Tag Archives: access to justice

Property issues in Libya: A reminder that the road to sustainable peace still goes via root causes

by Rhodri C. Williams

What to say about Libya? Despite the slide from the country’s post-revolutionary and chaotic new normal to civil war, it is still too early to give up hope. While Libya may have yet to scrape bottom, many of the factors that argued for a sustainable recovery from Gaddafi’s long nihilistic night remain latent. And despite the increasing subordination of Libya’s politics to the influence of regional competitions and actors, the country still remains to some degree a case apart, churning in the region’s ideological divisions without the despair-inducing ethnic and sectarian fractures that threaten the Mashriq.

It seems a very long time since my work in Libya, on property issues that stalled (at best), displacement issues that exploded, and rule of law issues that have descended to a near farce, with mass trials of senior Gaddafi regime officials wrapping up amid power cuts and procedural irregularities. By all accounts, Ibrahim Sharqieh’s grim prediction that the lustration law forced through in 2013 would be the equivalent of the Iraqi de-Baathification process has been vindicated, as the heavily militarized winners of the revolution collapsed into open conflict with each other. Then comes IS in Sirte, refugee catastrophes in the Mediterranean, and the needless death of good and selflessly devoted Libyans.

The temptation is strong in such situations to cut losses and contain damage. For Europe, for instance, earlier efforts to build up a Libyan state that could be a responsible partner on migration issues have now given way to desperate proposals to unilaterally stem migration that bypass and undermine what remains of the Libyan state. Fortunately, the UN Special Envoy to Libya, Bernardino Leon, has shown extraordinary persistence, chivvying two sides that refuse to recognize each other into 80% of a peace deal even as economic collapse looms. Another refusal to write Libya off came last month, when the Legatum Institute revived the moribund debate over property issues in Libya.

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Legal precedents for fighting dispossession of land – the Community Land Rights CaseBase

by Rachael Knight, Naomi Roht-Arriaza and Melissa Riess-James

Rachael Knight is the Director of Namati’s Community Land Protection ProgramNaomi Roht-Arriaza is a Distinguished Professor of Law at University of California, Hastings College of Law. Melissa Riess-James is the Project Coordinator for the Community Land Rights CaseBase.

As global demand for land and resources rises, dispossession of community land is increasing. Lawyers and front line legal advocates are stepping forward to defend communities’ rights, yet often struggle to find supportive legal precedent. There have been many powerful legal victories in national, regional and international courts, but advocates need to know about these cases to be able to harness that power.

To address this need, Namati has created the Community Land Rights CaseBase: the first free, online, searchable database of case law from around the world relevant to community land and natural resource rights. In this post, we describe the inspiration and creation of CaseBase and invite you to join us in building this tool.

The Power of Effective Legal Strategies

For billions of people, land is their greatest asset: the source of food and water, the site of their livelihoods, and the locus of history, culture, and community. Yet more than ever, rural land is up for grabs. Local communities are being displaced, either directly or through the despoliation of the water, wildlife and other resources on which they depend. As dispossession grows, so does the resistance to it, leading to conflict, the criminalization of social protest, and the violation of a wide range of human rights.

Increasingly, communities seeking to defend and protect their land and natural resource claims are finding allies in the legal community and fighting back through local and national courts. Lawyers are basing challenges on a wide variety of legal sources, including national or international environmental laws, the rights of indigenous or tribal communities under international law, property rights, constitutional and human rights law, and common law principles.

In some cases they are finding support in the courts. For example:

  • National courts are holding governments accountable for violations of their obligations under international law:, in SATIIM v Attorney General of Belize (2014), the Supreme Court of Belize found that the Belize government had violated the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) by issuing construction permits on the land of the Maya people without obtaining the Mayas’ free, prior and informed consent.
  • Lawyers are crafting creative legal strategies and waging their campaigns across a variety of legal forums: in Loserian Minis v. Thomson (2014) lawyers used US discovery procedure (28 U.S.C. § 1782) to obtain information vital to litigation in Tanzanian courts.
  • Courts are increasingly receptive to evidence necessary to support traditional land claims, but which historically has not been considered admissible: in Roy Sesana v. Attorney General of Botswana (2006), the High Court of Botswana conducted extensive testimony gathering and site-visits in order to include customary evidence in its considerations.

The Need to Share Lessons

Yet accessing relevant case law can be difficult, especially when records are not digitized or available online. Too often advocates work in isolation, unaware of successful arguments or strategies from other nations that they could leverage. The variety of legal contexts underlying land dispossession also complicate advocates’ efforts to draw cross-national comparisons. Advocates working within an area of specialized law, like environmental law or constitutional law, may not be aware of relevant precedent in other fields.

