Judicial & Legal Reform/ (Re)construction: Key Debates & Implementation Challenges

This section presents a summary of some of the key debates and implementation challenges discussed by academics and practitioners in relation to judicial and legal reform and reconstruction processes in the aftermath of conflict. The points covered are not meant to be exhaustive, but rather are illustrative of the main areas of concern. They are organized by seven sets of issues:

  • Justice reform as a technical or a political project;
  • International standards versus local norms and imperatives;
  • Order versus sustainable peace;
  • Sequencing: Maximalist versus minimalist approaches;
  • Top-down versus bottom-up reforms;
  • The knowledge gap; and
  • Justice reform indicators and measuring impact.

Justice reform as a technical or a political project

According to Mark Malloch Brown, "Too often international assistance on the rule of law has ignored the link between the rule of law and politics. Assistance is often technocratic and apolitical in nature, focusing on the transfer of technical know-how to state institutions and on the technical modernization of institutions such as the courts and the police."1

The choice of programmatic minimalism

Indeed, there is a tendency to focus on a "programmatic minimalism"; that is, to develop programs that are "largely replicable, standardized, culturally inoffensive and politically 'neutral' or uninformed [and that] focus on technical procedures and institutions rather than laws substance and ethos."2 Several factors explain the pervasiveness of such an approach.

Pragmatic

Given the formidable obstacles in many post-conflict environments, outsiders in particular tend to focus on technical activities (e.g., training judges, drafting laws, building tribunals, and providing material), as these seem easier to do than inducing behavioral and attitudinal changes. They also correspond to immediate needs that require important budgets for which most countries totally depend on the international community.

Transferability

Technical know-how is much less problematic to transfer from one context to another than political and cultural values.3

Strategic

The focus is more on short-term, immediate "order" than on sustainable peace.

Political

A technical approach to these issues is partially a way of circumventing contentious and unresolved debates about the "universality" of human rights standards and charges of neocolonialism (namely that international actors are trying to impose outside--mainly western--values).4

Organizational

Lawyers are the main actors in the justice sector, and experts tend to capture most of the debates about the kind of judicial and legal system to support in a post-war society. Here, critics would say that "the rule of law is too important to be left to lawyers."5

As a consequence, "the majority of international programmes focus on the institutions and mechanics, the form and structure, of the rule of law, while evading the substantive content--the ethos--of that rule of law. . .They focus on law enforcement--as illustrated by the preoccupation with police reform--rather than the generation of the rule of law and of public confidence in it."6 In other words, the program designers simply forget what political anthropologists have taught us: the "political" must be understood in its "substantial" aspects, its properties, more than in its institutions (the formal aspects).7 As Antonia Potter notes, "If we are prepared to accept the argument that the institutions of justice and the rule of law embody, to some extent, the state, we must also face the fact that this makes them extremely sensitive areas in which for outsiders to get involved. They symbolize the power and sovereignty of the state and thus any involvement with them is of necessity political, and cannot pretend to remain purely technical."8

It is also important to note that real reform will inevitably change the balance of power in a society. There will be resistance from those who see themselves losing and from spoilers who do not want reforms to succeed. Actors, especially external ones, involved in judicial and legal reform/(re)construction in post-conflict societies must understand, anticipate, and know how to handle these delicate political issues. This is another strong argument in favor of a political analysis of any judicial and legal reform.

The risks of "justice on paper"

The choice of a technical approach and consequent neglect of the political dimensions of judicial and legal reform may have several consequences. First, "the primary tool or the most favored method for promoting rule of law in crisis states is to transplant and borrow laws and institutions."9 According to Shelby Quast, "This can lead to constitutions, laws, and legislations, written by the international community that while often of high quality, are never accepted or implemented by the national stakeholders."10 This is particularly true in cases where international actors pressure post-conflict countries to incorporate international standards extensively into local legislations.

