The enduring utility of customary justice in fragile and post-conflict states: why development actors need to stop searching for magic bullets and solve the political economy and human rights challenges associated with justice programming

ABSTRACT

Although programming with them has lost the appeal and expectancy it enjoyed two decades ago, customary systems continue to play important roles, including in some of today’s most challenging and predatory environments. This ongoing utility raises important questions about how such systems could be better leveraged, and why programming dilemmas, including around human rights and state-non-state relations, remain unresolved. Crafting solutions to these dilemmas, it is argued, will require changes in practice, none of which will be easy or necessarily welcomed by the development community. In this process, past programming experience can offer rich lessons that should be drawn upon.

KEYWORDS:

• Customary law
• human rights
• Afghanistan
• Tigray
• Somalia
• Iraq

Introduction

In 1998, Thomas Carothers critiqued a phenomenon he dubbed the “rule of law revival”, calling out the international community’s penchant for legislative reform and institutional strengthening as the remedy de jour for underdevelopment. He drew attention to the lack of demonstrated impact and stressed that technical reforms had not spilled over to gains in governance and normative rule of law outcomes (Carothers 1998, 95). His analysis proved prescient. The Millennium Development Goals did not set targets with respect to the rule of law or justice, leading some to speculate that the development community lacked both the expertise and strategies to deliver in these areas. This was followed by a blunt censuring of United Nations (UN) missions in Kosovo and Timor-Leste, whose assumption of law-making and justice administration functions was termed interventionist and lacking in regard for local conditions, capacity and aspirations (Stahn 2001, 140–170).

Such concerns fed into a changed UN policy stance. Then Secretary General Kofi Annan, in his Report on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (UN Security Council (UNSC) 2004) called for a shift in emphasis — away from structures, function and institutional capacity, and towards individuals, outcomes and service delivery. Specifically, he rejected technical and foreign-inspired solutions in lieu of strategies that were responsive to local conceptions of justice and paid due attention to informal processes and institutions (UN Security Council (UNSC) 2004). This pivot gave recognition to a tension practitioners had long understood: that in developing, conflict-affected and fragile country contexts, the state was not the only, and often not the most important, dispute resolution provider; and that the large body of justice meted out by customary systems was not always symptomatic of poor access to lawyers and courts. Often, it was a reasoned choice by disputants to either avoid the state, or to avail of the customary system’s speed, cost-effectiveness, accessibility and cultural relevance (Wojkowska 2006, 1–5).

In programming terms, the outcome was a trend towards sector-wide approaches that engaged both formal and customary justice systems. This shift should be understood as having pragmatic and normative dimensions. Against skepticism around how quickly and effectively state institutions could be reformed, the scope of access offered by customary justice systems represented a rich opportunity to reap broad access to justice gains. From a normative perspective, a better understanding of how customary mechanisms operated laid bare their deficits from a due process standpoint. The emphasis on consent-based “negotiated” solutions, for example, sat in tension with accepted notions of justice and its delivery, including consistent and rule-based decisions, access to representation and procedural safeguards. Moreover, since the users of customary systems had less scope to access the courts, they were more vulnerable to power asymmetries and discriminatory norms (Harper 2011, 18–30). Such gaps shaped the content of subsequent programming, with interventions geared towards bringing customary systems into alignment with formal justice sector standards. Examples included integrating customary fora and state courts, gender and human rights mainstreaming, and procedural reforms such as rule codification and record-keeping.

This work had significant logical appeal and, for a time, programming with customary justice systems took on an elixir quality, not dissimilar from Carothers’ description of the “rule of law revival”. This panacea moment could not last, however. The steep acceleration in research and programming in the first decade of the millennium appeared to peak and then decline as the limits of working with customary systems became apparent. Practitioners learned that, especially when customary practices were rooted in deeply entrenched cultural mores or pragmatic issues such as security, challenging them was extremely difficult. Efforts to prohibit certain traditions or divert cases to the courts were often unsuccessful or resisted. In some cases programming drove case resolution underground; in others, it weakened the integrity of the customary system without providing users with a viable alternative. Equally problematic was the political economy of customary justice. Over time it became clear that a key factor impeding access to justice for customary users was that those with change-making power had little to gain and much to lose from a more inclusive, egalitarian and rule-based system. Interventions such as training leaders, imposing jurisdictional limits and introducing referral mechanisms tended to overlook these structural and political dynamics (Department for International Development (DFID) 2004, 3).

