Justice

Conflict-affected and fragile states (part 2)

Page contents

Non-state justice and security systems
Serious crimes
What other resources are available on the GSDRC?
Additional information resources

Non-state justice and security systems

Traditional, customary and non-state justice systems are a feature of many conflict-affected and fragile states. They can facilitate participation and access to justice to those who are often excluded from formal systems; they are familiar to local populations; and can be quick and convenient. Such systems can also be problematic, however, as they can be discriminatory against certain groups – in particular, women or those not from the locality. In addition, there may be little oversight or referrals to judicial and other formal institutions.

Scheye, E., and McLean, A., 2006, 'Enhancing the Delivery of Justice and Security in Fragile States', Organisation for Economic Cooperation and Development - Development Assistance Committee (OECD/DAC) Network on Conflict, Peace and Development Co-operation, Paris (CPDC)
How should international actors contribute to the support of justice and security in fragile states? This paper from the OECD/DAC Network on Conflict, Peace and Development Co-operation analyses the providers, processes and objectives of fragile states’ justice and security services, and reviews lessons learnt by donors in this area. It argues that international actors should take a multi-layered, context-specific approach to fragile states, developing the capacity of the state, but also enabling it to engage with non-state justice and security providers.
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The following paper addresses the strengths and weaknesses of traditional justice systems in the context of Africa, where their goals are often described as the restoration of peace and social harmony, as opposed to retributive justice.

Kimathi, L. W., 2005, ‘Non-state Institutions as a Basis of State Reconstruction: The Case of Justice Systems in Africa’, Paper presented at CODESRIA’s 11th General Assembly, 6-10 December, Maputo, Mozambique
How can non-state justice institutions further the process of state reconstruction in Africa? This paper from the Catholic University of Eastern Africa discusses the way in which the state can be made more responsive by incorporating non-state institutions in formal state structures. It argues for a synergy of formal and informal justice systems to enhance the advantages and minimise the disadvantages of each. Measures to improve non-formal justice should be pursued alongside efforts to decentralise and streamline formal justice structures.
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The formal and informal justice systems in Afghanistan are not integrated and act in isolation. This edition of the Afghan Human Development Report advocates for ‘a hybrid model of Afghan justice’ that would draw on the positive aspects of both systems.

Wardak, A., Saba, D. and Kazem, H., 2007, ‘Bridging Modernity and Tradition: The Rule of Law and the Search for Justice’, Afghan Human Development Report, Centre for Policy and Human Development, Kabul and Army Press, Islamabad
How can justice and the rule of law be strengthened to advance human development in Afghanistan? This report from the Centre for Policy and Human Development highlights the links between human development and the rule of law. It makes the case for a 'Hybrid Model' of Afghan justice involving a collaborative relationship between formal and informal justice institutions.
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The following report examines the possibility of closer collaboration between the formal and informal legal systems in Burundi.

Dexter, T. and Ntahonbaye, P., 2005, ‘The Role of Informal Justice Systems in Fostering the Rule of Law in Post-Conflict Situations: The Case of Burundi’, Centre for Humanitarian Dialogue, Geneva
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Non-state security systems include vigilante and neighbourhood watch organisations set up in local communities. Such organisations can be essential for poor people whose livelihoods are threatened by theft of private property. However, there are human rights risks where such organisations administer punishments without due process. The level of local legitimacy and inclusiveness of non-state security systems is important as they range from community groups to protection rackets and organised crime. In addition, private security companies are increasingly operating in countries where state law enforcement is inadequate, with implications for the security gap between the rich and poor.

Shaw, M., 2002, 'Chapter 6: The Impact of Private Policing,' in Crime and Policing in Post-Apartheid South Africa: Transforming under Fire, C Hurst & Co, London
Despite a peaceful transition to democracy, post apartheid South Africa has experienced a dramatic increase in violent crime. This trend has been met by a rapid increase in private security companies providing services to the suburban middle class. This chapter explores the nature of the private sector boom and its role in achieving justice and security in South Africa.
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Serious crimes

Serious crimes – such as organised crime, trafficking, money laundering, corruption and terrorism – flourish in societies with weak rule of law institutions. Such criminal activity is often linked to wider social conflict through, for example, the funding of violent movements, the harbouring of war crimes fugitives, or in the case of organised criminal groups, the perpetuation or extension of their control of the political and economic sphere. Serious crimes represent a tremendous challenge to peace and stability in conflict-affected and fragile states.

The following UN document outlines key sectors of illicit trafficking and organised crime as well as countermeasures.

