By David Pimentel

1. Ruleof Law Reform without Cultural Imperalism? ReinforcingCustomary Justice throughCollatoral Review in South Sudan By David Pimentel

2. David Pimentel Professional Experience - Associate Professor at Florida Coastal School of Law faculty since 2007. - Consultant on the judiciary provisions being drafted for the new Nepali Constitution.   - former Head of the Rule of Law efforts in Southern Sudan for the UN mission. - former Chief of Court Management at the ICTY. - more than ten years' experience working inside the federal courts of the US. Education - University of California, Berkeley / Harvard Law School (3rd year) J.D. , 1988 • University of California, Berkeley M.A. Economics, 1987 Teaching and Scholarship - teaches Criminal Law, Torts, Remedies, Law and Economics, Comparative Law, and a seminar on International Rule of Law. • his research agenda focuses on international rule of law and post-conflict transitional justice focusing in particular on legal pluralism and the judiciaries of developing and post-war societies.  

3. Rule of Law • „more than half the world‘s population lives ‚outside the law‘“; law graduates should „spread American principles of justice, especially in places that resist them“. • One argue that „rule of law is imperialistic per se“ ; „nonetheless, protection of principles of justice and human rights requires some intervention“

4. A – The importance of Cultural Sensitivity • Sensitivity issue not only a matter of courtesy, but serious and legimitate concerns can be raised whether Western values are appropriate or even relevant in another culture • Not only just a principle of ethics, but also a pragmatic concern for success of the rule of law reform initiative (public confidence) • Deferring to local institutions and practices • not feasible to restore it to its pre-colonial state • determine which features of the present legal culture are valued in that society and which are destructive • Limits of cultural sensitivity • Not all systems of cultural values share equal legitimacy • Tolerance of cultural difference need not, and must not, require the acceptance of practices that violate the most fundamental principles of human rights and dignity

5. B – The problem of Public Confidence • Foreign-looking legal system imposed on a post-conflict society is unlikely to inspire great public confidence. • Suspicion of the unfamiliar way exacerbate persisting suspicions of whether justice is attainable in a society that has never had the rule of law before. C – The problemof Limited Resources • -> inefficiency, corruption, or simple failuretoadherethehighstandardsofjusticeand human rights • Serious lack of human resources (peopleeducated in „higherlaw“ standards)

6. South Sudan as a case in point • GoSS face the challenge of establishing rule of law norms and institutions • Practical impossibilty to bring a more „enlightened“ legal regime to the area • Customary law: • Handles 90% of legal disputes • Varies in the different tribes, but the customary courts function in similar ways • Unwritten (access for illiterate), cheap, on the spot, public confidence

7. Drawing the line / Striking the balance • The British accepted customary law except where it was „repugnant to natural justice, equity, and good conscience“; for Pimentel „inherently offensive today…it implicitly substitutes the cultural conscience of British society for indigenous values.“ • For Pimentel, the line-drawing lies in the international treaties and conventions on human rights • No issue of foreign imposition ?

8. How to draw the line • Codification of law? Ascertainment of law? Customary law can be effective only if it continues to be owned and developed and applied in traditional ways. • Training of judges of customary courts • Review by Higher Courts (statutory courts): appellate judges cannot second-guess the correctness of a lower court ruling if they are not applying the same law

9. Collateral review as an alternative to appeal • Statutorycourtvestedwith power toreviewandoverturncustomarycourtsdecisions on thegroundthattheprocedure, outcome, orremedyviolatedminimunstandardsof human rightsorjudicialprocessguaranteed in theGoSSconstitution • Whatifperceivedas „normal“ andacceptableremedy, not somethingtobechallenged in statutorycourt? • Public education • Separate entitylikethe South Sudan Human RightsCommission (fedby NGO information/alerts) • Advantages (accordingPimentel): • maximizestheautonomyofcustomarycourts; • servestoeducatejudgesasto international standardsthat must becompliedwith; • integratescustomarylawintoruleoflawregime; • clearownershipbycommunityactors

10. Conclusions • culturally-sensitive, public confidence, limited resources • Unwritten principles of customary law „…are important and largely irreplaceable institutions…“; „…effective in maintaining a sense of order, stability, and continuity in tribal societies.“ • „…statutory courts should be given power of collateral review of customary court decisions, not to second-guess the interpretation and application of customary law itself, but as a check on possible violations of larger principles of natural justice and human rights…“

11. Criticism • Verypaternalistictext: Pimenteldecideswhat‘sbestforthem; perspectiveoropinionoflocalsis not an issue. • „Wehavetoworkwithwhatwehave.“ • Critizesapproachduringcolonialism, but areruleoflawinterventionsthat different? Ruleofwhoselaw? • Collatoralreviewapproach also instrumentofimposition • Minimal human rightsstandards • Whatarethe minimal human rightsstandards (orasDannesays: culturallyrelativistapproachto human rights)? • Who hasthe power ofdefinition? • International treatiesasinstrumentofimposition, not necessarilybased on a commonagreement -> donor-dependency, unequal power distribution