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THE CHALLENGE OF JUSTICE SYSTEM REFORM


the relationship between police institutions and society.”61 The relationship
between police and citizens, between the police and other components of the
justice system, and between the police and the government all may require
fundamental transformation.
Transforming the relationship between communities and police requires
changing both sides of the equation. Police will need to be trained and reori-
ented to view their job as serving the community, not simply serving pow-
erful political or economic actors or naked self-interest. Moreover, as police
reform experts emphasize, the organizational culture of police “ including
the incentives, expectations, and rewards “ must be reoriented to encourage
a public service orientation, accountability to the law, respect for human
rights, and transparency.62
Citizens, in turn, may be understandably dubious about turning to the
police for fair or reliable protection. Transforming this situation requires
international monitoring, and community outreach and education regarding
what citizens should expect of the police, and what to do in the face of
abusive or corrupt behavior. Community outreach programs and complaint
mechanisms should be developed in tandem with police restructuring “ not
as an afterthought. Furthermore, as Rama Mani emphasizes, interveners
should think of police not simply as part of the “security sector” but as part
of a system that aims to provide justice and to protect the rights of citizens.63
All of this depends, of course, on reforms in the broader political system of
which police are but a part.

2. Goals of Police Reform
“Democratic policing” is a fundamental objective of many police reform
programs. It has several key elements, as expert David Bayley explains. These
include giving priority to serving the needs of the public, accountability to the
law rather than to the arbitrary dictates of particular regimes and leaders,
protection of human rights, and transparency of police operations.64 The
central idea is a police force that understands itself as functioning in the
public interest, with the aim of fair enforcement of the law and protection
of basic rights, within a system of government that is accountable under
the law.
“Community policing” has also been a goal in a number of post-con¬‚ict
settings “ or at least the capacity to employ some techniques of community

61 Charles T. Call, Conclusion: Constructing Justice and Security after War, in Constructing
Justice and Security after War, supra note 8, at 387.
62 Bayley, Democratizing the Police Abroad, supra note 60, at 13“15; O™Neill, Police Reform
in Post-Con¬‚ict Societies, supra note 57, at 9“10.
63 Mani, Beyond Retribution, supra note 7, at 77.
64 Bayley, Democratizing the Police Abroad, supra note 60, at 13“15.
206 CAN MIGHT MAKE RIGHTS?


policing. De¬nitions vary, but the central idea of community policing is that
“law enforcement works in partnership with a community to solve the prob-
lems of crime and disorder. . . .”65 Community policing generally involves
police that are based locally in the community, with a continuous presence
such as a police station and regular patrolling, and a capacity to respond
to local problems in a nonthreatening manner, with the assistance of the
community.66
But community policing is not a panacea. It is sometimes adopted as a
goal without a clear understanding of what it means, concretely.67 Further-
more, locally recruited police may be more susceptible to corruption and
favoritism than those drawn from other parts of a country. Particularly in
diverse societies that have experienced police abuse in the past, safeguards
imposed from outside the immediate community may be essential to protect
minority rights, to defuse ethnic tension, and to counter corruption.
Quite apart from the corruption problems, community police may simply
not be capable of safeguarding the local populations they are meant to serve.
In situations of active insurgency, as in parts of Iraq, it is practically impos-
sible to operate police as a lightly armed presence in communities without
making them attractive targets for heavily armed militia units. “Policing” in
such dif¬cult circumstances devolves into a commando operation aimed at
hunting down insurgent groups and their supporters.
In Iraq, the absence of safeguards on constabulary or commando oper-
ations has been plainly evident. The police organizations of Basra “ Iraq™s
second largest city “ reportedly have been in¬ltrated by local Shiite militia
to such an extent that they have become a force unto themselves, based
in the community but answerable to commanders with factional loyalties
outside the formal police structure.68 Indeed, in Basra and elsewhere, some
“police” units reportedly have perpetrated kidnapping, torture and sum-
mary execution against rival sectarian groups, against a wider background
of insecurity, insurgency, and sectarian violence.69 Given the level of civil

65 International Association of Chiefs of Police, quoted in Eirin Mobekk, Policing from Below:
Community Policing as an Objective in Peace Operations, in Executive Policing, supra
note 24, at 54.
66 Interview, James A. Schear, November 13, 2005.
67 In East Timor, for instance, community policing was adopted as an objective without a clear
understanding (among reformers, CIVPOL, local police, or citizens) of exactly what this
meant or should mean. Mobekk, Policing from Below: Community Policing as an Objective
in Peace Operations, supra note 65, at 56“58.
68 Richard A. Oppel, Jr., Basra Chaos Re¬‚ects Militia In¬ltration of Police, The New York
Times, October 9, 2005, at 1.
69 Id. See also Michael Moss (with David Rohde & Kirk Semple), How Iraq Police Reform
Became Casualty of War, The New York Times, May 22, 2006, at A1; Nir Rosen, Killing
Fields, The Washington Post, May 28, 2006, at B3. For additional analysis of the dif¬culties
in developing effective, accountable police and security forces in Iraq, see Michael Moss &
David Rohde, Misjudgments Marred U.S. Plans for Iraqi Police, The New York Times,
207
THE CHALLENGE OF JUSTICE SYSTEM REFORM


violence in present-day Iraq, it is impossible to predict how Basra or other
militia-dominated municipalities could navigate toward more stable systems
of community police, absent a major imposition of external control, which
seems scarcely likely. What is clear is that even in far more auspicious and sta-
ble circumstances, building police forces that are capable of effective demo-
cratic and community policing takes considerable time and resources.
Police experts frequently argue that ¬ve years is a minimum period of
time required to develop such a capability.70 Moreover, the cost of build-
ing and staf¬ng police academies, providing classroom and ¬eld training,
and equipping police and police stations is signi¬cant. Even when the inter-
national community has been willing to commit substantial resources to
building police forces “ in Kosovo and East Timor, and in Haiti in the mid-
to late 1990s, for instance “ the program was generally more rushed and
the resources more limited than experts would have liked. In addition to
confronting tough choices about how best to use resources in the time frame
available, interveners and their domestic allies also face dif¬cult questions
regarding the sustainability of reforms. Interveners can jump-start a program
of training, restructuring, infrastructure support, and community outreach;
but planning for how to sustain the momentum of reform “ including how to
support it as international resources taper off “ requires far more attention
from the outset.
All this underscores the need for clear goals and astute strategic planning
in police reform efforts. A more concerted effort to forge agreement not only
on basic objectives but also on the methods, techniques, and timetables to
achieve them should be part of systematic police reform, up front.71


3. Constructing a Balanced Police Force That Enjoys Legitimacy
In many post-con¬‚ict societies, building a functioning police force that enjoys
public legitimacy may require a brand new police force “ created either from
scratch, by vetting and retraining some existing forces, or through some
combination of the two. It may be tempting to work with existing police
because security needs are usually pressing, and recruiting, training, and
equipping wholly new forces takes considerable time and effort. In some
cases, as in Somalia, this may be a viable approach: the pre-civil war Somali
police (unlike the Somali military) were well trained and respected, with “an

May 21, 2006, at 1; Dexter Filkins, Shadows, Armed Groups Propel Iraq Toward Chaos,
The New York Times, May 24, 2006, at A1.
70 Perito, National Police Training within an Executive Police Operation, in Executive Polic-
ing, supra note 24, at 100; Jones et al., Establishing Law and Order after Con¬‚ict,
supra note 17, at xiii.
71 Bayley, Democratizing the Police Abroad, supra note 60, at 37 (stressing the need for advance
planning, “clearly specifying objectives, implementation actions, resource requirements, and
timetables”).
208 CAN MIGHT MAKE RIGHTS?


undisputed reputation for professionalism,” so they could be quickly and
usefully deployed with relatively little vetting and retraining.72
More often, however, existing police forces are poorly trained and dis-
ciplined, distrusted by the public, and often notorious for criminal activity
and abuse of human rights.73 In such cases, the police forces must be care-
fully vetted to screen out corrupt personnel and human rights violators, and
reorganized, retrained, and, to the extent possible, imbued “with an ethos of
public service and impartiality. . . .”74 In some circumstances, it may be sim-
plest to disband entire units, especially elite units, and require individuals to
apply for positions and, if accepted, to undergo full retraining in legitimate
police techniques.
The United Nations and some other international organizations and indi-
vidual states now have substantial experience with vetting and reforming
police forces. In Kosovo, UNMIK supervises Kosovo Police Service (KPS)
operations while the Organization for Security and Co-operation in Europe
(OSCE) provides training and professional development. The Kosovo Police
Service School (KPSS) began training police within two months of KFOR™s
arrival in Kosovo, and it has since put thousands of trained and vetted police
on the streets, operating with UNMIK monitors and KFOR backup.75 For
the most part, this program has been successful, and violent crime in Kosovo
generally has diminished substantially over the last several years. Although
overcoming historical mistrust of police takes time, public perceptions of the
KPS are quite positive.76 Nevertheless, the ability of the KPS to withstand
pressure “when confronted with organized crime or crimes involving blood
feuds within families” remains a concern both of locals and internationals.77
A predicament for interveners in Kosovo and elsewhere is eliciting support
from those who fought and ultimately prevailed in the con¬‚ict and now seek
jobs. In East Timor, for example, community resentments still fester over
the inclusion of some prior police from the period of Indonesian occupa-
tion, particularly when so many who actively supported the anti-occupation
resistance remain unemployed.78 In Kosovo, the Kosovo Liberation Army

