center for sustainable justice

Intercultural Justice

During the last week of my study travel in Australia in 2007 an Aborigine lawyer told me about Koori Courts with great enthusiasm, which are special criminal courts in Victoria for Aborigines where the court cooperates with respected elders from the Aboriginal community. Her story about her people and intercultural issues in Australia like the distressing overpopulation of Aborigines in the Australian prisons and the beneficial effects of the Koori court system on this. Her story reminded me of the intercultural issues we experience in the Netherlands. The problem in Australia seemed comparable somehow to the problems faced in the Netherlands regarding crime among Moroccan youth, but with a difference that the problem in Australia exists in relation to the original inhabitants of the country, while the problem in the Netherlands exists in relationship to immigrants. But that does not take anything away from the nature and the symptoms of the problem.
After my return I studied piles of publications and research reports and I read impressive reports from judges about their experiences in Indigenous Sentencing Courts. A key federal report from the Royal Commission into Aboriginal Deaths in Custody in 1991 has instigated the development of Indigenous Sentencing Courts. The Commission concluded that the Western justice system was culturally inappropriate to be used for Aborigines. The recommendations of this report have led to negotiations and agreements between the governments and leaders of local Aboriginal communities. The governments wanted to involve more Aborigines in the justice system, they wanted to create a better understanding among Aborigines about the current justice system, and they wanted to reduce the overpopulation of Aborigines in prisons. This resulted in the formation of a variety of forms of Indigenous Sentencing Courts because there are major cultural differences between the 200 Aboriginal communities that live in Australia. The first Indigenous Sentencing Court was established in 1999 in the form of the Nunga-Court in Port Adelaide in the state of South Australia. By 2009 there were more than 50 Indigenous Sentencing Courts for adult and juvenile Aboriginal offenders altogether[1], which is a significant number on a population of just over 500,000 Aborigines. Australia has thereby become a cradle for forms of intercultural justice. Scientists, including the Griffiths University in Brisbane (Kathleen Daly and Elena Marchetti) are closely following developments in Indigenous Sentencing Courts and they have published extensively on this topic. In 2010 I visited a number of Indigenous Sentencing Courts in different states. I wanted to see how they function in reality and I wanted to speak with the people who were involved in this court system.

Indigenous Sentencing Courts, which also includes the Koori Court system, is aimed at bridging the deep cultural gap that exists between Aborigines and Western culture. This form of Justice seems to have not only a beneficial effect on individual Aboriginal suspects, but the courts also seem to have a positive effect on the general feelings that Aborigines have towards Western justice and the professional involvement of Aborigines in the justice system. Indigenous Sentencing Courts also improve the internal structure and discipline within Aboriginal communities.

Indigenous Sentencing Courts have some common characteristics:

-    Respected elders from the Aboriginal communities are involved in cases.

-    The independence of the court remains guaranteed: Aboriginal elders do not want to bear responsibility or joint responsibility for the decisions made by the courts, since that would put their positions of trust as elder in their Aboriginal communities at risk. For the same reason the elders refuse personal reward for their efforts in the Indigenous Sentencing Courts.

-    Sessions are informal and with an approachable character. The language used is understandable for everyone. Legal terms are avoided. Formalities are reduced to a minimum.

-    Relatives, friends or supporters of the accused and interested persons, sometimes on the side of the victim as well, participate in an informal manner in court sessions, sometimes from the public gallery.

-    The courtrooms are decorated with traditional Aboriginal symbolic objects and works of art next to the common symbols of law that decorate the courtroom.
Dependent to the system of the court, sessions are held around an oval table or around the bar table. In some courts the sessions are held while sitting in a circle, without a table. There are Indigenous Sentencing Courts in which the traditional layout of the courtroom is retained. These differences are related to cultural differences between Aboriginal peoples and communities. What works in one community is contra-productive in the other.

Positive effects of Indigenous Sentencing Courts:

-    The contribution of elders enables the court to provide the best possible remedies for reintegration and rehabilitation of the suspect and to avoid imprisonment.

-    Indigenous Sentencing Courts confirm and restore the authority of the elders that they had traditionally enjoyed within Aboriginal communities and that was taken away from them through the domination of Western civilization. Elders are again in a position where they can effectively use their traditional authority in the community, for the benefit of the community.

-    While Western judges at sessions hardly have any contact with Aboriginal suspects, the Aboriginal elders seemingly have genuine contact with them. The elders mostly know the suspects in person and they know how to return them to the straight and narrow. They are mostly well capable of convincing suspects to make themselves available for treatment at Aboriginal addiction clinics or for other remedial or reintegration-oriented training programs.

-    Outside of the sessions they still hold an influence over the suspects, which is very effective in ensuring that rehabilitation programs are successful and that court orders are enforced.

-    Indigenous Sentencing Courts generate strong motivation, commitment and satisfaction among those associated with it, judges, Aboriginal elders, coordinators, and for the Aboriginal communities as a whole.

-    Indigenous Sentencing Courts show that the justice system is capable to build bridges between cultures. Even the seemingly unbridgeable gap that has always existed between Aborigines and Western rulers has been bridged by the justice system.

I noticed how the cultures supplement each other: Western justice, which functions on the back of structure, rules, laws and regulations; the Aboriginal Elders work with (laws of) compassion, commitment, wisdom and authority (immaterial laws). I was frequently touched and impressed as I saw how the judges allowed the Elders to do their work during sessions. The Elders spoke to suspects with great commitment, authority and compassion. They knew how to get through to suspects that remained totally unreachable and inaccessible to the Western judges. The elders spoke to the suspects as if they were allies, a responsible neighbor. They showed time and again that they knew exactly what to do to make people attend addiction programs or other forms of rehabilitation or reintegration programs.

Indigenous Sentencing Courts (I prefer to refer to them as ’intercultural justice systems’) contribute to the social ecology, which is of major significance in a multicultural society, such as exists in the Netherlands. For the justice system in the Netherlands I can imagine that special chambers for intercultural affairs will be created which involve respected persons from other cultures in the justice system such as Moroccan community elders that have influence in the communities where Moroccan suspects live, and the same with Romany elders and respected persons of other cultural communities that live in the Netherlands.
Moroccans in the Netherlands are almost all Berbers (mountain people) who did not care for many centuries what others may expect from them. This way of life is in their blood and in their genes. This may be a good trait in the mountains, but in densely populated countries such as the Netherlands this could be very problematic. Their ingrained traits cannot simply be polished away and it does not really help to unleash laws or integration training on them. Intercultural issues require mutual respect, only then can something new be created. The experiences in Australia make clear that enforcing laws is contra-productive and that things can be done in a different way by creating intercultural courts. The justice system can improve the social ecology, not just by making communities safer, but also to get people from different cultures to cooperate with each other. That is what the Australian Indigenous Sentencing Courts teach us.
Let us take the lead in the justice system to bridge the gap between our Western culture and the cultures of immigrants, Moroccans, Antilleans, Romany people and people from other countries and cultures that continue making our country more colorful! Intercultural justice can be a powerful instrument to stimulate integration in multicultural societies.

[1]An explanation provided by Elena Marchetti about Indigenous Sentencing Courts is available on the website of the Indigenous Justice Clearinghouse, on September 10, 2011)