. 7
( 15)


Cong., 1st Sess., June 26, 2003. In a similar vein, Presidential Decision Directive 71 (2000)
calls for creation of a U.S. rapid deployment force of 500 to 2000 civilian police.
144 Oakley & Dziedzic, supra note 17, at 513.
145 Renata Dwan, Introduction, in Executive Police (Renata Dwan, ed., 2002) at 1, 2.
146 Id.
147 Id., at 3 (“By 1995 these tasks were encapsulated by the DPKO in the ˜SMART™ concept “
Supporting human rights; Monitoring the performance of the local enforcement author-
ity; Advising the local police on best practices; Reporting on situations and incidents; and
Training local enforcement in best practice for policing and human rights.”).

police of¬cers could make arrests and enforce the law. But “enthusiasm for
this approach cooled rapidly” along with nation-building ambitions gener-
ally and “no full-scale executive authority operations have been authorized
since.”148 Much depends on the problems interveners confront and their per-
ceived national interests. Both Kosovo and East Timor are small territories
with small populations, and large majorities of those populations welcomed
the interveners as liberators, rendering international executive policing fea-
sible at a reasonable cost.149 Moreover, in Kosovo, NATO wanted to justify
its intervention and stabilize the Balkans.150 In East Timor, the UN and its
members felt pressure to act stemming in part from the UN™s long involve-
ment with East Timor and its inability to avert predictable violence there. But
other cases present a quite different balance of interests. In Afghanistan, for
example, the United States and many of its allies resisted broad stabilization
efforts because of the dif¬culties presented by the country™s size, “legendary
xenophobia,” and many well-armed and potentially hostile factions, as well
as the U.S. desire to avoid tying down large numbers of troops in the opening
phase of the larger war on terror.151
Although international military and civilian police must of necessity often
initially ¬ll the security void in post-con¬‚ict societies, they are a poor substi-
tute for an effective indigenous police force. Unlike interveners, indigenous
police know local languages, customs, and laws. They can speak directly
to the local populace without relying on interpreters, “who are not always
perceived as neutral by the population.”152 They live in the community and
know the people they are asked to police “down to the neighborhood and
gang level.”153 Moreover, interveners will eventually leave, and it will then
be up to indigenous police to provide security fairly and effectively. As the
post-con¬‚ict environment stabilizes, and as efforts to establish and reform
local police forces bear fruit, security responsibilities can be progressively
turned over to local actors. This not only reduces the personal risks run by
international forces, but it also minimizes the danger that interveners will be
seen as occupiers.
The speed with which local police can assume security responsibilities
varies considerably. It depends on the extent to which local security insti-
tutions have decayed, the resources interveners are prepared to commit to

148 Anja Kaspersen, Espen Barth Eide, & Annika Hansen, International Policing and the
Rule of Law in Transitions from War to Peace, Norwegian Institute of International
Affairs Working Paper No. 4, October, 2004, at 11, available at http://pbpu.unlb.org/pbpu/
149 Dwan, supra note 145, at 5.
150 Id.
151 See Dobbins et al., supra note 9, at 133.
152 Schmidl, supra note 1, at 24.
153 Lynn Thomas & Steve Spataro, Peacekeeping and Police in Somalia, in Policing the New
World Disorder, supra note 1, at 175, 211.

providing security and to rebuilding domestic security capabilities, and the
nature of local attitudes toward indigenous police.
Increasingly, however, interveners and domestic reformers alike have come
to realize that long-term security requires not only effective indigenous police
but also fair and functioning domestic justice systems. Effective security can
only be provided when police, courts, and prisons all function together as
elements of an integrated justice system. If police arrest suspects, they need
functioning courts for the conduct of prosecutions and functioning prisons
for the incarceration of those convicted. The failure of any one component of
the justice system necessarily jeopardizes the work of the others. Even the best
designed and resourced efforts at rebuilding indigenous justice institutions
can falter, moreover, in the absence of broader systemic reform. In the next
chapter, we explore the critical and dif¬cult task of rebuilding justice systems
in the wake of military intervention


Reestablishment of a secure environment constitutes an essential ¬rst step
on the road to recon¬guring the political institutions of a state and building
the rule of law after military intervention. Interveners must separate and
if possible disarm previously warring factions, control public violence, and
start the process of turning over security to indigenous forces. In thinking
about post-con¬‚ict security, interveners should consider the following points:
r Security efforts cannot succeed in a vacuum. Providing physical security
is a necessary component of effective and accountable governance, but
progress in security will not prove durable unless it is accompanied by
progress in political and economic reconstruction. This means that secu-
rity must be seen as part of a larger state-building enterprise.
r Establishing a secure environment in the immediate aftermath of military
intervention should be a primary objective. The window of opportunity
closes quickly, sometimes in a matter of weeks.
r To establish security quickly, interveners need to commit the necessary
resources and deploy the right force mix at the outset. This means enhanc-
ing existing capabilities, long in advance of the next major military inter-
vention. Prospective interveners should step up efforts to train individ-
ual soldiers in doctrine and tactics associated with post-con¬‚ict security
efforts and train, equip, and deploy additional constabulary forces. In
addition, long-standing calls for the establishment of effective standby
arrangements for fast deployment of international civilian police should
¬nally be heeded.

r Interveners must be prepared to confront spoilers proactively and in
ways that support implementation of the overall political blueprint. Deal-
ing with spoilers requires, among other things, greater commitment and
resources for effective DDR programs and a willingness to use force as
well as economic incentives to compel compliance.
r Interveners must recognize that police, courts, and prisons are part of
a system and that no component of the system can function effectively
unless the others are also functioning well. Accordingly, progress in one
area must be matched by progress in the other two, as we discuss more
fully in Chapter 6.
r Finally, interveners must work closely with local actors to adapt western
security models to local conditions and to develop effective and respected
indigenous security institutions. Security institutions that lack popular
legitimacy will not survive the departure of the interveners that put such
institutions in place.

The Challenge of Justice System Reform

As we argued in earlier chapters, building the rule of law requires not only
basic security and functioning institutions but also a strong degree of public
support and con¬dence. People need to know that they can resolve dis-
putes without resorting to violence, that the law will protect them from
abusive government of¬cials and predatory nonstate actors alike, and that
their fundamental rights will be secure. But for people to have good reason
for con¬dence in the rule of law as a cultural matter, we also emphasized
the need for laws and law-making processes that enjoy legitimacy, for legal
institutions that function fairly, and for a government that is prepared to
be bound by law. Strengthening the rule of law, in short, is both a practical
project of institution-building and a cultural project of shaping attitudes and
This chapter examines one piece of this mosaic: building fair, effective jus-
tice systems in the wake of military interventions. Beyond the immediate task
of establishing security, longer-term efforts to strengthen a country™s justice
system “ including its courts, police, and prisons “ are a vital part of building
the rule of law after intervention. In countries as diverse as Afghanistan, Iraq,
East Timor, Kosovo, Bosnia, Haiti, and Sierra Leone, among others, inter-
veners have worked with local leaders to recruit and train police, appoint and
train judges, build and furnish courthouses, and improve often deplorable
prison conditions. These efforts are all the more daunting because in so many
instances these institutions not only were decimated by con¬‚ict, but they also
functioned poorly for years and were widely viewed by the population as
tools of oppression and corrupt rule rather than of justice.
Of the many issues covered in this book, those in this chapter may be
most familiar to readers with prior experience in rule of law programs. For
many programs, courts, police, and prisons are the bread and butter of
rule of law promotion. Yet as important as functioning justice institutions
are, interveners sometimes focus on institution-building in a far too narrow


way. Post-con¬‚ict rule of law assistance typically has concentrated mainly
on formal institutions, political elites, and urban areas, paying insuf¬cient
attention to the perceptions of ordinary people or to ways of nurturing
a social and political environment in which justice institutions can grow
and thrive. We call this “institutional insularity.” Rule of law assistance
is also often highly segmented. Different experts, government agencies, and
nongovernmental organizations (NGOs) naturally tend to concentrate on the
components of justice systems within their core competencies, such as police
or courts. But developing a reasonably functioning justice system requires
astute attention to how the various components relate to one another and
to the larger political system and culture in which they are embedded. If
reformers miss these larger links and interactions, their reform effort as a
whole will be a good deal less than the sum of its parts.
The risks posed by the twin problems of institutional insularity and seg-
mentation manifest themselves in a variety of ways. The ¬rst risk is that
reforms will be piecemeal and consequently have little enduring impact.
Efforts to build a credible community-based police system to enforce the
law, for example, will be undermined if courts are dysfunctional or largely
controlled by local power-holders who use the courts to perpetuate their
own interests, or if there are no decent prisons to detain those accused and
convicted of crimes.
A second risk is the possibility of a continuing de¬cit in public support.
Standard assistance to improve courts, for instance “ to train judges, to refur-
bish courthouses, to provide legal materials and administrative support “
may be squandered if public distrust of judicial independence remains deeply
rooted or courts are available only to those with resources in urban areas. A
broader array of programs and forms of assistance will be needed to nurture
credible and accountable legal institutions, to ensure greater access to them,
and to build public con¬dence that grievances can be fairly resolved through
these institutions.
A third risk concerns the vulnerability of justice institutions to predatory
politics. Unless interveners understand how these institutions function within
the larger political system, the institutions may simply end up providing
political elites with an effective apparatus for manipulating and perpetrating
injustices against marginalized segments of society. If interveners focus solely
on building up state institutions such as courts and police, for example “
particularly in the absence of meaningful governance reform or accountabil-
ity mechanisms “ they may inadvertently give self-interested power-holders
more effective institutional tools to advance their own agendas rather than
creating genuine rule of law.
The intervention in Haiti in the mid-1990s illustrates all three of these
hazards, as we elaborate in this chapter. Enormous progress was made early