Some existing efforts already point in this direction. Continue reading

Happy International Women’s Day!

by Rhodri C. Williams

I didn’t really come across International Women’s Day until I started work in Bosnia and I never quite knew what to make of it. It had a distinctly east of the Oder-Neisse and non-aligned feeling to it, and the idea of cabining all one’s gender analysis into a single day of the year – and manifesting it through mechanical male-to-female flower transfers – didn’t seem entirely satisfying.

That said, there seems to be a healthy tendency for IWD to be taken as an opportunity for serious reflection on the state of gender equality. And that doesn’t just apply to places with notorious issues like Colombia but also to countries like Sweden, where decades of impressive progress only serve to highlight the unsatisfying fact that equality remains elusive. While a persistent salary-gap is the most obvious symptom, complaints roll in around this time of year ranging from the virtual absence of women from corporate boards to some of the highest rates of harassment in the EU.

For those of you interested in an updated global take on equality, the BBC has a good interactive map broken down both by region and broad themes (health, education, economic empowerment, political participation). However, my absolute favorite graphic on equality for this year is this amazing compilation by the Guardian that breaks down by region and categories of legal rights, including property ownership. While it is not entirely comprehensive (some issues like women’s right to retain their last name after marriage are left out) it still presents an extraordinary tool.

As a final point, expect more on the link between post-conflict humanitarian response, women’s property rights and access to justice on TN soon. This in reflection of the fact that securing equal access and tenure rights for women is increasingly recognized as one of the most meaningful areas linking the work of humanitarian actors concerned with the land claims of the displaced – such as the Norwegian Refugee Council (NRC) – and those of rule of law and development actors concerned with access to justice.

Women tend to suffer both from disproportionate vulnerability in humanitarian settings and disenfranchisement in development settings. Societies suffer as a result, both in humanitarian cases where disproportionately female-headed households are unable to reintegrate into society, and in development cases where the human and economic potential of women is wasted. As discussed by Dr. Donny Meertens of Colombia here on the Reinventing the Rules blog, securing women’s land rights is now seen as a key to turning these dynamics around, facilitating durable solutions to displacement, social justice and more equitable development.

Immeasurably important? The development discourse eyes the rule of law

by Rhodri C. Williams

Its been a busy 18 months in my new rule of law gig, and an eye-opening time to boot. While the range of issues falling under the rule of law umbrella is impressive in principle, I have found myself inevitably stove-piped in practice, with my housing, land and property (HLP) interests finding expression mainly in sporadic consultancies, and justice sector reform issues suddenly front and center in my professional life. Not that I am complaining, mind you.

Judicial reform is just another lens on the whole muddle of good intentions and mixed results I was approaching earlier mainly from a humanitarian perspective, and a change of perspective can be refreshing. I also expect that as I proceed down the rule of law road, I will have opportunities to unpack more and more of my HLP baggage along the way. But for now, it is very interesting to have at least a back row seat on the evolving definition of rule of law and how it relates to broader development assistance efforts.

Recently, a colleague (who I will hat-tip if she likes this post) sent me links to a pair of pieces that helped to crystallize some of the recent debates in this area in my own mind. The first was to a recent Washington Post op-ed by Gary A. Haugen of the International Justice Mission. Haugen describes the explosion of private security companies in the developing world and the extent to which this has resulted in a monopoly on protection from violence for the rich:

As elites abandon the public security system, their impoverished neighbors, especially women and girls, are left relying on underpaid, under-trained, undisciplined and frequently corrupt police forces for protection and all-but-paralyzed courts for justice. ….

When a justice system descends into utter dysfunction, those who exploit and abuse vulnerable people may do so without fear of apprehension or prosecution. As a result, violence is an everyday threat, as much a part of what it means to be poor as being hungry, sick, homeless or jobless.

Interestingly, this piece also exposes the great home truth about the ‘civil and political’ rights traditionally protected by judiciaries. Exclusive proponents of such rights (in countries ranging from the US to Sweden) have often lauded them for being ‘negative’ (in the sense that they involve government duties to refrain from taking actions), and therefore ostensibly cost-free to taxpayers.

This in contrast to social and economic rights, which are ‘positive’, entailing affirmative government actions (and expenditures), and therefore often decried as an unwarranted intrusion in the inherent right of governments to roll the pork barrels toward whichever constituency they choose. In the present case, the lurch toward private security has at least laid bare the extent to which courts actually represent a highly expensive ‘positive’ guarantee necessary for the equitable protection of any kind of rights.