Today, customary justice programming — although it is far from dead — has lost the appeal and expectancy it enjoyed two decades ago. This outcome should be interpreted cautiously. There is no doubt that broadening the ambit of justice sector reform to include the customary sector has allowed for more nuanced and inclusive interventions. Perhaps more importantly, the fact that customary justice programming did not quite live up to expectations should not be conflated with a lack of potential. As this article sets out, customary systems play a broad and important role in some of today’s most challenging programming environments. Although they are not a complete solution, they are an important tool for protecting rights, preventing violence and building peace.

This review of programming also raises important questions about how this potential could be better leveraged. Indeed, it is curious then that many of the dilemmas faced when programming was in its ascendency remain unresolved. To explore this further, this contribution to the anniversary issue considers three contexts. First, it examines the role of customary fora in predatory and conflict-affected states, showcasing the examples of Afghanistan and the Tigray region of Ethiopia. Second, it discusses the role of clan-based justice in Somalia as it emerges from its most recent period of conflict. Third, it considers the role that tribal justice is playing in the repatriation and reintegration of families with a suspected ISIS affiliation in Iraq. In addition to the ongoing utility of customary justice, the case studies highlight how programming continues to raise complex questions around human rights protection and state-non-state relations. Crafting solutions to these dilemmas, it is argued, will require changes in practice, none of which will be easy or necessarily welcomed by the development community. In this process, past programming experience can offer rich lessons that should be drawn upon.

The role of customary fora in predatory and conflict-affected states

On 15 August 2021, the Taliban announced their takeover of Kabul, signaling the collapse of the ruling Afghan government. By 10 September, an acting cabinet headed by Mullah Mohammad Hassan Akhund had been formed and the country was declared an Islamic Emirate. Over the following weeks, reforms were introduced including gender-segregated schooling, dress requirements and restrictions on media content. Such moves bode poorly for girls, women and minority groups such as the Hazara and LGBTIQ communities, whose rights are likely to be severely curtailed in line with the Taliban’s strict Islamic ideology.

The situation begs a question on the role that Afghanistan’s customary justice systems will likely play in localized dispute resolution and peace consolidation in the coming months and years. Indeed Afghanistan’s history of conflict, ethnic diversity and a tenuous relationship between tribes and the state carved out a strong dualist legal culture dating back to at least the 1800s (Barfield, Nojuni, and Their 2011, 159–163). The most widely practiced non-state legal tradition is the Pashtunwali — a set of sophisticated rules and procedures administered by elders and tribal councils, heavily influenced by local interpretations of Islam. Within this system, the jirga is both a principal tool and binding legal precept. It describes an elder-led process of voluntary mediation, geared towards identifying equitable settlements that restore harm done to property or honor, and thus a return to social harmony (Barfield, Nojuni, and Their 2011, 164–168).

Historically, the Pashtunwali system has enjoyed varying levels of strength and utility, waxing and waning in line with the power and reach of successive central governments. It acted as the main source of dispute resolution authority and legitimacy during the Afghan-Soviet conflict, and a mechanism to reduce pressure on the courts during transitional periods. Even during the Taliban’s first run at control between 1996 and 2011, disputants could generally elect between adjudication by jirga or referral to a shariah court. Even then, courts might refer (particularly civil and family) matters back to the customary system for a quick and expedient outcome, or permit a customary solution, such as the exchange of blood money in cases of homicide (Mohammad and Conway 2003, 165–166). When the Taliban fell in 2001, the role played by customary justice surged again, with some studies estimating that the system was adjudicating 80–90 percent of disputes. This vesting of responsibility was never completely reset. Despite expansive state building, courts were plagued by corruption, lack of capacity and weak enforcement. As judges, ad hoc elder councils and local strongmen wrestled for control, justice became an increasingly contested good. The result was an unhealthy plurality. On the eve of the US withdrawal, the courts were in disarray and while the customary system carried the most legitimacy, it could not effectively control violence, nor assert authority over militia, warlords or inter-community disputes (Barfield, Nojuni, and Their 2011, 164–173).

