Criminal Justice Reform In Post-conflict States
Criminal justice reformin post-conflict StatesA guide for practitionersUNITED STATES INSTITUTE OF PEACE
UNITED NATIONS OFFICE ON DRUGS AND CRIMEViennaCriminal justice reformin post-conflict StatesA guide for practitionersDeveloped jointly withthe United States Institute of PeaceUNITED NATIONSNew York, 2011
United Nations, September 2011. All rights reserved.The designations employed and the presentation of material in this publication do not imply the expressionof any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal statusof any country, territory, city, area or of its authorities, or concerning the delimitation of its frontiers orboundaries.This publication has not been formally edited.Publishing production: English, Publishing and Library Section, United Nations Office at Vienna
ForewordThe reform of criminal justice systems has become a priority for the international community in its efforts to assist transitional and post-conflict societies in re-establishing therule of law. In different parts of the world—from Afghanistan to Iraq, Haiti to Liberia—numerous international and regional organizations, bilateral donors, and non-governmental organizations are engaged in a variety of activities aimed at rebuilding or developingcriminal justice systems.The men and women sent by the international community to advise post-conflict Stateson specific facets of criminal justice reform are talented, dedicated, and hard working.However, their determination to make a difference can lead them—especially thoseunfamiliar with the requirements of operating in unstable and unpredictable post-conflictenvironments—to focus solely on their own aspects of criminal justice reform and losesight of the challenges and complexities of criminal justice reform as a whole.While focusing on one’s own reform project is understandable, such a focus is decidedlydetrimental to the prospects of rebuilding an effective criminal justice system. These systems may have many moving parts that do not function in isolation; but rather are elaborately interconnected, with each component affecting all others. For instance, a seeminglymodest change in the law on domestic violence may influence the number of arrests madeby the police, which may have a cascading affect on the caseloads of prosecutors anddefence counsel, the work of the courts, the number of people sent to prison, and the programmes to reintegrate offenders back into society.Such connected systems cannot be successfully reformed in an unconnected fashion. Oneshould not expect to improve policing in a post-conflict State merely by redrafting policeprocedures and giving the police more resources. Significant and sustainable improvements in policing also depend on changing the capacity of the courts, enhancing respectfor human rights, remoulding public attitudes towards law enforcement, and introducinga range of other measures, some of which may seem only distantly related to policing.In recognition of these complexities, the United Nations Office on Drugs and Crime(UNODC) and the United States Institute of Peace (USIP) have collaborated to producea guide designed to introduce individuals whose experience in promoting the rule of lawmay be limited—whether in extent or scope—to the entire landscape of criminal justicereform. Previous studies by other organizations have explored specific areas of criminaljustice reform, but this guide seeks to examine the full breadth of activity, from policing tocourts to prisons, from the formal justice system to customary courts to civil society.iii
criminal justice reform in post-conflict states—a guide for practitionersOver the course of the project, UNODC and USIP enlisted experts in all facets of criminaljustice reform and experienced practitioners of programmes in many different postconflict and transitional countries and areas (e.g., Afghanistan, Bosnia and Herzegovina,Cambodia, El Salvador, Haiti, Iraq, Kosovo, Liberia, Malawi, Nepal, Sudan, Timor-Leste)to contribute their knowledge and experience to the project. That expertise has been distilled into this volume through a process of review and revision designed to create a workof substantive quality and practical value.This guide’s chief ambition is not to offer detailed advice to specialists, but rather to provide a general overview and to enable specialists in all areas to see their own activity withinthe broad context of the criminal justice reform process. The guide examines particularfacets of reform activity (courts, detention, police reform), surveys the wider landscape ofcriminality in post-conflict and transitional States, and addresses key skills (such as programme management and capacity development) pertinent to all types of reform. It alsoencourages readers to delve more deeply into particular areas and lists a wide range offurther reading and resources to facilitate such explorations.The breadth of coverage in this volume reflects the scope of interests of the two organizations that conceived and piloted the project. UNODC is mandated by the United NationsCommission on Crime Prevention and Criminal Justice to assist nations in reforming theircriminal justice systems with international standards and norms, and it operates in allregions of the world through an extensive array of field offices. USIP is mandated by theUnited States Congress to promote research, education, and training in the prevention,management, and resolution of international conflict, and conducts