72 Lynn Thomas & Steve Spataro, Peacekeeping and Policing in Somalia, in Policing the New
World Disorder: Peace Operations and Public Security (Robert B. Oakley, Michael J.
Dziedzic, & Eliot M. Goldberg, eds., 1998), at 176.
73 Michael J. Dziedzic, Introduction, in Policing the New World Disorder, supra note 72,
at 14.
74 Robert B. Oakley & Michael J. Dziedzic, Conclusions, in Policing the New World Dis-
order, supra note 72, at 524 (italics omitted), 521.
75 Perito, National Police Training within an Executive Police Operation, supra note 70, at 87.
76 O™Neill, Police Reform in Post-con¬‚ict Societies, supra note 57, at 8; Rausch, From Elation
to Disappointment: Justice and Security Reform in Kosovo, supra note 46, at 295.
77 Rausch, id., at 295.
78 West, Lawyers, Guns, and Money: Justice and Security Reform in East Timor, supra note 8,
at 335.
209
THE CHALLENGE OF JUSTICE SYSTEM REFORM


(KLA) “insisted on a role in vetting applicants” and 50 percent of the
new police positions initially were set aside for former KLA. With another
20 percent of seats designated for former police dismissed after Kosovo™s loss
of autonomy in 1989, and 20 percent for women, this left only 10 percent for
otherwise quali¬ed males, including many scoring highly on the qualifying
exams.79 Partly for this reason, “the application process was restructured
in Spring 2001, ending the quota and preferential consideration for ex-KLA
candidates.”80
Another recurring challenge is constructing a balanced police force that
fairly re¬‚ects the composition and diversity of the larger community in
which it functions. In Kosovo, for example, as of January 2002, gradu-
ates of the KPSS included 16 percent minorities (of which 8 percent were
Serb); but despite efforts to overcome Kosovo™s ethnic divide, problems per-
sist, including “reports of harassment of Serb KPS of¬cers.”81 Moreover, “in
Albanian-dominant areas, KPS units had virtually no minorities,” whereas in
Serb-dominated areas, “KPS units tended to be almost entirely Serb,” perpet-
uating largely separate or parallel systems.82 This kind of problem is hardly
unique to Kosovo. In Afghanistan, the government of Hamid Karzai has
struggled mightily to reestablish a truly national corps of professional police
(the Afghan National Police or ANP) by drawing inclusively from across the
various ethnic groups “ the Pashtuns, Tajiks, Uzbeks, Hazaras, and other
groups “ that comprise the country™s present-day population of roughly thirty
million. With strong encouragement from international donors, this effort
at multiethnicity has achieved some success within national-level ANP insti-
tutions, such as the Ministry of Interior in Kabul, despite the dif¬culties
of ¬nding adequate experience among traditionally disadvantaged groups,
such as the Hazaras, to ¬ll managerial jobs. Even so, at provincial and dis-
trict levels, the task of deploying ethnically balanced police forces has lagged
behind, especially in areas of the country where the ANP ¬nds itself operat-
ing in close proximity to local, tribal “police” elements whose level of public
acceptance within a given area may be higher. In Iraq, as noted earlier, the
barriers to a balanced national police force are even higher as continued civil
con¬‚ict is abetting a process of ethnic and sectarian separation.


79 Rausch, From Elation to Disappointment: Justice and Security Reform in Kosovo, supra
note 46, at 292; Perito, National Police Training within an Executive Police Operation,
supra note 70, at 95.
80 Rausch, From Elation to Disappointment: Justice and Security Reform in Kosovo, supra
note 46, at 293.
81 Id., at 294.
82 Id., at 303. As Charles Call notes, in Kosovo and elsewhere, the inclusion of minorities
within police forces, although very important, often has not translated into fundamental
changes in social practices. Call, Conclusion: Constructing Justice and Security after War,
supra note 61, at 389.
210 CAN MIGHT MAKE RIGHTS?


Achieving greater gender balance in police forces has been possible in some
post-con¬‚ict settings but extremely dif¬cult in others. In both Kosovo and
East Timor, increasing the presence of women on the police force has been an
explicit goal. With the aim of 20 percent, women comprised 18 percent of the
¬rst sixteen classes of the Kosovo Police Service, which is “higher than the
average percentage in U.S. police forces.”83 In East Timor, over 30 percent
of the police force are women.84 In Haiti, in contrast, targets were not set
when training began in 1995 and only 7 percent of the initial police force
were women.85 Even more dif¬cult, in Afghanistan, only about 4 percent of
basic recruits and 1 percent of of¬cer cadets were women as of November
2003.86
Increasing the number of female police is a critical goal and, at least in a
few countries, a notable achievement. But even so, women are often sidelined
into lower-status positions or face widespread discrimination from male of¬-
cers.87 Furthermore, increasing numbers, although extremely important, by
itself is insuf¬cient to address the deep problems of violence and insecurity
that women often confront on a daily basis in post-con¬‚ict settings.

4. Protecting and Empowering Women
Violence against women often increases in the aftermath of war. Domes-
tic violence, in particular, has spiked in a number of post-con¬‚ict societies
as demobilized soldiers return home from the battle¬eld with limited job
prospects and years of experience in violent con¬‚ict.88 Disarmament, demo-
bilization, and reintegration (DDR) programs focus on integrating combat-
ants back into their communities, but the reintegration component is often
shortchanged and the particular circumstances and needs of women given
less attention.
Much more is required to effectively address the violence and insecurity
that women in post-con¬‚ict societies often face. Better training for all police,
male or female, in responding effectively to domestic violence and other
83 Tracy Fitzsimmons, Engendering Justice and Security after War, in Constructing Justice
and Security after War, supra note 8, at 358.
84 Id., at 361. In the ¬rst wave of police recruits, women comprised 40 percent, but more recent
classes have averaged 20 percent. See Judicial System Monitoring Programme, Police Treat-
ment of Women in Timor Leste, January 2005, at 12; UNIFEM, The Impact of the Con-
¬‚ict on East Timorese Women, available at http://www.womenwarpeace.org/timor leste/
timor leste.htm.
85 Fitzsimmons, Engendering Justice and Security after War, supra note 83, at 355.
86 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 11 (11 of
the 1000 of¬cer cadets were women, and 22 of the 500 noncommissioned of¬cers were
women).
87 Rausch, From Elation to Disappointment: Justice and Security Reform in Kosovo, supra
note 46, at 294 (“discrimination against female of¬cers remains widespread”); Fitzsimmons,
Engendering Justice and Security after War, supra note 83, at 355, 359; Interviews in East
Timor, November 2003; Amnesty International, Afghanistan: Police Reconstruction Essen-
tial for the Protection of Human Rights, March 2003, at 21“22.
88 Call, Conclusions: Constructing Justice and Security after War, supra note 61, at 381“382.
211
THE CHALLENGE OF JUSTICE SYSTEM REFORM


violent crimes against women is necessary. Haiti™s four-month training course
for new police of¬cers “included less than half a day on rape and domestic
sexual violence, and nothing more generally on gender issues or the treat-
ment of women.”89 In contrast, in Kosovo, the training of the KPS “included
more modules on domestic violence, rape, and women™s issues” than in any
previous international civilian police (CIVPOL) mission.90 Beyond training,
far more sensitivity to victims of violence is needed, and innovations such
as “women™s police stations or women™s sections within police stations”
can “encourage higher reporting levels and more citizen con¬dence in the
police.”91 But preventing violence against women requires more systematic
effort and a wider array of initiatives, as Tracy Fitzsimmons argues, includ-
ing changes in criminal law, early socialization of new police forces, and
development of effective reform coalitions, among others.92


5. Police Training and Professionalism
In the effort to build police organizations that can maintain law and order
but also protect basic rights, effective training is always a core element. In
post-con¬‚ict settings, however, classroom training is usually rushed and ¬eld
training is often inadequate. Although police experts argue that a program
of basic training “designed to give raw recruits a minimum understanding
of policing skills and the law” generally takes between six months and a
year, limited funds and the need to deploy police quickly typically result in
truncated training.93 In Kosovo, classroom training for the ¬rst KPS class
was limited to only ¬ve weeks, and later classes received only eight weeks.94
In East Timor, recruits received twelve weeks of basic training at the East
Timor Police Training College.95 In Afghanistan, police recruits receive three
months of training, whereas of¬cers attend a ¬ve-year training course.96
Although a number of Iraqi police recruits received eight weeks of training at
the International Police Training Center in Jordan, the urgent need for police
led to shorter training programs at the Baghdad Public Safety Academy and
other training centers in Iraq.97
Much of the police training provided in post-con¬‚ict settings consists
of basic and essential police skills. These include arrest procedures, crim-
inal investigation techniques, patrolling, report writing, defensive tactics,

89 Fitzsimmons, Engendering Justice and Security after War, supra note 83, at 355.
90 Id., at 358.
91 Id., at 365.
92 Id., at 359“366.
93 Perito, National Police Training within an Executive Police Operation, supra note 70, at 93.
94 Id.
95 Id., at 91.
96 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 11; Jones
et al., Establishing Law and Order after Con¬‚ict, supra note 17, at 73“75.
97 Jones et al., Establishing Law and Order after Con¬‚ict, supra note 17, at 119.
212 CAN MIGHT MAKE RIGHTS?