Looking to the future, while the exact nature of a Taliban governance model remains unclear, some modest speculation is possible. Taliban ideology, which is rooted in the Deobandi and Hanafi schools of jurisprudence, suggests that judicial authority will rest in shariah courts applying literal interpretations of the Qur’an and Sunna. As the new government seeks to restore order and assert control, pushback is likely to be dealt with punitively. Indeed, religious police have already assumed duties, and although they have been instructed to enforce a more moderate behavioral code than existed in the past, there have been reports of arbitrary arrests, torture and executions. Against this backdrop, the customary system will play an important role in managing conflict and mitigating violence, whether the government mandates this or not. Particularly in tribal strongholds, and for those seeking to avoid Taliban-style justice, the customary system may be the only option.

This is neither a complete nor benign solution. The Pashtunwali code of behavior is premised upon respect for individual rights and freedoms, violations of which carry a right and expectation of revenge (badal). This manifests in a tolerance of honor and revenge killings, both of which are considered legitimate and not subject to sanction. Thus while the customary system may provide an alternative to conservative Islamic rule, it arguably promotes violence and tolerates impunity for serious crimes (Barfield, Nojuni, and Their 2011, 165–166; 174). The customary system also practices forced marriage and the exchange of women as a solution to crime, and excludes women from participating in the adjudication of rights violations against them (Barfield 2006, 11). Against such challenges, the question for the international community will be how best to protect and promote the rights of vulnerable and marginalized groups. The formal and customary systems both exhibit fundamental inconsistencies with key rule of law concepts, including legal equality, due process protections and rights of participation. Even if these issues could be resolved, the international community’s scope to undertake programming or influence policy may be extremely limited.

Situations of intra-state conflict present similar challenges. The evolving crisis in the Tigray provides a topical example. The roots of this conflict are both political and ethnic. For decades, Ethiopia’s political landscape had been dominated by the Ethiopian People’s Revolutionary Democratic Front (EPRDF) — a coalition comprised of four ethnically-based parties, including the Tigray People’s Liberation Front (TPLF). In 2019, Prime Minister Abiy Ahmed dissolved the EPRDF as part of an ongoing political reform process. The backlash reached a tipping point on 4 November 2020 when armed forces loyal to the Tigray People’s Liberation Front (TPLF) attacked a series of military bases.

The result has been a steadily worsening humanitarian crisis. As at October 2021, 2.1 million Tigrayans were internally displaced and more than 55,000 had sought refuge in neighboring Sudan (UN High Commissioner for Refugees (UNHCR) 2021, 1). Food security is particularly problematic with 400,000 living in famine-like conditions, and only 32 percent of the population living in areas accessible by aid organizations. The number of casualties — humanitarian and conflict — is highly contested. As a conservative estimate, the Tigray Atlas of the Humanitarian Situation (hosted by the University of Ghent) has documented 9,961 civilian deaths and 256 massacres (Annys et al. 2021, 25). According to Amnesty International, sexual violence, including gang rape and sexual slavery, has been perpetrated as a weapon of war (Amnesty International 2021, 12–18). The climate of lawlessness and disorder has also exacerbated existing phenomena such as intimate partner violence, facilitated wide-scale looting, and reignited previously dormant inter-ethnic feuds. Land disputes in particular have resurfaced, with reports of Amhara militia forcibly ousting Tigrayans from historically contested lands (Istratii 2021, 14–15).

