Judicial & Legal Reform/(Re)construction & Peacebuilding Processes
Last Updated: May 7, 2009
The characteristics of post-conflict contexts
Post-conflict situations are characterized by much more problematic "starting points" than other contexts, including low-income, developing countries. Indeed, post-conflict contexts are "frequently characterized by a complete legal vacuum, devastation of the justice sector infrastructure from courts to prisons, very low human capacity with few, if any, qualified personnel, including judges, prosecutors, defense lawyers, legislators, drafters, law professors, and legal policy experts, and a population with a deep mistrust and lack of faith in the justice sector."1Post-conflict justice systems have a certain number of common characteristics:
- A huge discrepancy between the increased need for justice services and the lack of national resources to provide them;
- Severe shortages of qualified judges, prosecutors, lawyers, police officers, and other functionaries;
- Politically tainted, underqualified, and/or corrupt justice system officials, including judges, prosecutors, lawyers, and police;
- Lack of financial and material resources (e.g., salaries, office supplies);
- Devastated physical infrastructure (e.g., court buildings, prisons);
- Outdated, inapplicable, or inappropriate laws (more particularly, no law to deal with post-conflict challenges and existing laws that often do not adhere to international human rights standards);
- Uncertainty about the applicable legal framework (including substantive and procedural goals and whether to deal solely with present and future issues or to redress past injustices stemming from conflict, as well);
- Backlog of injustices not addressed or inappropriately/illegally addressed;
- The populations mistrust in and wariness of the justice system; and
- The populations limited access to and/or knowledge of the justice system and of their legal rights (which should not be equated with uninterest in having justice).2
A few illustrations are:
- In Timor-Leste, fewer than 10 lawyers were working at the time of the establishment of the United Nations Transitional Administration in East Timor (UNTAET) in 1999.3 (see case study)
- In Kosovo, only 30 out of a pre-war total of 756 judges and prosecutors were Kosovan Albanian (all the Serb judges had left Kosovo), and most of those who were not part of the previous system had not worked for 10 years.4 (see case study)
- In Rwanda, the number of prisoners had reached 120,000 in 1996 (or 1 percent of the total population), and only 2,000 suspects were tried from 1996 to 1998. It was estimated that it would take the formal judicial system several centuries to process all genocide suspects. This in part explains why the government chose to put in place gacacas (based on a "traditional" justice system, at the community level).5 Meanwhile, almost all the personnel of the judiciary system, which were in majority Hutus, had fled in the aftermath of the genocide, had been implicated in the mass atrocities, or had been killed. Very few Tutsi judges had survived.6
Three post-conflict justice scenarios
Scholar Rama Mani suggests distinguishing three types of justice scenarios (or "states of despair") in post-conflict settings: illegitimate but functional, corrupt and dysfunctional, and devastated and non-functional.7Illegitimate but functional
Rami states, "In this scenario, the 'rule of law' is observed or claimed to remain operational at some level throughout the conflict or emergency. Certain core legal institutions continue to exist and function; there is a judiciary, a written law that is more or less upheld, legal personnel are appointed and hold office, detainees including rebels may even be tried in court and sometimes acquitted. However, the rule of law adhered to is, at best, a minimalist rule of law. While minimal principles of legality are not transgressed, the law itself is iniquitous, and bad or unjust law is passed and enacted."8 An example of this scenario is apartheid South Africa.Corrupt and dysfunctional
According to Rami, "In this scenario, some of the features of minimalist rule of law are maintained. A judiciary and legal system exist in name throughout the conflict; the Justice Ministry and Supreme Court exercise their functions. The problem is not primarily illegitimacy, as above. Rather, the rule of law is progressively emasculated over time. Its structure and façade remain, but the rule of law loses most of its defining characteristics and principles. . .The most significant failing is the judiciary's loss of independence and impartiality, as it is manipulated by the executive branch of government and, often, the military."9 Examples of this scenario are El Salvador and Mozambique.Devastated and non-functional
In this scenario, "the entire legal apparatus of a society collapses. The rule of law disintegrates, and slips from dysfunctional to non-functional. Sometimes vestiges of prior justice systems remain: courthouses emptied of legal codes and furniture, or divested of qualified lawyers and judges; justice ministers and ministry buildings with little or no staff. Only a 'phantom' rule of law remains."10 Examples include Rwanda, Burundi, Sierra Leone, Liberia, Timor-Leste, Haiti, and Cambodia.[Back to Top]
The main objectives and phases of post-conflict judicial and legal reform/(re)construction
Two main objectives and, consequently, main phases may be distinguished for judicial and legal reform/(re)construction in post-war societies.11- In the short term (which can be defined as the "crisis management phase"), the objective is to fill what many outsiders would define as the "rule of law vacuum" (restore basic security and stability).12 This can be associated with "negative peace" (that is, the absence of armed conflict).