A consequence of this tendency is that, on paper, many post-conflict laws may appear much more respectful of human rights than those in many democratic countries but have little to do with the reality of the rule of law, with what is actually enforced. This is even more so in contexts where the local law itself "has been no more than a paper somewhere which has nothing to do with the reality and the informal rules that have been developed, along the history, by both the rulers and the population."11

The need to change collective perceptions and behaviors

For judicial and legal reform to succeed, it has to get, according to Thomas Carothers, "at the fundamental problem of leaders who refuse to be ruled by the law. Respect for the law will not easily take root in systems rife with corruption and cynicism, since entrenched elites cede their traditional impunity and bested interests only under great pressure. Even the new generation of politicians arising out of the political transitions of recent years are reluctant to support reforms that create competing centers of authority beyond their control."12 As the United Nations secretary-general points out, "The international community has frequently underestimated the extent of political will necessary to support effective rule of law reform in post-conflict States and invested inadequately in public consultations on reform questions."13 Yet, writes Carothers, "law is not just the sum of courts, legislatures, police, prosecutors, and other formal institutions with some direct connection to law. Law is also a normative system that resides in the minds of the citizens of a society."14 It refers to "a certain number of collective representations regarding the figure of the State, the judicial apparatus and the police."15

These perceptions can start changing if citizens see that the new or reformed institutions can guarantee their rights, protect them, and enforce laws. Their perception of the justice system is informed by the contact they have with judicial personnel. According to Charles Call, "In country after country, legal reforms have been hampered by judges and lawyers trained in the old system who cling to its privileges, its hierarchies, and its habits. Change requires transforming not just legal codes, but the mindset of law professionals and the functioning of institutions. Without effective checks on state institutions, they are likely to continue to engage in discriminatory or corrupt behavior, despite laws to the contrary."16 Vetting processes have been used in some post-war contexts, but with unequal results.

Oversight and accountability mechanisms are vital in this regard, for they signal to potential wrongdoers that they will pay a price for misconduct. They also signal to the public that some transformation is under way and that the system is qualitative different from the previous state of affairs.17 The training and monitoring of judicial staff in order to ensure their impartiality are also key. In an intermediary phase, in different cases, international and local staff members have been mixed in the first instance with the aim of transforming practices and ensuring a transfer of knowledge for long-term capacity building.18  It must be noted that reform activities/strategies where international and local judicial personnel work together within a national justice system (such as mixed judicial panels) should not be confused with the existence of mixed criminal tribunals to address crimes from the past.

Link to case studies on Bosnia-Herzegovina, Kosovo and Timor Leste

Link to the Transitional Justice subsection

Some analysts have stressed the importance of promoting mechanisms that ensure the provision of information to and the participation of social actors in judicial and legal reform. Too often, as Rama Mani points out, "international actors do not appear attentive to the countervailing necessity of ensuring that the rule of law is firmly anchored in the society and enjoys political commitment and public trust."19 Investment in civil society, legal education, and programs aimed at increasing access to justice is a way to ensure local ownership and sustainability of justice system reforms.20 In that sense, more and more voices have advocated for a shift from externally driven approaches to domestically driven ones.21 Nevertheless, it is fair to say that, if it is the responsibility of outsiders "to create an enabling 'space' in which internal processes of change can occur. . .creating 'space' is not enough if local actors are not willing to fill it in constructive ways."22 

Go to Civil Society, Public Administration, Local Governance and Participation, and Local ownership (cross-cutting issue; forthcoming)

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Global versus local approaches

Critics of "liberal peace" criticize judicial and legal reform/(re)construction activities. Some analyses have focused on how the norms conveyed by outsiders "may clash with diverging local norms. Tension may arise between normative systems coming in from the outside and the systems of meaning shared by actors in the societies concerned, causing conflict and misunderstanding and possibly appropriation and embezzlement."23
Go to Introduction to Peacebuilding section: Peacebuilding as liberal peace and its critics

Outsiders tend to "shy away from knowledge and integration of cultural and historical specificities and needs of individual societies, and engage local populations only minimally in their programmes."24 Lessons from the past have shown that one-size-fits-all approaches did not lead to meaningful changes. At a minimum, some knowledge of local collective history could help outsiders better understand the diversity of conceptions of politics, power, justice, or the state within a given society.25 It also would increase the possibility, for local societies, of borrowing from so-called "tradition"--which, in reality, is largely reinterpreted--as well as from external influences. 26   Go to Traditional & informal justice systems sub-section