¬rearms use, and ¬rst aid, among others.98 Training in supervision and man-
agement “ as a means of developing future leaders “ is also critical. Another
component of training that is vital, but sometimes shortchanged, is educat-
ing police about their role in relationship to other components of the justice
system. Professional education also requires training of a more transforma-
tive character, including training in human rights standards and in effective
community relations. Integrating human rights and professional skills train-
ing together is important in order to underscore that effective policing and
respecting human rights go hand in hand.99
After initial classroom instruction, adequate ¬eld training and follow-on
in-service training has been a consistent problem in many post-con¬‚ict set-
tings. In East Timor, three months of ¬eld training, supervised by CIVPOL
¬eld training of¬cers, was to follow classroom training of recruits.100 But the
quality of CIVPOL mentoring varied enormously, and the “lack of a ¬eld
training protocol” and the limited number of CIVPOL available for this
task resulted in uneven, and often insuf¬cient “¬eld training,” compounded
by a subsequent lack of “in-service training.”101 As former CIVPOL of¬-
cer Ronald West argues, this shows the need “for donors and host country
nationals to agree upon a realistic time frame” for a program of police devel-
opment and “for greater rigor in promulgating standards once initial training
has ended.”102 Yet East Timor was at the relatively high end in terms of police
¬eld training: in Afghanistan, for instance, ¬eld training outside of Kabul has
been limited.103 Experts agree, however, that good ¬eld training is critically
important to developing and reinforcing police skills and good practices.104
Effective training both in the classroom and in the ¬eld requires competent
and committed teachers and mentors. Policymakers cannot simply “assume
that CivPol missions will be able to train the local police in addition to per-
forming their other duties.”105 On the contrary, a better capacity to assemble
teams of rapidly deployable specialists “ including police trainers with special
skills and experience but also experts in the culture and legal system of the
host country “ is needed within regional and international organizations and
98 Perito, National Police Training within an Executive Police Operation, supra note 70, at 88,
91.
99 O™Neill, Police Reform in Post-Con¬‚ict Societies, supra note 57, at 2.
100 Perito, National Police Training within an Executive Police Operation, supra note 70, at 91.
101 West, Lawyers, Guns, and Money: Justice and Security Reform in East Timor, supra note 8,
at 342.
102 Id.
103 U.S. Government Accounting Of¬ce, Afghanistan Security: Efforts to Establish Army and
Police Have Made Progress, but Future Plans Need to Be Better De¬ned, June 2005, at
24“25. U.S. of¬cials “cited the high costs, the security threat to training personnel stationed
in the ¬eld, and the dif¬culty of recruiting suf¬cient numbers of international police as
impediments to implementing a countrywide ¬eld-based program.” Id., at 25.
104 Id., at 24.
105 Perito, National Police Training within an Executive Police Operation, supra note 70, at 96.
213
THE CHALLENGE OF JUSTICE SYSTEM REFORM


within key states. These teams can work with domestic reformers in design-
ing and implementing training programs that take account of the particular
cultural conditions and needs of the host country in order to maximize the
effectiveness of educating new police.
But training is, of course, only part of the picture. Another even more dif-
¬cult challenge is changing the “culture” of police organizations to inculcate
a public service orientation and related norms of democratic policing.106

6. Changing Organizational Culture and Building Accountability
In post-con¬‚ict countries where the police previously functioned as agents of
governmental control and repression, building a new organizational culture
is essential. Indeed, the “entire system of incentives and rewards needs to
re¬‚ect the new police ethos of serving and protecting the public.”107 The
organizational culture “ or what police “themselves think is expected of
them” “ needs to encourage and reward positive behavior, and tangible
ways must be found to communicate and reinforce the view that reform is
in the self-interest of police.108 Recruitment and promotion, for instance,
“must be based on objective criteria and not on nepotism or political
favoritism.”109 Merit promotion, in particular, is critical to reinforce new
norms of accountable, democratic policing. Adequate salaries must also be
established and maintained in order to help thwart destructive patterns of
corruption and extortion by police. Unfortunately, doing so has often proven
dif¬cult. In Afghanistan, for example, low and erratic pay has contributed to
“widespread corruption” among police, “who are generally regarded with
a mixture of fear and disdain.”110
Effective disciplinary and oversight mechanisms are also a vital part of
changing organizational culture. If police are not subject to discipline for
abusive behavior, reformers may simply empower unaccountable state actors
who violate human rights with impunity and use their power in arbitrary
and capricious ways. Concretely, before pouring intensive resources into
capacity-building programs for police, reformers should develop disciplinary
and accountability mechanisms that can be used to remove of¬cials who
are corrupt and abusive. Establishing effective controls is much harder to
do after state actors are already empowered and entrenched in their new
positions. Independent oversight bodies, both internal and external, must be
established and given the resources and authority to do an effective job.111

106 Bayley, Democratizing the Police Abroad, supra note 60, at 20“21.
107 O™Neill, Police Reform in Post-Con¬‚ict Societies, supra note 57, at 9.
108 Bayley, Democratizing the Police Abroad, supra note 60, at 20“21.
109 O™Neill, Police Reform in Post-Con¬‚ict Societies, supra note 57, at 9.
110 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 11. See also
U.S. General Accounting Of¬ce, Afghanistan Security, supra note 103, at 25.
111 O™Neill, Police Reform in Post-Con¬‚ict Societies, supra note 57, at 7.
214 CAN MIGHT MAKE RIGHTS?


International police must themselves set a positive example and be
accountable for their conduct. Regrettably, beyond the typical problem of
wide disparity in CIVPOL quality, a far more pernicious problem of serious
misconduct by some CIVPOL of¬cers has plagued several interventions. In
Bosnia, for instance, CIVPOL involvement in traf¬cking and prostitution of
women set a horrendous example and undermined public con¬dence and
respect for police.112 Monitoring and accountability for misconduct must
apply to international as well as domestic police.

B. Police“State Relations: The Critical Larger System
The ultimate impact of even far-reaching organizational reform depends
critically on the larger political system in which the police function. Even
the most impressive recruiting and training programs and organizational
reforms are unlikely to yield sustainable police reform if political conditions
are not hospitable. As we have pointed out earlier, the synergistic approach
to legal reform emphasizes the vital importance of the larger political system
in which state institutions function. It also cautions against reforming one
part of the justice system without adequate attention to the other essential
components. Haiti™s experience illustrates why.

1. Haiti™s Mixed Record of Police Reform
Haiti™s mixed record of police reform following the 1994 U.S-led intervention
shows the importance of reforming the broader political and legal system in
which police operate. Initially off to a promising start, the Haitian National
Police “became for a time the most honest and effective component of the
Haitian bureaucracy, only to ¬nd itself slowly sucked back into the culture of
corruption, incompetence, and politicization in which it was embedded.”113
This experience highlights some positive lessons but also some traps to avoid
in police reform after intervention.
When the United States launched Operation Uphold Democracy in 1994,
U.S., Haitian, and international policymakers made reform of Haiti™s corrupt
and brutal security forces a high priority. Haiti had no police force separate
from the much-feared military, and, with U.S. assistance, a minimally trained
and quickly vetted Interim Public Security Force (IPSF) was deployed as a
temporary measure. The presence of former military in this force undermined
its credibility among the Haitian public, long accustomed to abuse by security
112 Fitzsimmons, Engendering Justice and Security after War, supra note 83, at 365“366; Perito,
Where Is the Lone Ranger When We Need Him?, supra note 60, at 281“288. Regarding
similar problems in Kosovo, see Rausch, From Elation to Disappointment: Justice and
Security Reform in Kosovo, supra note 46, at 288, 291.
113 James Dobbins et al., America™s Role in Nation-Building: From Germany to Iraq
Rand, September, 2003, at 77, available at http://www.rand.org/pubs/monograph reports/
MR1753/MR1753.pref.pdf.
215
THE CHALLENGE OF JUSTICE SYSTEM REFORM


forces; a new, well-trained police force was clearly needed. Shortly after
President Aristide resumed of¬ce, he abolished Haiti™s thuggish military and
supported implementation of a major international effort to develop and
train a new police force, the Haitian National Police (HNP). Over 5000 new
police were recruited, trained, and eventually deployed.114
A number of factors help explain the initial success in developing a credi-
ble and broadly respected police force in Haiti. For one, substantial interna-
tional resources were devoted to selecting and training the force. Beginning
from scratch and setting high standards for admission into the force were
also critical: members of the much-feared military were largely excluded
from the new force, which was vital to gaining public con¬dence and estab-
lishing new patterns of behavior. In addition to high selection standards “
high school graduation, physical and written exams, interviews, screening
for war crimes, among other things “ an intensive four-month course of
training was provided by experienced U.S., Canadian, and French person-
nel. International CIVPOL then acted as ¬eld training of¬cers, going on joint
patrols and helping to mentor and monitor HNP of¬cers. In addition, the
of¬ce of the Inspector General provided domestic oversight, receiving and
investigating complaints regarding police misconduct. Although some of the
new recruits followed the pattern of their predecessors in committing human
rights violations, many who did so were investigated and punished, a “revo-
lutionary” development in a country where impunity was long the norm.115
Moreover, despite ongoing problems, the Haitian police gradually improved
and began to operate in a reasonably professional manner.
But the failure to make comparable gains in the courts and the political
system more generally undermined improvements in policing. Haiti™s cor-
rupt and easily intimidated judges quickly released suspects with political
in¬‚uence or money, while other suspects languished in pretrial detention
for months or even years. Moreover, Haiti™s government and other power-
ful local actors increasingly pressured the senior police leadership to serve
political ends.116 Such political pressure was particularly intense in the lead
up to the 2000 elections. Seeing much of their work prove fruitless, and
lacking the numbers and resources to do their job effectively, Haiti™s newly
trained police soon became demoralized. Some quit, and many of those who
remained were tempted to take the law into their own hands in the face of
judicial corruption and inef¬ciency, or returned to old practices of accepting
bribes and mistreating prisoners.