on in vetting and training the Haitian National Police during the UN mission
following Aristide™s return to power. But other parts of the justice system did
not receive the same degree of assistance or pressure for reform. Corrupt
judges could be bribed to release suspects, and bad governance generally
undermined the larger political system in which police operated. Little was
done, moreover, to address the widespread suspicion among ordinary people
that law is a vehicle of control and repression rather than of justice. In
the end, international reform efforts were undermined by Aristide™s own
political agenda, revealing the risks of strengthening state institutions that
can be manipulated and misused by the powerful before building a more
accountable political system more generally.
As the experience in Haiti attests, building and sustaining justice sys-
tems in the wake of military interventions is extraordinarily dif¬cult. To be
sure, each post-con¬‚ict situation presents unique obstacles and opportuni-
ties. Because of these unique cultural and political circumstances, applying
“lessons learned” or common approaches from one situation to another
may be ineffectual or even counterproductive. But recent experience also
suggests some recurring challenges and potentially useful practices, as well
as common traps to avoid, all of which we explore here. These lessons from
experience are both conceptual and practical.
In this chapter we focus on the multifaceted challenges of strengthen-
ing justice systems in the aftermath of military intervention. We highlight
and explore three main capacities that we take to be essential to a func-
tioning justice system “ capacities for law-making, law enforcement, and
adjudication “ and we stress the importance of building these capacities on
solid foundations. We also highlight the importance of building an effective
capacity for legal education (broadly construed), an issue we take up again in
Chapter 8. Within this framework, and using examples from different coun-
tries, we examine speci¬c challenges that arise, as well as pitfalls to avoid,
in reforming laws and in improving police, prisons, and courts. Throughout
the analysis, we attend to the uniqueness of each post-con¬‚ict situation as
well as to the culture and history of the country involved, but we also make
a special effort to bring out the common problems, themes, and lessons that
emerge in examining recent efforts to build justice systems after intervention.
Finally, we stress the need to understand the role that informal, traditional
dispute resolution mechanisms play in some post-con¬‚ict societies, a theme
that we explore more fully in Chapter 8.
Before presenting our analysis of law-making, enforcement, and adjudica-
tive capacities and how to build and strengthen them, it will be helpful to
expand our earlier discussion (see Chapter 3) of a synergistic approach to
promoting the rule of law, and to bring it to bear speci¬cally on matters of
justice system reform “ a centrally important element in advancing the rule
of law.


Substantively, the synergistic approach is ends-based and strategic, adaptive
and dynamic, and systemic. Methodologically, this approach demands that
we look at justice institutions holistically, that we understand how the dif-
ferent institutions relate to each other and to the larger culture and political
system, and that, in pursuing reform on the ground, we seek to strengthen
institutional capacities in a balanced and mutually reinforcing way. The
immediate task, then “ as a preliminary to discussing the particulars of law-
making, enforcement, and adjudication “ is to determine what these different
elements of the synergistic approach entail in the speci¬c context of justice
system reform.

A. An Ends-Based, Strategic Approach
One of the three elements of the synergistic approach is that the building and
strengthening of justice systems needs to be ends-based and strategic. This
approach focuses on the ultimate goals of building an effective justice system
and resists an overly narrow concentration on institutions alone. Thus, we
¬nd much value in Rachel Kleinfeld™s argument for an explicitly ends-based
understanding of the rule of law.1 She argues that there are ¬ve fundamental
and relatively well-established goals, or ends, that the rule of law should
serve in society: (1) law and order, (2) a government bound by law, (3)
equality before the law, (4) predictable and ef¬cient justice, and (5) protection
of human rights.2 Although ultimately and ideally, these goals should be
mutually reinforcing in developed legal systems, Kleinfeld emphasizes that in
transitional societies clear tensions may exist between them. These goals are
desired aims of the rule of law generally and of justice systems in particular.
And in the context of our discussion of post-con¬‚ict societies, they can serve
as overarching goals for justice system reform.
In the aftermath of violent con¬‚ict, securing basic law and order is cer-
tainly a vital goal both immediately and in the longer term. Building a func-
tioning justice system that can help support a stable social order “ permitting
people to plan and live their lives without constant fear of predation by pri-
vate actors or state of¬cials “ is fundamental to achieving basic law and
order. In a sense, it makes all other things possible. But maintaining law and
order, though urgent and critically important in post-con¬‚ict societies, is not
the only priority.
Another fundamental objective in strengthening justice systems is the over-
arching goal of a government bound by law. A government prepared to

1 Rachel Kleinfeld, Competing De¬nitions of the Rule of Law, in Promoting the Rule of
Law Abroad: In Search of Knowledge (Thomas Carothers, ed., 2006), at 31.
2 Id., at 34“47.

enforce the law against its own leaders “ and of¬cials prepared to abide by
the law rather than simply using their power to seek preferential treatment
for themselves and their allies “ is a fundamental part of a stable rule of law
and guards against arbitrary and capricious rule. In strengthening courts,
police, and other justice institutions, the goal of government bound by law
must be a clear aim of reform efforts and will require building account-
ability and oversight mechanisms as justice institutions are strengthened. If
not, interveners may inadvertently enable government of¬cials to use their
authority (and newly built legal institutions) to aggrandize themselves rather
than serve the public interest.
A key goal that has both formal and substantive dimensions is equality
before the law. The idea that the law should be blind “ that one should
be treated equally whether one is a political leader or an ordinary citizen,
whether one is rich or poor “ is part of a long-standing understanding of
what the rule of law means. Beyond formal notions of equality, the goal
of “equal protection of the law” is an important, substantive, though often
culturally contentious one. We view equal protection of the law as one of the
fundamental goals that justice systems should aim to achieve: regardless of
one™s ethnic group, minority status, or gender, individuals should be treated
fairly and consistently with fundamental human rights.
Another end of the rule of law is what Kleinfeld refers to as predictable,
ef¬cient justice.3 By this she, like many other commentators, primarily means
principled and predictable decisions by courts and other components of the
justice system that enable people to plan their affairs and to resolve disputes
nonviolently with con¬dence and consistency. We would add another ele-
ment to this, however: beyond simply predictable and ef¬cient court rulings
and enforcement of the law, the basic substantive rules being enforced must
themselves be widely viewed as fair and legitimate by the population if they
are to command public support.
A ¬nal goal of the rule of law generally “ and of justice systems in par-
ticular “ is the protection of universally recognized human rights. Although
speci¬c details of this goal may be contested among different groups and
cultures, basic protection of at least the most fundamental human rights is
essential to any justice system that we would recognize as respecting the rule
of law. These rights include, among others, the right of anyone “accused of a
crime . . . to a fair, prompt hearing and [to be] presumed innocent until proved
guilty.”4 Fundamental human rights also include the prohibition against
torture, basic rights of due process, and the right to freedom of opinion and

3 Id., at 42“44.
4 Thomas Carothers, The Rule of Law Revival, 77 Foreign Affairs (1998), at 96.
5 See International Covenant on Civil and Political Rights and Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, available at http://www.

In particular post-con¬‚ict situations, it may prove challenging indeed to
forge agreement on strategic, overarching rule of law goals such as those dis-
cussed above. Nevertheless, keeping a clear focus on such ultimate goals is
crucial in designing effective programs to strengthen justice systems, whether
in post-con¬‚ict settings or more generally. Reformers, at the same time, need
to be honest about the tensions that may exist, at least in the near term,
between some of their objectives, recognizing that, particularly in post-
con¬‚ict settings with limited resources and fragile stability, they may not
be able to advance each goal equally at the same pace.

B. An Adaptive, Dynamic Process with a Systemic Focus
The second element of the synergistic approach is the recognition that jus-
tice system reform is adaptive and dynamic. Justice institutions cannot be
imposed or imported wholesale; to be sustainable they must be built on
existing cultural foundations and they must enjoy public legitimacy. Adap-
tive reform also recognizes that building support for the rule of law is a
long-term, dynamic process that often requires transforming attitudes of
of¬cials and power-holders and ordinary people alike, nurturing grassroots
demand for sustainable reform, and providing better access to justice for
disadvantaged groups. Those engaged in building justice systems also need
to understand both the limitations and the appeal of customary systems of
dispute resolution and how they might be adapted and moved in constructive
The third element is that the process of improving justice institutions needs
to be systemic in focus. Understanding how justice institutions interconnect
and operate as a system is crucial to designing effective and balanced pro-
grams for reform. Reformers need to work toward a balanced development
of the parts of a functioning legal system, including: laws and law-making
processes that enjoy legitimacy among the people and are responsive to
their needs; functioning courts, police, and prisons that adhere to basic
human rights standards; effective education; and outreach to the people.
The priorities in speci¬c post-con¬‚ict situations will depend on the areas
of greatest need, with the overall aim of balanced and mutually reinforcing
Taking a step back from the immediate focus on justice system reform per
se, it would be a serious mistake to forget that justice institutions are embed-
ded and function within a larger political system. Building up state institu-
tions without corresponding governance reforms or adequate accountability
mechanisms may simply give governmental elites more effective means to
advance their own interests at the expense of the general public. An overly
technical focus on reforming institutions “ without suf¬cient understanding
of the political stakes and interests of of¬cials or adequate attention to the
needs and perceptions of ordinary citizens “ will undermine the prospects
for achieving the desired objectives.