Norms and action frameworks proposed by outsiders, in particular on the basis of experiences of other post-war countries, can lead to positive innovation, but they need to be contextualized. Indeed, a frequent frustration expressed by local activists and practitioners is that outsiders tend to present them with "models" to follow without giving them sufficient contextual elements to decide by themselves the conditions in which they want to borrow and adapt some of the elements experimented with somewhere else. Beatrice Pouligny suggests, "Here again we need to go back to anthropology: what is considered, at a given time, to be 'universal' results from the encounter of values shared by human beings in very different contexts and embedded in different norms."27

The applicable legal framework for the immediate post-war period is a particular challenge in this regard. Experience has shown that, in some situations, particularly when a previous regime or an occupying force has been overthrown, there may be a transitional period during which some provisional legislation needs to be applied. In this case, applying the old one may not be politically desirable or permissible (as in Kosovo, Timor-Leste, and Iraq).

Drawing upon lessons learned from past and presentpeace operations around the globe, the United States Institute of Peace and the Irish Centre for Human Rights, in collaborationwith the Office of the United Nations High Commissioner for Human Rights and the United Nations Office of Drugs and Crime, have drafted a package of model codes that provide a framework within which peace operations, international missions, and national governments may quickly respond to justiceneeds. The Model Codes for Postconflict Criminal Justice include a "Model Criminal Code," a "Model Criminal Procedure Code," a "Model Detention Act," and a "Model Police Act," as well as guidelines forusing the model codes.28 The document is meant to:

  • Serve as a reference toolkit for nationaland international authorities in post-conflictenvironments;
  • Serve as a cross-cultural legal tool thatdraws from a variety of the worlds differentlegal systems, including common,civil, and Islamic law;
  • Fill gaps in legislation, or amend existinglegislation, to meet internationalhumanrights and criminal law standards and toensure that the law is capable of restoringlaw and order in post-conflict environments;
  • Provide a criminal law framework that can be adapted for post-conflict situations where there are substantial obstacles to identifying appropriate or acceptable applicable laws; and
  • Promote capacity building by showing local law professionals what is out there and how they can pick, choose, adapt, or modify these codes to suit their specific post-conflict situation.
It remains to be seen how this attempt at providing a concrete tool to address the usual dilemma between universalism and localism will be implemented in concrete cases.

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Public order and stability versus sustainable peace

Another key issue has to do with the ultimate goal of international assistance. Some critics argue that justice does not always receive enough attention because it is not considered a key element in avoiding a relapse into violent conflict. Charles Call notes, "One important reason for the neglect of judicial reform is the primacy of order among the priorities of the international community. . .Peace seems to offer easier, more immediate, and more prized benefits to powerful countries than the difficult provision of justice in divided societies."29

Another argument often made is that the international community favors "prophylactic" measures over sustainable change. Michael Pugh, Neil Cooper, and Jonathan Goodhand argue, "Prophylactic control strategies are designed to address the problems that war and informal economies are perceived to export to the 'zones of peace' in the West--for example, drugs, asylum seekers and sex workers. However, rather than attempting to transform the state from within, the emphasis here is on creating a cordon sanitaire around the 'unruly' world."30

"Prophylactic" programs are now common in the portfolios of bilateral and regional organizations. According to Agnes Hurwitz, "In Bosnia and Herzegovina, over 32 projects [were] funded by the European Union in the field of justice and home affairs in 2003. . .[and] 9 of these dealt with border control, asylum and migration, amounting to 91,980,000 million euros."31 This focus would explain why international aid is highly focused on police reform and the criminal justice system, whereas, in some countries, conflicts over land tenure and property or domestic violence may actually require the most attention.32

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"Sequencing:" Maximalist versus minimalist approaches

"Sequencing" is a key area of debate in the field of judicial and legal reform/(re)construction. Two broad approaches can be distinguished here: maximalist and minimalist.

Maximalist approach

The maximalist approach stems from the holistic, system-wide conceptualization of justice reform and underscores the importance of addressing all justice reform issues in a synergistic (mutually reinforcing) manner. Maximalists would argue that the unsatisfactory results of many past judicial reform efforts in post-conflict settings occurred because there was no balanced, integrated reform strategy; some areas of reform were overemphasized while others were neglected.

