Justice

Conflict-affected and fragile states

In conflict-affected and fragile states, justice systems may suffer from discriminatory practices, corruption or abuse of power by officials and failure to protect human rights - thereby exacerbating or even triggering violence and instability. Violence and/or severe state incapacity in these contexts further devastate justice systems. They suffer from poor infrastructure and insufficient human resources. Court houses and prosecutors’ offices may be destroyed and prisons are often overcrowded. Judges, lawyers and police officers may be killed or may flee the country. Those remaining might be implicated in human rights abuses and may no longer be suitable to serve in the justice system. In addition, organised and other forms of crime are prevalent in conflict and post-conflict environments.

Restoring or building effective and reliable justice systems in post-conflict and fragile states is essential in preventing the renewal of violence and in state-building. There are many challenges to achieving this. Comprehensive reform across the justice system (including the legal framework, police, prisons, prosecution service, criminal defence, civil society organisations and non-state mechanisms) is required to lay the foundation for a society based on the rule of law. However, attention is usually initially focused on security organisations and criminal justice reforms without taking into account what is required for the whole system to operate. Competing priorities, constrained resources, donor influences and the need to deliver fast can militate against strategic reform.

Assistance programmes often focus more on the state rather than the population’s needs. In general, the justice system may lack credibility and may not engender public trust and confidence. Lawyers and civil society groups may lack capacity and/or be unable to operate. A strong civil society is often absent; conflict destroys social cohesion, which prevents collective action to demand public goods. Traditional or other non-state justice and security systems usually persist through conflict. They are gaining increasing attention as a way of delivering justice immediately in the aftermath of conflict and in fragile states at the community level.

In addition to criminal justice reforms, it is also important to address civil-law protection, in particular property law, public administration law and family law, including child protection. For example, land and property disputes might have been a part of the conflict and often plague post-conflict states - as displacement forces people to flee their homes that are later occupied by others.

Page contents

Assessment tools and guidelines
Lessons learned
Reforming state institutions
Non-state justice and security systems
Serious crimes
What other resources are available on the GSDRC?
Additional information resources

Assessment tools and guidelines

A comprehensive assessment is the first step in justice sector programming and is key to informing the design and implementation of assistance measures. Tools have been developed to assist in the design of appropriate interventions, in particular in the context of peacekeeping operations, including understanding the history of the sector and monitoring ongoing patterns of human rights violations. The following documents outline how to map justice systems and the range of potential justice interventions; monitor human rights violations; and provide assessment tools.

OHCHR, 2006, ‘Rule-of-Law Tools for Post-Conflict States: Mapping the Justice Sector’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
Conflicts often arise from the failure of a state's legal system to protect rights and punish perpetrators of human rights violations. This publication from the Office of the United Nations High Commissioner for Human Rights (OHCHR) argues that mapping how the justice sector worked before and during conflict and how it should function if the rule of law is to take root should be a central feature of peacekeeping operations. Justice sector reform should receive immediate attention and significant resources from the very start of a peacekeeping operation.
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OHCHR, 2006, ‘Rule-of-Law Tools for Post-Conflict States: Monitoring Legal Systems’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
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.
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United Nations Department of Peacekeeping Operations, 2006, 'Focal Areas and Activities for Technical Assistance', Chapter 4 in Primer for Justice Components in Multidimensional Peace Operations: Strengthening the Rule of Law, United Nations, Department of Peacekeeping Operations
How can technical assistance be targeted most effectively to help re-establish a judicial system following conflict? This chapter on focal areas and activities for technical assistance from a manual by the United Nations Department of Peacekeeping Operations identifies ten areas for consideration. Technical assistance in strengthening the court system should emphasise criminal justice. Key civil law areas — such as land and property rights, or citizenship and national identification — will also need to be addressed where they are closely linked to implementation of a peace agreement, to causes of insecurity, or to the underlying conflict.
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The Principles on Housing and Property Restitution for Refugees and Displaced Persons (‘Pinheiro Principles’) endorsed by the United Nations Sub-Commission on the Promotion and Protection of Human Rights, provides policy guidance on how to ensure the right to housing and implement property restitution. The following handbook demonstrates how to apply these principles in order to secure protection and durable solutions for refugees and internally displaced persons.