114 Washington Of¬ce on Latin America, Haiti™s Police Reform: Can Slow Progress be Sus-
tained?, December 1997, Executive Summary, at 1, available at http://www.wola.org/
publications/haiti police reform sustained.pdf.
115 Id.
116 See Elizabeth Farnsworth, Online Newshour, Policing Haiti, January 11, 2000, available at
http://www.pbs.org/newshour/bb/international/jan’june00/haiti 1’11.html.
216 CAN MIGHT MAKE RIGHTS?


When a new UN mission deployed in Haiti in 2004, following Aristide™s
departure, much of the earlier progress in developing the HNP had been
severely undermined by years of politicization, demoralization, and bad
habits. An International Crisis Group (ICG) report in 2005 found that pub-
lic distrust of the police in the capital™s poor neighborhoods was extremely
high, that a signi¬cant number of police were involved in crime and human
rights violations, largely with impunity, and that the HNP “seems unable
to protect Haiti™s citizens” or sustain their con¬dence.117 Although “[t]here
are still competent HNP of¬cers who perform their duties with extreme
dedication under dif¬cult conditions,” the ICG warns that former military
members have been integrated into the police “without proper screening or
training” and that the HNP has resorted to “military-style operations in
the capital™s poor neighborhoods with little regard for collateral damage to
civilians.”118 There is a compelling need for better, more enduring interna-
tional and domestic oversight of the police, and for additional recruitment
and training of quali¬ed new HNP of¬cers; but today “ compared to the
mid- to late 1990s “ international resources and attention are in far shorter
supply.
Haiti™s dif¬cult experience with police reform illustrates a fundamental
reality: sustainable police reform depends on reforms in the broader political
system of which police are a part. Indeed, in the absence of political reform,
intervener assistance in building up indigenous police forces can even be
counterproductive. Two traps are especially important to avoid.

2. Trap to Avoid: Institution-Building without
Corresponding Political Reform
Reformers need to be wary of prematurely building up state institutions “
such as the police “ in the absence of corresponding governance reforms.
Institution-building should not get ahead of political reform or efforts to
build effective checks and balances. Otherwise, interveners may unwittingly
build up potential instruments of state oppression. If a self-serving leader
uses police and courts to protect and bolster his own power and to engage
in political vendettas, for instance, or to oppress disadvantaged groups, then
building up those institutions and providing them with more resources will
not strengthen “the rule of law.” Effective institution-building, in short, must
be part of a larger political strategy of governance reform.
Avoiding giving institutional tools to abusive power-holders is a challenge
that can take very different forms in different societies. In Afghanistan, for
example, the lack of central government oversight and authority in many
areas outside the capital has often left police in the provinces subject to

117 International Crisis Group, Spoiling Security in Haiti, May 2005, at 10“12.
118 Id., at 13.
217
THE CHALLENGE OF JUSTICE SYSTEM REFORM


control or intimidation by local warlords and militia commanders.119 Fur-
thermore, a shortfall in international funding “means that the central gov-
ernment lacks the resources to fund the police outside of the capital, and
thus the ability to reduce the in¬‚uence of regional leaders.”120 A program
for police training at seven regional training centers is being developed, but
the continuing lack of central government oversight in the provinces, coupled
with corruption and political in¬‚uence over the judiciary by regional com-
manders, has severely undermined efforts to strengthen the rule of law out-
side the capital. Changing behavior is extraordinarily dif¬cult when newly
trained police of¬cers are deployed to local police stations often “staffed
by poorly trained, illiterate conscripts or former militia members who have
little loyalty to the central government” and when local commanders pres-
sure trained police to practice extortion.121 Afghanistan™s predicament under-
scores the dif¬culty of making progress on justice system reform “ beyond
Kabul, in this case “ when background or regional political conditions are
hostile.


3. Another Trap to Avoid: Unbalanced Reform in the Justice System
Reformers also need to avoid unbalanced reforms that focus on one com-
ponent of the justice system without suf¬cient attention to the others “ one
of the problems in Haiti. Police reform often receives more early attention
and funding than judicial reform, and efforts to restore order and improve
justice have often faltered for lack of broader systemic reform.122 Yet, as
Robert Perito explains, the “most serious challenges to ¬‚edgling police ser-
vices derive from weak judicial institutions and from traditions of intimi-
dation and authoritarianism in society.”123 Even if police reform progresses
more quickly than other justice system reforms, it is “not itself suf¬cient
to remedy a paralyzed judicial system, an inadequate legal code, an over-
crowded penal system, or political manipulation of the judicial process.”124
Rather, all aspects of the “investigation to incarceration” continuum must
be working well for justice system reform to prove sustainable.

119 Police in the provinces often “owe their allegiance to local warlords and militia commanders
and not to the central government” and many are “former Mujahedeen who have experi-
enced a lifetime of armed con¬‚ict and are accustomed to acting with impunity.” Miller &
Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 10“11.
120 Id., at 11.
121 U.S. Government Accounting Of¬ce, Afghanistan Security, supra note 103, at 22. GAO
investigators were informed “that many police resort to corrupt practices, in part because
their salaries are low and inconsistently paid.” Id.
122 See Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 2,
regarding this problem in Afghanistan.
123 Perito, National Police Training within an Executive Police Operation, supra note 70, at 97.
124 Mark S. Ellis, International Legal Assistance, in Post-Con¬‚ict Justice (M. Cherif
Bassiouni, ed., 2002), at 922.
218 CAN MIGHT MAKE RIGHTS?


The need for a holistic and integrated approach to justice system reform is
now well understood, at least intellectually. Police, prisons, and courts must
function effectively together. “If unreformed, any one of these elements can
diminish the effects and even undo reforms in the other parts of the justice
system.”125 If reformed police forces arrest criminal suspects only to have
them released by corrupt and intimidated judges, for instance, or if suspects
languish in squalid prisons for months or years without access to judicial
process, the entire law enforcement system is undermined.
Yet developing integrated, functional teams “ and planning processes “
is often extremely dif¬cult in practice. Different donors and organizations
focus on their particular priority projects often without suf¬cient coordi-
nation with other actors, as we discuss further in Chapter 9. Also, ¬nding
suf¬cient funds to support reform in some components of the justice system “
particularly prisons “ has frequently proven especially dif¬cult, as we will
now examine.

C. Prison Reform: Too Often Neglected
Prisons generally get the short end of the stick in post-con¬‚ict legal reform.
International attention and donor resources typically ¬‚ow far more readily to
police and judicial reform.126 In post-con¬‚ict societies, the prison “systems”
are often devastated and squalid, poorly equipped, and poorly run. The task
of bringing them up to even basic standards can be so daunting that donors “
faced with many needs crying out for resources and attention “ prefer to focus
on other more “attractive” and more quickly achievable projects.
Domestic attitudes can also complicate support for prison reform. In des-
perately poor countries, ordinary citizens struggle daily to feed and sustain
their families. “When foreign assistance is directed at prisoners and prison
conditions, locals view this as favoring ˜criminals™ over ˜victims,™ and increas-
ing the legitimacy of prisoners.”127 If prisoners have better food and living
conditions than ordinary people in surrounding areas, the public resentment
may be considerable. As a U.S. military of¬cer in charge of one prison in Haiti
told a foreign visitor in 1995, she was more worried about people from the
surrounding neighborhood wanting to break in to the prison (which served
decent and regular meals) than about anyone breaking out.128
Yet neglect of prisons can have profoundly negative consequences. As a
matter of basic humanity, the potential for human beings to abuse other
human beings, sadly, is enormous in prison situations where guards wield
125 Dobbins et al., America™s Role in Nation-Building: From Germany to Iraq, supra note 113,
at 84“85.
126 Mani, Beyond Retribution, supra note 16, at 66 (“As recently as 1992, donors were
unaware of or unwilling to address this issue”).
127 Id., at 67.
128 Interview with James A. Schear, November 5, 2005.
219
THE CHALLENGE OF JUSTICE SYSTEM REFORM


virtually total control over detainees. Without adequate standards, training,
and monitoring, the potential for serious abuse is always present. To compli-
cate matters further, in many post-con¬‚ict situations, the rudimentary prisons
and jails include many detainees (perhaps even a majority) who have never
been tried or convicted of offenses. Moreover, because of inadequate review
of pretrial detention, they may languish there, uncharged and untried, for
months or even years. And if violent and nonviolent offenders, adults and
children, men and women, are placed together, the risk to detainees and the
potential for abuse is even greater.
Beyond the inherent concern for the basic rights of detainees, prison abuse
can cause enormous harm to the credibility of interveners. If interveners
themselves are running prisons and fail to comply with basic standards, the
public outrage and fallout can be profound. Instances of abuse of detainees
at Abu Ghraib prison in Iraq have had severe consequences for the United
States. The abuse has profoundly undermined U.S. stature in the region and
around the world, and it has served as a recruiting tool for insurgents ¬ghting
against U.S. efforts to bring stability to Iraq. It has also undermined the
credibility of U.S. advocacy for the rule of law and humane treatment of
prisoners in Iraq and elsewhere, impairing the rule of law message the United
States hoped to promote.
Abuse of detainees by Iraqis in Iraqi-run detention centers has also gen-
erated enormous concern and anger, especially among Iraq™s Sunni popula-
tion. Several raids on Iraqi government detention centers in November and
December 2005 uncovered instances of severe abuse by Iraqis of scores of
Iraqi detainees.129 The United States subsequently announced that the U.S.
military will not turn over detainees or detention centers under U.S. control
to Iraqi custody until improved standards are in place in Iraqi facilities and
adequate training of Iraqi prison personnel has taken place.130
As a long-term systemic matter, the effective administration of justice
depends on prisons that are humane and well run. Efforts to reform jus-
tice institutions and develop public con¬dence in them will be undermined
if prisons remain largely immune from decent standards and government
oversight. In Afghanistan, for instance, outside Kabul “it appears that all
or most actually functioning prisons and detention facilities” are controlled


