Access to Justice in the Wake of War, Rule of Law Programming and Customary Justice in Post-conflict Bougainville

Abstract

Following civil war, (re)establishing operational, legitimate and accessible justice systems for resolving disputes is touted as critical for sustainable peace. Rule of law programmes carried out by actors such as United Nations agencies and non-governmental organisations have gained spectacular traction internationally as a favoured solution. However, it is becoming increasingly evident that the dominant, orthodox approach to rule of law programming, which focuses on top-down, technical, state-centred interventions, has produced poor results.

The overall aim of this study is to provide new empirical and theoretical knowledge of how rule of law programmes can strengthen access to justice for local populations in the wake of war. Recognising the empirical realities of legal pluralism and the relative accessibility of customary justice systems in many countries emerging from civil war today, this study focuses on rule of law programmes that take an alternate ‘justice from below’ approach and engage with customary justice systems. While often preferred by local populations, customary justice systems can pose challenges for equal access to justice and also tend to be inaccessible to outsiders, who generally lack the legitimacy to effectively engage with them. This is accentuated by the heightened state of flux and fragility in post-conflict societies. In an effort to address this dilemma, the central research question of this thesis is: How do rule of law programmes that engage with customary justice systems affect access to justice in post-conflict societies?

To answer this question and the repeated calls for interdisciplinary research in this field, this study takes an empirically-based approach, drawing on the social sciences as well as legal scholarship. Qualitative methods are used to examine a single case study: the PEACE Foundation Melanesia (PFM) dispute resolution training programme carried out in post-conflict Bougainville. A thematic analysis of 84 interviews conducted in Bougainville reveals three central themes, each of which poses significant challenges for access to justice in post-conflict Bougainville: customary decision-making, post-conflict insecurity, and gender-based violence.

The field research findings of this study suggest that by strategically tailoring the PFM programme to the dynamic transitional context in Bougainville – including post-conflict politics and high levels of insecurity – the PFM programme was perceived by local participants as legitimate and resonating with local justice theories. This in turn helped enable to programme to challenge some inequalities related to procedural justice by empowering wider participation and increased disputant voice in dispute resolution processes. It was also able to facilitate several processes of change that incrementally strengthened access to justice such as attitudes to gender roles in Bougainville, the use of restorative processes rather than violent retaliation, and contesting how cases of gender-based violence are dealt with. The study also found that there were key limits to the extent PFM’s efforts strengthened access to justice, for example in cases of power asymmetries between disputants.

This study is one of very few to empirically examine a rule of law programme that engages with customary justice systems in post-conflict societies and takes a ‘justice from below’ approach. By showing how and to what extent the PFM programme affected access to justice in post-conflict Bougainville, this study contributes original knowledge to the field of rule of law programming. Through deepening understanding of how programmes that engage with customary justice systems affect access to justice, the findings of this research shed light on how rule of law programmes can be designed to better respond to the needs of local populations in the wake of war.