Against this backdrop, access to formal justice sector institutions has become extremely limited, not only due to safety concerns but also a diminution in legitimacy. Indeed, there is mounting evidence that abuses against Tigray populations have been principally perpetrated by Ethiopian National Defense Forces, Eritrean military units and Amhara militia.

The resulting justice void has been filled by Tigray’s customary institutions, which are atypically strong and organized, largely owing to the region’s geographical isolation and its people’s historical resistance against successive central governments. Thus while the Constitution (1994, art. 34) grants these institutions authority to adjudicate personal and family disputes, it is not uncommon for them to deal with serious criminal offences including assault, rape and murder (Gemechu 2011, 270). This is generally endorsed by officials, who view customary fora as best positioned to manage inter- and intra-community conflict (Macfarlane 2007, 488). Even when the formal system is relied upon, customary systems play an essential role in mitigating violence by engaging parties in reconciliation and reintegration rituals. Like in Afghanistan, vengeance is a culturally accepted means of addressing rights violations. Especially in cases of murder (which is interpreted as challenging tribe dignity), the victim’s male relatives are considered duty-bound to exact revenge to prove their masculinity and restore family dignity (Zeleke 2010, 73–74). For conflicts without honor dimensions, dispute resolution follows a process of light mediation led by senior community figures or elder councils, usually with a strong knowledge of customary rules and reputations for fairness and objectivity. Outcomes are generally restorative, for example apologies or compensation, but can extend to expulsion from the social unit (Pankhurst and Assefa 2008, 15, Gizaw and Gessese 2016, 141–159). Although individual responsibility is a central norm of the behavioral code, compensation is considered a collective duty of the family, extended family or (in the case of inter-ethnic disputes) the wider community. The position of women is also problematic. Women tend to be excluded from mediation processes, they are deemed of lesser value vis-a-vis men for the purposes of calculating compensation, and norms may violate their most basic rights such as consent in marriage.

Taking these two situations together, whether due to armed conflict, a predatory state or a combination of the two, customary systems are likely to be the locus of dispute resolution for Afghans and Tigrayans well into the near future. On the one hand they will be critical sources of protection and violence mitigation. On the other, with less oversight and few alternatives, existing protection deficits may become exacerbated. Opportunities to provide support or promote reform, however, are likely to be complicated by insecurity and/or central government preference. Neither the Taliban nor Ethiopian governments will wish to see customary structures strengthened and irrespective may limit the scope for external programming interventions.

Clan-based justice in post-conflict contexts

A second context where customary justice plays an important role is in the aftermath of conflict. Following a cessation of hostilities, access to formal justice sector institutions is generally limited. Courts are often slow to rebuild and unable to resume operations expeditiously; new judicial staff may need to be trained; and it can take even longer for the government to regain a population’s trust. As a result, the customary system can remain the principal provider of justice, crime control and inter-community security well into the peace building period. Somalia provides a topical example. Since its independence in 1960, the country’s development has been marred by natural disaster, civil conflict and power struggles between the state, clans and religious leaders. The resulting voids in political control and security caused the clan system to become the principal source of protection, and its customary law — xeer — the locus of dispute resolution authority (Musse and Gardener 2013, 17–18).

The clan system and xeer are mutually constituting. Clans are composed of members who are linked together through a compensation-paying (mag) group. The mag group can be best understood as a security-political alliance. Members are bound to defend the interests of the group, and in turn can rely upon the group for protection. Clans co-exist in a clearly-defined socio-political hierarchy. Majority clans enjoy greater numbers, wealth and stronger negotiating power. Minority clans, by contrast, suffer discrimination, enjoy less protection and have limited access to resources (Svensson 2011, 112–115).