129 John F. Burns, Torture Alleged at Ministry Site Outside Baghdad, The New York Times,
November 16, 2005, at A1; Dexter Filkins, Sunnis Accuse Iraqi Military of Executions, The
New York Times, November 29, 2005, at A1; John F. Burns, To Halt Abuses, U.S. Will
Inspect Jails Run by Iraq, The New York Times, December 14, 2005, at A1. Problems of
Iraqi mistreatment of detainees preceded these raids. See, e.g., Human Rights Watch, The
New Iraq: Torture and Ill-Treatment of Detainees in Iraqi Custody, January 2005, available
at http://hrw.org/reports/2005/iraq0105/.
130 Eric Schmitt & Thom Shanker, U.S., Citing Abuse in Iraqi Prisons, Holds Detainees, The
New York Times, December 25, 2005, at 1.
220 CAN MIGHT MAKE RIGHTS?


not by the central government but “by commanders or other regional power-
holders.”131
Interveners will immediately face a number of issues concerning detention.
In the initial, emergency phase of an intervention, the interveners themselves
will need procedures and basic facilities in place to handle arrests and deten-
tion. In Kosovo, for example, the gap between the deployment of military
forces and the arrival of international police meant that within two weeks,
KFOR was holding over 200 detainees in makeshift NATO and UN jails,
with no functioning courts in which to try them or adequate prisons in
which to hold them.132 Because KFOR forces came from multiple countries,
the policing and arrests were not done “according to a uniform standard.”133
Moreover, by holding suspects inde¬nitely and in many cases without charge,
KFOR undercut its own rule of law message.
In Afghanistan and Iraq, the problems of detention confronting interven-
ers have been magni¬ed many times over. In both cases, the United States
launched an intervention to topple a regime and now ¬nds itself waging
a protracted con¬‚ict against insurgent elements. Thus, the population of
detainees includes not only ordinary criminals but also a mix of insurgents
and terrorist operatives (who, if released, would continue to pose threats
to both U.S. forces and the national governments of Iraq and Afghanistan),
as well as potential terrorist suspects and, very likely, ordinary people who
simply happened to be in the wrong place at the wrong time. The complex
and dangerous security environment, coupled with the sheer numbers of
detainees and the dif¬cult process of determining the degree of threat posed
by individual detainees, has presented a set of issues far beyond those faced
in the earlier interventions of the 1990s.
Not only must interveners do better planning on detention procedures
and arrangements, but they also must secure existing prison facilities or face
the prospect of prison breaks, looting, and destruction of needed infrastruc-
ture. Moreover, because managing these institutions eventually will be the
responsibility of the domestic government, interveners need to work closely
with local authorities to improve domestic prison facilities and procedures
and to pave the way for a transition in the control and administration of
prisons. At the most fundamental level, goals should include a prison system
that is secure, nonabusive, and in accord with basic standards. In addition

131 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 12.
132 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 49; Captain
Alton L. Gwaltney III, Law and Order in Kosovo: A Look at Criminal Justice During the
First Year of Operation Joint Guardian, in Lessons from Kosovo: The KFOR Experience
233 (Larry Wentz, ed., 2002); Rausch, The Assumption of Authority in Kosovo and East
Timor, supra note 24, at 28 note 32.
133 Betts, Carlson, & Gisvold, The Post-Con¬‚ict Transitional Administration of Kosovo and the
Lessons-Learned in Efforts to Establish a Judiciary and Rule of Law, supra note 13, at 374.
221
THE CHALLENGE OF JUSTICE SYSTEM REFORM


to providing acceptable living conditions for all detainees, the system should
segregate women from men, adults from juveniles, violent from mild offend-
ers, and pretrial detainees from convicted persons. How can such basic goals
be achieved? The truly hard issue is balancing a progressive handoff to local
authorities with the countervailing requirement for suf¬cient international
oversight to support and sustain reform.

1. Critical Elements of Prison Reform: Rules, Training, and Accountability
Three key elements “ rules, training, and accountability “ are essential
to developing an effective and nonabusive prison system. Even if ample
resources are available, clear rules, effective training, oversight, and account-
ability are needed to protect against abuse in prisons and other detention
facilities.
In post-con¬‚ict societies, establishing rules for prisons that meet basic
international standards but are potentially achievable in resource-poor envi-
ronments is a fundamental challenge. The UN Standard Minimum Rules for
the Treatment of Prisoners provide a helpful starting point.134 In establish-
ing a prison service in East Timor, for example, UNTAET stipulated that
every penal institution would operate in accordance with these rules as well
as with international human rights conventions and other relevant princi-
ples.135 Another resource (and potential guide) for international and national
reformers is the “Model Detention Act” being developed by the U.S. Insti-
tute of Peace and the Irish Centre for Human Rights, in cooperation with the
Of¬ce of the UN High Commissioner for Human Rights and the UN Of¬ce
on Drugs and Crime. This act addresses a full spectrum of issues from proce-
dures for detention, release, and transfer, to maintaining adequate records,
to conditions of detention (such as food, accommodation, sanitation, exer-
cise, medical assistance, separation of female detainees from male detainees,
exercise of religion, handling of juvenile detainees, among other important
issues), to mechanisms for complaints and oversight.136
Even with agreed basic rules and procedures, providing training to rel-
evant prison personnel regarding those standards and procedures will be
critical to successful reform. The personnel to be trained should include

134 United Nations Standard Minimum Rules for the Treatment of Prisoners, available at
http://www.unhchr.ch/html/menu3/b/h comp34.htm.
135 UNTAET/REG/2001/23, August 28, 2001, at section 2.1. The UN mission in Kosovo also
used these and other standards, and, in Afghanistan, the UN assistance mission (UNAMA)
translated and distributed copies of the standard minimum rules. Amnesty International,
Afghanistan: Crumbling Prison System Desperately in Need of Repair, July 2003, at 43,
available at http://web.amnesty.org/library/index/ENGASA110172003; Rausch, From Ela-
tion to Disappointment: Justice and Security Reform in Kosovo, supra note 46, at 297.
136 The Model Detention Act, scheduled to be published by USIP by 2007, is discussed in
O™Connor & Rausch, A Tool Box to Tackle Law Reform Challenges in Post Con¬‚ict Coun-
tries, supra note 26, at 13.
222 CAN MIGHT MAKE RIGHTS?


wardens and those in leadership positions as well as prison guards and other
prison staff.
Finally, an oversight capacity is needed. Of critical importance here is the
ability to effectively monitor compliance with basic rules and procedures, to
hold individuals accountable for compliance, and to receive and respond to
complaints. The UN Standard Minimum Rules for the Treatment of Prisoners
provide that prisoners should be noti¬ed of their rights and of complaint
mechanisms upon admission.137 Effective internal procedures for addressing
complaints are also needed, as are external oversight mechanisms to monitor
prison conditions and ensure that prison staff are accountable.138 In addi-
tion, independent monitoring bodies including diverse personnel (such as
judges, lawyers, and human rights experts) should visit prisons and assess
conditions.139


2. Key Additional Factors in Sustaining Prison Reform
The impact of efforts to improve prisons by establishing reasonable rules,
training, and oversight will depend critically in the long term on three addi-
tional factors. First and fundamentally is the adequacy of resources. Satisfy-
ing even the most basic standards of decent treatment in prisons “ food, clean
water, sanitation, health care, avoidance of overcrowding, and so forth “
requires resources. This problem is hardly unique to post-con¬‚ict countries.
In many developing regions, where the shortage of resources (¬nancial and
otherwise) is commonplace, prisons are often characterized by horri¬c over-
crowding, poor sanitation, and lack of basic nutrition.140
A second key factor is the adequacy of the other components of the justice
system. A common problem in post-con¬‚ict societies is the huge percentage
of detainees who have never been charged or tried for offenses, but instead
languish for months or years in prison awaiting some kind of legal process.
Nearly 80 percent of Haiti™s prison population from 1995 to 2001 was in pre-
trial detention.141 Similarly, in East Timor, the UN Development Programme
found that about 77 percent of detainees in 2002 had not been tried.142
As a means of addressing the problem of prolonged pretrial detention,