OCHA/IDD, UN HABITAT, UNHCR, FAO, OHCHR, the Norwegian Refugee Council and the International Displacement Monitoring Centre, 2007, ‘Housing and Property Restitution for Refugees and Displaced Persons: Implementing the Pinheiro Principles’
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Lessons learned

The following documents draw on past experiences and interventions to outline lessons and recommendations for justice sector reform.

Samuels, K., 2006, 'Rule of Law Reform in Post-Conflict Countries: Operational Initiatives and Lessons Learnt', Social Development Papers, no. 37, Conflict Prevention and Reconstruction Unit, World Bank, Washington
What lessons have been learnt in the area of rule of law reform? This literature review from the World Bank provides an overview of common operational initiatives and policy approaches and synthesises the key challenges faced in fragile and post-conflict states. It concludes that, despite two decades of experimenting, the field lacks a common agreement on - the goals of rule of law reform, how different aspects should be sequenced to avoid them working against each other and what sorts of strategies are effective.
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Carlson, S. N., 2006, ‘Legal and Judicial Rule of Law Work in Multi-Dimensional Peacekeeping Operations: Lessons Learned Study’, United Nations Department of Peacekeeping Operations
How can programmes for strengthening the rule of law be incorporated into post-conflict peacekeeping operations? This study from the United Nations Department of Peacekeeping Operations reviews recent experience with judicial and legal programming in UN peacekeeping operations. A balanced and holistic approach to rule of law reform, which also focuses on strengthening the judicial and legal system, is needed. Achieving a coherent 'one UN approach' to rule of law peacekeeping efforts is a priority.
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Baker, B. and Scheye, E., 2007, 'Multi-Layered Justice and Security Delivery in Post-Conflict and Fragile States' Conflict, Security and Development, vol. 7, no. 4, pp. 503-528
What is wrong with a state-centric approach to Security Sector Reform? This paper examines the value of an alternative approach to SSR policy, namely a multi-layered one in post-conflict and fragile state environments. It argues that there is a state-centric bias in current SSR policy and practice. This contradicts development principles of a ‘people-centred, locally owned’ approach in post-conflict and fragile state contexts. A more realistic and operationally sound method of attaining state-building and strengthening state capacities is imperative.
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Sherman, J., 2010, 'Criminal Justice: Security and Justice Thematic Paper', World Development Report 2011, Background Paper, The World Bank, Washington DC
How can criminal justice be strengthened in countries at risk of violent conflict? This paper examines criminal justice sector reform, relating it to research on the causes of violence. It argues that rather than focusing exclusively on state institutions – or blindly rushing to support informal systems – reform must be based on an understanding of actual demand for justice services. Donors need to improve their understanding of local contexts, address funding gaps, and improve measurement of results and outcomes. Interventions should: 1) encompass a broader range of local justice requirements; 2) seek to incorporate existing links between state and informal sectors into legislation and procedures; and 3) counter organised- and cross-border crime through multi-sectoral interventions with long-term vision.
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Stabilisation Unit, 2008, ‘Security Sector and Rule of Law’, Stabilisation Issues Note, UK Stabilisation Unit
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This study draws lessons from the experiences of UK-funded policing and justice programmes in seven countries, including the conflict-affected countries of Nepal, Afghanistan and Sierra Leone.

Stone, C. et al., 2005, 'Supporting Security, Justice and Development: Lessons for a New Era', Vera Institute of Justice, New York
An understanding of how insecurity and poverty are linked is increasingly informing development assistance. How can assistance with policing and justice be strengthened? This paper, part of a larger study commissioned by the UK government, draws together lessons from the experiences of recent UK funded policing and justice programmes in seven countries: Afghanistan, India, Jamaica, Malawi, Nepal, Nigeria and Sierra Leone.
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The following literature review focuses on perspectives and relevance of justice and security to the poor and on the importance of security and justice for meeting the MDGs. It also identifies gaps in knowledge. The review draws in large part on literature concerning conflict-affected and fragile contexts.

Ismail, O. and Hendrickson, D., 2009, ‘What is the Case for a Security and Justice Focus in Development Assistance Programming?: An Assessment of Existing Literature and Evidence’, Prepared for DFID on behalf of GFN-SSR, University of Birmingham
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The following brief document from the Brookings Institution stresses the importance of establishing property rights in situations of mass displacement.

