Traditional and 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 will 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 takes place in Bangkok, Thailand on 13 and 14 December 2018. It will bring together judges, lawyers, and others engaged with traditional justice systems in the Asia-Pacific region, as well as practitioners from ordinary justice systems in the region, together with UN Special Rapporteur on the rights of indigenous peoples (Ms. Victoria Tauli Corpuz from the Philippines), as well as other ICJ and UN representatives from Geneva, to discuss and develop practical recommendations, in a private small-group setting.
The potential and the risks for equal and effective access to justice and human rights
Many participants in the 2017 Geneva Forum affirmed that traditional and customary justice systems can make an important contribution to improving access to justice for rural or other 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”.
Indeed, 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 certain characteristics and processes of some traditional and customary justice systems conflict with international standards on fair trial and the administration of justice, and human rights, particularly of women and children.
Among the examples of concerns raised from different regions were: women being forced to present their grievances through a male representative and sometimes not even allowed to give testimony as a victim or witness; unequal representation of women as decision makers; subordination of the best interests of a child to family, inter-family, or communal interests; use of children as form of compensation in settling legal disputes; bias or partiality of decision-makers, or unfair procedures, or lack of consistency, leading to discriminatory or unjust outcomes.
As such, participants in the 2017 Forum generally agreed that government authorities, development agencies, and civil society should engage with such systems with a view to seeing them operate more consistently with international standards.
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 around the world, and that they exist in many different contexts.
The 2018 Forum in Bangkok is intended to explore all of these issues in a variety of contexts throughout the Asia-Pacific region.
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:
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 from the 2017 Forum are available to view by clicking here.
For more information, please contact matt.pollard(a)icj.org.EventsNews