- In the medium and long term (which can be defined as the "development phase" and is actually supposed to be initiated in the crisis phase), the objective is to conduct a sustainable judicial and legal reform (with a specific emphasis on capacity building and local ownership) and to establish well-functioning and legitimate justice institutions.13 This can be associated with "positive/sustainable peace" (that is, the presence of social, political, and economic conditions that ensure a sustainable peace).
[Back to Top]
The centrality of judicial and legal reform in peacebuilding
Broad consensus exists among policy makers, practitioners, and scholars on importance of judicial and legal reform in peacebuilding.14For development
A predictable and efficient judicial and legal system is a precondition for economic growth, which is a critical component of peacebuilding.
Go to Economic Recovery
"Our experience in the past decade has demonstrated clearly that the consolidation of peace in the immediate post-conflict, as well as the maintenance of peace in the long term, cannot be achieved unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice. At the same time, the heightened vulnerability of minorities, women, children, prisoners and detainees, displaced persons, refugees and others, which is evident in all conflict and post-conflict situations, brings an element of urgency to the imperative of restoration of the rule of law."
Source: Report of the Secretary General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (August 23, 2004), 3, para. 2.
For human rights
Human rights cannot be protected without a well-functioning justice system and laws that comply with international human rights standards and norms.
Go to Human Rights Promotion and Protection
For security
The building of judicial and legal systems is a core part of state-building strategies, and as such is important in ensuring domestic, as well as international, security and stability.
Go to Security & Public Order
Go to Statebuilding (cross-cutting challenges; forthcoming)
Conversely, the justice system cannot be successfully reformed if security is not guaranteed and past injustices are not addressed. Addressing past injustices is a means to legitimize any reform of the legal/justice system. The way past grievances are addressed has an important effect on the faith of the population in the reconstructed justice system. For example, a separate international tribunal may adequately address past grievances but give little legitimacy to the national justice system and be perceived as diverting resources that could be better used to support it. This is where transitional justice and the reform of the judicial and legal system should work more closely. Go to Transitional Justice
1. Kirsti Samuels, "Rule of Law Reform in Post-Conflict Countries: Operational Initiatives and Lessons Learnt," World Bank Social Development Paper No. 37 (October 2006), 15.
2. Practitioner Bill O'Neill notes, "I have always been struck by how people in Haiti, Rwanda, Kosovo, Sierra Leone, Liberia, Cambodia and elsewhere wracked by conflict and lacking the most basic of human necessities--food, housing, medical assistance, jobs--often said that their most urgent priority was justice. This reflects a universal yearning: to have clear rules that apply equitably to all with avenues of redress when the rules are broken. These people know better than most how literally 'deadly' the world becomes when rule by force usurps the rule of law." William G. O'Neill, "UN Peacekeeping Operations and Rule of Law Programs," in Civil War and the Rule of Law: Security, Development, Human Rights, ed. Agnes Hurwitz, with Reyko Huang (Boulder, CO: Lynne Rienner, 2008), 91.
3. Hansjorg Strohmeyer, "Collapse and Reconstruction of a Judicial System: The United Nation Mission in Kosovo and East Timor," American Journal of International Law 95 (2001): 50.
4. Ibid., 50; comment by Bill ONeill (June 2, 2008).
5. Charles Mironko and Ephrem Rurangwa, "Postgenocide Justice and Security Reform: Rwanda," in Constructing Justice and Security after War, ed.Charles T. Call (Washington, DC: United States Institute of Peace Press, 2007), 200.
6. Comment by Bill O'Neill (June 2, 2008).
7. Mani, Beyond Retribution, 73.
8. Ibid.
9. Ibid., 74.
10. Ibid., 75.
11. Samuels, "Rule of Law Reform in Post-Conflict Countries," 8.
12. "Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies," UN Doc. S/2004/616 (August 23, 2004), 10, para. 27. For a critical view of what the "rule of law vacuum" means, see the introductory part of the Justice and Rule of Law section.
13. Ibid., summary, 4, para. 17.
14. Jane Stromseth, David Wippman, and Rosa Brooks. Can Might Make Rights? Building the Rule of Law After Military Interventions (Cambridge: Cambridge University Press, 2006), 58-64.