Williams, R. C., 2008, ‘Applying the Lessons of Bosnia in Iraq: Whatever the Solution, Property Rights Should be Secured’, Brookings Institution, Washington, DC
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Reforming state institutions

Constitutional and legal reform

The laws in many fragile and conflict affected states are often discriminatory against the poor and marginalized and violate international human rights standards. They may also be outdated and therefore lack certain provisions that are key to protecting the safety and security of the population (e.g. definitions of organised crime or trafficking in persons; witness protection provisions, etc). Inevitably, the laws in fragile and conflict-affected states need to be reformed, especially where a new constitution has introduced provisions on human rights and the re-organisation of the justice system. In many instances, small-scale reforms have been done in the interim period after conflict pending more broad-scale reforms that significantly amend and ameliorate the entire legal framework from criminal law to civil law to public administration law.

Hart, V., 2003, ‘Democratic Constitution Making’, Special Report, United States Institute of Peace, Washington, DC
In this era of democratisation, constitution making plays a key role in determining the legitimacy and acceptability of new nations, particularly those emerging from conflict. This report from the United States Institute of Peace examines recent experiences of constitution making, emphasising the emerging international consensus around the need for participatory processes. Participatory constitution making can provide a forum for reconciling divisions, negotiating conflict and redressing grievances. Process has joined outcome as a necessary criterion for legitimating new constitutions.
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Social and political tension related to secular and religious divides has been prevalent in various parts of the world. The following article examines the concept of ‘constitutional theocracy’ and constitutional responses to the issue of ‘religion and state’. It focuses on Egypt, Pakistan, Turkey, Israel, Nigeria, and Malaysia.

Hirschl, R., 2008, ‘The Theocratic Challenge to Constitution Drafting in Post-Conflict States’, William and Mary Law Review, vol. 49, no. 4, pp. 1179-1211
The influence of theocratic principles is rising around the world. This article from the William and Mary Law Review assesses the challenges this trend creates in post-conflict political and legal development. It identifies a new form of governance, ‘constitutional theocracy', that has emerged from these tensions. Constitutional courts can play a key role in preserving the secular nature of polities against growing support for theocratic governance. In spite of some institutional progress, however, further study on religion in post-conflict constitutionalism is needed to address the growing theocratic challenge.
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The Model Codes for Post-Conflict Criminal Justice Project has created a set of model codes that could be used as tools by both international and national actors engaged in the criminal law reform process in post-conflict states around the world. They were drafted in a way that takes into account their potential cross-cultural application and use, in addition to the inevitable exigencies of a post-conflict environment.

Legal Aid and Assistance

Formal legal aid schemes are often established in post-conflict or fragile states contexts but are limited by the lack of lawyers in the country and may not be affordable. They need to be supplemented by other initiatives that involve civil society. ‘Paralegal aid schemes’ include the assistance of non-lawyers who can’t represent a client in court but can provide advice.

Maru, V., 2006, ‘Between Law and Society: Paralegals and the Provision of Primary Justice Services in Sierra Leone and Worldwide’, Open Society Institute, New York
The realisation of human rights requires universal access to basic justice services. The institution of the paralegal is a powerful method for providing such services, combining legal knowledge with the creative, flexible tools of social movements. This essay, published in The Yale Journal of International Law, details the experiences of an experimental community-based paralegal program in Sierra Leone. It argues that paralegals can provide the requisite engagement with contextual social and legal particularities to help bridge the gap between law and society.
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Police reform

Police reform is vital to security and stability in conflict-affected and fragile states. It is also vital to broader governance reforms.

Ziegler, M. and Nield, R. 2001, ‘From Peace to Governance: Police Reform and the International Community’, Washington Office on Latin America (WOLA)
This report summarises the findings of a conference, 'Police Reform and the International Community: From Peace Processes to Democratic Governance'. Despite the political risks, the positive aspects of police reform have encouraged donors to participate. Police reform can support demilitarisation and democratisation, boost economic growth, reduce poverty, and improve respect for human rights. However, case studies from Central and South America and South Africa highlight the difficulty of achieving reform where violent crime is on the rise.
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The following paper stresses the importance of properly coordinating international policing, local police reform and judicial reform.

