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Perspectices on Involving Non-State and Customary Actors in Justice

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Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform Editors: Peter Albrecht Helene Maria Kyed Deborah Isser Erica Harper Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform Editors: Peter Albrecht Helene Maria Kyed Deborah Isser Erica Harper Perspectives on Involving Non-State and Customary Actors in Justice and Security Reform Copyright © International Development Law Organization 2011 International Development Law Organization (IDLO) IDLO is an intergovernmental organization that promotes legal, regulatory and institutional reform to advance economic and social development in transitional and developing countries. Founded in 1983 and one of the leaders in rule of law assistance, IDLO's comprehensive approach achieves enduring results by mobilizing stakeholders at all levels of society to drive institutional change. Because IDLO wields no political agenda and has deep expertise in different legal systems and emerging global issues, people and interest groups of diverse backgrounds trust IDLO. It has direct access to government leaders, institutions and multilateral organizations in developing countries, including lawyers, jurists, policymakers, advocates, academics and civil society representatives. Among its activities, IDLO conducts timely, focused and comprehensive research in areas related to sustainable development in the legal, regulatory, and justice sectors. Through such research, IDLO seeks to contribute to existing Practice and scholarship on priority legal issues, and to serve as a conduit for the global exchange of ideas, best practices and lessons learned. IDLO produces a variety of professional legal tools covering interdisciplinary thematic and regional issues; these include book series, country studies, research reports, policy papers, training handbooks, glossaries and benchbooks. Research for these publications is conducted independently with the support of its country offices and in cooperation with international and national partner organizations. The Danish Institute for International Studies (DIIS) The DIIS is an independent research institution financed primarily by the Danish state. DIIS carries out policy-relevant and policy-oriented research and analysis on a wide range of issues in the areas of globalization, security and development and it participates in national and international debates and academic networks. Disclaimer IDLO is an inter-governmental organization and its publications are intended to expand legal knowledge, disseminate diverse viewpoints and spark discussion on issues related to law and development. The views expressed in this Publication are the views of the authors and do not necessarily reflect the views or policies of IDLO or its Member States. IDLO does not guarantee the accuracy of the data included in this publication and accepts no responsibility for any consequence of its use. IDLO welcomes any feedback or comments regarding the information contained in the Publication. All rights reserved. This material is copyrighted but may be reproduced by any method without fee for any educational purposes, provided that the source is acknowledged. Formal permission is required for all such uses. For copying in other circumstances or for reproduction in other publications, prior written permission must be granted from the copyright owner and a fee may be charged. Requests for commercial reproduction should be directed to the International Development Law Organization. Cover picture by Focx Photography under Creative Commons License http://creativecommons.org/licenses/by-sa/2.0/ Published by: International Development Law Organization in conjunction with Viale Vaticano, 106 the Danish Institute for International Studies 00165 Rome, Italy Tel: +39 06 4040 3200 Fax: +39 06 4040 3232 www.idlo.int [email protected] ISBN 978-88-96155-08-0 Table of contents Preface 1 Erica Harper INTRODUCTION - Non-state and Customary Actors in Development Programs Peter Albrecht and Helene Maria Kyed 3 CHAPTER 1 - Women’s Access to Justice, Legal Pluralism and Fragile States Tanja Chopra and Deborah Isser 23 CHAPTER 2 - Finding the Pulse of Peace Operations: The Case for Privileging ‘Political’ Rather than Technical Forces Bryn Hughes 39 CHAPTER 3 - The International Community and the ‘Shura Strategy’ in Afghanistan Noah Coburn 53 CHAPTER 4 - Pragmatism, Proximity and Pashtunwali: Informal Justice at the District Level in Helmand Province Kate Fearon 66 CHAPTER 5 - Strengthening International Programming on Access to Justice for the Poor and for Women: Lessons learnt from Pakistan’s Musalihat Anjumans and other programs Cassandra Balchin 82 CHAPTER 6 - Village Justice in Indonesia: Defining the ‘State’ and ‘Non-state’ in Dispute Resolution Processes Matthew Zurstrassen 107 CHAPTER 7 - Popular Concepts of Justice and Fairness in Ghana: Testing the Legitimacy of New or Hybrid Forms of State Justice Richard C Crook, Kojo Asante, and Victor Brobby 119 CHAPTER 8 - Experiences of Informal Justice and Security Provision in a Fragile Environment - The Case of the Terai Region in Nepal: Competition for power and order Lars Peter Lopez Christensen and René Taus Hansen 142 CHAPTER 9 - From Practice to Policy, and Back: Emerging Lessons from Working with Community-Based Justice Mechanisms in Helmand, Afghanistan Mette Lindorf Nielsen 159 Preface Erica Harper1 The chapters that appear in this electronic volume were presented at a conference organized by the Danish Institute for International Studies (DIIS). It was supported financially by the Ministry of Foreign Affairs of Denmark with additional funding from the International Development Law Organization (IDLO). The conference was entitled “Access to Justice and Security: Non-state actors and the local dynamics of ordering” and was held in Copenhagen 1-3 November 2010. The program of work of the conference was extensive and covered a range of issues pertaining to seven themes, including: international support to informal justice systems and poverty reduction; notions of justice and security from the perspective of the citizen; human rights; conflict and fragile contexts, conceptualizing „non-state‟ actors; the dynamics of local power relations, politics and authority; state formation and its „Other‟; and research methodologies. The aim was to combine insights from empirically-based studies by scholars, with discussions of policy options and international programs that engage non-state justice and security provision. This was facilitated by structuring the conference around keynote presentations and plenary sessions that introduced the themes more broadly, followed by parallel sessions that allowed more in-depth discussion and debate. The work of DIIS on this subject includes a research theme on Justice and Security. It is recognized that the governance of territories, people and resources is a politically contested issue. In the Global South, it is concerned with questions of who controls the security forces and of how conflicts should be solved and justice and security be provided. At the same time, access of citizens to justice and security in their daily lives is held as a precondition for democratization and economic development by the UN, EU and OECD-DAC. The „Justice and Security‟ theme explores the political dynamics of justice enforcement and internal security provisions in contexts where the regulative monopoly of state law and institutions is challenged by a range of non-state justice and security providers. After a decade of substantial investment in Security and Justice Sector Reforms with an almost exclusive focus on state building, international aid agencies and Southern governments are now increasingly drawn towards engaging non-state actors in various ways. The research theme examines the implementation of such reforms by analyzing the complex and often contested interactions between formal state institutions – the police, courts and administrations – and different types of non-state providers, including vigilante groups, traditional leaders, community courts, youth brigades, and community policing forums. Moreover the research 1 Erica Harper joined IDLO in 2005 as the Chief of Party of the Post-Tsunami Legal Assistance Initiative for Indonesia (2005-2007) and currently occupies the position of Senior Rule of Law Advisor with the Research, Policy and Strategic Initiatives Unit. Dr Harper has a Bachelor of Commerce and Bachelor of Laws (honours Macquarie University, Australia) and a Ph.D (University of Melbourne, Australia). Her areas of specialization include post- conflict judicial rehabilitation; international criminal law and transitional justice; and alternative and customary dispute resolution. Prior to joining IDLO, Dr Harper worked at the United Nations High Commissioner for Refugees (Geneva, Timor-Leste and the Philippines). Her working languages include English and French. 1 focuses on the implications of these shifts for the sovereign authority of the state, access to justice and security, and the establishment of authority at the local level in the south. IDLO‟s work program commenced in 2009 and examines the nature and effectiveness of customary justice programming. Over two years, IDLO has undertaken research on the various entry points for engaging with customary legal systems. It aimed to identify lessons learned from programming undertaken to date and develop responses to some of the more difficult questions left unanswered in the theoretical discourse. This knowledge
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