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Key Text Rule-of-Law Tools for Post-Conflict States: Monitoring Legal Systems

Author: OHCHR
Date: 2006
Size: 62 pages (560 KB)

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Summary

Post-conflict environments suffer from devastated and often completely dysfunctional or discriminatory legal frameworks and institutions of justice. This Office of the United Nations High Commissioner for Human Rights (OHCHR) report argues that monitoring legal systems can form a vital part of peacekeeping operations by promoting the rule of law. It provides a framework for developing a monitoring programme to analyse institutions and the justice system as a whole from which good practices can be reinforced and bad practices addressed.

The objective of monitoring is to improve the legal system’s compliance with the law, including applicable international and regional standards, and to support the rule of law. Without an accurate, in-depth and coherent picture of the actual functioning of the justice system, it is difficult to formulate reform strategies that are targeted and effective while maximising limited resources. The underlying principle of monitoring the justice system is to reinforce the proper role and response of the system by encouraging those in it and those in authority to fulfil their obligations. The role of monitors is not to try to solve individual problems, as this may simply reinforce systemic failure.

Developing a justice system that protects human rights and promotes the rule of law is a critical aspect of securing peace and preventing future conflict. The report also finds that:

Transforming dysfunctional justice systems requires comprehensive institution-building and reform. Monitoring legal systems implies a holistic approach that looks at the overall functioning of the system and its institutions.
Monitoring of the legal system is aimed at identifying widespread patterns or trends in violations of international standards and the systemic issues that hinder compliance in order to support effective reform initiatives.
High levels of insecurity in post-conflict or transitioning environments can hamper a whole reconstruction and peacebuilding effort. Establishing a base for the rule of law, beginning with public safety and accountability, is a foremost concern.
Publicising well-documented human rights concerns and systemic problems within the justice system and informal justice mechanisms, can be essential not only for targeting reform and resources but also for generating the political will to do so.

Ultimately, those responsible for legal system monitoring programmes in post-conflict settings should set their priorities and goals based on the situation and implement these with professionalism, integrity and respect for the national context. A peacekeeping operation’s primary objective regarding legal reform is to reinforce the justice system in its functioning, not to attempt to replace it with the operation’s own actions. Suggested guidelines include:

A monitoring programme should have representatives at the headquarters and each regional or field office. The headquarters should have a programme chief and at least one reporting and analysis officer.
The monitoring team, after gaining an overview of the system, should select priority types of cases, issues or implementation of legislation for all monitors to follow systemically.
The chief of the monitoring programme should have regular meetings with the chief of the judiciary, the minister of justice and other officials in the government to discuss issues raised by the legal system monitors.
Periodic reports on the justice system should reflect the operation’s assessment of the needs of the legal system, personnel and the impact that assistance efforts are having, positive or negative.
Reports should combine a diagnosis based on a comparison of a number of similar cases or issues, with a proactive, problem-solving approach, and include practical and appropriate recommendations to address the problems identified.

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Source: OHCHR, 2006, 'Rule-of-Law Tools for Post-Conflict States: Monitoring Legal Systems', Office of the United Nations High Commissioner for Human Rights (OHCHR), New York and Geneva
Author: Office of the United Nations High Commissioner for Human Rights (OHCHR), http://www.ohchr.org