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Doing justice for refugees and IDPs? Confronting displacement through transitional justice

by Roger Duthie and Megan Bradley

Roger Duthie is a Senior Associate in the Research Unit at the International Center for Transitional Justice. Megan Bradley is a Fellow at the Brookings Institution, where she works with the Brookings-LSE Project on Internal Displacement.

Serious human rights violations are very often an integral part of displacement crises. Certain violations, such as mass killings, arbitrary arrests, torture, and rape, often cause displacement, while others, such as the destruction of homes and property, can be aimed at undercutting the possibility to return home. Forcible displacement is frequently a deliberate strategy used by parties to a conflict and can in itself constitute a war crime or a crime against humanity. In addition, displacement can leave its victims vulnerable to other abuses, without the protection provided by their homes, livelihoods, communities, and governance structures.

Transitional justice is generally understood to be a response to the legacies of massive and serious human rights violations, one that tries to provide redress for victims and accountability for perpetrators through a set of measures including criminal prosecution, truth-telling, reparation, and institutional reform. Given the links between rights violations and displacement, transitional justice measures certainly have good reasons to address the issue of displacement. And yet, for the most part, displacement has not been the focus of a lot of transitional justice practice and literature.

In 2009, the International Center for Transitional Justice (ICTJ) and the Brookings-LSE Project on Internal Displacement began a collaborative research project to examine the role that transitional justice could play as part of the response to displacement. Specifically, we looked at the capacity of transitional justice measures to address displacement, to respond to the justice claims of internally displaced persons and refugees, and to support durable solutions. Importantly, we also looked at the conceptual links between transitional justice measures and the activities of the humanitarian, development, and peacebuilding actors that generally work more directly on displacement.

The project’s final products include a report that highlights our conclusions and recommendations; an edited volume containing the project’s thematic studies; and 14 case studies on country experiences from Central Africa, Colombia, Israel-Palestine, Kosovo, Liberia, Peru, Timor-Leste, Turkey, and the former Yugoslavia. These are all available to download through the ICTJ and Brookings-LSE Project websites. ICTJ’s website also has an interactive map to highlight the research though photographs and visual data.

What were some of our most important findings? To start with, a number of recent reports, resolutions, and guidelines have acknowledged the need for societies struggling to resolve displacement crises to respond to the justice concerns of IDPs and refugees. These include the 2004 and 2011 versions of the Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, the Inter-Agency Standing Committee’s 2010 Framework on Durable Solutions for Internally Displaced Persons, the 2009 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, and the UN Principles on Housing and Property Restitution for Refugees and Displaced Persons.

Furthermore, while transitional justice measures have not traditionally engaged in depth with the concerns of refugees and IDPs, they have in some places addressed displacement. Restitution of housing, land, and property, for example, is the justice measure probably most directly connected to displacement, and restitution programs have been implemented in countries such as Bosnia and Herzegovina, Timor, Kosovo, and Iraq.

Reparations programs can provide benefits for abuses that led to displacement, for harms suffered while displaced, or for displacement itself, but while programs in Guatemala, Peru, and Colombia consider displaced persons eligible to receive benefits, they are yet to receive any for the violation of displacement itself. Truth commissions, as in Liberia, Sierra Leone, Timor-Leste, and Guatemala, are increasingly recognizing and investigating displacement, with some holding sessions making recommendations on the issue. And an international legal framework now exists to criminally prosecute arbitrary displacement when it qualifies as a war crime or crime against humanity, and cases at the ICC, the ICTY, and in Colombia have included charges of forcible displacement.

We also found that responding to displacement with transitional justice raises a particular set of challenges. For example, given the scope and complexity of large-scale displacement, transitional justice measures have a limited capacity to deal directly with the problem. This is particularly the case with measures that seek to provide redress directly to victims, because the large numbers of displaced people present significant resource and institutional challenges. Criminal justice efforts may also be constrained, both because, with limited resources, prosecutors often prioritize more traditional crimes and may be hesitant to add to the complexity of cases by including displacement crimes, but also because international jurisprudence on forcible displacement as a crime is less developed than it is for other violations.