UN Secretariat, 2005, ‘Effective Measures to Combat Transnational Organised Crime: Working Paper Prepared by the Secretariat’, Eleventh United Nations Congress on Crime Prevention and Criminal Justice, 18-25 April, Bangkok
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The following two documents from the United States Institute of Peace identify how to address the problem of serious crimes. The first document stresses the importance of understanding the political, economic, legal and social context of serious crimes in order to effectively counter it – and outlines how to conduct such an assessment. The second document provides an overview of various institutional reforms necessary to improve the fair and effective investigation and prosecution of serious crimes, and the imprisonment of serious crime perpetrators.

Rausch, C. (ed), 2006, 'Conducting an Assessment', Chapter 2 in Combating Serious Crimes in Post-Conflict Societies: A Handbook for Policymakers and Practitioners, United States Institute of Peace, USIP Press Books, Washington, D.C.
What should be covered by an assessment of serious crime in a country emerging from conflict? How should such an assessment be conducted? This chapter from a handbook by the United States Institute of Peace provides comprehensive guidelines. The assessment should include political, economic and social factors plus capacity and challenges both within and outside of the criminal justice sector. Assessors should gauge a country's political will to address serious crime and to work with international bodies in doing so.
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Rausch, C. (ed), 2006, 'Institutional Reforms', Chapter 4 in Combating Serious Crimes in Post-Conflict Societies: A Handbook for Policymakers and Practitioners, United States Institute of Peace, USIP Press Books, Washington, D.C.
How can institutional reforms aid effective investigation and prosecution in post-conflict societies? This chapter forms part of a handbook on serious crime in post-conflict societies from the United States Institute of Peace. It presents examples of institutional reform mechanisms, drawing from a dozen recent international interventions and covering the police, the judiciary, prosecutor services, criminal defence, and prisons. Institutional reforms to the criminal justice system in post-conflict societies are crucial in developing a fair and effective system of justice that is transparent, accountable and efficient.
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Although the types of organised crime in Kosovo and Liberia differed, like in many states, they served in both cases to fuel conflict and continue to be a challenge to institution-building and peacebuilding efforts.

Teran, N. S., 2007, ‘Peacebuilding and Organised Crime: The Cases of Kosovo and Liberia’, Swisspeace, Bern
Combating organised crime should occur throughout the conflict continuum, from conflict prevention to post-conflict peacebuilding. This paper, published by Swisspeace, examines the impact of organised criminal groups on peacebuilding efforts in Kosovo and Liberia. Although types of organised crime differ in the two countries, both cases demonstrate that it presents a serious threat to peacebuilding efforts and damages the functioning of democratic institutions.
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The following GSDRC helpdesk report explores the impact of organised crime on development and governance.

GSDRC, 2008, 'Organised Crime and Development', Helpdesk Research Report, GSDRC, Birmingham
Given the nature of organised crime, it is difficult to monitor and accurately measure its prevalence and economic impact. Some of the literature notes that while levels of organised crime have increased in some regions/countries and decreased in others, its global scale remains roughly the same. However, some experts claim that organised crime is on the increase at the global level, in line with financial globalisation, corruption, and the expansion of the shadow economy. Organised crime usually involves the complicity or direct involvement of the public sector; and organised criminal groups gain power and resources from the shadow economy, while also investing in it.
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What other resources are available on the GSDRC?

More resources on justice in conflict-affected and fragile states can be accessed in the ‘human rights, gender and social exclusion’ and ‘transitional justice’ sections of this guide.
More resources on non-state systems can be accessed in the ‘non-state justice and security systems’ section of this guide.

Additional information resources

The Global Facilitation Network for Security Sector Reform (GFN-SSR) produces regional topic guides that provide overviews of security and justice sector reform specific to the region. They highlight key regional texts as well as country case studies. Current guides include East Africa, West Africa, the Middle East, Latin America and the Caribbean, and Eastern Europe.
International Network to Promote the Rule of Law (INPROL) is an internet-based knowledge network that facilitates information exchange among practitioners and experts and provides access to relevant documents, best practices, and related materials.
United States Institute of Peace’s (USIP) Rule of Law Center conducts research, identifies best practices, and develops new tools for policymakers and practitioners working to promote the rule of law. It has played a significant role in shaping the field and in advancing the rule of law in fragile and post-conflict societies.
U4 Anti-Corruption Resource Centre has an extensive online research directory on corruption issues, in various sectors, and anti-corruption strategies.

UN websites: