Customary Justice Systems and Rule of Law Reform

Author:Major Katherine K. Stich
Pages:215-256
 
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2014] CUSTOMARY JUSTICE SYSTEMS & ROL REFORM 215
CUSTOMARY JUSTICE SYSTEMS AND RULE OF LAW
REFORM
MAJOR KATHERINE K. STICH*
“Forsake your village, but not its ancient usages.”1
—Pashto proverb
Introduction
A young U.S. rule of law (ROL) judge advocate (JA) and his
Department of State counterpart are partnered with a local judiciary in
Afghanistan, seeking to improve its justice system. They are discussing
a murder trial with the criminal court’s chief judge in which the
defendant was acquitted. The judge tells them that he informed the
family of the deceased to take the matter to the local tribe for further
redress, as they are unhappy with the outcome. The attorneys are torn:
they respect the culture and its capacity for alternative dispute resolution,
but feel this may undermine the government’s legitimacy and the very
rule of law they are attempting to enable. The judge further explains that
the court is overwhelmed by the current caseload and that the judge
would like the attorneys to encourage tribal dispute resolution in some
cases to alleviate prison overcrowding and trial backlog at least until the
judicial system is more robust.
This scenario is important, as today’s service members who are
engaged in stability and counterinsurgency operations must be much
more than soldiers but must also “facilitate establishing local governance
and the rule of law”2 in support of not only the host nation but
international bodies and even other U.S. agencies.3 While building rule
of law is one of counterinsurgency’s main objectives, the focus is often
on creating sustainable, “civilian-controlled . . . police, court, and penal
institutions.”4 However, these institutions are frequently inaccessible,
impractical, or malfunctioning for a large majority of the populace while
customary justice systems (CJS) can provide an effective alternative,
* Judge Advocate, U.S. Army. Presently assigned as the Deputy Staff Judge Advocate,
Fort Sill, Oklahoma.
1 S.S. THOBURN, BANNU OR OUR AFGHAN FRONTIER 259 (1876).
2 U.S. DEPT OF ARMY, FIELD MANUAL 3-24, COUNTERINSURGENCY foreword (Dec. 2006)
[hereinafter FM 3-24].
3 Id. at D-8.
4 Id.
216 MILITARY LAW REVIEW [Vol. 221
albeit with potential dangers. For the purposes of this article, CJS refers
to those dispute resolution mechanisms outside the formal justice system,
including traditional, tribal, religious, indigenous, and informal systems.
However, they sometimes possess an official connection to a state by
recognition or regulation.5
While each is different, “[c]ommon characteristics of [CJS include]
The problem is viewed as relating to the whole
community as a group—there is a strong consideration
for the collective interests at stake in disputes;
Decisions are based on a process of consultation;
There is an emphasis on reconciliation and restoring
social harmony;
Arbitrators are appointed from within the community on
the basis of status or lineage;
There is often a high degree of public participation;
The rules of evidence and procedure are flexible;
There is no professional legal representation;
The process is voluntary, and the decision is based on
agreement;
They have a high level of acceptance and legitimacy;
There is no distinction between criminal and civil cases,
informal justice systems often deal with both;
Often there is no separation between [CJS] and local
governance structures—a person who exercises judiciary
authority through [a CJS] may also have executive
authority over the same property or territory; and
Enforcement of decisions is secured through social
pressure”.6
This article examines how U.S. rule of law practitioners should, if at
all, engage active CJS in post- or in-conflict societies when the host
nation does not formally advance their use. I argue that even when not
formally recognized by the host nation, to effectively advance the rule of
law as a whole, practitioners must be well versed in pluralistic legal
5 EWA WOJKOWSKA, DOING JUSTICE: HOW INFORMAL JUSTICE SYSTEMS CAN CONTRIBUTE
9 (Dec. 2006), available at http://siteresources.worldbank.org/INTLAWJUSTINST
/Resources/EwaWojkowska.pdf.
6 Id. at 16.
2014] CUSTOMARY JUSTICE SYSTEMS & ROL REFORM 217
traditions and their models, avoid haphazard engagement of CJS, and
embrace them as part of the environment. I also contend that this
approach is consistent with U.S. policy, Rachel Kleinfeld’s second-
generation rule of law reform, various social-science theories, and the
spirit of current military doctrine. Such an approach is also required
from a strategic perspective, as joint design methodology requires
commanders and staff to understand the whole of the environment in
order to define the problem.
This article considers U.S. policy and U.S. military doctrine and
guides, as well as current social-science work pertaining to rule of law
and development. In addition, it explains some of CJS risks and benefits,
and legal pluralism’s potentials and perverse incentives. With this
background, I contend that reformers should embrace CJS as part of the
social environment while remaining wary of haphazard engagement even
in situations when the host nation does not actively advance the informal
system. Rule of law efforts in Afghanistan are used as a case-study to
help provide a framework of analysis. Finally, this article provides
practical, but not nation–specific, considerations for those who find
themselves delving into the CJS arena.
Literature Review
While there is no consensus on how to define rule of law, the U.S.
Army captures the idea as follows: “Established rule of law refers to the
condition in which all individuals and institutions, public and private,
and the state itself are accountable to the law. Perceived inequalities in
the administration of the law, and real or apparent injustices, trigger
instability.”7
Although this definition allows for the promotion and engagement of
innumerable types of justice systems, attorneys at the heart of rule of law
efforts often use an institutional, first generational approach. This helps
countries build formalized institutions: constructing courthouses,
7 U.S. DEPT OF ARMY, DOCTRINE PUB. 3-07, STABILITY para. 25 (Aug. 2012) [hereinafter
ADP 3-07]. An earlier version of this publication previously defined rule of law as “a
principle under which all persons, institutions, and entities, public and private, including
the state itself, are accountable to laws that are publicly promulgated, equally enforced,
and independently adjudicated, and that are consistent with international human rights
principles.” U.S. DEPT OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS 1–40
(Oct. 2008) [hereinafter FM 3-07].

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