Xeer is the set of unwritten, orally maintained contracts that exist between clans (Harper 2019, 5). These contracts govern all aspects of clan life, including conflict management, natural resources, gender relations, inheritance, and criminal behavior. While the substance of xeer is strongly influenced by shari’ah, the content of a xeer contract depends principally on clan strength, with majority clans enjoying greater rights and bargaining power vis-à-vis minority clans. Xeer is administered by clan elders through the application of flexible rules and procedures. Outcomes are usually compromises, made on a case-by-case basis through “light arbitration”. Importantly, wrongdoing and responsibility are collective concepts under xeer. In practice this means that an entire mag-paying group will be jointly responsible for a crime committed by one or more of its members. By the same logic, compensation for a crime is owed, not to the individual aggrieved, but to the group (Katuni Consult-UN Women 2017, 8–10, UN Habitat 2015, 76, Coffey International 2017, 1–15). Another deficit from a rule of law perspective is how xeer contracts discriminate against minority clan members, including through more severe punishments and reduced compensation. Such xeer leaves minorities more vulnerable to violence, land expropriation and other rights violations. Finally, customary norms allow for punishments that abrogate human rights, including retaliatory violence, sanctioned rape, and forced marriage (Legal Action Worldwide 2014, 57–61).

Today, xeer plays a contested and problematic role in the federal construct. Under the Constitutions of the Federal Government of Somalia, Somaliland and Puntland, shari’ah is the ultimate source of law and guiding principle of governance. Xeer is also recognized, along with statute, but both are secondary in authority and apply only insofar as they do not contradict shari’ah principles. This means that judges have to navigate and prioritize between shari’ah, xeer and statute to determine which rules apply in different cases. Somali judges, however, lack a sound understanding of statutory law or Islamic jurisprudence. As a result, they tend to apply a version of shari’ah that is influenced by (and in some cases fused with) customary traditions and beliefs. This pluralism also vests judges with broad liberty when resolving cases, creating opportunities for corruption and loopholes for the powerful and resource-rich to influence judgments and forum shop for the best result (Musse and Gardener 2013, 7).

Encouraging individuals to engage the state justice system has proven problematic. War, lack of confidence in the state and the socio-security bonds that exist within and between clans mean that xeer leaders wield enormous authority. Elders also have a strong vested interest in the continuity of the clan system and seek to assert jurisdiction over matters that threaten to compromise clan strength or unity. Indeed, if a conflict does reach the courts, this will generally be with the elders’ acquiescence and involvement in the final outcome. For individuals, respecting the xeer model is pragmatic. The clan system is the provider of social relationships, economic security and physical protection, and to operate effectively the system demands members’ undivided loyalty. This extends to dispute resolution, creating enormous pressure to avoid the courts (Katuni Consult-UN Women 2017, 10). The result is that xeer remains the principal forum for conflict management in rural and peri-urban areas. One study found that xeer, on average, resolves 72 percent of cases in South Central Somalia, more than 50 percent of cases in Puntland and 32 percent in Somaliland (UNDP 2014, 17).

This situation creates a tension with the state building agenda, which aims to bolster the legitimacy of the state, including in the areas of justice and law enforcement. Courts exercising jurisdiction over criminal matters is also an imperative for women and minority rights protection. Marriage, divorce, protection against violence and property are all areas where the rights offered to women and other groups are stronger (regardless of whether shari’ah or state law is applied) when compared to xeer. It might also be the preferred arrangement for youth, who tend to be more questioning of elder authority, and the business sector, which sees a strong state as most likely to protect its interests.

The question for policy makers is how to support a strengthening of the state and transition to the rule of law, while not ostracizing the clan leaders who are largely responsible for maintaining order and security. It must be highlighted that despite its current stability, Somalia remains fragile. Power and influence are contested goods, and moves to dilute the status of elders and clan hierarchy are likely to be met with resistance. A return to conflict will also expose marginalized groups to new threats that, while of a different nature, may be equally as harmful (Musee 2015, 50). At the same time the status quo is not sustainable over the long term. The combination of poor access to justice and unabashed prioritization of clan interests is consolidating the polarized and unequal nature of Somali society. Over time this is likely to drive violence and expose the fissures between the state and clans.

