Judges as Peacebuilders: The Challenges of Ensuring Access to Justice in Conflict-affected Settings

© Abbas / Magnum Photos

by Rhodri Williams, Senior Legal Expert, International Legal Assistance Consortium (ILAC)

This Spring, for the third year running, the International Legal Assistance Consortium(ILAC) will be participating in the SIPRI Stockholm Forum on Peace and Development. ILAC is a consortium of 50 rule of law organizations worldwide, many of which participate in ILAC assessments and capacity-building work with justice sector actors in conflict-affected and fragile countries. The theme of this year’s Forum, on the “Politics of Peace” reflects both opportunities and challenges for rule of law actors seeking to contribute to broader efforts to end conflict and support sustainable development.   

The programme for the Forum references current concerns with the need to acknowledge that politics are not only inherent to peacebuilding and development efforts but indeed central to their sustainability:

…political will is often lacking in the countries where prevention is most needed…Even when there is political will to prevent violence, individual actors can obstruct peacebuilding—either wilfully or through negligence—in pursuit of their own interests. Thus, sustaining peace is not just about good technical solutions, but it is also about getting the politics right.

For rule of law actors such as ILAC, new politically sensitive approaches to judicial reform work pose an important challenge. On the one hand, the legitimacy of justice sector actors, and particularly judges, rests on their eschewal of politics and their devotion to the law. For international rule of law advisors, the temptation to focus precisely on ‘good technical solutions’ has been irresistible. By doing so, international experts have been able to push for potentially transformative reforms in a manner palatable to fellow jurists at the national level, while dissociating themselves from political fallout.

At the same time, it has become increasingly clear that reforms in the rule of law or any other area will not work in any country, developed or fragile, where they are not designed and delivered via inclusive, transparent political processes. Recent ILAC colleagues Shane Quinn and Richard Sannerholm have played an active role in assisting in the migration of ‘politically smart’ approaches from peacebuilding and development work to rule of law assistance based on precisely this insight. Justice systems do not work in a vacuum, and reforms cannot be sustainable without broader political buy-in.

So how does one go about bringing effective political approaches to reform the apolitical branch of government? Does doing so place the independence of judges, prosecutors or lawyers at risk even under the best of circumstances? Can it possibly avoid doing so amid the  political polarization and institutional devastation that prevails in conflict-affected and transitional settings? ILAC’s attempts to draw on its own experiences in the field in answering these questions resulted in a newly-published report on the role of ‘Judges as Peacebuilders: How Justice Sector Reform Can Support Prevention in Transitional Settings’.

In the report, which was drafted in cooperation with many of ILAC’s members and was based heavily on our experience working on rule of law issues in the MENA region, we came to a number of conclusions. Among the most important were the insight that sustainable judicial reform capable of supporting prevention needed to be based on methodologies that support judicial independence by helping justice sector actors to understand their changing role in transitional societies. Fundamentally, reform is about changing attitudes and assumptions about the role of judges, prosecutors and lawyers in society.

Another crucial finding was that the reforms that result from such processes must result in broader and more equitable access to justice, particularly for marginalized groups that have suffered as a result of past discrimination. However, because the report was largely based on ILAC’s work in Tunisia, it reflected the experience of a judiciary with relatively high levels of resource and capacity that is able to provide coverage for virtually the entire territory and population of the country.

In many conflict-affected and fragile settings, by contrast, justice systems must provide extraordinary levels of service while at the same time requiring extraordinary reforms in order to become or remain effective. Challenges related to capacity and resources can distance justice institutions from the poor and marginalized communities most in need of their services. Barriers to access may involve geographic distance, bureaucratic hurdles, lack of information and outreach or high costs. When these factors are exacerbated by perceived corruption or partiality of the judiciary, legitimacy and public trust evaporate, and courts lose the ability to perform their role in maintaining societal stability – and building peace.

These factors are recognized in the transitional justice discourse, which has also taken on board the need for politically smart and contextually sensitive approaches. In one of his final reports, the former UN Special Rapporteur on transitional justice, Pablo de Greiff acknowledged  the particular challenges of transferring the transitional justice model from the negotiated post-authoritarian transitions where it was born to the complex and weakly institutionalized post-conflict settings where it is most frequently applied today.

While de Greiff views institution-building (including judicial reform) as crucial in such settings, he warns that this is a long-term process, and that recourse must be had in the meantime to other locally acceptable means of securing justice:

…it would be advisable that those responsible for the design and implementation of transitional justice measures concentrate on the relevant transitional justice ends rather than on the replication of institutional forms which, as discussed above, took shape in entirely different contexts. This step will likely involve making more use of local measures, procedures and resources, and lead to less uniformity in the tools deployed. Provided that the responses are more effective and satisfy basic criteria such as inclusivity, non-discrimination, and where appropriate, procedural guarantees, familiar tools should not be thought of as universal or indispensable.

For rule of law actors, it has long been clear that where formal justice institutions lack capacity or have lost legitimacy and trust, justice seekers turn to local customary adjudicators that provide accessible and locally legitimate services. In many fragile countries, such customary forums have become so pervasive that formal systems have in many respect been forced to accommodate their work to them, even if they are not formally recognized. In settings in which peacebuilding involves accommodation of ethnic minorities or indigenous peoples, recognition of legal pluralism can become a litmus test of political will.

Recent development standards, including the New Deal for Engagement in Fragile States and the Agenda 2030, Goal 16, emphasize the link between sustainable development, rule of law and access to justice. For fragile countries, it is crucial to consider the role that customary actors can play, alongside formal justice sector institutions, in meeting commitments to secure access to justice throughout the country. However, the benefits of customary justice in terms of accessibility and local legitimacy must be balance with concerns, particularly regarding their ability to deliver due process and respect for human rights.

For actors such as the g7+ group of conflict-affected and fragile states, seeking ways in which access to justice can be increased through engagement with customary justice is emerging as a priority issue. It is therefore incumbent on organizations such as ILAC that work with formal justice actors in conflict-affected settings to explore how they can best facilitate and support such engagement.

ILAC’s session on “Legitimacy, Accountability and Access to Justice” in the SIPRI Forum provides an opportunity to take a first step in this process by bringing together experts and practitioners on customary justice to identify how such engagement can contribute to the politics of peace.

This blog post was initially published on 04 May 2018 on the SIPRI Write Peace Blog