A 2004 United States Institute of Peace report on Afghanistan sums up this perspective: "An integrated, holistic approach to establishing the rule of law is needed. Though significant funds are being put into police training, even a well-trained force will not be able to provide genuine law enforcement if there is no functioning criminal justice system or corrections system in which to place offenders. At best, such a force will be able to provide some public order; at worst, the international community will have enhanced the ability of power-holders to control and abuse the population without creating mechanisms to protect the rights of Afghans. A substantial investment in one area of rule of law will not have a meaningful pay-off in terms of real democratic governance and stability unless other pieces of the puzzle are put in place as well."33

Minimalist approach

Minimalists argue that a comprehensive reform strategy is unrealistic because of a variety of factors, notably political constraints (e.g., political will, sovereignty issues, the presence of spoilers, and lack of reform constituencies) and resource constraints (e.g., lack of sustained donor commitment and low domestic absorptive capacity). Therefore, they advocate a more circumscribed, carefully sequenced reform agenda. Carolyn Bull argues, "Strategies may need to strike a trade-off between lofty notions of the rule of law--which may require extensive social and political engineering--and what can realistically be achieved. Although the parameters of what is 'realistic' will depend on the intervention context, trying to establish a fully-fledged state justice sector from scratch is a high-risk strategy that may be neither achievable nor relevant to real community needs."34 

Proponents of minimalism also point to the potentially destabilizing consequences of all-out reforms in the immediate post-conflict period. Doing so, they argue, may actually undermine prospects of sustainable peace by creating new sources of conflict. Bull suggests, "Just as holding democratic elections may establish dangerous 'win-lose' conditions in a highly combustible environment, so too rule of law interventions may exacerbate conflicts, rather than moving towards more peaceful modes of dispute resolution. This may be particularly the case if spoilers are bent on undermining the rule of law. This points to the need for careful sequencing of reforms and clear recognition that in the disrupted state, attempting too much too soon may impose high risks."35

In practice, however, those involved in judicial and legal reform/(re)construction must often strike a balance between "holism" (doing everything at once) and "realism" (doing what is possible).36

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"Top-down" versus "bottom-up" reforms

Another dimension of the debate on best approaches to judicial and legal reform/(re)construction is between proponents of a "top-down" approach and proponents of a "bottom-up" approach.

The first, and so far dominant, approach is known by its critics as the "rule of law orthodoxy."37 The focus is put on state institutions as the supply side of the justice system. The rationale is that by focusing on state institutions, programs may have a more direct impact at the macro level. Antonia Potter argues, "A strong, credible state apparatus providing justice and the rule of law in a way that is perceived as fair, fast and effective is something that gives people a real, tangible reason to buy into that state."38

The advocates of a bottom-up (the legal empowerment alternative) approach stress the fact that state institutions are typically corrupt, resistant to change, and inaccessible to most people in post-conflict societies. By focusing on civil society and local communities (the demand side of the justice system), they hope to have a more direct and immediate impact at the micro level.39 The activities typically developed in such programs include legal aid in rural communities, support to non-governmental organizations (NGOs) monitoring the justice system, and the promotion of non-state mechanisms of dispute resolution. Support to the civil society sector, which is seen as an alternative to state institutions resistant to change and reform, "has arisen in part because of frustrations experienced in dealing with state institutions, with often employ individuals with no interest in reform. The idea is that such civil society groups will pressure the institutions to change and develop while younger individuals in these groups gain valuable experience, perhaps eventually joining the institutions and providing the impetus for reform."40
Go to civil society; access to justice; and traditional & informal justice systems

It is important to note that, in practice, these dichotomies may not be so stark and the associated debates present false choices in many respects. In reality, elements of both the top-down and the bottom-up approach may ultimately prove necessary and complementary. In practice, choices that are made depend on the state of the particular country and its institutions. As David Tolbert and Andrew Solomon point out, "The relevant issues concern how the two approaches may be utilized in a particular situation."41   