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Mainstreaming IDP principles in capacity building efforts: A chance missed in Kosovo

by Milica Matijevic and Massimo Moratti

Although more than a decade has passed since the end of hostilities in Kosovo, the process of post-conflict property restitution is far from complete. Apart from the cases still awaiting adjudication before the Kosovo Property Agency (KPA), the mass claims mechanism dedicated to post-conflict property repossession, the local judiciary also deals with a significant number of conflict-related property claims that fall outside of the mandate of the KPA. These cases concern issues crucial to durable solutions for internally displaced persons (IDPs) from Kosovo, such as illegal occupation of property, forged contracts of sale, exchanges under duress, and illegal demolition of property.

The project “Further support to IDPS and Refugees in Serbia” has recently published a report on the difficulties faced by IDPs in accessing the court system in Kosovo and how a number of bureaucratic requirements, apparently of a merely technical nature, in reality have a significant impact on access to justice for IDPs, potentially violating their right to fair trial. The report argues that for these cases to be effectively resolved, the justice system needs to take into account the fact of displacement and the difficult position of IDPs.

According to international fair trial standards, access to justice should be granted for everybody, regardless of one person’s status. In the context of Kosovo this would mean that the local laws and institutions should enable effective access to courts, not only for the resident population but also for those who were displaced as a consequence of conflict (who are nevertheless considered as habitual residents of Kosovo). This obligation becomes even more compelling when IDPs are predominated by the largest single ethnic minority group, as it is the case in Kosovo.

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Cambodian mothers and grandmothers behind bars after facing off the most powerful men in the region: Will the World Bank stand by them?

by Natalie Bugalski and David Pred

David Pred and Natalie Bugalski are co-founders of Inclusive Development International. They co-authored the complaint to the World Bank Inspection Panel on behalf of the Boeung Kak community.

Last week thirteen Cambodian women representatives of the Boeung Kak Lake community were sentenced up to two-and-a-half years in prison after a summary trial. The women, including a 72-year old grandmother, were arrested on May 22 whilst singing at a peaceful protest to support 18 families whose homes had been buried in sand by a private developer (view the video). The arrest, trial and sentencing took place within 48 hours, with no time for the women’s lawyers to prepare a defense. During their trial, the police arrested two more community representatives who were waiting outside the courthouse prepared to testify as witnesses for the 13 women on trial.

Photograph: Housing Rights Task Force

The women, who call themselves the League of Boeung Kak Women Struggling for Housing Rights, have waged a multi-year battle to defend their homes and land in the bustling center of Phnom Penh. Their campaign has included everything from publicly burning effigies to rid the city’s authorities of evil spirits to baring their breasts at demonstrations to display their desperation. It has also involved a sophisticated legal advocacy strategy, including the submission of a complaint to the World Bank’s Inspection Panel, an internal watchdog mandated to investigate alleged violations of the Bank’s operational policies.

The women’s family homes were being threatened by one of the wealthiest and most powerful Cambodian tycoons, who is also a ruling party Senator, backed by China’s Inner Mongolia Erdos Hongjun Investment Corporation. In early 2007, Senator Lao Meng Khin was granted a 99 year lease over 133 hectares in central Phnom Penh, which covered Boeung Kak lake and its surrounding villages, home to some 20,000 people. The lease was granted for a mere $79 million US dollars, a fraction of the estimated $2 billion value of the property. Soon afterwards, the company began filling in the lake and coercing its denizens to leave the area for a measly sum in compensation.  Attempts by the community and civil society advocates at persuading the Senator’s company and the government to stop the mass forced eviction appeared futile. They remained impervious to the outcry against what threatened to be the biggest single mass displacement of Cambodians since the Khmer Rouge emptied the cities in 1975.

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Norwegian Refugee Council releases new Housing, Land and Property training course

by Laura Cunial

Laura Cunial is the lead author and trainer for the NRC/IDMC Housing Land and Property Training Course. She has worked on housing, land and property (HLP) rights and peacebuilding in countries such as Liberia, Kenya, Vietnam and Dijbouti and currently works as an Adviser for the Information, Counseling and Legal Assistance (ICLA) Program with the NRC.

The Norwegian Refugee Council (NRC) have, in collaboration with the Internal Displacement Monitoring Center (IDMC), developed a training course on Housing, Land and Property (HLP) issues.  The material has been developed under the NRC’s Information, Counselling and Legal Assistance (ICLA) programme  with funds provided by the European Commission Humanitarian Aid department (ECHO).

The development of the HLP Training Course is part of NRC’s effort to further improve its work through the mainstreaming of HLP considerations into all programming.  The humanitarian community recognizes that HLP issues are main conflict drivers and that they should be addressed from the earliest stages of humanitarian interventions. As a result, NRC has invested significant resources to increase its knowledge on HLP and improve its response, including the methodologies used for resolving housing, land and property disputes.

