The application of the principle of subsidiarity to promote human rights in pluralistic societies. The case of South Sudan

Introduction Informal justice is receiving a steadily increasing acknowledgement by the international community as an autonomous and valid legal system. 1 The term ‘informal justice’ is contested. For the scope of this essay, it includes ‘customary practices as well as parallel systems from the formal state systems’. 2 As will be analyzed in chapter 2.2, the notion of customary practices has a contested definition. For the purpose of this essay, they can be considered both customary norms existing before and created during the colonial period. Such broad definition is necessary as the main characteristic of informal justice systems is its flexibility, i.e. its capacity to adapt to evolving situations. Hence, at will be clarified in the second chapter, on the one hand the label ‘traditional,’ implying an idealistic static norm created in the pre-colonial era, does not fit to mechanisms that are continuously evolving. 3 On the other hand, trying to narrow the definition may cut off from the analysis realities that live at the borders between custom and religion, especially in cultures where such distinction is not so sharp and the normative systems are products of religion, authority and social pressure. This dissertation argues that judicial reforms in pluralistic societies must base the relationship between formal and informal justice on subsidiarity rather than sovereignty. South Sudan (hereinafter SS) will be taken as a case study that clarifies my thesis. It is beyond the scope of this dissertation to analyze every aspect of how judicial reforms in South Sudan may involve informal justice, as it requires a deeper direct understanding of the reality on the ground, while this work is limited to the analysis of secondary sources. This essay tries instead to develop an analysis of the legal concepts and theoretical justifications that would direct such field analysis toward a positive result, using SS as a case study for its unique characteristic of new born post-colonial state. 4 The author challenges the traditional assumption that improving access to justice through a rule of law project will improve the compliance of the post-conflict states to human rights standards. 5 Donors must increase domestic ownership of the reforms by tailoring their approach to the specific context rather than applying a set of state-centric best practices in a one-solution-fits-all fashion. 6 At the same time the risk of enthusiastic support of informal justice are noteworthy. Section 3.4 of this dissertation highlights the human rights violations that informal justice may create. 1 Huyse, Luc and Mark Salter. Traditional justice and reconciliation after violent conflict. Learning from African experiences. Stockholm: International institute for democracy and electoral assistance, 2008, p 3. 2 Thorne, Kristina. Rule of law through imperfect bodies? The informal justice systems of Burundi and Somalia. Centre for humanitarian dialogue, 2005, p 2 3 Huyse, supra note 1, p 7. 4 Carozza, Paolo. «Subsidiarity as a structural principle of International human rights law.» The American journal of International law, 1997, p 79. 5 Baumgartner, Samuel. “Does access to justice improve countries' compliance with human rights norms? An empirical study.” Cornell international law journal, 2011, p 443. 6 Piron, Laure-Helene. “Donor assistance to justice sector in Africa: living up to the new agenda? .” Human rights and justice sector reform in Africa, 2005, p 8. 4