In short, the problem with many programs for promoting the rule of law
is not that they focus on institutions per se. Rather, the problem is an overly
narrow and insular focus on building justice institutions, with insuf¬cient
attention to connections between them or to the cultural and political con-
ditions necessary for those institutions to effectively serve the goals of the
rule of law.
But what, concretely, does this mean for speci¬c initiatives to strengthen
justice systems in post-con¬‚ict situations, as part of larger efforts to build
the rule of law?

C. Getting Concrete: Building Core Capacities on Solid Foundations
Practitioners and scholars often refer to the “justice triad” of police, courts,
and prisons “ sometimes called the public “security triad” “ as critical compo-
nents of a functioning criminal justice system. Understandably, when con-
fronted with urgent problems of crime and security, interveners generally
place priority on criminal justice reform and on reestablishing law and order.
But, as they work to strengthen the basic institutional building blocks of a
functioning justice system, reformers must not neglect other goals, such as
protection of fundamental human rights and a government bound by law,
as they design assistance programs. Furthermore, familiar conceptual lenses
can be restricting; and we believe it is useful to rethink the now-familiar
“justice triad” concept in light of additional, overarching goals of promot-
ing the rule of law. The “justice triad” focus is too narrow for longer-term,
more comprehensive efforts to strengthen justice systems after con¬‚ict.
We ¬nd it helpful to think of a broader set of critical, interrelated capacities
that are needed in an effective justice system: a law-making capacity, law
enforcement capacity, adjudicatory capacity, and legal education capacity.
Reframing the “triad” in broader functional terms helps to highlight the
wider web of supporting institutions and capabilities that are needed to
build and sustain an effective justice system.
The ¬rst leg of a functioning legal system “ an effective, legitimate capac-
ity to make laws “ is fundamental, yet it sometimes is shortchanged in
post-con¬‚ict assistance. Interveners focus, of course, on revising existing
substantive laws in post-con¬‚ict societies, but these new or revised laws are
sometimes imposed from on high or adopted by executive decree; strength-
ening a sustainable indigenous capacity for effective law-making often is not
given the attention it requires. Any fully functioning legal system requires
not only laws that enjoy legitimacy and address urgent public needs, but also
fair and inclusive domestic procedures for making and revising laws.
Effective law enforcement is also critical, but it depends on more than
just the police. It depends also on capable prosecutors and defense attor-
neys, decent prisons, functioning courts, and public support, cooperation,
and con¬dence. An effective adjudicatory capacity requires not only judges

and courthouses but also lawyers and administrative support. It requires,
moreover, a cultural and political context in which judges are able to decide
cases relatively free from political intimidation and external control.
Legal education, an issue discussed further in Chapter 8, is too often a
missing element in post-con¬‚ict rule of law assistance.6 Pressured to show
early progress, donors tend to focus more attention on short-term training
programs of various kinds. Yet, in the long term, effective indigenous legal
education is critical to training a new generation of lawyers, judges, pros-
ecutors, and other legal professionals, and it should be the focus of more
systematic assistance from the start. Also critical is educating the public
about their rights in a developing legal system.
In short, reframing the “justice triad” more broadly in functional terms
underscores the vital point that supporting institutions and capacities are
needed to develop and sustain an effective justice system “ and that law and
order is only one of many key goals.
Even so, efforts to build effective law-making, law enforcement, adjudi-
catory, and educational capacity will not serve the deeper goals of the rule
of law unless they rest on solid foundations. Just as a house built on sand
will not be stable or enduring, so too a justice system requires solid under-

Legitimacy. Does the local population view the laws and the developing insti-
tutions as legitimate and responsive to their needs and concerns? In societies
that have been wracked by con¬‚ict, law and order often have completely
broken down, and institutions are devastated or minimally functional. A
deep and pervasive popular skepticism about government institutions may
be widespread “ and for good reason. Police and courts may be perme-
ated by political in¬‚uence and corruption. Local methods of dispute resolu-
tion, rooted in customary practices and traditional authorities, may provide
some stability but may not extend fair treatment to vulnerable segments of
the population, such as women and minorities. As new institutions to pro-
vide law and order are developed, public concerns about the legitimacy of
these institutions need to be a major focus, and their relationship to tra-
ditional practices carefully considered. Outreach and education programs
geared to the larger population and responsive to their needs and concerns
should complement training of police, judges, and other legal profession-
als, as we elaborate in Chapter 8. Such programs should be integrated into
overarching strategic plans for strengthening justice institutions.

6 See Erik G. Jensen, The Rule of Law and Judicial Reform: The Political Economy of Diverse
Institutional Patterns and Reformers™ Responses, in Beyond Common Knowledge: Empir-
ical Approaches to the Rule of Law (Erik G. Jensen & Thomas C. Heller, eds., 2003), at

Accountability. Are the developing justice institutions “ and the actors
within them, such as police, judges, executive of¬cials, law-makers “ account-
able under the law? Justice institutions should be developed not for their own
sake, nor to provide opportunities for self-aggrandizement and perks to of¬ce
holders, but rather to promote a more just and stable society in which gov-
ernmental of¬cials and private actors alike are accountable under the law.
All too often, in societies marked by long-standing con¬‚ict and instability,
governmental positions are viewed by many of¬ce-seekers as opportunities
to secure personal bene¬ts rather than to serve the public good. Low pay
and desperate conditions can tempt even well-meaning individuals into a
wide range of corrupt practices. As institutions are developed, programs to
monitor and promote accountability need to be built in tandem in order to
improve the prospects for a government bound by law and to reduce the
chances of institutional positions being used to aggrandize of¬ce holders at
the expense of vulnerable and less advantaged members of the population.

Human Rights. Are reforms helping to advance fundamental human rights
and justice within society? By this we mean two things in particular. First, do
the institutions and of¬cials within them abide by basic human rights stan-
dards? For instance, have police been trained regarding fundamental human
rights, and are mechanisms in place to monitor their behavior and enable
aggrieved citizens to ¬le complaints? Do judges follow civil and criminal
procedures that respect fundamental human rights? Do prisons observe fun-
damental standards of human rights, such as the prohibition against torture
and other cruel, inhuman or degrading treatment, as well as the separa-
tion of incarcerated men and women? Even in the face of extremely limited
resources, basic protections must be in place, and training and monitoring
programs established. Second, do the reforms underway help, more broadly,
to promote fundamental human rights and justice within society? Are the
rights of women and minorities being advanced, not only through formal
justice institutions but also through other initiatives, such as programs to
improve access to justice and efforts to move customary law practices in
constructive directions? As Rama Mani cautions, too often international
assistance programs “and their sponsors are largely silent as to whether the
rule of law is designed to provide citizens with their right to justice and to
safeguard their dignity, or merely to provide order in society.”7

Sustainability. Are the developing justice institutions sustainable once inter-
veners leave? Are supporting programs and national capacities being
developed (for example, necessary legal professionals and civil society
7 Rama Mani, Beyond Retribution: Seeking Justice in the Shadows of War (2002), at 76.
She criticizes the “programmatic minimalism” of rule of law assistance that concentrates
“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.” Id.

organizations), and is a public demand for credible justice institutions being
nurtured? Justice institutions are embedded in a larger social and political
system, and sustainable reforms depend on the commitment of local leaders
and ordinary people alike, on local involvement in decision-making, and on
strengthening cultural foundations for the rule of law. (Chapters 8 and 9
take up these themes in detail.)
None of this is easy. Strengthening the rule of law is hard enough in
countries that have not been wracked by armed con¬‚ict. In post-con¬‚ict sit-
uations that have triggered international military intervention, the challenges
are usually even greater. Con¬‚ict may have devastated institutions, destroyed
infrastructure, and led skilled professionals to ¬‚ee the country, and, after a
legacy of repression, citizens may be deeply distrustful of legal institutions.
Some concrete examples are telling. In East Timor, during the years of
Indonesian occupation, local distrust of the police, courts, and prisons was
pervasive, and the East Timorese frequently turned to alternative locally
based mechanisms to resolve disputes.8 Later, during the militia-led vio-
lence following East Timor™s referendum for independence from Indone-
sia, the “preexisting judicial infrastructure . . . was virtually destroyed.”9 In
a scorched-earth campaign led by forces opposed to independence, court
buildings, equipment, records, law books, case ¬les, and furniture were all
burned or stolen. Fearing retaliation as perceived Indonesian government
sympathizers, pre-intervention judges, lawyers, prosecutors, and court staff
all ¬‚ed. As a result, fewer than ten lawyers remained.10 Starting virtually
from scratch “ literally “rising from the ashes,” a new justice system had to
be created.11
The circumstances in Kosovo were also daunting. Systematic pre-
intervention discrimination precluded all but a handful of Kosovar Alba-
nians from serving as judges, lawyers, court administrators, or police. As
a result, “only 30 out of 756 judges and prosecutors were Kosovar Alba-
nian.”12 When NATO forced Serb military and paramilitary forces out of
Kosovo, virtually all the quali¬ed and trained judicial and police personnel
left with them. Moreover, many court buildings as well as “equipment, legal
texts, and other materials necessary for an operating legal system had been