Transitional justice contexts

A final context for consideration concerns when customary systems play a role in transitional justice, either by supplementing or operating in parallel with state mechanisms. The utility of such approaches first drew attention in the wake of the Rwanda genocide where the government drew on customary gacaca as a means of reducing pressure on the courts and promoting reconciliation. Over a five-year period, around 12,000 gacaca courts processed up to 12 million cases, imposing both restorative and punitive solutions (Human Rights Watch 2011, 1). Such arrangements have also been utilized by international authorities. In what is now Timor-Leste, the UN transitional authority drew on customary adat norms to establish the Commission for Reception, Truth and Reconciliation, enabling community-based reconciliation for non-serious criminal acts committed between 1974 and 1999. Participation required that perpetrators make a full disclosure of their acts, upon which the panel would decide on an appropriate act of reconciliation such as community service or a public apology (Järvinen 2004, 55–60). In both cases, the decision to draw on customary processes was pragmatic. Resource, evidentiary and jurisdictional constraints meant that the International Criminal Tribunal for Rwanda and East Timor’s Panels with Exclusive Jurisdiction over Serious Crimes could process only a fraction of the criminality perpetrated. Against mounting public pressure, overpopulated prisons and threats of conflict recidivism, the customary system provided a solution that was culturally legitimate, required little organization and could operate at scale.

Since this time, the official use of custom to promote transitional justice goals has largely quietened, although not due to a lack of opportunity. Iraq, Egypt, Libya and Tunisia are all examples where regimes with legacies of human rights abuses have been overthrown. These countries opted, however, for more orthodox solutions. In Iraq, a special tribunal was established for serious crimes committed between 1968 and 2003, Egypt and Libya prosecuted individuals through the ordinary courts system, while Tunisia established a Truth and Dignity Commission to investigate gross human rights violations committed by the State since 1955.

This is not to say that customary mechanisms have played no role in the resolution of atrocity crimes. Iraq is a case in point. Following its defeat of the terror group ISIS, captured fighters, supporters and others living in seized territories were transferred to makeshift displaced persons camps. As at mid-2021 these camps still housed around 183,000 individuals — mainly women and children. Over time, worsening humanitarian conditions and concern that camps were becoming a “petri dish” for extremist reengagement culminated in growing pressure for governments to release and repatriate those not under legal charge. Such returns have been heavily resisted, especially in the case of families with a perceived ISIS affiliation. The key problematic is a disconnect between how crime perpetrated during the conflict is being dealt with under the Iraqi justice system, and the norms of tribal custom.

The position of authorities is that the suspects they can build cases against are either in custody, dead or sheltering in Turkey (Genat 2021a, 18). The relatives of such individuals — as they are not sanctionable under law — should be able to freely return to their communities. To aid this, tribal leaders have been encouraged to craft and sign “Honour Pacts” setting out family members’ rights to return. This approach sits in tension with tribal law, under which collective responsibility is a key tenet (Genat 2020, 12).

The main problem are the so-called “red line families” — families whose ISIS relatives are believed to have committed murders. Like in Afghanistan and Somalia, revenge killing (thar) is considered a legitimate response to such crimes. The tool to prevent a cycle of vendetta killings is for the tribe of the perpetrator to pay diyya (blood money) to the tribe of the victim. The nature and scale of the ISIS violence has interrupted the effectiveness of this instrument. First, many witnesses were killed and/or steps taken to disguise perpetrators’ identities, creating an evidentiary problem under tribal law. A second problem is that the volume of murder implies diyya payments that are beyond the reach of tribes. A third issue is how the ISIS conflict created divisions within tribes. In many cases, members of a tribe joined ISIS, only to be defeated by members of the same tribe fighting in paramilitary units. Because such crimes cannot be resolved through diyya (as the paying tribe and recipient tribe is the same), the reconciliatory value of the custom is quashed (Genat 2020, 10–13). HIER

Against these dilemmas, tribal leaders have adapted customary mechanisms to limit the risk of revenge killings and promote reconciliation. Some have used kafala (a form of sponsorship where respected tribal members vouch for an individual’s character) or tabri’yya (where an individual severs their support of and communication with an ISIS relative) to facilitate the return of families believed to have had only a tenuous association with the group. How well such families reintegrate varies between tribes. In some cases returnees feel accepted, however most of the time they face stigmatization; occasionally families are prevented from returning to their properties or their children from attending school (Genat 2020, 16, 25–27).