137 Rule No. 35, Standard Minimum Rules for the Treatment of Prisoners.
138 Amnesty International, Afghanistan: Crumbling Prison System Desperately in Need of
Repair, supra note 135, at 31“32.
139 Id., at 32.
140 Michael Wines, Wasting Away, a Million Wait in African Jails, Many Were Never Tried “
Crowding Is Rife, The New York Times, November 6, 2005, at 1.
141 Anne Fuller et al., Prolonged Pretrial Detention in Haiti, Vera Institute of Justice, July 2002,
at 1, available at www.vera.org. This is a national ¬gure, and the study found that the pretrial
detention rate was higher in the capital, Port-au-Prince, than in the provinces. Id., at i, 1.
142 West, Lawyers, Guns, and Money: Justice and Security Reform in East Timor, supra note 8,
at 340 note 84 (citing UNDP, Timor-Leste Correctional Service: Setting the Course, August
2002).
223
THE CHALLENGE OF JUSTICE SYSTEM REFORM


a U.S.-funded project in Haiti brought rotating judicial teams into prisons
to review pretrial detention cases, which helped reduce backlogged cases at
least for awhile.143 If prisons are not to be overcrowded wastelands lacking
in due process, programs such as this “ and improving pretrial review and
court systems more generally “ will be critical.
A third key factor in prison reform over the longer term is the commitment
of local of¬cials to reform. Not only the attitude and commitment of domes-
tic of¬cials but also a positive systemic environment “ political and cultural “
will be critical to sustaining reforms. Indeed, interveners need to focus on
the issue of sustainability early on as they design and initiate prison reform
programs. Local authorities will also need to grapple with the long-term
goals of incarceration and prison reform.
In both Kosovo and East Timor, prison reform efforts have enjoyed some
relative success. In both situations, international interveners managed the
prison system initially and, at least in comparison to other recent interven-
tions, committed fairly signi¬cant resources and attention to the effort. Even
so, the road has sometimes been rocky and challenges remain. But the posi-
tives are worth highlighting.
In Kosovo, neither the United Nations nor international donors put cor-
rectional services high on their radar screen initially. Responsibility for over-
seeing detention fell ¬rst on KFOR™s shoulders; and UNMIK™s delays in
planning, budgeting, or securing funding for correctional services revealed a
preliminary lack of appreciation of the importance of this task. But in Octo-
ber 1999, the UN mission established a Penal Management Division (PMD)
and, soon thereafter, the Kosovo Correctional Service (KCS). The PMD/KCS
gradually assumed responsibility for corrections and applied, among other
things, the UN minimum standards for the treatment of prisoners.144 Inter-
national experts provided leadership and training, and nearly 600 KCS staff
were trained and posted in prison facilities by November 2000.145 On bal-
ance, international observers credit PMD for improving conditions in pris-
ons, for working with other components of the justice system to address
issues such as “illegal detention” and “alternative penalties,” and for “striv-
ing to maintain positive relations with the prisoners, for instance, by simply
taking time to explain the process and rules and what could be expected in
detention as well as in court.”146 Nevertheless, challenges remain, includ-
ing to improve arrangements for mentally ill and juvenile offenders and to

143 Fuller et al., Prolonged Pretrial Detention in Haiti, supra note 141, at 10.
144 Rausch, From Elation to Disappointment: Justice and Security Reform in Kosovo, supra
note 46, at 297.
145 Id. Raush explains that “correctional of¬cers attend[] a four-week Corrections Of¬cer
Course at the Kosovo Police Service School” and that by January 2002, “[s]ome 700 of¬cers
had been trained and deployed.” Id., at 298.
146 Id., at 297“298.
224 CAN MIGHT MAKE RIGHTS?


maintain adequate resources, oversight, and training to sustain the local cor-
rections capacity that has been developed.
International involvement in managing prisons and building local capac-
ity was also signi¬cant in East Timor. The United Nations ran the prisons
prior to Timor-Leste™s independence in 2002, and international corrections
personnel, primarily from New Zealand and Australia, provided leadership
and expertise. New Zealand Department of Corrections of¬cers provided
training to Timorese prison staff.147 UNTAET enacted a comprehensive reg-
ulation in 2001 providing for the establishment and management of penal
institutions in East Timor, laying out institutional arrangements, procedures
for the admission and treatment of inmates, and complaint mechanisms,
among other things.148
Despite international efforts to reform prisons in East Timor, a long his-
tory during the Indonesian occupation of forced disappearances and of use of
legal process to punish dissenters has left many Timorese deeply distrustful
of prisons and “fearful of what happens to prisoners.”149 In the longer run,
sustaining adequate standards in East Timor™s prisons will depend on the
willingness and ability of the government to commit the necessary funds and
effort. Furthermore, the problem of prolonged pretrial detention remains
extremely serious, and ¬nding effective ways to expedite judicial review of
pending matters is an urgent need.150
Haiti™s uneven experience with prison reform illustrates the dif¬culty of
sustaining progress without continued outside involvement, resources, and
pressure. Penal reform in Haiti was off to a relatively promising start under
the UN mission in the mid- to late 1990s. International donors contributed
resources, UNDP provided training to penitentiary personnel, new facili-
ties were built, a separate prison for women and minors was opened, and,
with international support, prison procedures, including maintaining pris-
oner records and prison registers, were improved.151 An innovative program
to cut down on pretrial detention brought court personnel to the National
Penitentiary to review cases.152 Later, however, international support, train-
ing, and monitoring were cut back, and prisons stagnated, with persis-
tent problems of overcrowding, unhealthy living conditions, and prolonged


147 West, Lawyers, Guns, and Money: Justice and Security Reform in East Timor, supra note 8,
at 329.
148 UNTAET/REG/2001/23, August 28, 2001.
149 West, Lawyers, Guns, and Money: Justice and Security Reform in East Timor, supra note 8,
at 339, 329.
150 Id., at 340. UNDP estimated in 2002 that about 77 percent of prisoners in East Timor were
awaiting trial. UNDP, Timor-Leste Correctional Service: Setting the Course, August 2002.
151 Fuller et al., Prolonged Pretrial Detention in Haiti, supra note 141, at 6, 15“17; Amnesty
International, Haiti: Un¬nished Business: Justice and Liberties at Risk, March 2000, at 16.
152 Fuller et al., Prolonged Pretrial Detention in Haiti, supra note 141, at 10.
225
THE CHALLENGE OF JUSTICE SYSTEM REFORM


pretrial detention.153 Early reforms clearly were not suf¬cient to secure
enduring change, particularly without greater corresponding reforms in the
justice system more broadly.
Afghanistan illustrates, yet again, the relative neglect of prisons and cor-
rectional reform that too often occurs in post-con¬‚ict societies. After over
twenty-three years of con¬‚ict, Afghanistan™s prisons, which frequently had
served as places of mistreatment and torture, were in desperate shape.154 But
despite glaring problems, little was done to address prisons in the ¬rst year
of the UN Assistance Mission in Afghanistan (UNAMA). Only in 2003, after
prisons were transferred from the Ministry of the Interior to the Ministry of
Justice, did one of the countries involved in UNAMA (Italy) assume a lead
role as part of its justice system responsibilities.155 The UN Of¬ce on Drugs
and Crime has provided most of the international support on prisons, includ-
ing assistance in drafting a new Afghan law of prisons and detention centers
consistent with the UN minimum standards for the treatment of prisoners,
training in implementing the law and on methods to monitor prison institu-
tions, improving prison facilities in Kabul, and strengthening management
capability within the Ministry of Justice.156 Still, the remaining problems
are daunting “ especially the lack of central government oversight of prisons
and detention centers outside the capital, many of which are controlled by
regional commanders with no monitoring or accountability at all.157
The mixed experiences with post-con¬‚ict prison reform highlight sev-
eral recurring issues. First is the risk of neglecting prisons relative to other
components of the justice system, at least early on. Second is the frequent

153 A 2002 study found that the vast majority of detainees had not been tried, with most waiting
for months and many for years. Id., at i, 4. Nationwide, “as many as 400 to 500 people
have been [stuck in] pretrial detention since 1999 or earlier.” Id., at 4.
154 Prison conditions were appalling, including lack of food, clean water, or sanitation; prison
personnel were largely unaware of basic rights of prisoners and often had not been paid
for months; many detainees were held for long periods without charge or trial; and, outside
Kabul, regional commanders or warlords reportedly control abusive detention facilities
without any supervision by the central government. Amnesty International, Afghanistan:
Crumbling Prison System Desperately in Need of Repair, supra note 135, at 16, 25, 29“30,
36, 38, 41, 43. See also Miller & Perito, Establishing the Rule of Law in Afghanistan, supra
note 32, at 12.
155 Amnesty International, Afghanistan: Crumbling Prison System Desperately in Need of
Repair, supra note 135, at 13.
156 Id.; Jones et al., Establishing Law and Order after Con¬‚ict, supra note 17, at 80;
UNODC press release, Afghan and International Legal Experts Meet to Discuss the
New Prison Law and Relation to Human Rights Principles, June 13, 2005, available at
http://www.reliefweb.int/rw/RWB.NSF/db900SID/EVOD-6DBH56?Open Document.
157 As Amnesty International stresses, “[t]he widespread existence of such unof¬cial systems
jeopardizes the attempts of the [Afghan authorities] to establish the legitimacy of the formal
law enforcement apparatus and the provincial government system as a whole.” Amnesty
International, Afghanistan: Crumbling Prison System Desperately in Need of Repair, supra
note 135, at 41.
226 CAN MIGHT MAKE RIGHTS?


need for substantial international involvement, expertise, and resources to
begin to bring prison conditions and procedures up to even rudimentary
standards “ and the need for continuing international involvement to help
sustain reforms. Third and ¬nally, as we have emphasized throughout this
chapter, is the need for a systemic approach to reform: many of the serious
problems in prisons “ notably chronic overcrowding and prolonged deten-
tion of individuals awaiting trial “ will not be solved without improvements
in the justice system more broadly.
This brings us to the next component of an effective justice system: courts
and the capacity for fair and ef¬cient adjudication.


V. STRENGTHENING THE COURTS

It practically goes without saying that fair and functioning courts are essen-
tial to an effective justice system. If courts are dysfunctional, corruptible, or
manipulated by powerful interests, government will not be bound by law;
there will be no equality under the law; little recourse will exist for arbitrary
and capricious behavior; litigants will not receive due process; arrested indi-
viduals may languish in pretrial detention; wealthy criminals will go free;
and the public will have little con¬dence in the justice system.
Building a court system unblemished by these problems would be a dif-
¬cult task even under good conditions. Yet, in countries transitioning out
of con¬‚ict, where the courts may suffer from damaged infrastructure, an
ill-trained, politicized, or corrupted judiciary, and ingrained public mistrust,
the barriers can seem impossibly high. Many aspects of the judicial system
are likely to require simultaneous reform, each of which can take consider-
able time, and critical reforms often run up against entrenched interests at the
highest levels of government and society. Unfortunately, post-con¬‚ict judicial
reform efforts often only scratch the surface of these deeper problems.