8 Ronald A. West, Lawyers, Guns, and Money: Justice and Security Reform in East Timor, in
Constructing Justice and Security after War (Charles T. Call, ed., 2006), at 329“330.
9 Hansjorg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations
Missions in Kosovo and East Timor, 95 Am. J. Int™l L. 46, 50 (2001).
10 Id.
11 Suzannah Linton, Rising from the Ashes: The Creation of a Viable Criminal Justice System
in East Timor, 25 Melb. U. L. Rev. 122 (2001).
12 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 50.
13 Wendy S. Betts, Scott N. Carlson, & Gregory Gisvold, The Post-Con¬‚ict Transitional Admin-
istration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and Rule of
Law, 22 Mich. J. Int™l L. 371, 377 (2001).

In Afghanistan, it was much the same story. The Ministry of Justice had
few trained staff and little electricity or heat. Those willing to apply the
law did not know what law to apply, because “[i]n its zeal to establish a
fundamentalist Islamic state, the Taliban had burned all the law books . . . as
well as copies of the Of¬cial Gazette, the record of enacted laws.”14 Over
two decades of armed con¬‚ict had devastated the justice system, with many
Afghans relying instead on local shuras and jirgas (or councils of elders) to
resolve disputes.15 Public fear and distrust of Taliban-era security forces was
deep and pervasive.
The unique combination of challenges that interveners and local leaders
confront in building justice systems after con¬‚ict underscores the importance
of taking a broad, synergistic approach to reform “ an approach rooted in a
deep understanding of the particular cultural and political context.


Knowledge and understanding of local culture, history, and politics is essen-
tial to designing effective reforms. Despite frequent and fair criticism of a
“one size ¬ts all” approach to rule of law reform, interveners tend to fall
back on a basic template of reforms that may not be optimal for the unique
political and cultural terrain in a given country.16 No matter how devastated
by con¬‚ict, every society generally has its own dispute-resolution mecha-
nisms and practices and distinctive cultural and institutional resources for
the rule of law. By the same token, however, the extent to which existing
legal institutions function or enjoy any degree of public support will vary
substantially in different countries. It is also true that public attitudes toward
intervening states will differ and may profoundly affect subsequent outside
efforts to build justice systems. Consequently, “transplanting” lessons and
approaches from one context to another, without suf¬cient cultural and his-
torical knowledge, can be ineffective at best or deeply counterproductive.
On the positive side, however, a window of opportunity for signi¬cant
change frequently exists after intervention.17 Although this window closes
14 See Kimberly Bayley, On Bringing Law to Damaged Lands, 13 Bus. L. Today, 29 (2004).
15 Amnesty International, Afghanistan: Re-establishing the Rule of Law, August 14, 2003, at
16 Mani, Beyond Retribution, supra note 7, at 72.
17 Charles T. Call, Introduction: What We Know and Don™t Know about Post-Con¬‚ict Justice
and Security Reform, in Constructing Justice and Security after War, supra note 8, at
10“11; Charles T. Call, War Transitions and the New Civilian Security in Latin America,
35 Comp. Pol. 1 (2002), at 7, 13; and Seth G. Jones, Jeremy M. Wilson, Andrew Rathmell,
& K. Jack Riley, Establishing Law and Order after Con¬‚ict (2005), at xi (referring to
“golden hour”).

quickly, the opportunity to signi¬cantly alter the status quo, to provide new
opportunities for previously disadvantaged and disempowered groups (such
as women and minorities), and to reform institutions generally exists in a
more dramatic way in the wake of an international military intervention
than in more traditional reform programs in countries that have not expe-
rienced such intervention. A rapid infusion of international resources and
organizations can assist opportunities for change and social transformation,
although they may also work at cross-purposes with competing agendas.
The opportunity for change provides interveners and local leaders with an
occasion to consider broad strategic objectives rather than just incremental
tinkering. This puts a considerable premium on timely and effective strategic
assessment “ in effect, to keep the “window” open long enough for well-
designed reforms to begin. But if an early strategic assessment of a country™s
justice system is a vital starting point for planning effective reforms, how
should this be done?
A thorough strategic assessment by a diverse team of personnel, asking
broad strategic questions, is critical to yield useful information for identify-
ing needs and priorities. Anthropologists and country experts “ as well as
individuals with functional expertise in rule of law assistance “ should par-
ticipate in the effort. Including local participation and perspectives is also
critical to gaining a comprehensive understanding of the unique needs and
resources of the country at issue and to designing reforms that are more
likely to enjoy local support and buy-in. Assessment is clearly an area where
the international community could do better.18
A comprehensive strategic assessment needs to address a series of interre-
lated issues, the most fundamental of which relates to the causes and conse-
quences of the con¬‚ict “ the con¬‚ict legacy. Without an understanding of such
matters, no effort at justice system reform has any likelihood of succeeding.
And yet the pressure of action often preempts thorough assessment. In its
retrospective evaluation, Sierra Leone™s Truth and Reconciliation Commis-
sion emphasized how poor governance and a breakdown in the rule of law
contributed to that country™s devastating con¬‚ict. The Commission™s Report
emphasized that “it was years of bad governance, endemic corruption and
the denial of basic human rights that created the deplorable conditions that
made con¬‚ict inevitable,” that “[d]emocracy and the rule of law were dead”
by the start of the con¬‚ict, and that only the “slightest spark” was required
for “violence to be ignited.”19 Stressing that many of these causes of con-
¬‚ict have not yet been adequately addressed, the Commission recommended

18 See generally Thomas Carothers, The Problem of Knowledge, in Promoting the Rule of
Law Abroad, supra note 1, at 15; Shelby R. Quast, Rule of Law in Post-Con¬‚ict Societies:
What Is the Role of the International Community?, 39 New Eng. L. Rev. 45, 48“49 (2004).
19 Introduction, Final Report of the Truth & Reconciliation Commission of Sierra Leone,
Vol. I, para. 11, available at http://www.trcsierraleone.org/drwebsite/publish/intro.shtml.

reforms to strengthen Sierra Leone™s legal and political system, including
“introduction of a new transparent regime in which citizens will have rea-
sonable access to government information” such as what is “being spent on
services and amenities” and in which “senior public of¬cials disclose their
¬nancial interests.”20 Failure to appreciate such systemic problems may lead
to forms of assistance that only super¬cially address the real needs in building
the rule of law.21
In addition, the tangible and continuing consequences of long-standing
con¬‚ict must be understood. The most outwardly visible sign of war dam-
age may be decimated formal justice institutions. At a deeper level, however,
the public may have little or no con¬dence in state institutions or of¬cials;
indeed, they may be widely discredited and viewed as part of the problem
more than the solution to urgent needs. Thus, understanding what ordi-
nary people view as urgent priorities is a critical part of a valuable strategic
assessment. Common disputes “ for example, over property or concerning
domestic violence “ may not be addressed at all or effectively. Yet they may
be a major source of continuing con¬‚ict and grievance in society. Interveners
and their domestic allies need to focus not only on the producers of law
and on building institutions; they also need to focus on the consumers “
the demand side, on ordinary people and the parts of the law that they
come in contact with “ and to identify the major substantive problems that
developing justice institutions will need to address.
Even with a ¬rm understanding of the origins of con¬‚ict, no plans for
reform can succeed without a realistic, strategic assessment of existing local
resources for the rule of law. Such an assessment will help to identify what
resources “ cultural, human, material, and, indeed, legal “ are available and
also how best to make use of them. Starting with the positives may help
reformers think in new ways. What positive cultural resources and practices
already exist for resolving disputes? What is available, functioning, and a
potential foundation for moving in constructive directions? Are existing insti-
tutions abusive, however, and discriminatory toward vulnerable segments of
the population? To the extent that formal justice institutions exist “ including
courts and police “ a careful assessment of their relative condition and their
strengths and weaknesses is essential. Moreover, an astute assessment of how

