Kastom in Dispute Resolution: Transitional Justice and Customary Law in the Solomon Islands
Joanna R. Quinn
Traditionally, cultures and societies around the world have had highly complex, well-developed systems for dealing with conflict and conflict resolution, and for addressing the social deficits brought about by conflict. In earlier times, these systems carried out a number of functions, including mediation, adjudication, restitution, and punishment, the same retributive elements included in the kinds of ‘modern’ systems of justice we are commonly familiar with. At the same time, they also included elements of restoration and reconciliation, which typically functioned in tandem with retributive practices (Quinn 2005) to produce what we would now call ‘holistic’ approaches to conflict resolution.
A paper originally prepared for presentation at the Annual Convention of the International Studies Association, 26 March 2014, Toronto. Research for this project was carried out with assistance from the Social Sciences and Humanities Research Council Standard Research Grant Residual Fund (The University of Western Ontario). Ethics review NMREB 10418.
J.R. Quinn (*)
Centre for Transitional Justice and Post-Conflict Reconstruction, and Department of Political Science, The University of Western Ontario, London, Canada
© The Author(s) 2017
R. Jeffery (ed.), Transitional Justice in Practice, DOI 10.1057/978-1-137-59695-6_3
In many parts of the world, these customary practices were shoved aside to make way for modern, Western ideas of justice and conflict resolution practices (Lugard 1965). Colonial rulers disparaged traditional customs, allowed only ‘natives’ within their colonies to use them, and set up separate mechanisms for use by ‘non-natives,’ effectively creating dual justice systems (Mamdani 1996: 109-110). In Uganda, for example, traditional practices were officially prohibited at the time of independence in 1962 and replaced by a harmonized court system modeled on the British system (British Colonial Office 1961). Yet, in Uganda, as in other cases, this did not result in the complete eradication of customary law. While in some areas customary practices are no longer used regularly (Quinn 2009), other traditional cultural institutions remain and traditional practices continue to be used (Briggs 1998: 22). The result is that globally, a range of relationships can be identified as existing between traditional and state- based justice systems: while some function concurrently, others are more integrated (Forsyth 2007).
In recent years, scholars of transitional justice have become increasingly interested in the role that customary law plays in the aftermath of violent conflict, as well as its interactions with imported, ‘Western’ approaches (Wallis et al. 2016; Chan 2011; Mac Ginty 2008; Richmond 2011). This chapter examines the nature of the interactions between formal transitional justice measures and customary practices in the Solomon Islands. It considers both the informal use of kastom and the ways in which it has been co-opted for use in formal spheres, and the importance of customary law in creating the conditions that allow other, formal or state-run mechanisms of justice to work better. In doing so, it argues that customary practices of acknowledgment and justice are a necessary but not sufficient element of coming to terms with the past in post-conflict societies. That is, as one of my Solomon Islander interviewees, Chief Justice Sir Rocky Palmer, so eloquently put it: ‘Kastom cannot be viewed in isolation. It is part and parcel of dispute resolutions. It is not the sole answer, and does not replace or take over the formal system of dispute resolution, but it does help in creating the environment for the formal system to come in’ (Palmer interview 2014). Against this lens, then, it is important to analyze the elements of ‘justice’ that are and have been taking place in the Solomon Islands, and to evaluate the role of custom in the social rebuilding process.
The chapter begins with a discussion of customary practices of acknowledgment and justice and then considers their use in the Solomon Islands. Next, it considers how these practices have been exploited both from within the Solomon Islands and by outsiders before examining why customary practices were rejected in favor of formal, state-sponsored use and the consequences of those decisions. The chapter concludes that other transitional justice mechanisms that have been adopted are poorer as a result of not including elements of reconciliation that Solomon Islanders understand and upon which they rely.
This research forms part of a larger long-term study on the use of traditional practices of acknowledgment in Uganda, as well as Fiji and the Solomon Islands, which examines the role that these processes play in societies’ acknowledgment of past crimes and abuses and considers their ability to succeed (or not) where other ‘Western’ approaches, like the truth commission, have failed (Quinn 2010). In total, 33 interviews were conducted in January and February 2014, with representatives of the Solomon Islands Government (SIG), international nongovernmental and governmental organizations, churches, and academics, largely in Honiara, as well as one in Brisbane and two in Canberra, Australia. In some instances, I met with my interviewees more than once to clarify particular ideas or to gather more information. I was interested in how and why they made the decisions they did about how to come to terms with the period of lawlessness and violence colloquially known as ‘the Tensions,’ and to understand the role that traditional or customary practices (Quinn 2009: forthcoming),1 known as kastom in Solomon Islands Pijin, have played in that process. I conducted a series of open-ended, semi-structured interviews with a view to understanding the role of customary practices in the post-conflict environment. With the exception of three specific instances in the paper, all interviewees are directly quoted; in three places, I have opted to conceal the identities of interviewees to protect them from interference and harassment for sharing their views.