Mobekk, E., 2005, 'Identifying Lessons in United Nations International Policing Missions', Policy Paper no. 9, Geneva Centre for the Democratic Control of Armed Forces (DCAF), Geneva
How can the United Nations improve its civilian policing missions? This paper from the Geneva Centre for the Democratic Control of Armed Forces reviews the experiences of UNPOL (United Nations Civilian Police) missions to identify problems in international policing, and suggest policy improvements. It argues for the integration of local police and judicial reform while remaining sensitive to existing justice mechanisms, and stresses the importance of training, accountability, institutional memory and co-ordination within international policing missions.
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Vetting

Vetting is a process whereby individuals who lack integrity and who are considered a threat to the state are excluded or removed from public office. In post-conflict contexts, vetting forms a part of transitional justice strategies. It needs to be rigorous in the security and justice sectors – to contribute to accountability and the prevention of future violations.

OHCHR, 2006, ‘Rule-of-Law Tools for Post-Conflict States: Vetting - An Operational Framework’, Office of the United Nations High Commissioner for Human Rights, New York and Geneva
Reforming public institutions is a core task in countries in transition from authoritarianism or conflict to democracy and peace. This United Nations High Commissioner for Human Rights (OHCHR) publication sets out an operational framework for vetting and institutional reform. The complex challenges of transitional contexts require a comprehensive approach to institutional reform. An effective and legitimate reform strategy will situate vetting in its broader context.
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Fithen, C., 2009, ‘The Legacy of Four Vetting Programs: An Empirical Review’, International Centre for Transitional Justice, New York
How can vetting help to improve institutions undergoing transition? This paper from the International Centre for Transitional Justice reviews evidence from four country case studies, highlighting the important distinctions between post-conflict and post-authoritarian transitions. It argues that while vetting cannot be divorced from its institutional context, proper planning and commitment to long-term reform can override political obstacles.
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DCAF, 2006, ‘Vetting and the Security Sector’, DCAF Backgrounder, Geneva Centre for the Democratic Control of Armed Forces, Geneva
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Penal reform

Prison and penal reform is an important yet often neglected aspect of justice sector reform. Necessary interventions in post-conflict societies include dealing with overcrowding; the rehabilitation of buildings; the recruitment and training of appropriate staff; the development of appropriate legislation and policies; and the adoption of a human rights approach to prisoner management. The following article provides recommendations for these and other related interventions.

United Nations Department of Peacekeeping Operations, 2005, ‘Supporting National Prison Systems: Lessons Learned and Best Practices for Peacekeeping Operations’, United Nations, Criminal Law and Judicial Advisory Unit, Peacekeeping Best Practices Section
What role can the establishment of humane, effective prisons have in the peacekeeping process? This study from the United Nations Peacekeeping Best Practices Section reports lessons learned from previous peacekeeping operations that have involved prison support. Although judicial and prisons components have been included in most recent peacekeeping operations, mission capacities have been insufficient. Future efforts must be not only better resourced, but also more attuned to best practices in prison re-establishment and strengthening.
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Non-state justice and security systems

Traditional, customary and non-state justice systems are a feature of many conflict-affected and fragile states. They can facilitate participation and access to justice to those who are often excluded from formal systems; they are familiar to local populations; and can be quick and convenient. Such systems can also be problematic, however, as they can be discriminatory against certain groups – in particular, women or those not from the locality. In addition, there may be little oversight or referrals to judicial and other formal institutions.

Scheye, E., and McLean, A., 2006, 'Enhancing the Delivery of Justice and Security in Fragile States', Organisation for Economic Cooperation and Development - Development Assistance Committee (OECD/DAC) Network on Conflict, Peace and Development Co-operation, Paris (CPDC)
How should international actors contribute to the support of justice and security in fragile states? This paper from the OECD/DAC Network on Conflict, Peace and Development Co-operation analyses the providers, processes and objectives of fragile states’ justice and security services, and reviews lessons learnt by donors in this area. It argues that international actors should take a multi-layered, context-specific approach to fragile states, developing the capacity of the state, but also enabling it to engage with non-state justice and security providers.
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The following paper addresses the strengths and weaknesses of traditional justice systems in the context of Africa, where their goals are often described as the restoration of peace and social harmony, as opposed to retributive justice.