or supports work thatseeks peaceful solutions to conflicts around the globe. Among the many ways in whichthese two institutional missions overlap is the interdependence of security, rule of law, anddevelopment. As is increasingly recognized, the presence of security and the rule of lawprovide a platform for development in the economic, social, and political arenas. Development, in turn, can assist in strengthening long-term security and the rule of law.UNODC and USIP’s partnership on this project is a natural outgrowth of past collaborationbetween two organizations recognized as leaders in the field of criminal justice reform.Members of USIP’s Rule of Law programme participated in reviewing drafts of UNODC’sCriminal Justice Assessment Toolkit, and UNODC’s partnership was valuable in the development of USIP’s Model Codes for Post-Conflict Criminal Justice. Both the Criminal Justice Assessment Toolkit and the Model Codes have been widely hailed for their authoritative and originalcontributions to a rapidly evolving and highly challenging field of international endeavour.We trust that this new guide will prove equally valuable to those individuals and organizations who strive to help the citizens and governments of post-conflict and transitional Statesrebuild the rule of law.Yury FedotovExecutive DirectorUnited Nations Office on Drugs and CrimeivRichard SolomonPresidentUnited States Institute of Peace
AcknowledgementsThis study was prepared by a team of authors: Claudia Baroni (UNODC), Deborah Isser(USIP), Christina Murtaugh (USIP), Lelia Mooney (Governance and DevelopmentStrategies Consulting), Vivienne O’Connor (USIP), William O’Neill (Conflict Preventionand Peace Forum), Colette Rausch (USIP), Mark Shaw (UNODC), and Adam Stapleton(The Governance & Justice Group). The authors would like to acknowledge the contributions made by Scott Carlson and Mark Lalonde to earlier drafts of this manuscript and toYolande Bouka and Rebecca Wharton for their research assistance. Special thanks go toNigel Quinney, who expertly edited the manuscript.UNODC and USIP wish to acknowledge the valuable contributions made by the following experts, who have reviewed, at different stages, various drafts of this study: Lord JohnAlderdice, Aly Alibhai, Nina Berg, Frits Bontekoe, Charles Briefel, Melanne Civic, YvonDandurand, Michele Greenstein, Anna Giudice Saget, Isabel Hight, Stephane Jean, NeilKritz, David Marshall, Kaoru Okuizumi, Robert Pulver, Slawomir Redo, Ali Saleem,Caroline Smit, Sandra Valle, Thierry Vircoulon and Ronald Woodbridge.v
ContentsForeword 1.2.3.4.5.iiiAcknowledgements vIntroduction 11.1Terminology and definitions 21.2Guiding principles for criminal justice reform efforts 31.3How the guide is organized 6Criminal justice institutions and actors 92.1Introduction 92.2State institutions and actors 92.3Customary and non-State systems of justice 132.4Civil society and related actors 142.5International donors and actors 14Residual violence and post-conflict criminality 153.1Introduction 153.2Categories of crime 153.3Assessing the nature and scope of criminality and violence 16Managing criminal justice reform initiatives 194.1Introduction 194.2Assessment of the criminal justice sector 194.3Project design 234.4Project implementation 254.5Monitoring and evaluation 27Addressing the needs of vulnerable groups 315.1Introduction 315.2Who are the vulnerable? 315.3Assessing the needs of vulnerable groups 325.4Programmatic options to address the needs of vulnerable groups 33vii
6.7.Capacity development 376.1Introduction 376.2Defining capacity 376.3Defining capacity development 386.4Capacity development: supporting factors and inhibitors 386.5The capacity development cycle 396.6The phases of the capacity development cycle 40Legal empowerment 477.1Introduction 477.2General features of legal empowerment 477.3Identifying the needs of the ordinary person 487.4Strengthening the roles of the population and civil society 48Establishing processes and organizations to address the justiceneeds of the poor 497.6Private–public partnerships 547.7Drawing on experiences from other post-conflict countries 557.58.9.Law reform 578.1Introduction 578.2What are the applicable laws in the post-conflict State? 578.3Why is law reform necessary? 598.4What are the aims of law reform? 608.5Past experiences in post-conflict law reform 618.6Post-conflict law reform: best practices 63Police reform 699.1Introduction 699.2Understanding the context of post-conflict policing 709.3Engaging multidisciplinary teams 719.4Timelines for transformation 719.5Moving from problems to solutions 729.6Managing change 739.7Consulting with police in the ranks 749.8Balancing crime fighting and human rights 749.9Management tools, administration practices and fiscal control 769.10Police oversight bodies 779.11Incentive, recruitment and promotion structures 79viii
10. Courts, prosecution and defence reform 8310.1Introduction 8310.2Programmatic options 8411. Detention and prisons reform 9111.1Introduction 9111.2Assessing the situation 9111.3Establishing relationships with national authorities 9411.4Short-term programmatic options 9511.5Longer-term programmatic options 9812. Working with customary and non-State justice systems 10312.1Introduction 10312.2.Customary justice systems 10312.3General features of customary justice systems 10412.4Limitations of customary justice systems 10812.5Relationship with the formal customary justice system 10912.6Programmatic options 11013. Promoting a culture of lawfulness 11513.1Introduction 11513.2Understanding the culture of lawfulness 11513.3Fostering a culture of lawfulness 116ix