A. The Complexities of Post-Con¬‚ict Court Reform
The struggle to rebuild the Bosnian judicial and legal system provides one
illustration of the magnitude and complexity of court reform. Since adoption
of the Dayton Agreement, an alphabet soup of international organizations
and NGOs has worked to promote judicial reform and respect for the rule
of law in Bosnia. Foreign experts descended on the country en masse to offer
technical assistance on drafting legislation (on everything from corruption to
human rights to criminal procedure), improving court administration, and
training of judges and lawyers to international standards. Under the aegis
of the Of¬ce of the High Representative (OHR), the Independent Judicial
Commission (IJC) took the lead on judicial reform, with the assistance of
numerous international agencies and NGOs. To strengthen the independence
227
THE CHALLENGE OF JUSTICE SYSTEM REFORM


of judges and prosecutors, OHR mandated salary raises and a comprehen-
sive peer review process designed to weed out corrupt, incompetent, and
biased judges.158 When peer review failed (because local judges lacked the
incentive and capacity to vet their peers and because the IJC lacked adequate
supervisory capabilities), a new process of general reappointment replaced
it, forcing all would-be judges to receive approval from a judicial body with
both foreign and domestic members.159 OHR pushed through a host of
new laws and legal reforms, created a new State Court, strengthened the
Bosnian Human Rights Chamber, and worked to combat spreading cor-
ruption. The United Nations initiated a program to monitor criminal court
proceedings and to provide other assistance, and the OSCE and the Coun-
cil of Europe both provided training programs and advice on legislative
drafting.
Despite all this effort and the millions of dollars spent, the International
Crisis Group (ICG) concluded in 2002 that “[i]n comparison to the sums
expended, the results achieved have been pitiful.”160 Even though the num-
ber of courts doubled after the war, the courts have been “swamped on
all levels with a backlog of cases reckoned in the tens of thousands.”161 The
court system is “inef¬cient, bloated and very expensive,”162 legislation is still
outdated, reversal rates are high, efforts to punish members of the political
elite or their associates for corruption and other crimes are futile, and the par-
ticipation of foreign judges remains essential to combat open ethnic bias. In
short, despite years of intensive international efforts, the ICG concluded that
the “law does not yet rule” in Bosnia: “What prevail instead are nationally
de¬ned politics, inconsistency in the application of law, corrupt and incom-
petent courts, a fragmented judicial space, half-baked or half-implemented
reforms, and sheer negligence.”163
The problems in Bosnia stem from many factors, including the nature of
the con¬‚ict, the prewar state of the legal system, the havoc caused by the war
itself, the postwar entrenchment of organized crime, and ongoing intereth-
nic tensions. Moreover, efforts at reform have been complicated and in some
respects impeded by the Dayton Agreement, which in addition to creating a
framework for peace also created a fractured judicial and political space. By
recognizing lines drawn during the con¬‚ict, the Dayton Agreement ensures
that law-making in Bosnia takes place inconsistently and often haphazardly
among “one state, two entities, ten cantons in the Federation, and Brcko

158 See International Crisis Group, Courting Disaster: The Misrule of Law in Bosnia and Herze-
govina, Balkans Report No. 127, March 25, 2002, at 6“7.
159 Id., at 7.
160 Id., at 3.
161 Id., at 12.
162 Id.
163 Id., at i.
228 CAN MIGHT MAKE RIGHTS?


District.”164 Attempts to prosecute crime across entity and cantonal bound-
aries often founder for want of cooperation. More fundamentally, because
competing visions about the identity and unity of the state were not resolved
at Dayton, efforts at reform of the legal system constantly run up against the
political implications of every decision. Political leaders in the Republic of
Srpska, for example, resist every effort at unifying the legal system for fear
it will undermine Srpska™s autonomy.
International reform efforts, though well intentioned and successful in
particular areas, have thus had at best a modest impact overall. In part, those
efforts have suffered from inadequate coordination, inadequate resources,
insuf¬cient familiarity with local norms, and lack of overall strategic direc-
tion. More importantly, those efforts have suffered from an internal contra-
diction: efforts to impose uniformity and international standards through
the broad decision-making powers accorded to the High Representative,
although substantively desirable, always run into the problem of attempting
to build the rule of law through what appears to be its procedural antithesis “
the unreviewable exercise of power.
But the experience in Bosnia has not been all negative. In Brcko District, a
coordinated and systematic reform effort produced dramatic improvements
within two years. Rather than vetting and reviewing existing judges, all
candidates for the judiciary and prosecution had to reapply, resulting “in the
replacement of 80 per cent of the previous of¬ce holders”; moreover, judges
and prosecutors were appointed only for a probationary one-year period,
followed by a performance review for long-term tenure.165 A modernized
criminal code and other reforms improved the ef¬ciency of the courts, and the
ICG reports that “corruption and bribery have been banished from Brcko™s
courts”: the “old milieu in which judges and prosecutors could be bought
by the new rich, by politicians and by lawyers has gone.”166 At the national
level, the Bosnian Human Rights Chamber, which operated from 1999 to
2003 and was composed of both national and international judges, provided
a valuable and respected forum for addressing human rights abuses.167 And
the Special War Crimes Chamber within Bosnia™s State Court, composed
of national and international jurists, is beginning to make progress, as we
discuss in Chapter 7. Finally, the possible rewriting of Bosnia™s constitution
holds out promise for constructing a less complex and divided legal and
judicial system.

164 Id., at 4.
165 Id., at 49.
166 Id., at 50.
167 See J. David Yeager, The Human Rights Chamber for Bosnia and Herzegovina: A Case Study
in Transitional Justice, 14 Int™l Legal Persp. 44 (2004); Timothy Cornell & Lance Salisbury,
The Importance of Civil Law in the Transition to Peace: Lessons From the Human Rights
Chamber for Bosnia and Herzegovina, 35 Cornell Int™l L. J. 389 (2002).
229
THE CHALLENGE OF JUSTICE SYSTEM REFORM


If Bosnia™s experience provides a sobering illustration of the challenges
involved in building a functioning judiciary, it is hardly alone in that respect.
In Afghanistan, for example, the poor quali¬cations of many judges, the
lack of central government oversight outside the capital, and the in¬‚uence
that warlords, regional commanders, and other powerful actors exercise
over judges (complicated by the enormous corrupting in¬‚uence of drug traf-
¬cking), are fundamental obstacles to effective judicial reform. In Kosovo,
continuing ethnic tensions and the uncertainty about the territory™s ultimate
political status have greatly complicated efforts to strengthen the justice sys-
tem. Across a variety of unique post-con¬‚ict situations, there is a clear need
for more ambitious and strategic approaches to judicial reform.
Probably the single greatest challenge to building an independent and
impartial judiciary in many post-con¬‚ict societies is the problem of politi-
cal in¬‚uence and entrenched corruption. Faced with devastated court sys-
tems, interveners and local reformers focus understandably on immediate
needs such as vetting, appointing, and training judges; rebuilding destroyed
or looted courthouses; and providing furniture, electricity, and basic sup-
plies. But for long-term success, reformers must also address the harder,
more intractable challenges. The legal framework itself must be clear and
well understood; structural protections to encourage independent, impartial
judicial decision-making must be put in place; judicial appointment pro-
cesses must be transparent and based on merit and quali¬cations rather than
cronyism and patronage; court operations and judicial proceedings must
be made more transparent; and disciplinary and judicial system monitoring
mechanisms are needed. Above all, the larger political system must permit
and encourage impartial adjudication rather than manipulation and control
of judicial decision-making by government elites, self-interested litigants, or
other powerful local actors.
Much can be learned from a growing literature of case studies and reports
exploring in detail the particular dif¬culties and accomplishments of judicial
reform efforts in a wide variety of post-con¬‚ict settings.168 Our goal here is
to highlight some of the most signi¬cant, recurring challenges that reformers
are likely to face “ as well as traps to avoid “ as they contend with the spe-
ci¬c needs and circumstances of particular post-con¬‚ict societies. We focus
¬rst on the crucial importance of transparent and merit-based appointment
processes. We then examine challenges in providing appropriate training,
in creating effective disciplinary and monitoring mechanisms, and in ¬nd-
ing an effective mix of international and local jurists to support domestic

168 See, e.g., the chapters in Constructing Justice and Security after War, supra note 8, and
country studies and reports by the International Crisis Group, Amnesty International, the
Asia Foundation, the United States Institute of Peace, and other organizations and agencies
engaged in judicial and rule of law reform, among the many helpful sources by scholars and
practitioners.
230 CAN MIGHT MAKE RIGHTS?


capacity-building. We also examine the critically important problems of
reducing corruption and external pressure, increasing transparency in judi-
cial operations and proceedings, improving access to justice, and investing
in education and civil society.