Kimathi, L. W., 2005, ‘Non-state Institutions as a Basis of State Reconstruction: The Case of Justice Systems in Africa’, Paper presented at CODESRIA’s 11th General Assembly, 6-10 December, Maputo, Mozambique
How can non-state justice institutions further the process of state reconstruction in Africa? This paper from the Catholic University of Eastern Africa discusses the way in which the state can be made more responsive by incorporating non-state institutions in formal state structures. It argues for a synergy of formal and informal justice systems to enhance the advantages and minimise the disadvantages of each. Measures to improve non-formal justice should be pursued alongside efforts to decentralise and streamline formal justice structures.
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The formal and informal justice systems in Afghanistan are not integrated and act in isolation. This edition of the Afghan Human Development Report advocates for ‘a hybrid model of Afghan justice’ that would draw on the positive aspects of both systems.

Wardak, A., Saba, D. and Kazem, H., 2007, ‘Bridging Modernity and Tradition: The Rule of Law and the Search for Justice’, Afghan Human Development Report, Centre for Policy and Human Development, Kabul and Army Press, Islamabad
How can justice and the rule of law be strengthened to advance human development in Afghanistan? This report from the Centre for Policy and Human Development highlights the links between human development and the rule of law. It makes the case for a 'Hybrid Model' of Afghan justice involving a collaborative relationship between formal and informal justice institutions.
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The following report examines the possibility of closer collaboration between the formal and informal legal systems in Burundi.

Dexter, T. and Ntahonbaye, P., 2005, ‘The Role of Informal Justice Systems in Fostering the Rule of Law in Post-Conflict Situations: The Case of Burundi’, Centre for Humanitarian Dialogue, Geneva
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Non-state security systems include vigilante and neighbourhood watch organisations set up in local communities. Such organisations can be essential for poor people whose livelihoods are threatened by theft of private property. However, there are human rights risks where such organisations administer punishments without due process. The level of local legitimacy and inclusiveness of non-state security systems is important as they range from community groups to protection rackets and organised crime. In addition, private security companies are increasingly operating in countries where state law enforcement is inadequate, with implications for the security gap between the rich and poor.

Shaw, M., 2002, 'Chapter 6: The Impact of Private Policing,' in Crime and Policing in Post-Apartheid South Africa: Transforming under Fire, C Hurst & Co, London
Despite a peaceful transition to democracy, post apartheid South Africa has experienced a dramatic increase in violent crime. This trend has been met by a rapid increase in private security companies providing services to the suburban middle class. This chapter explores the nature of the private sector boom and its role in achieving justice and security in South Africa.
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The following GSDRC helpdesk report highlights literature that assesses donor support to the non-state security and justice sectors in conflict-affected and fragile contexts.

GSDRC, 2009, ‘Donor Support to Non-state Providers of Security and Justice’, Helpdesk Research Report, GSDRC, Birmingham
Whilst there is a growing body of literature analysing, and advocating for increased assistance to, non-state providers of security and justice in post-conflict and fragile situations, there is very little evidence available of how donors have supported these actors. Supporting non-state justice and security is widely acknowledged to be a highly complex and controversial area which donors have historically tended to avoid. There is, consequently, very little in the way of systematic ‘lessons-learned’ in this area. Nonetheless, the literature points to several recommendations, which are outlined in this report.
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Serious crimes

Serious crimes – such as organised crime, trafficking, money laundering, corruption and terrorism – flourish in societies with weak rule of law institutions. Such criminal activity is often linked to wider social conflict through, for example, the funding of violent movements, the harbouring of war crimes fugitives, or in the case of organised criminal groups, the perpetuation or extension of their control of the political and economic sphere. Serious crimes represent a tremendous challenge to peace and stability in conflict-affected and fragile states.

The following UN document outlines key sectors of illicit trafficking and organised crime as well as countermeasures.