1. IntroductionThis guide describes a cross-section of the key challenges and lessons that have emergedfrom recent international efforts to strengthen and reform criminal justice administration in post-conflict and transitional States. Although the body of literature in this fieldis growing, few publications to date share the goal of this guide: namely, to introducebasic issues, resources, strategies, and programming options to professionals who arejoining the field.As befits a guide for practitioners, this book has a decidedly pragmatic focus. Although itcovers many of the scholarly issues involved in criminal justice reform, it devotes the bulkof its attention to describing, in the most practical terms possible, a body of knowledgethat an international justice advisor (hereafter simply “advisor”) needs in order to be effective immediately upon deployment in a foreign country.The intended audience for this guide consists of the men and women who are sent abroadby governments, intergovernmental organizations, and non-governmental organizations toadvise and consult with local counterparts on how to develop and improve local criminaljustice systems. These advisors are drawn from a variety of professional backgrounds—forexample, the legal profession, the judiciary, the police, the corrections and the development community, as well as non-governmental organizations (NGOs) and civil societycommunities—and bring with them an equally broad range of expertise and experience.Each advisor is likely to work on a discrete element of criminal justice reform. However, ifan advisor is to work effectively and to integrate his or her efforts with the work of colleagues, he or she must understand all the elements involved in the criminal justice systemas a whole.As an advisor becomes more involved in assisting in the reform of a particular justice system, a multitude of complex issues will naturally arise. This guide does not explore all suchissues in great detail; instead, it is designed to serve as an introduction.Although this guide focuses on the role played by international advisors and the issues thatthey are likely to face, much of the material in the following chapters may also be helpfulto their national counterparts. These national counterparts, however, often confront anumber of issues and challenges that advisors do not face. These issues are outside thescope of this guide.1
criminal justice reform in post-conflict states—a guide for practitioners1.1 Terminology and definitionsRule of lawThe United Nations Secretary-General defines the “rule of law” as follows:The “rule of law” is a concept at the very heart of the [United Nations’] mission.It refers to a principle of governance in which all persons, institutions and entities,public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which areconsistent with international human rights norms and standards. It requires, as well,measures to ensure adherence to the principles of supremacy of law, equality beforethe law, accountability to the law, fairness in the application of the law, separation ofpowers, participation in decision-making, legal certainty, avoidance of arbitrarinessand procedural and legal transparency.1This definition, which has been widely accepted by practitioners and policymakers in therule of law community, describes an ideal end-state to work towards, one that features asystem of government that is transparent and accountable and embodies other checks andbalances. Criminal justice reform is seen as being subsumed within the broader rule of lawreform agenda. The work of the advisor is to translate this definition into a series of executable assistance programmes that reach achievable benchmarks, demonstrating incremental progress towards the end-state.Post-conflictThis book is concerned with post-conflict States. This term, however, can be a vague one.As used throughout this guide, “post-conflict” refers to the aftermath of a conflict andusually applies to a post-war situation—but it can also apply to the aftermath of an internalrebellion, a situation that does not necessarily fit conveniently into standard conceptionsof war.2 Moreover, there is often no clean divide between a “conflict State,” meaning aState experiencing conflict, and a “post-conflict State.” While a conflict may have officiallyceased, small-scale conflict may still be ongoing.Another term used frequently is “transitional State,” referring to a State that is emergingfrom a totalitarian regime and moving towards a State built on the rule of law. Operationsin post-conflict States and in transitional States have obvious differences but also share anumber of similarities. For example, a transitional State that is moving away from a totalitarian past may have the same pressing need for code reform that a post-conflict Statedoes. Although much of the discussion in this book focuses on post-conflict circumstances,it may be equally relevant to transitional environments.21United Nations Security Council (UNSC), Report of the Secretary-General on the Rule of Law and Transitional Justice inConflict and Post-conflict Societies (2004), UN Doc S/2004/106, para. 6.2This definition of a post-conflict State is from United Nations Development Programme (UNDP), Programming for Justice—Access for All: A Practitioner’s Guide to a Human Rights–Based Approach to Access to Justice (Bangkok: United Nations Development Programme, 2005), 178.