20 Id., para. 12.
21 Regarding Sierra Leone, astute practitioners and commentators emphasize that problems
of abuse of power and lack of accountability continue, despite considerable funds spent
on the “hardware” of justice system reform. Abdul Tejan Cole & Mohamed Gibril Sesay,
Traditional Justice Systems and the Rule of Law in Post-Con¬‚ict Sierra Leone, prepared
for the project The Role of Nonstate Justice Systems in Fostering the Rule of Law in Post-
Con¬‚ict Societies, United States Institute of Peace, August 2005, at 25; International Cri-
sis Group, Sierra Leone: The State of Security and Governance, September 2, 2003, at

these various institutions interrelate can help subsequently in establishing
reform priorities that maximize prospects for balanced progress and syner-
gies. Interveners should also seek to understand the role and impact (both
positive and negative) of informal or customary dispute resolution mecha-
nisms “ and their relationship, de jure or de facto, to formal justice insti-
tutions. In addition, available human resources for justice reform must be
identi¬ed “ not only personnel that could serve in strengthened institutions
but also potential allies in sustaining reform, such as local NGOs and other
supportive domestic actors.
The opposite side of the above question about available resources con-
cerns resources that are lacking and that cannot be relied on in justice system
reform. That is, the obstacles and threats to strengthening the rule of law
must be identi¬ed and analyzed systematically. Human resource limitations “
such as lack of trained legal personnel “ and material resource limitations,
such as lack of basic facilities or funds, must be catalogued. The more elu-
sive issue for analysis will focus on political and self-interested threats to
the process of rule of law reform. These threats must be clearly identi¬ed:
whose interests are served by current arrangements? Who may have a stake
in resisting or sabotaging reform? Can incentives for, and stakes in, reform
be developed? As experienced practitioners will attest, developing effective
human relationships with constructive domestic actors is often the critical
ingredient in successful reforms.
Finally, and most dif¬cult of all, a strategic assessment must identify
promising external interventions to promote and buttress reform “ including
key priorities and also opportunities for synergies among different reform
efforts. A good way to start this component of the assessment is to high-
light the major substantive problems (such as disputes over property, and
crime) that developing justice institutions will need to address, always keep-
ing the ultimate goals of the rule of law (such as government bound by law,
and human rights protection) ¬rmly in mind. Then key capacities that need
strengthening and reform (law-making, law enforcement, adjudication, and
education) and acute institutional needs and priorities can be identi¬ed, rec-
ognizing that balanced reform and attention to interrelationships between
institutions are critical. Also, strategic ways to reinforce and sustain reform
should be identi¬ed, such as developing capacities among local NGOs and
civil society organizations to monitor and scrutinize progress, and develop-
ing effective external scrutiny and monitoring.
As noted earlier, the pressure for taking immediate action may leave
interveners with little apparent time or energy to put together a system-
atic, strategic assessment. Nevertheless, without one, and without a further
understanding of the challenges, opportunities, and pitfalls of reforming par-
ticular justice institutions, interventions are all too likely to go awry and fall
short of even modest sustainable goals.

We now turn to the hardest part of all: transforming good diagnosis into
an effective remedy. In what follows we consider critical capacities “ those
for effective law-making, law enforcement, and adjudication “ that need
to be strengthened in order to build the rule of law based on synergistic
principles. Though the result is a chapter of some length, we believe that
addressing the three capacities together in a systematic way helps to highlight
the interconnections that are crucial for successful justice system reform.
The related capacity for legal education (broadly de¬ned) is also critical; we
address it here and take it up more fully in Chapter 8.


As assessment challenges are overcome, reformers face a basic predicament
in translating knowledge into action: one cannot really build the rule of law
without there being some minimally acceptable law already in place. The
question of “applicable law” is thus critically important in the initial phase
of post-con¬‚ict intervention. Criminal law issues are particularly urgent.
Substantive criminal law must be available to address common crimes, and
procedural law governing the arrest, detention, and trial of suspects is needed
in order to enforce the law effectively and fairly. After all, those charged with
enforcing the law, and with adjudicating disputes, must know what law to
apply, or insecurity may spiral and popular hopes for a better future may be
undermined, as criminal activity becomes more embedded and dif¬cult to

A. The Potential Role of Temporary Codes
Interveners will need law to apply from day one as they confront criminal
activity, and this may entail use of temporary legal codes. The Australian
forces that led the UN-authorized military intervention in East Timor in
1999, for instance, developed and applied an “interim criminal justice pack-
age” based on the Indonesian criminal law then in effect and “international
legal standards.”22 They also adopted an ordinance on detention, which
established a legal framework for handling various categories of detainees
and provided for review of detention decisions by military legal of¬cers.23
Temporary measures such as these may be necessary in addressing imme-
diate intervention exigencies. In the absence of a clear understanding of appli-
cable law and procedures, international civilian police may simply fall back
22 Bruce M. Oswald, Model Codes for Criminal Justice and Peace Operations: Some Legal
Issues, 9 J. Con¬‚ict & Sec. L. 253, 269“270 & note 75 (2004).
23 Id. See also Michael J. Kelly, Timothy L. H. McCormack, Paul Muggleton, & Bruce M.
Oswald, Legal Aspects of Australia™s Involvement in the International Force for East Timor,
841 Int™l Rev. Red Cross 101“139 (2001).

on their own diverse home country™s procedures, as occurred in both Kosovo
and East Timor.24 Moreover, crime can escalate in the face of delays in clar-
ifying or developing applicable law. In light of these and other challenges,
the UN™s Brahimi Report urged the potential development of an “interim
criminal code” to address basic substantive offenses and criminal procedure
in transitional administrations “pending the re-establishment of local rule
of law and local law enforcement capacity.”25 In some situations, the use
of interim, so-called “skinny codes” of criminal law and procedure “ codes
that meet international standards and can be applied by trained international
personnel on a temporary basis “ may help to address immediate criminal
law issues in the early phases of a multinational intervention.26
But working with national actors in a longer-term process of domestic
“law reform” will be essential to address the many, varied substantive and
procedural legal needs in particular post-con¬‚ict societies. The UN Secretary-
General™s 2004 Report on The Rule of Law and Transitional Justice in Con-
¬‚ict and Post-Con¬‚ict Societies correctly stresses the importance of support-
ing “domestic reform constituencies” and strengthening national capacity to
“help ¬ll the rule of law vacuum evident in so many post-con¬‚ict societies.”27

B. Law Reform: Goals and Challenges
Protecting the basic rights of the population through substantive and proce-
dural law is a fundamental goal of the rule of law. The law must be respon-
sive to the needs of the population and must address the kinds of con¬‚icts
and crimes that threaten security in society. The law must also be clear and
accessible to those who must enforce it, if it is to be a stable foundation
for a government bound by law. Moreover, effective national law-making
processes must be nurtured that are transparent and ultimately accountable
to the people.
The capacity of international interveners to contribute to domestic legal
reform will depend, in part, on the interveners™ own authority or legal
24 Colette Rausch, The Assumption of Authority in Kosovo and East Timor: Legal and Practical
Implications, in Executive Policing: Enforcing the Law in Peace Operations (Renata
Dwan, ed., 2002), at 17“18; West, Lawyers, Guns, and Money: Justice and Security Reform
in East Timor, supra note 8, at 336.
25 Report of the Panel on United Nations Peace Operations (hereinafter Brahimi Report),
UN Doc. A/55/305-S/2000/809, August 21, 2000, para. 83, available at http://www.un.org/
peace/reports/peace operations/.
26 But more far-reaching use of temporary codes is a controversial issue. See Vivienne O™Connor
& Colette Rausch, A Tool Box to Tackle Law Reform Challenges in Post Con¬‚ict Countries:
The Model Codes for Post Con¬‚ict Criminal Justice, 10 Int™l Peacekeeping: The Yearbook
of Int™l Peace Operations (2006), at 9, 16“17 (discussing critiques of Brahimi Report™s rec-
ommendations). See also Oswald, Model Codes for Criminal Justice and Peace Operations,
supra note 22, at 258“264.
27 Report of the Secretary-General on the Rule of Law and Transitional Justice in Con¬‚ict and
Post-Con¬‚ict Societies, UN Doc. S/2004/616, August 23, 2004, Summary.

mandate.28 At one end of the spectrum are “executive” missions, as in
Kosovo and East Timor, where UN-authorized transitional administrations
were empowered by the Security Council to administer justice, maintain law
and order, and determine applicable law.29 At the other end of the spec-
trum are more common “assistance” missions, as in Afghanistan, where the
United Nations and other international actors provide assistance to national
authorities, including rule of law assistance, under a UN umbrella.
Beyond the question of legal mandate, each post-con¬‚ict situation presents
unique domestic challenges and needs in the domain of law and law reform.
Careful attention to the particular cultural and legal traditions is the touch-
stone of any effective international effort to work with local leaders to eval-
uate existing laws and identify areas in need of reform, as we discuss more
fully below.
Nevertheless, some distinctive challenges have recurred in numerous
countries emerging from violent con¬‚ict, as scholar Vivienne O™Connor has
r Accessing and identifying existing law in a clear and authoritative way
can be exceedingly dif¬cult. In East Timor, for example, law books, case
¬les, and court records were burned, and “very few people had copies of
the Indonesian Criminal Code in a language they understood, let alone the
Indonesian Code of Criminal Procedure.”31 In Afghanistan, because “all
existing signi¬cant collections of legal texts were destroyed,” it took time
for various organizations to collect “authenticated versions” of critical
legal codes and distribute them.32
r Existing law may not enjoy widespread public legitimacy. Indeed, many
citizens may view the law as an instrument of oppression. Kosovo™s Alba-
nian population, for instance, widely regarded the Yugoslavian law in
effect after Belgrade revoked Kosovo™s autonomy in 1989 as a vehicle of
discrimination and repression.33 Efforts at law reform have the greatest
chance for success if they are seen as responsive to deeply felt public views
concerning the law™s legitimacy.
28 See Oswald, Model Codes for Criminal Justice and Peace Operations, supra note 22, at
265“275 (discussing authority based on host country consent, Chapter VII authorization by
the Security Council, and occupation law).
29 See S.C. Res. 1244 (1999); S.C. Res. 1272 (1999); Rausch, The Assumption of Authority in
Kosovo and East Timor, supra note 24.
30 This discussion draws on the very thoughtful treatment by Vivienne O™Connor, Traversing
the Rocky Road of Law Reform in Con¬‚ict and Post Con¬‚ict States: Model Codes for Post
Con¬‚ict Criminal Justice as a Tool of Assistance, 16 Criminal Law Forum 231 (2006).
31 Linton, Rising from the Ashes: The Creation of a Viable Criminal Justice System in East
Timor, supra note 11, at 140.
32 Laurel Miller & Robert Perito, USIP Special Report 117, Establishing the Rule of Law in
Afghanistan, March 2004, at 9.
33 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 58“59.