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Knowledge gap

Actors involved in judicial and legal reform/(re)construction in post-conflict settings are faced with a double knowledge gap. First, as they function in a "crisis mode," outsiders in particular have little time to think and accumulate knowledge, especially about the specific historical, political, and cultural context in which they are going to intervene. Second, even in their own practices, they have limited accumulated knowledge. Kirsti Samuels argues, "Despite two decades of experimentation, little is known about how to bring about legal change and create sustainable legal institutions in post-conflict countries. While rule of law reform appears to have been moderately successful in the non-conflict context, there are heightened difficulties in the post-conflict context (a very low institutional starting point and urgent law and order and dispute resolution problems), and there is insufficient analysis or understanding to easily adapt these positive experiences to the post-conflict context."42
 "Post-intervention efforts to build the rule of law have been haphazard, under-resourced, and at times internally contradictory, with as many failures as successes. This is in part because post-conflict societies tend to be inhospitable environments for efforts to promote the rule of law. Post-conflict societies are often characterized by high levels of violence and human need, damaged physical and civic infrastructures, and sometimes little or no historical rule of law traditions. But to some degree, the poor track record of rule of law promotion efforts is due to the failure of interveners to appreciate the complexities of the project of creating the rule of law." Source: Jane Stromseth, David Wippman, and Rosa Brooks. "Can Might Make Rights? Building the Rule of Law after Military Interventions" (Cambridge: Cambridge University Press, 2006), 9.

 "Judicial reforms have generally accomplished less than security reforms. They have tended to be less ambitious, less strategically planned, less coordinated, less swift, and less publicly understood and supported than security reforms. Despite claims to the contrary, they are usually poorly linked to police reforms, continuing the disaggregation of the 'triad' of police, judicial, and prison reforms. They have focused on isolated elements of judicial performance rather than taking an integrated approach to multiple problems of the administration of justice. In countries where the state has been practically destroyed, restoring buildings, desks, information systems, and minimal security is a priority. In some established judiciaries, reformers have tended to stress training and purges, neglecting things like protection programs for witnesses and judicial personnel, improved access to courts, and alternative dispute resolution. In no case has judicial reform been deemed an unqualified success, and the difficulties encountered are notable." Source: Charles T. Call, ed., "Constructing Justice and Security after War" (Washington, D.C.: United States Institute of Peace Press, 2007), 395.
As interventions in that field are also relatively recent, it is difficult to evaluate the long-term impact of judicial and legal reform activities in post-war environments. Little is known on how to bring about sustainable judicial and legal reform in post-conflict societies. For instance, "no universally accepted road map exists for strengthening the independence and effectiveness of the judiciary in a post-conflict environment."43 That said, "good practices" can (and have been) identified to transmit applicable lessons from one context to another without necessarily imposing outside or top-down models of reform.44

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Justice reform indicators and measuring impact

Indicators exist for measuring the state of the judiciary specifically and the justice system in general.45 These indicators are intended to help international and local actors to identify key gaps, target reform activities, and monitor progress. The vast majority of indicators used to measure judicial reform is quantitative, and thus may be insufficient for gauging intangible (psychological and political) processes of reform or regress. In other words, there is a discrepancy between the heavy reliance on quantitative indicators and the centrality of qualitative changes.

According to Agnes Hurwitz and Kaysie Studdard, "It is exceedingly difficult to measure what positive impact may result from the training of judges, the building of prisons and the support to prosecutors, for instance, as such programs almost never yield immediate and recognizable results beyond the tangible outputs they present in the form of trained judges or new facilities. The transformation of a legal culture into one marked by the respect for the rule of law is a gradual one, meaning that improvement may be initially imperceptible."46

These difficulties in measuring success may explain why many argue that, to date, judicial and legal reform/(re)construction in post-conflict settings has been largely unsuccessful. This being said, it may be too early to tell the long-term impact of current reform efforts, especially as fundamental reform should be measured in terms of decades rather than several years or months.