Another tool is a practice of tribal disavowal called bara’a which renders the individual dam mahdur (without tribal protection). While this eliminates the tribe’s responsibility for crimes committed by the ex-member, both in the past and future, being dam madhur leaves the individual at high risk of revenge killing (as the disavowing tribe cannot demand diyya). This threat has disincentivized the return of individuals suspected of crimes, and also their families. This is because the collective nature of tribal law creates a risk that male relatives, particularly sons aged 13 and over, could be deemed legitimate targets for revenge killing (Genat 2021b, 24; Genat 2020, 11–15, 25, 29).

There are even cases where tribes have quietly negotiated a form of diyya payment. Proponents argue that this is the only practical way to prevent cycles of violence and revenge killing, and moreover that such payments have precedent insofar as they were used to placate tribes who members were killed by al Qaeda in the earlier conflict period. Others argue that such ‘deals’ have little legacy under tribal law, and will be incapable of keeping peace over the longer term (Genat 2021a, 12–13; Genat 2020, 13).

The upshot is that tribal justice is playing an active, albeit contested, role in the resolution of ISIS-perpetrated crimes. Tribal leaders are adamant that custom is not a complete solution, and that the government must take responsibility for adjudicating crimes and providing compensation. They argue that without this acts of revenge and partial reconciliation will threaten the peace. There is also a risk that over time, red line families living in protracted displacement or facing chronic discrimination in their communities will become frustrated. Some fear that this may culminate in a resurgence of violent extremism (Genat 2020, 26–34; Genat 2021a, 20). The government is obviously wary of this possibility, however legally it has little flexibility and war-time compensation payments will take time to coordinate. The international community has been hesitant to take a position on these dynamics. It too has a high stake in Iraq’s ongoing stability, however it also opposes any practice that amounts to the collective punishment of family members for crimes they did not commit.

Customary justice: lessons learned

Although its heyday moment may have passed, this paper has showcased the ongoing use and utility of customary justice systems. Examples include the role of customary justice during conflict and transition periods, where formal justice institutions lose legitimacy or become too dangerous to access, and in post-conflict contexts, as state institutions take time to re-strengthen and operate at scale. There are also contexts where customary systems fill gaps left by the state system. In current-day Iraq, evidentiary and jurisdictional constraints mean that courts are unable to deal with much of the crime perpetrated during the ISIS conflict, resulting in widespread displacement and unreconciled communities. Against such challenges, the customary system may be the only institution capable of forging solutions that will prevent violent spillovers disrupting the country’s fragile peace.

A further observation is that despite this ongoing utility, the challenges that have stymied customary justice programming since its inception, remain largely unresolved and thus continue to limit the effectiveness of interventions. A first challenge concerns the dilemma of engaging with systems that fail to uphold accepted international human rights and criminal justice standards. Particularly worrisome is the systematic exclusion and devaluing of women and girls’ rights, and the normalization of practices such as sexual violence and forced marriage. While this scope for rights abrogation is often cited as a key engagement rationale, policy implications remain. This is because even where rights abrogating norms are the target of an intervention, the shift to rights compliance is slow and unpredictable. This “turning a blind eye” approach is problematic for donors and agencies that are committed (or obligated) to apply and promote human rights and internationally accepted criminal justice standards (International Council on Human Rights Policy (ICPHR) 2009, 27–43, 117–145).

