Justice

Conflict-affected and fragile states (part 1)

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

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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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 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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Conflict-affected and fragile states (part 2) >