r Existing law may ¬‚agrantly violate basic standards of international human
rights. Discrimination against women and minorities is especially com-
mon. Law in Afghanistan under the Taliban, for example, denied women
basic, fundamental rights. In various post-con¬‚ict settings, provisions of
criminal law and procedure may fail to protect the basic rights of criminal
r The law may be “outdated” and therefore “unresponsive to contemporary
social realities.”34 The law may have critical gaps, for instance. It may not
address crimes such as traf¬cking in persons or organized crime “ crimes
that may mushroom in post-con¬‚ict environments. The law may also, for
example, be unclear, unduly complex, or in need of updating. In Sierra
Leone, for instance, many of the laws based originally on British law
have not been updated for decades or modernized to take account of
advancements in women™s rights.

Such problems with the law itself present formidable challenges to
strengthening the rule of law in post-con¬‚ict societies, quite apart from the
dif¬culties of actually enforcing the law fairly or consistently. Furthermore,
existing national law-making processes may be deeply discredited, poorly
functioning, and in need of fundamental reform.
Despite all these problems, interveners cannot simply impose law from
“on high” if the law is to enjoy local legitimacy and support. In a fundamental
sense, law is “gelled” culture: it re¬‚ects cultural and political realities, and
ideally, it should re¬‚ect the agreed values and priorities of a society. Indeed, to
be accepted and followed, law must rest on a foundation of public legitimacy,
and local involvement in law reform is essential.
Even (or especially) in executive missions that possess broad authority
over applicable law, the local population™s perception of the law™s legitimacy
is critical to building domestic support for the rule of law. (In Chapter 8,
this issue is discussed in more detail.) A case in point is the initial failure of
the United Nations Interim Administration Mission in Kosovo (UNMIK) to
provide for applicable law that Kosovo™s Albanian population regarded as

1. Trap to Avoid: Failure to Provide for Applicable Law
That Enjoys Local Legitimacy
In Kosovo, the international interveners encountered serious problems in
determining the applicable law. Following NATO™s intervention, there was
a legal limbo, and the Security Council gave UNMIK a mandate to main-
tain law and order and protect human rights.35 UNMIK initially issued a
34 O™Connor, Traversing the Rocky Road of Law Reform in Con¬‚ict and Post Con¬‚ict States,
supra note 30, at 236.
35 S.C. Res. 1244 (1999), para. 11(i) and para. 11(j).

regulation declaring that applicable law in Kosovo would be pre-intervention
law insofar as it conformed to international human rights standards. This
made perfect sense from a formalist standpoint. But the decision outraged
Kosovar Albanians generally, and the Kosovar Albanian legal community “
the group expected to apply the law “ in particular. To them, pre-intervention
law was anathema as “one of the most potent tools of a decade-long policy
of discrimination against and repression of the Kosovar Albanian pop-
ulation.”36 Moreover, UNMIK failed to specify the ways in which pre-
intervention law fell short of international human rights standards,
leaving poorly trained police, lawyers, and judges to reach their own con-
clusions. The result was confusion and delay as judges, lawyers, and police
“applied a diverse collection of legal provisions and standards, including
FRY/Serbian law, pre-1989 criminal law, and Albanian criminal law. . . . ”37
Worse, UNMIK™s failure to consult with local lawyers and politicians prior
to issuing its ¬rst regulation sent the message to a population long accus-
tomed to arbitrary rule that UNMIK™s rule of law rhetoric might be just
that “ rhetoric only. In the face of domestic opposition, UNMIK ultimately
reversed itself, learning a dif¬cult lesson about the importance of domestic
perceptions of the law™s legitimacy.

2. Improving National Law: Domestic Legitimacy and Beyond
Yet as critical as domestic legitimacy is for sustainable legal reform, legit-
imacy is often not straightforward. On the contrary, if domestic views are
disaggregated, different groups and constituencies are likely to have quite
different perceptions of whether a particular law or reform is “legitimate.”
In Afghanistan, for instance, a number of brave women ran for parliament “
thanks in part to a constitutional provision reserving 68 of the 249 elected
seats in parliament for women.38 Many female parliamentary candidates per-
sisted in their campaigns despite intimidation, harassment, death threats, and
worse, and despite opposition by some tribal leaders and others, who pre-
sumably regarded the law mandating women in parliament as illegitimate.39
36 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 58“59.
37 Betts et al., The Post-Con¬‚ict Transitional Administration of Kosovo, supra note 13, at 375.
38 Elizabeth Rubin, Women™s Work, The New York Times Magazine, October 9, 2005, at
54. More precisely, Article 83(6) of Afghanistan™s constitution provides that “at least two
female delegates should be elected from each province” to the lower house of parliament;
and Article 84 provides that the president appoints one-third of the members of the upper
house of parliament, “50 percent of these people from among women.” Arts. 84(4), 84(5).
The Constitution is available at http://www.oefre.unibe.ch/law/icl/af00000 html.
39 N. C. Aizenman, Afghan Women Put Lives on Line to Run for Of¬ce, The Washington
Post, July 29, 2005, at A1. On the other hand, a recent public opinion survey in Afghanistan
reports that over 82 percent of those surveyed (including 77 percent of male respondents)
said they think reserving some seats in parliament for women representatives is “a good
idea.” New WPO Poll: Afghan Public Overwhelmingly Rejects al-Qaeda, Taliban, January
11, 2006, available at http://www.worldpublicopinion.org.

Though without triggering such opposition, East Timor™s Commission on
Reception, Truth and Reconciliation likewise reserved a certain number of
places for women in the community-based reconciliation panels, providing a
leadership opportunity for women that otherwise would have been unlikely
to occur. Such provisions for female participation “ usually pressed by inter-
nationals with the support of some domestic reformers “ aim to promote
greater equality for women and to advance women™s fundamental rights. In
Afghanistan and elsewhere, the provisions were a critical, though not univer-
sally popular, means of empowering women who otherwise would have far
more limited chances to play a role in governance or community leadership.
This underscores that domestic legitimacy is not the only touchstone for
law reform in post-con¬‚ict societies. Helping to develop national laws and
procedures that meet basic international standards is a major focus of UN
agencies and other international actors. The Secretary-General of the United
Nations has made clear that international standards, including international
human rights law, provide the foundation for UN assistance and “serve as
the normative basis for all United Nations activities in support of justice
and the rule of law.”40 The UN Transitional Administration in East Timor
(UNTAET) and UNMIK in Kosovo thus both determined that local law
would not apply if it was inconsistent with international human rights stan-
dards. Many NGOs likewise work to promote laws and procedures that are
consistent with, and help to advance, fundamental human rights.
But even the most well-intentioned and culturally sensitive law reform
efforts can run up against dif¬cult dilemmas. In particular, limited domestic
resources and capacity can make it dif¬cult, and sometimes impossible, to
fully satisfy basic international standards. Adopting new laws consistent
with international standards is one thing; gaining local acceptance of those
laws “ or developing the capacity to implement them effectively “ is quite
another. Are there some constructive ways to address these dilemmas in the
law reform process?

3. The Potential Role of Model Codes
Recently developed “model codes” provide one potential resource for law
reform efforts in challenging post-con¬‚ict environments. Particularly in the
¬eld of criminal law and procedure, signi¬cant progress has been made in
developing model legislation that meets basic international standards but
is also designed with the exigencies of post-con¬‚ict societies in mind. The
United States Institute of Peace (USIP) and the Irish Centre for Human Rights
40 Report of the Secretary-General on the Rule of Law and Transitional Justice in Con¬‚ict
and Post-Con¬‚ict Societies, supra note 27, para. 9. Moreover, the report continues, “where
we are mandated to undertake executive or judicial functions, United Nations-operated
facilities must scrupulously comply with international standards for human rights in the
administration of justice.” Id., at para. 10.