B. Strengthening Judiciaries after Con¬‚ict
As with other elements of rule of law reform, a baseline assessment of judi-
cial system capacity is a vital ¬rst step.169 Reformers need a clear sense of the
skills, experience, and quality of existing judges “ and of other legal person-
nel, including prosecutors, defense attorneys, and administrators. Also, as
Erik Jensen argues, reformers need good empirical information about “what
courts actually do” in particular societies and how they relate to other “non-
court” dispute resolution mechanisms.170 Interveners and donors, moreover,
need to assess “the degree of receptivity to change” and the political will of
local leaders to build a fair and competent judicial system.171
In many post-con¬‚ict societies, judiciaries have functioned as “an exten-
sion of executive branch, elite, or military domination of the country.”172
Poorly trained, demoralized, and sometimes corrupt judges do not tend to
view themselves “ nor does the public view them “ as agents of impartial
justice. All too often, the process of appointment and promotion was based
not on legal quali¬cations or competence but on loyalty and subservience to
those in political control. In such circumstances, what are the reforms needed
to build a competent and impartial judiciary “ a judiciary largely composed
of judges who decide cases fairly based on the facts and the law, not on the
basis of political in¬‚uence or other external pressure?173

1. Merit-Based Appointment: A Fundamental Reform
Few reforms are more fundamental than establishing a transparent, merit-
based appointment process. Indeed, if the existing process was “designed to
facilitate the exercise of in¬‚uence by outside parties, as is true in many coun-
tries, it will be dif¬cult to overcome that ¬‚aw with checks farther down in
the system.”174 Even when appointment processes appear designed to check

169 As Mark Ellis points out, a prompt assessment is needed to “identify which areas of the
judicial system are intact and functional, and which areas need to be redeployed, recreated,
or redesigned.” Ellis, International Legal Assistance, supra note 124, at 928.
170 Jensen, The Rule of Law and Judicial Reform, supra note 6, at 337, 362“364.
171 U.S. Agency for International Development, Of¬ce of Democracy and Governance, Guid-
ance for Promoting Judicial Independence and Impartiality, revised edition, January 2002,
at 40 (hereinafter AID, Guidance for Promoting Judicial Independence and Impartial-
ity), available at http://www.usaid.gov/our work/democracy and governance/publications/
pdfs/pnacm007.pdf.
172 Id., at 6.
173 For helpful analysis, see id; Ellis, International Legal Assistance, supra note 124, at 927“933.
174 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171,
at 12.
231
THE CHALLENGE OF JUSTICE SYSTEM REFORM


political in¬‚uence, they may not work that way in practice. For example,
although Sierra Leone™s constitution provides for executive appointment of
judges subject to legislative con¬rmation, the impact of these structural safe-
guards is undercut by practical realities, including: executive domination of
the legislature, an executive practice of appointing judges on short-term con-
tracts, a pattern of executive removal of judges who buck executive wishes,
dif¬culty in recruiting judicial candidates because of poor pay and working
conditions, and lack of public esteem for the judiciary.175
Developing transparent and merit-based appointment procedures “ and
recruiting and selecting quali¬ed judges “ has been a central challenge in
many post-con¬‚ict societies. Civil law and common law countries typically
use different appointment mechanisms, but the particular method used is less
important than the transparency of the process and the selection of judges
based on quali¬cations.176 Also critical is ensuring that quali¬ed women
and minority lawyers are part of the candidate pool and that the ultimate
composition of the judiciary is inclusive and representative of the society
at large. Achieving even basic objectives such as these can be particularly
challenging in post-con¬‚ict environments where judges are needed urgently
and must be appointed quickly.
Kosovo is one example. Faced with escalating crime, a total collapse of
the previous judicial and law enforcement system, and a growing number of
pretrial detainees, UNMIK quickly established a seven-member commission
of local and international legal experts to review and recommend judicial
and prosecutorial candidates; shortly thereafter, the head of the UN mis-
sion appointed nine judges and prosecutors who served in mobile units
and conducted detention hearings throughout Kosovo.177 But local con-
troversy ¬‚ared over the commission™s composition and over some appoint-
ments. By July 1999, as more candidates were identi¬ed, UNMIK appointed
twenty-eight judges and prosecutors, including “twenty-one Kosovar Alba-
nians, four Serbs, one Roma, one member of the Turkish community in
Kosovo, and one Bosniak.”178 Although a number of Kosovar Albanians
had served as judges or prosecutors prior to 1989 or had other relevant
legal background, their lack of experience in an impartial system of justice,
coupled with external threats, intimidation, and pressure upon some judges
posed signi¬cant challenges to building an independent judiciary.179 More-
over, UNMIK™s efforts to create a multiethnic judiciary have faced severe

175 Cole & Sesay, Traditional Justice Systems and the Rule of Law in Post-Con¬‚ict Sierra Leone,
supra note 21.
176 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171, at
13, 17, 47.
177 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 52“53.
178 Id., at 53.
179 International Crisis Group, Finding the Balance: The Scales of Justice in Kosovo, ICG
Balkans Report No. 134, September 12, 2002, at 5.
232 CAN MIGHT MAKE RIGHTS?


obstacles: Serb judges have been reluctant to serve for political, economic,
and security reasons, and parallel Serbian courts continue to function.180
In East Timor, a judiciary has literally been built from scratch, on the
smoldering devastation left by ¬‚eeing Indonesian military and militia forces.
Systematic discrimination during Indonesia™s occupation denied Timorese
lawyers the opportunity to serve as judges and prosecutors, leaving “a huge
void in experienced legal personnel.”181 Upon its arrival, UNTAET sought
to identify Timorese “lawyers, law graduates, and law students” (including
by dropping lea¬‚ets from INTERFET aircraft), and it established the Tran-
sitional Judicial Service Commission, composed of three Timorese and two
international experts, to review, interview, and recommend candidates for the
judiciary based on merit. The UN transitional administrator then appointed
East Timorese judges and prosecutors beginning in January 2000, although
“only a few of these jurists had any practical legal experience, some in law
¬rms and legal aid organizations in Java and other parts of the Indonesian
archipelago, and others as paralegals with Timorese human rights orga-
nizations and resistance groups.”182 Despite their lack of prior judicial or
prosecutorial experience, UNTAET provided only “a series of one-week,
compulsory ˜quick impact™ training courses” before these judges and pros-
ecutors took of¬ce, with subsequent on-the-job training and international
mentoring to follow.183
Rather than starting from scratch, just the opposite process was followed
in Bosnia. In 1996, Bosnia™s judges and prosecutors received “initial ¬ve-year
mandates” to be followed later by a review process for long-term appoint-
ment.184 However, the comprehensive peer-review process was ill-conceived,
underresourced, and ineffective, resulting in a replacement rate of less than
2.5 percent before it was ultimately terminated.185 Far more effective was
the “general reappointment” procedure followed in Brcko District, where all
judges and prosecutors were required to resign followed by a general process
of reapplication and reappointment of quali¬ed candidates “ based on trans-
parent and merit-based criteria “ for a probationary period of one year.186
180 Id., at 10; Kosovo Judicial System: Assessment & Proposed Options, 2003“2004, Report
prepared pursuant to a request of the Special Representative of the Secretary-General United
Nation Mission in Kosovo and the Kosovo Judicial and Prosecutorial Council, at 8.
181 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 53“54.
182 Id., at 54. Judge Ximenes, however, who is the President of East Timor™s Court of Appeal,
had served as a judge in Portugal.
183 Id., at 55, 56.
184 International Crisis Group, Courting Disaster: The Misrule of Law in Bosnia & Herzegov-
ina, supra note 158, at 39.
185 Id., at 36. As the International Crisis Group concluded: “The Bosnian context of a highly
politicised, war-in¬‚ated, post-socialist, nationally divided, ¬nancially dependent and insti-
tutionally de¬cient judiciary made peer review a virtual contradiction in terms.” Id.,
at 37.
186 Id., at 49.
233
THE CHALLENGE OF JUSTICE SYSTEM REFORM


Despite the bene¬ts of such an approach, it is not always politically pos-
sible. In Afghanistan, for instance, efforts to introduce more transparent
and merit-based appointment procedures have run up against entrenched
resistance. Judges of the Supreme Court are appointed by the president
subject to approval by the lower house of Afghanistan™s parliament; but
the appointment of other judges does not have this check. Instead, these
judges are appointed by the president based on nominations by the Supreme
Court (with the Chief Justice playing the major role).187 Although Afghan
law sets out the quali¬cations required for judicial of¬ce, many judges do
not possess these quali¬cations.188 Indeed, “many judges appointed in the
post-Taliban period, including some on the Supreme Court, do not have a
legal education (secular or Shari™a)” at all.189 Amnesty International reports,
moreover, that “the judicial appointment process has been marred with
political manipulation and bias, including pressure from armed groups,”
with many judges voicing concern about the nomination and selection of
unquali¬ed individuals based on “political manipulation within the Supreme
Court.”190 Furthermore, neither the Supreme Court nor the president™s of¬ce
have shown much willingness to initiate proceedings to remove unquali¬ed
judges.
At the same time, the opportunities for quali¬ed women in the Afghan
judiciary are limited. “With the exception of the heads of the juvenile and
family courts in Kabul, women are excluded from key positions within the
judiciary” and “are rarely involved in the adjudication of cases.”191 With
all these problems, improving the quality of Afghanistan™s judges is, by most
accounts, the single greatest need in building its judicial system.192 There
are at least some recent signs of change: the lower house of parliament,
for instance, rejected the president™s renomination of a conservative mul-
lah to serve as Chief Justice “ a signi¬cant development given this individ-
ual™s enormous in¬‚uence over the judiciary and resistance to a number of

187 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 7. The
Constitution of Afghanistan, adopted in 2004, provides in Article 117 for a nine-member
Supreme Court appointed by the president with the approval of the lower house of
Afghanistan™s parliament. Quali¬cations for members of the Supreme Court are set forth in
Article 118. Article 132 provides that lower court judges “are appointed with the recom-
mendation of the Supreme Court and approval of the President” and the “appointment,
transfer, promotion, punishment, and proposals to retire judges are within the author-
ity of the Supreme Court in accordance with the law.” The Constitution is available at
http://www.oefre.unibe.ch/law/icl/af00000 html.
188 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 15, at
13“14.
189 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 7.
190 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 15, at
13“14.
191 Id., at 16.
192 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 7.
234 CAN MIGHT MAKE RIGHTS?

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