NRC has  been at the forefront for many years in providing assistance on HLP issues to displaced persons and other populations affected by conflict. This has been done both through NRC’s interventions related to the shelter and food security sectors, and through highly specialised ICLA programmes. The HLP Training Course aims at improving the quality and effectiveness of humanitarian response through improved capacity on HLP issues. The course material is designed for all humanitarians implementing response and recovery projects and is not just meant for HLP specialists.

The course material has been tested in several NRC Country Programs. The evaluation of the relevance and quality of each training session was used to improve the subsequent trainings and to refine the modules.  In addition, the material was developed in consultation with the HLP sub-working group of the Global Protection Cluster Working Group. As a result, the training material is versatile and can be tailored to different training needs and target audiences.

The NRC HLP Training Manual is currently available in English, French and Spanish and consists of the following modules:

  • Module No. 1: An introduction to Housing, Land and Property
  • Module No. 2: The Housing, Land and Property International Legal Framework and Principle
  • Module No. 3: Housing, Land and Property during internal displacement
  • Module No. 4: Women’s Housing, Land and Property rights
  • Module No. 5: Housing, Land and Property in urban contexts
  • Module No. 6: Addressing Housing, Land and Property disputes
  • Module No. 7: Housing, Land and Property and durable solutions

Since early 2011, NRC has delivered more than 15 HLP trainings in the following locations: South Sudan, Afghanistan, the occupied Palestinian territory, the Democratic Republic of Congo, Switzerland, Pakistan, Colombia and Ivory Coast. Trainees included staff from NRC, international and national NGOs, ICRC, UN agencies  such as OCHA, OHCHR, UNDP, UNFPA, UNHCR and UN HABITAT  as well as national authorities.

The material can be requested by downloading a request form from the training manual web page and sending it to the email address hlp@nrc.no. More information on ICLA and the HLP Training Course are available on the NRC ICLA web page.

In search of a duty-bearer: No remedy for destruction of property during Kosovo’s international supervision

by Milica Matijevic and Massimo Moratti

It is easy to guess that, as in most legal aid programmes implemented in post-conflict settings, the majority of cases handled by the EU funded legal aid project “Further support to refugees and IDPs in Serbia” concern repossession of property owned by IDPs and refugees. These are mostly cases of property restitution and/or compensation for property that can’t be repossessed. This topic has been the focus of a newly released report dealing with these aspects of the right to property restitution and/or compensation.

When dealing with competent officials in the field, be they international or domestic, we often hear the statement that the case of Kosovo is “specific” or “particularly complicated”. For those dealing with housing, land and property rights, this should be nothing new. Every displacement crisis has its own specific aspects and by their own inherent nature property cases are very often “particularly complicated”. Unfortunately, the rationale behind the explanation of this kind is that international human rights standards shouldn’t be applied, and possibly the status quo shouldn’t be touched.

In its most recent report the Project assesses a number of questions “specific” to the context of Kosovo and, in fact, shows how international standards are applicable to the Kosovo context.  Although it is not always clear who the duty bearers are, it is clear that IDPs and those forced from their homes by the conflict are the right holders and that the difficulty in identifying the duty bearer renders the rights of IDPs meaningless.

The report proceeds from the general rule that internally displaced persons enjoy the same set of rights as any other citizen of the state within which they reside. When applied to the situation of an internally displaced person from Kosovo this would mean that they can assert their property rights on the same basis as any other resident of Kosovo.

Notwithstanding the fact that the applicable legal framework contains strong guarantees of the right to property, including the right to be compensated for unlawful damaging or destruction of one’s property, the position of IDPs is often not adequately taken into account by the relevant national and international authorities and their claims remain largely unattended.

The report deals with a specific caseload, the famous “18,000 compensation claims”. These are claims that were brought by IDPs from Kosovo against the UN Mission in Kosovo (UNMIK) and the Provisional Institutions of Self-Government in Kosovo for compensation of damages to private property that occurred as a result of the 1999 NATO air campaign and the March 2004 riots. Those claims were for long time “frozen” by a request of UNMIK, which later on was found in violation of the right to a fair trial by the UNMIK Human Rights Advisory Panel, in Opinions released on February 23, 2011 (Esat Berisa Case no. 27/08 and others v UNMIK) and March 24, 2010 (Petko Milogoric, Case no. 38/08 and others v UNMIK)

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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