While this article is about efforts to stabilize the the Democratic Republic of the Congo (DRC), it could just as easily be about Iraq, Somalia, Afghanistan, or a number of other countries. According to Ian Quick, a former member of the United Nations stabilization mission in the DRC, when stability activities began in the early 2000s, international actors assumed there was a complete lack of authority in those parts of the country not under formal state control. This was never the case. In fact, there was an “ecosystem of local actors and political and civic structures for regulating how people lived together.” No kidding. Humans have lived for thousands of years — and still do — without “state assistance.” Advice for those conducting stabilization activities: 1) read some history and 2) understand that humans will always establish some form of governance in order to fill a “government” void or prevent anarchy (think tribes, clans, small towns in Idaho, and the like). If not, don’t delude yourselves into believing that you can help. Read the full article to learn about other unrealistic assumptions that held sway in the DRC.
Najwa Adra’s working paper examines indigenous dispute resolution in Yemen. What makes this paper so interesting is that it includes seven (7) case studies from her extensive fieldwork between 1978 and 2005 in Yemen’s Central Highlands. These case studies, in addition to Adra’s apt description of what mediation looks like, allows the reader to leave the oh-so lofty (and somewhat tedious) realm of concepts to get a feel for what it’s like to live with and experience customary law. Another highlight is her coverage of women’s participation in dispute resolution. Although told that women play no role in tribal affairs, Adra learns that this is a myth. In fact, “women actively taking part in mixed gender mediation, again in contradiction to formally stated principles.” Read the full paper to learn how “c]ustomary law not only maintains peace among an armed population in a region of widely dispersed communities that are difficult of access, but it affirms, and the mediation process enacts, tribal values…”
A strong judiciary indicates effective governance. In southern Syria, a coalition of several dozen local insurgent groups, known as ‘the Southern Front’, has formed an alliance that has been adept at understanding the importance of establishing and maintaining a legitimate and authoritative justice provider. Despite various allegiances, the armed groups have recognized the importance of establishing one main justice provider and, in turn, consolidated various Islamic Justice Committees to form the Houran Courthouse. In contrast to northern Syria where it is impossible to enforce law due to armed groups and power brokers each having their own courts and systems of justice, the creation of a strong judiciary has made the Southern Front one of the few viable alternatives to the Assad regime. Read full article.
The US Institute of Peace has produced another report about non-state justice filling a long-existing gap in rule of law literature. It discusses the relationship between Islamic law and customary law noting that despite the apparent supremacy of Islamic law, the application of customary law is often preferred since it helps to maintain community relationships. The status of women under customary law is also addressed since this is considered by many to be its greatest weakness. It is well known that women are marginalized by customary law. Rights afforded to women by Islam, for example, are not extended under Pashtunwali. While customary law is firmly entrenched in many parts of Afghanistan, surveys show that informal justice actors are open to overturning prevailing customary law to take a more Islamic legal approach to resolving disputes if provided with education in Islamic law, especially as it concerns women and understanding gender-related norms. Read full report.
Peacebuilding Initiative provides a comprehensive overview of traditional and informal justice systems including the broad topics of actors (both insiders and outsiders) and types of activities that support these forms of justice in peace building contexts. The following issues are discussed: research; reforms and codification; financial and technical support to existing structures; creation of new forums or mixed structures; monitoring; training and capacity building; awareness-raising and information dissemination; advocacy and lobbying. This overview also addresses strategies concerning how to link formal and informal justice systems. Read more.
The formal justice system in Afghanistan is dysfunctional and corrupt to a large extent. It’s also not accessible to most Afghans, especially those who live in rural areas since Ministry of Justice officials refuse to accept postings in non-urban areas. This requires Afghans living in those areas to travel to nearby cities, often a difficult, if not impossible, task. Taliban courts, in contrast, are easy to access, provide quick decisions, are free of charge, and, most importantly, are viewed as fair and impartial. It’s no wonder that Afghans continue to seek justice from these courts rather than the state’s failing legal system. Read more.
The majority of disputes in Afghanistan are resolved by dispute resolution mechanisms outside of the formal justice system, by individual tribal elders, maliks or mullahs who hold a place of respect in the community; by groups of such individuals meeting as a jirga or a shura; or in some places by Taliban-affiliated individuals or courts. Although some of the actors and mechanisms involved in this “informal” justice sector are of recent vintage, most areas of Afghanistan have greater experience and historical memory of such community forums of justice than of formal state-instituted justice.
While the informal justice sector provides Afghan communities with a swift, inexpensive, and accessible means of resolving local conflicts – enhancing prospects for stability by increasing the peaceful resolution of conflicts and mitigating the underlying driver of violence – there have also been significant critiques of traditional dispute resolution bodies and informal justice. Despite these critiques that are often valid and raise concerns about informal justice mechanisms, the fact remains that for many Afghans this is the only form of justice available, and is often preferred. Read full report.
Yemenis have relied on indigenous tribal traditions to regulate conflict and establish justice for centuries, if not millennia. Tribal law has effectively handled conflicts between various tribes, between tribes and extractive companies, and between tribes and the government. It has successfully prevented and resolved conflicts over resources, development services, and land, and has sometimes managed to contain complex revenge-killing cases. Nationally, tribal mediators have played an important role in promoting political dialogue and building consensus among political groups. Read full report.
Alternative dispute resolutions has long played an important role in Yemen. Since the Arab Spring protests and the transition that has followed, a growing number of Yemenis have utilized tribal and nontribal dispute resolution outside of the formal justice system due to fractures in state control and weakened state institutions. Because of this political instability, the tribal system has since weakened and new actors have emerged, causing the authority of both formal and informal actors to be challenged and making it more difficult to resolve disputes and prevent conflict. This report explores the challenges and obstacles that alternative dispute resolutions has faced since the transition in Yemen began and the efforts being made for its future, including research, programming, and engagement. Read full report.
There is strong historical support for the claim that law is an effective tool for legitimizing and maintaining political power in modern states, and if we think of insurgencies as “quasi-states,” “proto-states,” or even full-blown states – as IS purports to be – then we should expect to find that law plays as important a role in the formation of insurgent states as it did in the formation of modern bureaucracies.
The role of law in insurgent state-building is poorly understood, and this blog post will suggest some of the ways in which the creation of courts and justice systems may help insurgent groups to build legitimacy and consolidate power. In doing so, I draw on the history of legal institutionalization in modern Europe to argue that insurgent groups are using law to build political institutions in ways that are strikingly similar to processes of state formation that gave rise to Western industrialized bureaucracies. Read full blog.