule-of-law approaches have not proven effective: the formal justice system is out of reach for ordinary citizens. 

In terms of availability, accessibility and affordability. Also: ‘access to courts’ is not the equivalent of ‘access to justice’. Rulings need to be complied with, to arrive at justice.The informal justice system on the other hand is better accessible, be it that it is just as likely to be subject to abuse. A customary court may look nice from the outside, but may well act exclusionary and discriminatory. Customary law is fluid, diverse and not uniformly applied. Not to forget that enforcement of rulings of the informal justice system may be challenging. Also having both, a formal and an informal justice system, is not ideal. It allows for ‘forum shopping’, going back and forth from the formal to the informal system to arrive at the desired ruling.

Should we look at the formal and informal justice providers, as separate systems? The systems and its actors are often interlinked in fragile contexts. It’s argued to focus on two strategies: 1. Linking informal justice providers to formal justice providers and 2. Transforming informal justice providers, like customary courts, from within.

In fragile and conflict-affected settings, a high volume of crimes and disputes needs to be addressed. The formal system lacks to capacity to tackle the case-load on its own. There is a need to strengthen the interface between the formal and the informal justice system. For example by letting informal justice providers assist with the case-load, where formal justice providers suffice with a compliance check of an informal justice provider’s ruling with laws and human rights.

As to transforming customary courts from within, customary laws should be restated by the communities in fragile contexts itself and internal accountability should be fostered.

So how do we go from here, can we reinvent our access to justice programs in fragile contexts?

When it comes to access to justice in fragile contexts, there is more research than programming. Research concentrates particularly on context analyses, leaving ample space for researching best practices when engaging with informal justice providers. On the programming side, training of informal justice providers on formal laws is popular, and even though programs are framed as ‘engagement with the informal system’ they are often state-centered.

Let’s really engage with communities and informal justice providers, and let’s restore the interaction with formal justice providers. Join Cordaid, VVI, Clingendael CRU and IDLO in building access to justice in fragile settings!

This blog was inspired by the Platform’s 4th Annual Conference, and in particular related to the breakout session on “Rule of Law reform in protracted crises”. This session was organized by IDLO .The session was facilitated by Marco Lankhorst (Head of Research – IDLO). Keep an eye on our website (#srolconf #hardchoices) for the main outcomes from the conference.