UN Secretariat, 2005, ‘Effective Measures to Combat Transnational Organised Crime: Working Paper Prepared by the Secretariat’, Eleventh United Nations Congress on Crime Prevention and Criminal Justice, 18-25 April, Bangkok
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The following two documents from the United States Institute of Peace identify how to address the problem of serious crimes. The first document stresses the importance of understanding the political, economic, legal and social context of serious crimes in order to effectively counter it – and outlines how to conduct such an assessment. The second document provides an overview of various institutional reforms necessary to improve the fair and effective investigation and prosecution of serious crimes, and the imprisonment of serious crime perpetrators.

Rausch, C. (ed), 2006, 'Conducting an Assessment', Chapter 2 in Combating Serious Crimes in Post-Conflict Societies: A Handbook for Policymakers and Practitioners, United States Institute of Peace, USIP Press Books, Washington, D.C.
What should be covered by an assessment of serious crime in a country emerging from conflict? How should such an assessment be conducted? This chapter from a handbook by the United States Institute of Peace provides comprehensive guidelines. The assessment should include political, economic and social factors plus capacity and challenges both within and outside of the criminal justice sector. Assessors should gauge a country's political will to address serious crime and to work with international bodies in doing so.
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Rausch, C. (ed), 2006, 'Institutional Reforms', Chapter 4 in Combating Serious Crimes in Post-Conflict Societies: A Handbook for Policymakers and Practitioners, United States Institute of Peace, USIP Press Books, Washington, D.C.
How can institutional reforms aid effective investigation and prosecution in post-conflict societies? This chapter forms part of a handbook on serious crime in post-conflict societies from the United States Institute of Peace. It presents examples of institutional reform mechanisms, drawing from a dozen recent international interventions and covering the police, the judiciary, prosecutor services, criminal defence, and prisons. Institutional reforms to the criminal justice system in post-conflict societies are crucial in developing a fair and effective system of justice that is transparent, accountable and efficient.
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Although the types of organised crime in Kosovo and Liberia differed, like in many states, they served in both cases to fuel conflict and continue to be a challenge to institution-building and peacebuilding efforts.

Teran, N. S., 2007, ‘Peacebuilding and Organised Crime: The Cases of Kosovo and Liberia’, Swisspeace, Bern
Combating organised crime should occur throughout the conflict continuum, from conflict prevention to post-conflict peacebuilding. This paper, published by Swisspeace, examines the impact of organised criminal groups on peacebuilding efforts in Kosovo and Liberia. Although types of organised crime differ in the two countries, both cases demonstrate that it presents a serious threat to peacebuilding efforts and damages the functioning of democratic institutions.
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The following GSDRC helpdesk report explores the impact of organised crime on development and governance.

GSDRC, 2008, 'Organised Crime and Development', Helpdesk Research Report, GSDRC, Birmingham
Given the nature of organised crime, it is difficult to monitor and accurately measure its prevalence and economic impact. Some of the literature notes that while levels of organised crime have increased in some regions/countries and decreased in others, its global scale remains roughly the same. However, some experts claim that organised crime is on the increase at the global level, in line with financial globalisation, corruption, and the expansion of the shadow economy. Organised crime usually involves the complicity or direct involvement of the public sector; and organised criminal groups gain power and resources from the shadow economy, while also investing in it.
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What other resources are available on the GSDRC?

More resources on justice in conflict-affected and fragile states can be accessed in the ‘human rights, gender and social exclusion’ and ‘transitional justice’ sections of this guide.
More resources on non-state systems can be accessed in the ‘non-state justice and security systems’ section of this guide.

Additional information resources

The Global Facilitation Network for Security Sector Reform (GFN-SSR) produces regional topic guides that provide overviews of security and justice sector reform specific to the region. They highlight key regional texts as well as country case studies. Current guides include East Africa, West Africa, the Middle East, Latin America and the Caribbean, and Eastern Europe.
International Network to Promote the Rule of Law (INPROL) is an internet-based knowledge network that facilitates information exchange among practitioners and experts and provides access to relevant documents, best practices, and related materials.
United States Institute of Peace’s (USIP) Rule of Law Center conducts research, identifies best practices, and develops new tools for policymakers and practitioners working to promote the rule of law. It has played a significant role in shaping the field and in advancing the rule of law in fragile and post-conflict societies.
U4 Anti-Corruption Resource Centre has an extensive online research directory on corruption issues, in various sectors, and anti-corruption strategies.

UN websites: