XV Edition GIZ Law Journal

GERMANY

GERMANY

and Informal Justice Systems Women in Customary

marginalized groups. Many people value CIJ as local, low-cost and fast dispute settlement bodies. 162 It is difficult to find a common history or a strict definition of CIJ, since there are hundreds of different mechanisms throughout the world. 163, 164 Nevertheless, some common features CIJ mostly possess. Generally, they are disassociated from the state. Their power and legitimacy derive from other, non-state sources, such as religious and indigenous rules, social, family, local, traditional and indigenous customs, mostly unwritten and only known and applied to a specific group of people in a specific area. Ancient ruling and historical development play a significant role. Most of the resolution bodies are way older than the formal systems, mostly established during a phase of colonization. 165 Therefore, CIJ are highly decentralized and non bureaucratic. Nearby dispute settlement bodies (without the necessity of physical transport to the next bigger town) and trials in the local/ethnic language literally enable an efficient and comprehensive Access to Justice approach. CIJ vary from single persons, i.e religious leaders, village chiefs or tribal elders up to rural or religious councils. The justice seeking parties comply to the judgements because of their high acceptance and the fear of social stigma. 167 Some CIJ are integrated in the formal state-based

system, which set a formal framework for the rulings or just formalize the result of the judgement. In other contexts, CIJ developed as a counter part to the state, hindering people (especially women) to seek justice in the formal system. 168,169 German development cooperation sees CIJ as one of many ways to strengthen Access to Justice. 170 It takes part in the international discussion and is a founding member of the Justice Action Coalition. 171 CIJ can be an essential tool next to the formal justice system, while Germany continues working on formal justice systems and seeks to integrate CIJ in state-based dispute resolution. Supporting alternative dispute resolution systems is a workable promise as long as formal systems are not weakened or destabilized and human rights standards upheld. Especially when women and girl are concerned many CIJ systems do not adhere to Human Rights standards. This should be thoroughly analyzed, since a human rights-based approach is a necessary condition for working with CIJ. CIJ and Human Rights esp. Human Rights of Women While CIJ is based on customary, religious, social or traditional rules and focus more on the communal peace than individual rights, Human Rights are under pressure in several possible scenarios.

By: Christiane Wolowiec-Musich

Within the Agenda 2030, Germany committed themselves to fulfil and support the implementation of the SDG 16: Peace, Justice, and strong Institutions. In detail, SDG 16.3 is aiming for a global respect for the rule of Law and the inherent aspect of Access to Justice. 158 Embedded in the universal UN strategy and policy of “Leave no One Behind”, “People-centered Justice”, and the newly formulated German approach towards a feminist foreign policy, customary and informal justice systems (CIJ or IJS) seem to arise to an essential instrument to achieve SDG 16.3. Even though, CIJ is not a new phenomenon coming from nowhere, discussing it as a serious instrument to achieve the SDG is relatively new. During the World Justice Forum in June 2022, the potential and challenges were discussed by stakeholders and donors on a global level. 159 A planned study by IDLO, financed by the GIZ Sectoral Program Governance, should brighten up the potential of CIJ to reach the SDG 16.3, “Access to Justice” and SDG 5, “Gender Equality”. Can CIJ strengthen Access to Justice for women? 160 How to empower women from the position of a mere consumer – to an active part? Background CIJ are used by around 80% 161 of the population (mainly in the global south) and seem to often be an attractive alternative to a formal state based justice system, especially for women, poor people, and different 158 Peace, justice and strong institutions - United Nations Sustainable Development [Quote: 16.3 Promote the rule of law at the national and international levels and ensure equal access to justice for all] 159 Working Sessions | World Justice Project 160 How can customary and informal justice systems strengthen SDG16? - HiiL 161 IDLO-Policy-and-Issue-Brief-Customary-and-Informal-Justice-web-FINAL.pdf (Mit weiteren Nachweisen in Fußnote 1), Working Group on Customary and Informal Justice and SDG16+ | ODI: Think change

162 Informal-Justice-Systems-Charting-a-Course-for-Human-Rights-Based-Engagement.pdf (unwomen.org) (S. 10) 163 One of the largest publication in this regard: Informal-Justice-Systems-Charting-a-Course-for-Human-Rights-Based-Engagement.pdf (unwomen.org) 164 Mapping: UNDP DoingJusticeEwaWojkowska130307.pdf (S. 15) 165 UNDP DoingJusticeEwaWojkowska130307.pdf (S. 16) 166 Informal-Justice-Systems-Charting-a-Course-for-Human-Rights-Based-Engagement.pdf (unwomen.org) (S. 8f) 167 A lot of countries refer “Family Issues” to CIJ and formalize the result by a registration (F.e a religious marriage is formalized by state through official registration). 168 Informal-Justice-Systems-Charting-a-Course-for-Human-Rights-Based-Engagement.pdf (unwomen.org) ( S. 107) 169 F.E the Somalia ADR and Xeer/Sharia court System: report-somalia-adr_centers-4.pdf (idlo.int) , Alternative Dispute Resolution Initiatives in Somalia (usaid.gov) (Kap. 2) 170 Ressortgemeinsame Strategie zur Rechtsstaatsförderung im Bereich Krisenprävention, Konfliktbewältigung und Friedensförderung (auswaertiges-amt. de) 171 6c192f_a62186cb2b264ab3b87eb3e9c97bf09e.pdf (sdg16.plus)

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