Monthly Archives: November 2011

Understanding the outcomes of customary justice: implications for land practitioners

by Erica Harper

The international community has traditionally concentrated its legal development activities on the reform of formal justice sector institutions: the courts, legislature, police and correctional services. As it has become clear that these approaches have been relatively unsuccessful in improving access to justice for poor and disadvantaged populations, attention has shifted to the role that customary justice systems might play in the programming of governments, international organizations and NGOs operating in development, post-conflict or post-disaster contexts. A strong argument can be put forward that, in most developing countries, the state cannot provide justice services to its entire population and it might not be the most cost-effective provider of these services. Moreover, part of the reason that customary systems exist is due to shortcomings in formal justice systems.

Sometimes these shortcomings are connected to issues of physical access or dysfunctions such as discrimination or corruption; they can also be because state justice fails to respond to the needs and social imperatives of disputants in the way that the customary system does. Such arguments have influenced the rule of law programming strategies of many organizations. A review of the current policy and programmatic landscape reveals a growing consensus that, despite some obvious challenges, excluding customary justice systems from reform strategies may not be the best approach for enhancing access to justice and protecting the rights of vulnerable groups. There is a growing appeal for strategies that aim to improve the quality of outcomes resolved at the community level by building on the positive aspects of customary systems, particularly their reach and popularity, and attempting to reform negative practices.

But while there is now greater consensus around the issue of engaging with the customary sector, programmatic guidance on how this should occur remains scant. Moreover, partnering with customary justice systems raises new and important concerns. Principally, how can customary systems be supported while at the same time ensuring that this does not equate with a recognition or formalization of rights-abrogating practices? Such concerns have arguably led to technocratic ‘fix it’ programming, such as reforming customary laws to strengthen procedural or substantive protections, or modifying the state-customary interface with a view to regulating or harmonizing the two frameworks. This is problematic because where customary norms do not align with international human rights standards, there are often complex rationales in play, touching upon issues such as culture, socio-economic factors and security. Approaches that concentrate on bringing customary systems into alignment with international norms can thus be, at best ineffective and at worst harmful.

A further concern is the gap between the proliferation of customary justice programs and the evidence and knowledge base on which such programming is grafted. There have been few comprehensive or empirically driven efforts that reflect on or evaluate the impact of past programming efforts. Nor has there been sufficient critical analysis of the objectives of customary justice programming: is the aim to support or supplement state courts, to act as a venue for a decentralization of state legal services, or to form part of a broader spectrum approach to accessing justice? One result is that development practitioners have tended to re-apply programs designed for use at the state level rather than craft activities specifically for use in customary contexts, and replicate activities perceived to have been effective elsewhere without a proper understanding of what conditions facilitated such results.

These questions promted the International Development Law Organization to conduct research into the impact of customary law programming in developing countries. This research culminated in two volumes: “Customary Justice: From Program Design to Impact Evaluation” and an edited volume: “Working with Customary Justice Systems: Post-Conflict and Fragile States”. Continue reading

Guest-posting by Erica Harper on new IDLO customary justice books

I am very pleased to announce that Erica Harper, Senior Rule of Law Advisor at the International Development Law Organization (IDLO), will shortly be guest-posting at TN. The topic will be a set of three books recently released by the IDLO on customary justice (all of which are available for free download as .pdfs at the above link). In her posting, Ms. Harper will address both the general issues explored by the volumes and their specific implications for land practitioners.  A little further ahead, we are looking forward to guest-postings by Rachael Knight, a contributor to the customary justice books and manager of an IDLO project on Community Land Titling that just released reports related to Liberia, Mozambique and Uganda.

Work with customary norms and community-level institutions reflect both the potential and the complications inherent in housing, land and property (HLP) work in a world where development expertise has destabilized some of the late 1990s certainties reflected in documents such as the Pinheiro Principles – but without necessarily replacing them with new ones. They are also burningly relevant as the agrarian communities most dependent on land find themselves increasingly threatened by large-scale investment and natural resource concession trends.

Dark Lord of the Sith joins the global land rush

Hat tip to Greg Kitt for alerting TN readers to the alarming news that the Dark Side of the Force has joined sovereign funds and unscrupulous private investors in the rush for large-scale investment in developing countries’ land. In this case, it seems that Darth Vader, the Dark Lord of the Sith, needed to pick up some cheap land in a quick and non-transparent deal to park his intergalactic TIE fighter. Having been alerted to a “decision by city authorities to grant attractive land plots along the sea coast to a group of people for free” in Odessa (Ukraine), Reuters reports that the terrifying fallen Jedi knight arrived at the municipal building to claim his due. For the video version here, see here. And, while we are on the lighter side, for some utterly gratuitous footage of Lord Vader behaving badly in the Death Star cafeteria (care of Eddie Izzard and an anonymous lego genius), see here.

New book on high value natural resources and peace building

Announcing the first book in a broad inquiry on post-conflict natural resources that I’ve been involved in along with other TN contributors. The project is being run by the Environmental Law Institute together with UNEP and other partners. Today’s first release focuses on high-value natural resources and was edited by Päivi Lujala and Siri Aas Rustad and published with the assistance of the Peace Research Institute Oslo (PRIO). More information in the press release; see also the website for the project. Look out for a volume on land edited by myself and Jon Unruh in the next months…

Forced resettlement of Bedouins

by Rhodri C. Williams

There has been a bit more in the press recently about the Israeli plan to forcibly remove the Bedouin population in the Negev desert and parts of the West Bank to planned ‘new towns’. I initially picked up this story when it was reported in the Guardian and have now seen it in the BBC as well. Perhaps most surprisingly, the Bedouins were given a sympathetic hearing in last week’s Economist. All three articles note the centrality of land issues to the Bedouin’s situation, but the Economist picks up on both the potential for regional mobilization and the fact that the Bedouin have already begun making political claims based on the explicit assertion that they are an indigenous people: Continue reading

Briefing on property issues in southern Kyrgyzstan

TN reader ‘Kaigyluu’ has kindly provided this blog with an updated overview of the complicated and politically charged property question in Osh and Jalalabad, the towns in southern Kyrgyzstan most affected by the June 2010 violence between the Kyrgyz majority population and the Uzbek minority. The briefing, which is posted on the resources page of TN, describes the manner in which attempts to provide durable solutions for Uzbek displaced persons by rebuilding their destroyed neighborhoods are complicated by both the legacy of Soviet social engineering and the burden of contemporary nationalist politics.

Week in links – week 44/2011 – restitution in Libya, privatization in Cuba, assimilation in Israel

I’m a little behind this week having been in Cyprus, where I participated in the launch of the paper on property issues I co-wrote with Ayla Gürel for PRIO. The local feedback was very helpful as we are planning to expand the scope of inquiry a bit beyond the fallout of the Demopoulos case in the coming months.

Much of interest from the net this week, including one of the first really good reports on the transitional housing, land and property (HLP) issues in post-revolution Libya from the Guardian. This new article goes well beyond the expensive but relatively tractable reconstruction issues described by BBC last week and enters into the far more fraught territory of what to do about the great transfer of assets that resulted from the Ghaddafi regime’s selective nationalization of property.

Quite a few familiar dilemmas arise, including lurking historical claims (in this case, those of expelled Jews), multiple subsequent purchases by third parties, weak courts, unclear rules, the suspicious 1982 destruction of the land registry, and the fact that the expropriations had (in many cases) a genuinely distributive element, meaning that reversing them would disproportionately worsen the situation of marginalized groups.

In the area of belatedly getting with the times, the New York Times reports that Cuba has now formally adopted a new property law allowing far less restricted transactions in homes than was previously the case (see earlier observations on these developments here). After decades of state control, no one seems to be able to predict where this will go, although some positive economic affects and quick attempts to buy in to the property market by exile Cubans seem like safe bets.

In the area of never getting with the times, the Guardian reports that Israel has proposed a bill to allow the near wholesale resettlement of Bedouin nomads from (what remains of) their traditional territories in the Negev desert to planned new towns. All in the name of modernisation and progress, all undertaken without consulting those affected or paying any heed to the fact that previously forcibly urbanized Bedouins have hardly benefited. Very 1960s. A brief excerpt from the article reads like a compendium of discredited colonial and post-colonial assimilation policies:

Before 1948, the Bedouin tribes lived and grazed their animals on much of the Negev, claiming ancestral rights to the land. In the following decades, the state of Israel took over almost all of the land; the Bedouin lost more than 3,200 land ownership cases in the Israeli courts in the early 1970s, rejected mainly on the grounds there was no proper documentation. Now the Bedouin are claiming ownership of about 5% of the Negev as traditional tribal lands.

Three years ago, the government commissioned a retired judge, Eliezer Goldberg, to make recommendations for dealing with the Bedouin. He advised that many of their villages should be recognised, acknowledging their “general historic ties” to the land.

A committee chaired by the planning policy chief, Ehud Prawer, was tasked with looking at how to implement Goldberg’s recommendations, and proposed the immediate transfer to the state of 50% of the land claimed by the Bedouin, minimal compensation for the remaining land with severe exclusions and the demolition of 35 unrecognised villages. The Bedouin were neither represented on nor consulted by the committee.

As my soapbox is only so big, I’ll leave aside the issue of Israel’s apparently retaliatory expansion of its West Bank settlements this week.

And a last note, the Guardian also reports on the aftermath of the Dale Farm evictions in the UK (see previous WiL)