Thiekthou, Southern Sudan.
For the United Nations system, the rule of law involves the administration of justice and security by both formal and informal mechanisms. In many countries, the formal state-administered justice system coexists with one or more informal systems of justice provision and community dispute resolution. These mechanisms, widely used in rural and poor urban areas worldwide, are also often referred to as “traditional”, “indigenous”, “customary” or “non-state” justice systems. Estimates are that in many developing countries around 80% of cases are resolved through such mechanisms.
In many rural and poor urban areas of the world, people do not have access to state-administered justice and security institutions, or choose not to use them. Instead, they rely on a mixture of tradition, customary norms and practices, community relations, and sometimes religious law, to provide justice and resolve disputes. The level of formalization and institutionalization, including the relationship between such systems and the state, vary considerably from country to country and within countries. In fact, some such systems are state-sanctioned or regulated. Legal pluralism is a term sometimes used to reflect the complexities involved in contexts where a diverse range of formal and informal legal systems and practices are used to deliver justice and resolve disputes.
In informal systems, decision-making is usually based on consultation and under the authority of non-lawyers/jurists, mainly local, tribal or religious leaders, either individually or in groups. Informal justice systems tend to address a wide range of issues of significant concern to the people, including personal security and local crime; protection of land, property and livestock; resolution of family and community disputes; and protection of entitlements, such as access to public services. These community-based mechanisms, which can play an important role in community cohesion, are usually more available and affordable, and often enjoy greater legitimacy with the people than the formal system.
The process used and outcomes produced by such systems can raise concerns with regard to their compliance with international norms and standards. Corruption and abuse of power, as well as a lack of accountability, are common problems. Usually decisions are neither formally enforceable nor recorded, and tend to reinforce social hierarchies and discriminatory practices, such as the exclusion of women. In some instances, they contribute to perpetuating gross human rights abuses such as forced marriage and extrajudicial killing.
The UN is taking steps to enhance its approach to complex contexts of legal pluralism in a more coherent and strategic way, and in furtherance of the implementation of international norms and standards. A UN joint study (UNDP, UNICEF, UNIFEM) on informal justice systems is currently analyzing the characteristics of these mechanisms in all regions of the world, their linkages with the formal system, and their human rights implications, with a view to identifying programming opportunities and challenges. This work builds on existing work in this field, such as the United Kingdom donor policy on Non-state Justice and Security Systems.