(ICHR), in cooperation with the Of¬ce of the UN High Commissioner for
Human Rights and the UN Of¬ce on Drugs and Crime, have worked with
legal experts and practitioners from around the world to develop four such
“model codes.” These include a substantive criminal code, a criminal pro-
cedure code, a detention act, and a police powers act.41
The criminal code, which includes over eighty articles, covers basic prin-
ciples of criminal law as well as substantive offenses such as murder, rape,
assault, and offenses against property, among others, and crimes that often
arise in post-con¬‚ict settings, such as traf¬cking in persons and organized
crime. The code also addresses genocide, war crimes, and crimes against
humanity. The criminal procedure code, which includes over 225 articles,
covers the range of issues from investigation of crimes to indictment, trial,
and appellate proceedings, as well as matters such as witness protection.42
In addition, recognizing the enormous challenges of policing and detention
in post-con¬‚ict settings, the USIP/ICHR project is developing two additional
model codes: a detention act and a police powers act. The codes are due to be
published by USIP by 2007, and they will be accompanied by commentary
and guidelines to assist those who might make use of them.
Two features of the model codes project in particular stand out. First, the
model codes are designed with post-con¬‚ict environments ¬rmly in mind, and
they strive to translate human rights standards into concrete legal provisions
potentially achievable in post-con¬‚ict settings. Recognizing limitations such
as lack of resources, judges, or means of transport, for instance, the codes
provide that arrested persons be brought before a judge within seventy-two
hours, which is consistent with international standards but also cognizant
of post-con¬‚ict impediments.43 Second, the model codes are a self-conscious
hybrid that incorporates features from both civil and common law legal
The codes are not expected to be adopted in their entirety. On the con-
trary, they are designed to be a resource for reformers to use and adapt to the
needs of particular countries and legal systems. Although many of the model
codes™ provisions may enjoy acceptance in different post-con¬‚ict settings,
sharply differing views regarding appropriate punishments and substantive
offenses clearly exist in different cultures, and the codes do not purport
to resolve these dif¬cult issues. However, they do aim to assist law reform
41 See O™Connor & Rausch, A Tool Box to Tackle Law Reform Challenges in Post Con-
¬‚ict Countries: The Model Codes for Post Con¬‚ict Criminal Justice, supra note 26, at
12“14; United States Institute of Peace, Rule of Law, Current Projects: Model Transi-
tional Codes for Post-Con¬‚ict Criminal Justice, available at http://www.usip.org/ruleo¬‚aw/
42 O™Connor, Traversing the Rocky Road of Law Reform in Con¬‚ict and Post Con¬‚ict States,
supra note 30, at 252.
43 Model Codes for Post-Con¬‚ict Justice: Guidelines for Application (draft as of October 2004),
at 37.

efforts in a number of ways.44 For one, the codes can be used for speci¬c
gap-¬lling: reformers could potentially borrow and adapt a particular provi-
sion, as needed, to ¬ll a concrete need in existing law. More ambitiously, the
codes could serve as a resource for those developing transitional or temporary
legal codes in different settings. Finally, the codes could serve as a resource
for longer-term projects of national legal reform in the criminal justice
The model codes re¬‚ect an enormous commitment of time and energy and
are indeed a useful resource for law reform projects both large and small.
Also helpful are the commentary and guidelines accompanying the codes,
which can assist reformers as well as judges, prosecutors, and others who
might be responsible for implementing particular provisions. The challenge
will be whether these codes can be used effectively and adapted appropriately
in law reform initiatives in speci¬c countries. The codes cannot and should
not be imposed; on the contrary, sustainable law reform will require a process
that involves national leaders and reform-minded civil society organizations
and that seeks to build national consensus over the law.

C. Reforming Law-Making Processes
Rather than giving careful attention to the process by which laws are revised
and enacted, interveners often focus far more, or even exclusively, on the
substance of law reform initiatives. In Afghanistan, for instance, an Italian
initiative led to the promulgation of a new criminal procedure code with little
local consultation or participation.45 Likewise in Kosovo, “local input was
marginalized” in law reform and the UN “often chose to rely almost exclu-
sively on its own legal advisors and outside experts who submitted various
draft regulations.”46 Eager for results, international actors are sometimes
impatient with processes that involve extensive local participation and feed-
back. Yet, in the long run, the process of law reform can be as important as
the substantive output.
To the extent possible, the process of law-making should be transparent
and accountable to the people. Especially after a period of autocratic rule and
corruption, sustainable law reform will depend critically on strengthening
44 The codes™ developers highlight several possibilities. O™Connor & Rausch, A Tool Box
to Tackle Law Reform Challenges in Post Con¬‚ict Countries, supra note 26, at 16“21;
O™Connor, Traversing the Rocky Road of Law Reform in Con¬‚ict and Post Con¬‚ict States,
supra note 30, at 14“20; United States Institute of Peace, Current Projects: Model Transi-
tional Codes for Post-Con¬‚ict Criminal Justice, available at http://www.usip.org/ruleo¬‚aw/
45 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 8.
46 Colette Rausch, From Elation to Disappointment: Justice and Security Reform in Kosovo,
in Constructing Justice and Security after War, supra note 8, at 279. See also David
Marshall & Shelley Inglis, The Disempowerment of Human Rights-Based Justice in the
United Nations Mission in Kosovo, 16 Harv. Hum. Rts. J. 95, 117“119, 145 (2003).

domestic law-making processes to include a role for civil society and rele-
vant stakeholders. Promulgating top-down reforms will do little to empower
national reformers or to nurture domestic constituencies that can keep con-
structive pressure on government actors. Law reform by decree also fails
to nurture the habits and practice of compromise so critical to the nonvio-
lent resolution of con¬‚ict. As a U.S. Agency for International Development
assessment mission in Bosnia concluded:

[T]he Bosnian legal community is not deeply enough involved in the process of reform
and could even be said, at least in some instances, to be alienated from it, a situation
to which parts of the international community contribute. . . . There are at least two
serious repercussions: ¬rst, developing the capacity for true self-governance, includ-
ing the messy democratic business of reaching compromises, is stilted. Second, the
citizens, who feel that they are not consulted in the development of the law, have
little ownership in it, and do not feel bound by it.47

Different strategies may be needed in different political contexts but, after bit-
ter con¬‚icts involving ethnic and intergroup hostility, nurturing and encour-
aging domestic capacity for compromise and moderation are essential.
Also vital is more effective assistance (in various forms) to legislative
bodies in post-con¬‚ict environments. Though it is somewhat at odds with
the international focus on elections as a benchmark for progress, donors
often provide less aid to legislatures than to the executive branch or to civil
society organizations in post-con¬‚ict societies.48 Nevertheless, assistance to
legislatures can provide tangible dividends by strengthening the separation
of powers and improving oversight of executive action. Training in how to
review and assess budgets can help promote greater transparency of govern-
ment programs and more effective legislative oversight “ all the more impor-
tant because executive departments and agencies typically have considerable
47 U.S. Agency for International Development, Priorities and Partners: Developing the Rule
of Law in Bosnia and Herzegovina (2003), at i, available at http://bosnia.usaid.gov/rol
report english june2003.doc. For additional critiques of “top-down” law reform in Bosnia,
see David Chandler, Imposing the ˜Rule of Law™: The Lessons of BiH for Peacebuilding in
Iraq, 11 Int™l Peacekeeping 312 (2004); Patrice C. McMahon, Rebuilding Bosnia: A Model
to Emulate or Avoid?, 119 Pol. Sci. Q. 569 (2004“2005). For a discussion more generally
of the “mistaken assumption” that “new laws are the answer” with insuf¬cient attention
to promoting “underlying policy dialogues and processes,” see Wade Channell, Lessons
Not Learned: Problems with Western Aid for Law Reform in Postcommunist Countries,
Democracy and Rule of Law Project, Carnegie Papers No. 77, May 2005, at 8.
48 UN Development Programme, Conference Report, A Policy Dialogue on Legislative
Development (2002), at section II, available at http://www.undp.org/governance/eventsites/
policy dialog/index.htm; UN Development Programme, Summary of Discussion, Enhanc-
ing the Role of Parliaments in Con¬‚ict/Post-Con¬‚ict Settings, Geneva, March 24, 2004, at
1, available at http://www.undp.org/governance/eventsites/PARLgeneva04/summdisc.doc.
As the Summary of Discussion noted: “Often, the international community focuses inordi-
nate attention on organizing elections and does not pay adequate attention to the sustenance
of the institutions born of those elections.” Id., at 1.

control over the disbursement of aid funds.49 Assistance and training to polit-
ical parties can help strengthen domestic capacity for effective law-making,
representation, and compromise, so long as it is provided in a balanced and
even-handed way.50 Legislative strengthening can also help reassert civilian
control over military and security forces. Among the possibilities here are
supporting parliamentary committees on national defense and the military
(especially with committee members that cut across social cleavages), and
conditioning military aid on legislative oversight.51 To neglect legislatures is
thus to lose a valuable opportunity to build capacity in domestic law-making
and in civilian oversight of the military.
That said, legislative assistance programs cannot be provided in a techni-
cal, “cookie-cutter” way. Instead, they must be carefully tailored to the local
political and cultural environment. Aid to political parties can be particularly
delicate and must take careful account of local realities if it is to strengthen the
capacity for democratic politics and compromise. In East Timor, for instance,
the relative weakness of opposition parties, coupled with rigid party disci-
pline in the ruling party, threatens to undermine the long-term democratic
vitality and legitimacy of East Timor™s political process. Legislative assistance
and training must therefore not only navigate sensitive political terrain but
also take into account that reform may be needed in how elections are con-
ducted, how party lists are structured, and in other matters, too, that are
essential for the development of effective and stable legislative processes.
Designing effective legislative assistance programs is consequently a deli-
cate and context-speci¬c matter that warrants greater and more systematic
attention in post-con¬‚ict reconstruction.
Taking a slight step back from the legislative arena, support for non-
government organizations can also be a critical investment in improving
domestic law-making capacity. East Timor™s Judicial System Monitoring Pro-
gramme (JSMP), for instance, is an NGO that monitors and reports on
the justice system and that also plays an important role in law reform by

49 UN Development Programme, Summary of Discussion, Enhancing The Role of Parliaments
in Con¬‚ict/Post-Con¬‚ict Settings, supra note 48, at 5. U.S. Agency for International Devel-
opment studies also emphasize the value of strengthening the legislative role in the budget
process. Hal Lippman & Jan Emmert, U.S. Agency for International Development, Assisting
Legislatures in Developing Countries: A Framework for Program Planning and Implemen-
tation, Program and Operations Assessment Report No. 20, October 1997, at 24.
50 For discussion of challenges in aid to political parties, see John K. Johnson with Jessie
Biddle, PN-ACR-217, U.S. Agency for International Development, Understanding Rep-
resentation: Implications for Legislative Strengthening, Second International Conference
on Legislative Strengthening, November 2000, at 11, available at http://www.usaid.gov/
our work/democracy and governance/publications/pdfs/pnacr217.pdf; UN Development
Programme, Conference Report, A Policy Dialogue on Legislative Development, supra note
48, at section II.
51 UN Development Programme, Summary of Discussion, Enhancing the Role of Parliaments
in Con¬‚ict/Post-Con¬‚ict Settings, supra note 48, at 4.

evaluating pending legislation and advocating reforms.52 A valuable source
of public information, the JSMP has helped introduce greater transparency
in the law reform process. More generally, supporting such organizations
can help to strengthen domestic law-making processes and make them more
accountable to public concerns.
Also important is meaningful dissemination of the law. Even making the
law available to critical actors within the justice system “ judges, prosecutors,
police, defense counsel “ can be a major challenge in many post-con¬‚ict
countries. Quite apart from a lack of libraries or computers, resources as
basic as paper and pens can be in short supply. Yet not only public of¬cials
but also civil society organizations and ordinary people need greater access
to legal materials and wider awareness of the law.
Finally, adopting new law is, by itself, only half the story; the larger ques-
tion is whether an adequate capacity to implement the law exists or can
be developed. As Linn Hammergren cautions based on experience in Latin
America, “code reform has intrinsic limitations as to what it can change”;
law reform focusing on the justice sector “will be of little help if the major
obstacles to improved performance are such external factors as political
intervention, formal or informal restrictions on institutional powers, or inad-
equate funding.”53 Moreover, without adequate attention to strengthening
“institutional capacity,” code reform is unlikely to have enduring positive
effects. In post-con¬‚ict societies, the challenge of developing an institutional
capacity for fair and effective law enforcement can be particularly dif¬cult,
as we now examine.


A decent law enforcement capacity is part of an effective justice system and
essential to the rule of law. Adequate and functioning state institutions “
police, prisons, and courts “ are needed. Each of these components, moreover,
52 The Judicial System Monitoring Programme Web site can be found at http://www.jsmp.
minihub.org. We discuss the JSMP and the importance of NGOs more fully in Chapter 8.
53 Linn Hammergren, Code Reform and Law Revision, PN-ACD-022, Executive Summary,
U.S. Agency for International Development, Center for Democracy and Governance, Bureau
for Global Programs, Field Support, and Research, August 1998, at 2. More emphasis on
effective implementation of new laws is needed in many post-con¬‚ict societies. In Bosnia, for
instance, a USAID assessment team concluded: “While drafting new legislation is relatively
simple, the changes that are being introduced in some cases, such as with the criminal
procedure code, are almost seismic in nature. Implementation requires not only training
of judges, prosecutors, lawyers, and police (as is being done, to a large degree), but also
the embedding of experts into key institutions, and engaging in public education.” U.S.
Agency for International Development, Priorities and Partners: Developing the Rule of Law
in Bosnia and Herzegovina, supra note 47, at ii.

is mutually dependent and must work well together as a system. We examine
the particular challenges of post-con¬‚ict reform of police and prisons in this
section, and of judiciaries in the next.

A. Police Reform in Post-Con¬‚ict Societies
Police reform has long received the lion™s share of attention from post-con¬‚ict
capacity-builders. Even so, creating an effective police force that enjoys pub-
lic legitimacy can be enormously dif¬cult. This should come as no surprise,
given the legacy of police abuse and public mistrust that pervades many
countries racked by con¬‚ict. All too often the police have functioned as
instruments of control, repression, and intimidation rather than of justice.
Poorly paid, if paid at all, they were often corrupt, depending on bribes and
side payments for their livelihood. Poorly educated and trained, police often
used abusive methods of interrogation in preference to investigation. More-
over, police often were highly discriminatory, favoring “a narrow segment
of the population “ ethnically, religiously or politically de¬ned” “ rather
than serving “the general public welfare.”54 As a result, regime opponents,
minorities, women “ in short, anyone lacking power and in¬‚uence “ quickly
learned to expect ill treatment from the very institutions that should protect
individual rights in a functioning legal system operating under the rule of
A few concrete examples are illustrative. In East Timor under Indonesian
occupation, the police, together with courts and prisons, served “as tools
of the occupation regime.”55 Likewise, in Kosovo, the police historically
“have been viewed as oppressors and bribe takers.”56 In Iraq under Saddam
Hussein, police were despised and feared, perpetrating abuses, engaging in
torture, and preserving the government™s hold on power. In Haiti prior to the
1994 intervention, there were no civilian police separate from the thuggish,
brutal, and feared armed forces. In circumstances such as these, as William
O™Neill points out, successful police reform will require far more than “tech-
nical” changes in “police doctrine or practice”; it will entail “transforming
power relations in a society.”57
Yet there are also signi¬cant counterexamples. In Somalia, the police
were “well-trained, disciplined, and generally nontribal” and largely well

54 Eric Scheye, Transitions to Local Authority, in Executive Policing, supra note 24, at 105.
55 West, Lawyers, Guns, and Money: Justice and Security Reform in East Timor, supra note 8,
at 316.
56 Rausch, From Elation to Disappointment: Justice and Security Reform in Kosovo, supra
note 46, at 295.
57 William G. O™Neill, Police Reform in Post-Con¬‚ict Societies: What We Know and What We
Still Need to Know, International Peace Academy Policy Paper, April 2005 at 2, available
at http://www.ipacademy.org/Programs/Research/ProgReseSecDev Pub.htm.

respected.58 Thus, following the 1992 intervention, “[t]he nucleus for a
Somali police force already existed, acceptable to Somalis in regions where
they were stationed,” although UN and donor support to train and equip
the police persistently fell short.59
Interveners thus need to start by asking some fundamental questions:
What is the historical baseline in the particular society at issue? How do
police view their role and their loyalties? How do citizens view the police?
Once reformers understand the social and political context in which police
operate, they can begin to ask what kinds of police reforms are needed to
advance the goals of the rule of law “ goals that include not only maintaining
law and order but also protecting human rights, a government bound by law,
and equality before the law. More concretely, is there some combination of
inputs that can help build a fair and effective law enforcement capacity that
will be affordable and sustainable once interveners leave?
Much has been written on the challenges of reforming and strengthen-
ing police in transitioning and post-con¬‚ict societies.60 We can™t possibly
address all the complex issues involved here. Instead, our goal is to empha-
size some central and recurring issues that reformers should keep in mind
while grappling with the unique needs and circumstances of speci¬c post-
con¬‚ict societies. These issues include: the critical overarching challenge of
transforming police“society relations; the need to de¬ne goals clearly and
to develop a systematic plan for realizing them; challenges in constructing a
police force that enjoys local legitimacy and that protects the rights of vul-
nerable populations, including women, after con¬‚ict; challenges in training
police effectively; the critical importance and dif¬culty of changing organi-
zational culture and building accountability; and the fundamental need for
corresponding reforms in the larger legal and political system in which police

1. Transforming Police“Society Relations: The Overarching Challenge
Probably the most important point for reformers to keep in mind is that effec-
tive police reform in post-con¬‚ict societies generally requires “transforming

58 Martin R. Ganzglass, Then Restoration of the Somali Justice System, in Learning from
Somalia: The Lessons of Armed Humanitarian Intervention (Walter M. Clarke & Jeffrey
M. Herbst, eds., 1997), at 22.
59 Id.
60 See, e.g., Constructing Justice and Security after War, supra note 8; Jones et al., Estab-
lishing Law and Order after Con¬‚ict, supra note 17, at 23“24; Robert M. Perito, Where
Is the Lone Ranger When We Need Him?: America™s Search for a Postcon¬‚ict Stability
Force (2004); David H. Bayley, Democratizing the Police Abroad: What to Do and How
to Do It, June 2001, available at http://www.ojp.usdoj.gov/nij; O™Neill, Police Reform in
Post-Con¬‚ict Societies, supra note 57.


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