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

South Sudanese informal justice mechanisms cannot be swept aside bringing forward an impossible idea of justice reforms that will build a formal justice system with Western characteristics. However, there must be a way to enforce human rights standards applicable to the country according to the treaties that the GoSS decided to sign. Protection from human rights abuses allowed by customary norms without disempowerment of informal courts may be guaranteed through a limited collateral review of the decisions by formal courts.

The importance of respecting informal mechanisms is due to several reasons. First, according to the increasing consensus on the matter exemplified above and the Constitutional recognition of them by SS, it is crucial to respect cultural sensitivity. Second, the need to increase the general trust of justice reform, as the population may see it as a neo-colonial imposition. Lastly, informal justice overcomes the resources constraints that the diffusion of formal justice demands.

After the signing of the Comprehensive Peace Agreement in 2005, the GoSS is called to stabilize the country, strengthening the institutions and the rule of law. Since the beginning, the action of the GoSS has been characterized by a denial of Sharia law, the justice system imposed by Khartoum, and declared the willingness to re-build the system from the scratch. However, as already pointed out, the extreme logistic challenges of the SS remote areas enforced informal law mechanisms when Sharia courts were in place.
The idea of a more formal regime as unique legal system in SS is hence impossible.
The need of a balance between cultural sensitivity and implementation of human rights is undisputed.
This makes clear that the principles stated in these international instruments must be implemented, and the claim of cultural specificity cannot deprive them of all meaning.
An active engagement of all the stakeholders – state, local communities and rule of law projects’ donors – may create an environment conducive to the harmonization of the discrepancies and the evolution of the dynamic informal legal systems in accordance to human rights standards.

The importance of consultation is hence crucial but extremely challenging. Authors like Perry argue that the only way forward is the creation of a map of the relevant communities and an analysis of the customary practices in place. This moment should be followed by a harmonization program of all the customary practices that violate human rights standards, in agreement with the relevant communities. However, such approach seems unrealistic. On the one hand, as Menski demonstrated, mapping rural communities is extremely challenging. As argued above, it will disregard the main feature of such informal legal systems.
Translating the oral norms in writing will cost the system of its flexibility. Furthermore, the process may be extremely unbalanced as state and human rights standards are strong and clearly defined, hence the process of cooptation of the custom pointed out above in chapter 2.2 may be repeated. As implied by the same author, indeed, while the advocacy mechanisms that may be used to support harmonization are coercion, persuasion and acculturation, quite often throughout the history, coercion has been the only tool used. While persuasion and acculturation are valid tools, nevertheless they will not be used as long as the state and the international community demand immediate and pre-determined modifications of informal practices.

The solution envisaged by Perry is a relevant diversion of rule of law funds to facilitate the effective participation of all the communities in the “jurisgenerative” process. This solution is flawed on two grounds. Logistically, this solution should be applied to realities where the states fail to enforce their laws. It seems quite hard to imagine how a state can involve in such challenging process the very same pockets of territories. Furthermore, in the unlikely case that this happens, during the process of harmonization the roles are structurally unbalanced, as state has a central role, holding the control of both the resources and the use of force to impose the law, turning the shared process into a de facto incorporation. [...]