1. Mark Malloch Brown, "Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies," Statement to the United Nations Security Council (October 6, 2004).
2. Ibid., 85.
3. See, Francis Fukuyama, State-Building: Governance and World Order in the 21st Century (Ithaca: Cornell University Press, 2004).
4. Pouligny, Beatrice. "UN Peace Operations, INGOs, NGOs, and Promoting the Rule of Law: Exploring the Intersection of International and Local Norms in Different Postwar Contexts." Journal of Human Rights 2, no. 3 (2003): 374.
5. Malloch Brown, "Rule of Law and Transitional Justice."
6. Mani, Beyond Retribution, 76.
7. Beatrice Pouligny, Peace Operations Seen from Below: UN Missions and Local People (Bloomfield, CT: Kumarian Press, 2006), 97; Georges Balandier, "Le politique des anthropologues," in Traité de Science Politique, vol. 1, ed. Madeleine Grawitz and Jean Leca (Paris: PUF, 1991), 309-34.
8. Antonia Potter, The Rule of Law as a Measure of Peace? Responsive Policy for Reconstructing Justice and Rule of Law in Post Conflict and Transitional Environments (Geneva: Centre for Humanitarian Dialogue, May 2004), 11.
9. Richard Sannerholm, "In Search of a User Manual: Promoting the Rule of Law in Unruly Lands," Social Science Research Network Working Paper (December 2007), 7.
10. Shelby R. Quast, "Rule of Law in Post-Conflict Societies: What Is the Role of the International Community," New England Law Review 39, no. 45 (2004): 47.
11. Pouligny, "UN Peace Operations," 373.
12. Carothers, "The Rule-of-Law Revival," 4.
13. "Report of the Secretary-General on the Rule of Law," 8.
14. Thomas Carothers, Promoting the Rule of Law Abroad: The Problem of Knowledge (Washington, DC: Carnegie Endowment for International Peace, January 2003), 8.
15. Pouligny, "UN Peace Operations," 373.
16. Charles T. Call, ed., Constructing Justice and Security After War (Washington, DC: United States Institute of Peace Press, 2007), 396-97.
17. Comment by Bill O'Neill (June 2, 2008).
18. Stromseth, Wippman, and Brooks, Can Might Make Rights?, 236-240.
19. Mani, Beyond Retribution, 76.
20. Ibid., 243-46.
21. See, "Report of the Secretary-General on the Rule of Law," summary.
22. Carolyn Bull, "Building the Rule of Law under UN Transitional Administration," United Nations University, Policy Brief No. 7 (2007), 5­-6.
23. Pouligny, "UN Peace Operations," 360.
24. Mani, Beyond Retribution, 76.
25. Pouligny, Peace Operations Seen from Below: UN Missions and Local People, 97.
26. Pouligny, "UN Peace Operations," 360.
27. Ibid., 374. See also, Jean-Loup Amselle, Branchements: Anthropologie de luniversalité des cultures (Paris: Flammarion, 2001); Arjun Appadurai, Modernity at Large: Cultural Dimensions of Globalization (Minneapolis, MN: University of Minnesota Press, 1996).
28. Collette Rausch, ed., Combating Serious Crimes in Post-Conflict Societies: A Handbook for Policymakers and Practitioners (Washington, DC: United States Institute of Peace Press, 2006), 52.
29. Call, Constructing Justice and Security after War, 396.
30. Michael C. Pugh, Neil Cooper, and Jonathan Goodhand, War Economies in a Regional Context: Challenges and Transformation (Boulder, CO: Lynne Rienner, 2004), 204.
31. Agnes Hurwitz, Towards Enhanced Legitimacy of Rule of Law Programs in Multidimensional Peace Operations (New York: International Peace Academy 2005), 19.
32. OHCHR, Rule-of-Law Tools, 8.
33. Laurel Miller and Robert Perito, "Establishing the Rule of Law in Afghanistan." United States Institute of Peace Special Report No. 117 (March 2004), 2.
34. Bull, "Building the Rule of Law under UN Transitional Administration," 7.
35. Ibid., 6.
36. Comment by Bill O'Neill (June 2, 2008).
37. Stephen Golub, Beyond the Rule of Law Orthodoxy: The Legal Empowerment Alternative (Washington, DC: Carnegie Endowment for International Peace, October 2003).
38. Potter, "The Rule of Law as a Measure of Peace?" 10.
39. Golub, Beyond the Rule of Law Orthodoxy.
40. Tolbert and Solomon, "United Nations Reform and Supporting the Rule of Law," 53-54.
41. Ibid.
42. Samuels, "Rule of Law Reform in Post-Conflict Countries," 23.
43. OHCHR, Rule-of-Law Tools, 6.
44. Comment by Bill O'Neill (June 2, 2008).
45. See, Vera Institute of Justice, Measuring Progress toward Safety and Justice: A Global Guide to the Design of Performance Indicators across the Justice Sector (November 2003); American Bar Association (ABA) Rule of Law Initiative, Justice Reform Index.
46. Hurwitz and Studdard, Rule of Law Programs in Peace Operations, 4.

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