A second issue is that the development community is yet to develop clear and effective strategies to reconcile its human rights and rule of law commitments with other imperatives such as local ownership and respect for cultural mores. Indeed, decades of programming have drawn attention to the difficulty of reforming norms that are rooted in paradigmatic differences in core legal values, such as how crime is conceptualized and notions of responsibility. Such challenges continue today. In Iraq, Afghanistan and Somalia, the fact that conflict is understood as involving groups as opposed to individuals cannot be disconnected from the impunity and collective punishment inherent in the customary system’s operation.

Perhaps the most sticky challenge is where a rights abrogating customary practice is a consequence of, or response to, state level deficits. Again, the case studies are illustrative. In Somalia, the clan — not the state — is the fundamental provider of security, protection and livelihoods. Because a clan’s strength and wealth are dependent on its size, protecting the number of mag-paying men is a sine-qua-non (Gundel 2006, 9). This operating logic system explains a number of discriminatory and rights abrogating xeer practices (Musse and Gardener 2013, 24–39). For example, women are excluded from decision-making because they cannot be assumed to have the undivided loyalty that is integral to clan strength and longevity. The same reasoning explains women’s limited inheritance and property rights. Since clan size and strength is a product of its wealth, vesting property or inheritance rights in women — who may marry or be divorced out of the clan — does not serve clan interests, as it would dilute the group’s collective strength and defensive power (Musee 2015, 7).

Rights abrogating customary practices can alternatively be grounded in poverty and the absence of social safety nets. Across the contexts reviewed, marrying rape victims to their perpetrators or having male relatives “inherit” widows were accepted customary practices. The difficulty is that in contexts where women are completely dependent on their community structures for protection and livelihoods, such solutions might be preferable insofar as they offer victims a degree of social and economic security, and thus protection from stigmatization and other secondary violations (Harper 2011, 21–23).

The upshot is that while rights abrogating customary practices are easy to identify, fixing them can be extremely complex, especially where they are grounded in salient rationale. It may be that effective, rights-upholding justice systems are somewhat contingent upon a minimum level of institutional development, including an operative social welfare system, state-provided security and equal access to livelihoods opportunities. Where such capacity does not exist, pushing for compliance with international standards or trying to replace norms that abrogate rights can be at best ineffective and at worst destabilizing or harmful for victims (Harper 2011, 119–120). Indeed, simplistic solutions such as prohibiting certain customary solutions or requiring their diversion to the formal justice system is more likely to drive practices underground, or expose victims to harms that are often outside programmers’ scope of view. “Empowering” women to refer sexual or intimate partner violence cases to courts, for example, may deliver a statute-compliant decision, but result in victims being stigmatized for disrespecting community norms and discriminated against in future customary decisions.

This is not to imply that such problems are intractable or beyond programmatic solutions. More innovative thinking around solutions, however, is required. First a more sophisticated discourse on incremental approaches to human rights realization needs to evolve. Specifically, practitioners need tools to determine the circumstances where rights abrogating practices might be tolerated, where to set “red lines”, and how to resolve “trade offs”, such as when a victim preferences an outcome that abrogates their rights in order to protect themselves from worse rights violations. Second, where problematic practices are rooted in deficits at the state level, programmers need to work more effectively on multi-sector solutions. This may prove a challenging transition. The notion that the solution to a justice problem lies outside the justice sector, will be counterintuitive for many.

Third, practitioners need more effective tools to respond to the political economy dimensions of customary justice while respecting imperatives around local ownership. To date, while it is broadly acknowledged that reforms may be resisted by those benefiting under the status quo, interventions rarely extend beyond awareness raising and training. Equally problematic is overcoming the political economy that connects the formal and customary systems. It difficult to object when formal justice sector actors advocate for reforms that vest more control in courts vis-à-vis the customary fora. When this will have an overall effect of limiting access to justice, either because the courts lack capacity or offer a type of justice that does not correlate with local expectations, programmers need tools and strategies to enable frank discussions.