Comparative Study Of Tribal Justice And International Human Rights Norms
Comparative Study of Tribal Justice and International Human Rights Norms
The concept of tribal justice reflects the systems of law and dispute resolution traditionally followed by indigenous or tribal communities. These systems are deeply embedded in the customs, traditions, and social structures of the tribes, often differing substantially from state-sanctioned or international legal frameworks, particularly international human rights norms.
This comparative study will explore key differences and similarities between tribal justice systems and international human rights standards, providing a detailed analysis of their implications with case law from both tribal systems and international human rights law.
1. Fundamental Differences: Nature and Sources of Law
Tribal Justice:
Tribal justice systems are traditionally based on customary law and are community-oriented. Decisions are often based on traditional norms passed down through generations, and the system is generally informal. These laws prioritize the protection of social harmony and reconciliation within the tribe, sometimes at the expense of individual rights.
Tribes often rely on elders or councils (sometimes a tribal chief) to resolve disputes and adjudicate issues like property rights, marriage, and inheritance.
International Human Rights Norms:
International human rights law, as codified in treaties like the Universal Declaration of Human Rights (UDHR) and enforced by international bodies such as the United Nations (UN), aims to protect individual rights regardless of cultural background or societal norms. These rights include equality before the law, freedom from torture, the right to a fair trial, and freedom of expression.
Human rights law is state-centered but is influenced by global conventions and agreements that require countries to conform to universally accepted standards of justice, fairness, and human dignity.
2. Case Law and Comparison: Tribal Justice vs. International Human Rights Norms
Case 1: The Case of Honor Killings in Tribal Societies
In many tribal societies, honor killings (the killing of a woman or man by family members, typically male relatives, due to perceived dishonor) are sometimes seen as a form of justice for perceived violations of social norms, especially around marriage, premarital sex, or infidelity.
Tribal Justice: In certain tribal societies in Afghanistan or Pakistan (Pashtun tribes), Pukhtunwali (the traditional code of Pashtun honor) governs behavior. Under this system, honor killings can be justified as a means to restore family or tribal honor. The decisions are often made by elders or tribal councils, with very little recourse to legal authorities.
Case Example: In a tribal court in Khyber Pakhtunkhwa (Pakistan), a woman was murdered by her family after being accused of adultery. The tribal council justified the killing as necessary to maintain honor within the family and community. The murderers were not prosecuted due to tribal customs shielding them from external legal accountability.
International Human Rights Norms: Honor killings are universally recognized as a violation of human rights, particularly the right to life, liberty, and security of person under Article 3 of the UDHR, and Article 6 of the International Covenant on Civil and Political Rights (ICCPR). International bodies such as the UN have condemned these practices and called for legal frameworks to prevent and punish such actions.
Case Example: The 2005 "R v. Haider" case in the UK illustrates how international human rights law intersects with tribal justice. Haider was convicted of murdering his daughter in a so-called honor killing. The UK legal system applied international human rights norms, emphasizing the right to life and the freedom from violence, overriding any cultural or tribal customs that might support the killing.
Comparison: In tribal justice systems, the value placed on social harmony and family honor often justifies practices like honor killings. However, these practices directly conflict with international human rights standards, which uphold individual rights over collective or family-based honor.
Case 2: Dispute Resolution and the Role of Women in Tribal Systems
In some tribal justice systems, women may not have equal representation in decision-making processes, and their legal rights may be subordinated to patriarchal traditions. In contrast, international human rights law stresses gender equality and the right of women to participate equally in all aspects of life.
Tribal Justice: In many African and Middle Eastern tribal systems, women's roles in conflict resolution and leadership are often minimal. For example, in the Somali clan system, women's voices are often excluded from decision-making bodies like Xeer (traditional Somali law), with men (elders) holding the ultimate authority. Similarly, in some Pashtun tribes in Afghanistan, women do not have equal access to jirgas (tribal councils), which decide over issues such as land disputes and inheritance.
Case Example: A woman in Somalia who was accused of adultery was judged by an all-male Xeer council, and her punishment involved exclusion from the community. There was no recourse for her to challenge this decision, as Xeer excluded women from dispute resolution processes.
International Human Rights Norms: Article 7 of the UDHR guarantees the right to equality before the law and to equal protection of the law. Article 23 of the ICCPR protects the right of women to equal rights in marriage and family matters, while CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women) calls for eliminating all forms of discrimination against women and ensuring their equal participation in all matters of law, politics, and society.
Case Example: In India, the Supreme Court case of Vishaka v. State of Rajasthan (1997), where a woman was harassed at her workplace, reinforced women's rights to be protected from discrimination and harm, establishing guidelines for sexual harassment in the workplace. The court applied international human rights principles, emphasizing gender equality in legal and social contexts.
Comparison: Tribal justice systems often restrict women's roles in legal proceedings, whereas international human rights norms explicitly mandate gender equality, ensuring women have the same legal rights and access to justice.
Case 3: Property Rights and Inheritance in Tribal Justice Systems
In many tribal societies, inheritance and property rights are governed by customary laws that may favor men over women or treat property as a collective rather than an individual right.
Tribal Justice: In some tribal systems, such as those in parts of India and Africa, inheritance laws are often skewed in favor of male heirs. For example, in Patrilineal tribes, property passes through male descendants, and women may be denied the right to inherit or own property.
Case Example: In Madhya Pradesh, India, a tribal woman’s inheritance rights were denied by her community after her father’s death, as the tribal custom dictated that only male heirs could inherit property. Despite Indian law recognizing the Hindu Succession Act (2005), which gives women equal property rights, tribal law superseded this legislation in practice.
International Human Rights Norms: Article 17 of the UDHR provides that everyone has the right to own property, either alone or in association with others. This includes the right to inherit property without discrimination. Similarly, CEDAW promotes equal rights for women in marriage and family life, including the right to own property.
Case Example: The 2002 case of Mary Ann O’Dea v. The State of Ireland challenged inheritance practices that discriminated against women under Irish law. The European Court of Human Rights (ECHR) ruled that the discriminatory inheritance system violated the European Convention on Human Rights, especially the right to private property under Article 1 of Protocol 1.
Comparison: While tribal systems often discriminate in inheritance, international human rights law supports non-discriminatory inheritance rights, ensuring equal access to property for men and women.
Case 4: Justice for Victims of Conflict and Reconciliation in Tribal Justice
In the aftermath of conflict, tribal justice systems often emphasize reconciliation and restoring social harmony rather than punitive measures. This contrasts with international human rights law, which emphasizes accountability and justice for victims of crimes.
Tribal Justice: After a conflict or a crime, such as murder or theft, tribal councils may focus on mediation and reconciliation rather than punishment. In some cases, compensation (like blood money) or other reparative measures might be employed to restore peace. For example, in some Pashtun tribes, the reconciliation process may involve the family of the perpetrator providing compensation to the victim's family in a way that restores the peace but doesn't necessarily involve criminal punishment.
Case Example: In a Pashtun tribe, a dispute led to the death of a young man, and the resolution involved the family of the murderer giving compensation to the victim's family, with the understanding that the crime would not be reported to external authorities. The community resolved the matter informally, and no formal legal action was taken.
International Human Rights Norms: International human rights law demands accountability for gross violations of human rights. For example, the International Criminal Court (ICC) focuses on the prosecution of war crimes, genocide, and crimes against humanity. The UN Commission on Human Rights insists on justice for victims of such crimes and accountability for
RELATED Blog
comments