The 8th Geneva Forum brought together judges, lawyers, and other legal experts from around the world, and relevant UN representatives, to discuss the relationship between traditional and customary justice systems and international human rights, access to justice, and the rule of law.
The potential for improving access to justice
In many countries the majority of legal disputes, especially in rural areas, are resolved by traditional and customary justice systems that are not necessarily recognised by national law as a part of the official court system. The role of traditional and customary justice systems is therefore a key question for realization of “access to justice for all” and “effective, accountable and inclusive institutions” under Sustainable Development Goal 16.
Traditional and customary justice systems are often more practically and culturally accessible to local populations than is the official court system, and may be seen by local people as having greater legitimacy as well. Indeed, official recognition of the existence of traditional and customary courts in a country can be a positive reflection of the international human rights of ethnic, religious or linguistic minorities, or the particular rights of indigenous peoples, or cultural rights more generally.
For marginalized and disadvantaged rural populations in developing countries, traditional and customary courts may in practical terms be the only form of access they have to any kind of justice. Development agencies have increased their engagement with informal justice systems, and are considering much greater investment in capacity-building of such systems, noting their potential to reach large portions of the population who face significant obstacles to realizing access to justice in the official justice system.
The risks for human rights, particularly of women and children
At the same time, the composition, procedures, and outcomes of traditional and customary justice system mechanisms and processes can conflict with the human rights protections contained in international law and standards on human rights and the rule of law.
One key concern is in relation to the rights of women and children. Traditional and customary justice systems may be rooted in patriarchal systems and, as such, can reinforce harmful gender stereotypes and cultural assumptions that are inherently likely to discriminate against women and children and therefore negatively impact upon their rights.
Other concerns include consistency with the right to a competent, independent and impartial tribunal established by law; respect for fundamental guarantees of fairness comprising the right to fair trial; accountability of judicial decision-makers in relation to corruption and other misconduct; and non-discrimination and equality before the law more generally.
Aims of the 2017 Geneva Forum
The discussions at the 2017 Geneva Forum (22-23 November 2017), together with ICJ’s broader global experience and expertise, will provide a foundation for the development by ICJ of legal, policy and practical guidance, including conclusions and recommendations on the role of traditional and customary courts in relation to access to justice, human rights and the rule of law.
The ICJ guidance will take into account the many variations and differences between different traditional and customary courts that exist around the world, while seeking to articulate conclusions and recommendations sufficiently universal to be applicable across the widest possible range of contexts. The focus of the Geneva Forum and the ICJ guidance is intended to be on traditional and customary courts of an informal character and, as such, the ICJ does not intend directly to address formal religious courts or the application of customary law by ordinary formal courts.
Available for download in PDF format:
- Concept Note: Concept Note – 2017 ICJ Geneva Forum (20171025)
- Programme: Programme – 2017 ICJ Geneva Forum (20171121)
- List of Participants: Participants – 2017 ICJ Geneva Forum (20171121)
Compilation of selected international sources on traditional and customary courts, available here:
Final report of the 2017 Geneva Forum on traditional and customary justice systems, available here:
Several video interviews with participants are available to view by clicking here.
For more information, please contact matt.pollard(a)icj.org.
The 2017 Geneva Forum of Judges & Lawyers was made possible with the support of the Republic and Canton of Geneva, Switzerland.
- Photo: “Traditional leaders preside over a case in B-Court, Nyang Payam, Torit County, South Sudan”
- Photo Credit: UNDP South Sudan\2016\Angelique Reid ©2016 United Nations