The ICJ convened the 9th annual “Geneva Forum” of Judges and Lawyers in Bangkok, Thailand, 13-14 December 2018, on the topic of indigenous and other traditional or customary justice systems in Asia.
Indigenous and other traditional or customary justice systems play a significant role in many societies around the world, in terms of access to justice for rural communities, indigenous peoples, minorities, and other marginalized populations. At the same time, such systems raise a series of questions in terms of their relationship to international fair trial and rule of law standards, and impacts on human rights including particularly those of women and children.
9th annual Geneva Forum of Judges & Lawyers, 13-14 December 2018, Bangkok, Thailand
Following discussions on these topics at the 2017 ICJ Geneva Forum (an annual global meeting of senior judges, lawyers, prosecutors and other legal and United Nations experts, convened by the ICJ with the support of the Canton and Republic of Geneva (Switzerland) and other partners), the ICJ decided that in order to better engage with customary justice systems, the Geneva Forum would be “on the road” in 2018 and 2019, convening for a regional consultation in the Asia-Pacific in 2018, and in Africa in 2019.
Additional consultations will take place in the Americas. The Forum will return to Geneva for an enlarged session in 2020 to adopt final conclusions and global guidance.
The ninth annual Geneva Forum in Bangkok brought together judges, lawyers, and others engaged with traditional justice systems in the Asia-Pacific region, and practitioners from ordinary justice systems in the region, together with UN Special Rapporteur on the rights of indigenous peoples Ms. Victoria Tauli Corpuz, as well as ICJ and UN representatives from Geneva, to discuss and develop practical recommendations, in a private small-group setting.
Participants came from a number of countries across the region, including: Cambodia, Indonesia, Malaysia, Myanmar, Pakistan, Philippines, Thailand and Timor Leste.
The potential and the risks for equal and effective access to justice and human rights
Many participants re-affirmed that traditional and customary justice systems can make an important contribution to improving access to justice for indigenous, and other rural or otherwise marginalized populations, as a result of such factors as geographic proximity, lower cost, lesser cultural or linguistic barriers, and greater trust by local communities, relative to the official justice system.
Indeed, for these and other reasons, for some marginalized and disadvantaged rural populations, traditional and customary courts may in practical terms be the only form of access they have to any kind of justice.
Furthermore, article 34 of the UN Declaration on the Rights of Indigenous Peoples affirms the right of indigenous peoples “have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards”.
Furthermore, official recognition of traditional or customary courts in a country can more generally be a positive reflection of the cultural and other human rights of other ethnic, religious or linguistic minorities.
At the same time, the Forum discussions confirmed that, as with formal justice systems, certain characteristics and processes of some traditional and customary justice systems can conflict with international standards on fair trial and the administration of justice, and human rights, particularly of women and children.
Participants in the 2018 Forum discussed a variety of ways in which the relevant communities, their leaders, and decision-makers in indigenous or other traditional systems, together with government authorities, international actors, development agencies, and civil society, can cooperate and coordinate with a view to seeing both formal and traditional systems operate more consistently with international standards on human rights and the rule of law.
There was a range of views on which forms of engagement or intervention were most appropriate or effective. It was also emphasized that work should continue to build the accessibility and capacity of official justice systems to ensure that individuals seeking justice have a real choice.
The above conclusions were subject to the acknowledgement that traditional and customary justice systems take many different forms across the region, and that they exist in many different contexts.
A full report of the Forum discussions will be published by the ICJ in the first part of 2019.
Development of Guidance by the International Commission of Jurists
The ICJ’s global experience and expertise, together with research and global consultations with judges, lawyers and other relevant experts, including the 2017 Geneva Forum, the 2018 session in Bangkok, and subsequent regional consultations in Africa and the Americas, will provide a foundation for the publication by ICJ in 2020 of legal, policy and practical guidance on the role of traditional and customary justice systems in relation to access to justice, human rights and the rule of law.
The ICJ guidance will focus on the mechanisms and procedures of traditional and customary justice systems, as opposed to tackling all aspects of the substantive law.
The guidance will seek to assist all actors involved in implementation and assessment of relevant targets of Sustainable Development Goal 16 on access to justice for all and effective, accountable and inclusive institutions, as well as Goal 5 on gender equality, including: decision-makers and other participants in traditional and customary justice systems; judges, lawyers and prosecutors operating in official justice systems; other government officials; development agencies; United Nations and other inter-governmental organizations; and civil society.
The guidance will be published and disseminated through activities with ICJ’s regional programmes, and its national sections and affiliates, through a series of regional launch events and workshops, as well as at the global level at the United Nations and in other settings.
The guidance will provide the basis for ICJ strategic advocacy at the national level in the years following the conclusion of this initial phase of this work.
Available for download in PDF format:
- Concept Note: Events-GF2018-ConceptNote-271118
- Programme: Events-GF2018-Programme-Asia-2018
- List of Participants: Events-GF2018-Participants-Asia-2018
A Compilation of selected international sources on traditional and customary courts, is available here: Universal-Trad Custom Justice Compil-Publications-2018-ENG
The Final report of the 2018 Geneva Forum, on traditional and customary justice systems, is available here: Universal-Trad-Custom-Justice-GF-2018-Publications-Thematic-reports-2019-ENG
The Final report of the previous, 2017 Geneva Forum, on traditional and customary justice systems, is available here: Universal-Trad Custom Justice Gva Forum-Publications-Thematic reports-2018-ENG
For more information, please contact matt.pollard(a)icj.org.EventsNews