chapter 1.introduction1.2 Guiding principles for criminal justice reform effortsIn April 2008, on the heels of his 2004 report Rule of Law and Transitional Justice in Conflict and Post-conflict Societies,3 the Secretary-General issued the Guidance Note of theSecretary-General: UN Approach to Rule of Law Assistance, which provides a set of eightguiding principles for United Nations’ rule of law activities in all circumstances, including in crisis, post-crisis, conflict prevention, conflict, post-conflict, and developmentcontexts.4 For those within the UN system, these guiding principles shape all rule of lawactivities, including criminal justice reform–related activities. For those outside the system, the principles are equally valuable not least because they draw together best practices in the field of rule of law.The eight principles are described as follows in the Guidance Note of the Secretary-General:UN Approach to Rule of Law Assistance.1. Base assistance on international norms and standardsThe normative foundation for UN rule of law work is the Charter, together with thefour main pillars of the international legal system: international human rights law,international humanitarian law, international criminal law and international refugeelaw. The countless UN treaties, declarations, guidelines and bodies of principlesrepresent universally applicable standards. As such, they incorporate a legitimacythat cannot be said to attach to exported national models reflecting the values orexperience of donors and assistance providers. These standards form the normativeparameters for UN engagement, for example: the UN will neither establish nordirectly participate in any tribunal that allows for capital punishment nor endorsepeace agreements that allow for amnesties for genocide, war crimes, crimes againsthumanity or gross violations of human rights. All UN approaches to rule of lawissues should take their guidance from, and be developed in conformity with, theapplicable international standards.2. Take account of the political contextThe international community has sometimes underestimated the extent of political will necessary to support effective rule of law development and invested inadequately in political dialogue on rule of law promotion. Rule of law activities takeplace in neither an economic nor a political void, and require changes in the legalframework and the institutional structures of governance and their functioning.Rule of law development, like all national reforms, generates winners and losers.They are therefore political questions as well as technical ones. Rule of law assistance has often overemphasized technical dimensions and paid less attention topolitical and strategic considerations. Until national stakeholders see the utility insupporting rule of law development, technical assistance will have little impact.3UNSC, Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies,UN Doc S/2004/106.4United Nations, Guidance Note of the Secretary-General: UN Approach to the Rule of Law Assistance (14 April 2008),http://www.unrol.org/doc.aspx?doc id 2124.3
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the broad context of the criminal justice reform process. The guide examines particular facets of reform activity (courts, detention, police reform), surveys the wider landscape of criminality in post-conflict and transitional States, and addresses key skills (such as pro-gramme management an
the Criminal Justice System. For this reason, Criminal Justice Reform would make an ideal topic for high school students to debate. Federal Role in CJR Past papers, and previous reviewers of this paper, have cited that the federal government plays a small role in the day-to-day workings of the criminal justice system.
US Department of Justice, World Factbook of Criminal Justice Systems, Bureau of Justice Statistics, Washington DC, 1993 MODULE 2 ASPECTS OF COMPARATIVE CRIMINAL POLICY. 6 Systems of Administration of Criminal Justice (Adversarial & Inquisitorial) . Perspectives on Criminal Justice Systems,
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