. 9
( 15)


reforms.193 But the process of judicial reform more broadly will require years
of sustained effort and pressure.
In Iraq, the process of vetting existing judges and prosecutors was rela-
tively effective. Although the courts under Saddam Hussein™s rule “had been
politicized and subordinated to the intelligence services and Ba™ath Party,
Iraq had a body of judges and prosecutors who were relatively honest, edu-
cated, and professional.”194 The Coalition Provisional Authority established
a Judicial Review Committee (JRC) to vet existing judges and remove “those
found to be corrupt or guilty of human rights abuses.”195 By 2004, the JRC
“reviewed the ¬les of all 860 judges and prosecutors in Iraq, removed 176
staff, reappointed 82 judges and prosecutors who had been removed by Sad-
dam, and appointed 123 new judges and prosecutors.”196 Even so, Iraq still
faces enormous challenges in building a fair, effective justice system that
enjoys public con¬dence.

2. Effective Training and Education: A Critical Need
Short-term training is typically provided to judges and prosecutors in post-
con¬‚ict settings, but it is rarely suf¬cient. In Kosovo and East Timor, for
instance, only minimal training was provided initially, with judicial training
institutes established only later.197 Training has proven to be a particularly
dif¬cult issue in East Timor. Inexperienced judges were put on the job after
only limited “quick-impact” training courses “ on the assumption that they
would later receive “mandatory ongoing training” while already working
as judges.198 Once busy with daily responsibilities, however, enthusiasm for
training waned, at least among some judges, while others wished for more
practical training on matters such as writing opinions and managing a court-
room. A group of judges did eventually travel to Portugal for a year-long
training program, but this created a large gap in the already small Timo-
rese judiciary. Meanwhile, within East Timor itself, the issue of language
has greatly complicated training for a number of judges: the training is con-
ducted in Portuguese even though many Timorese judges are not yet ¬‚uent,
193 BBC News, Afghan Assembly Rejects Top Judge, May 27, 2006, available at http://
news.bbc.co.uk/2/hi/south asia/5023392.stm; Carlotta Gall, Afghan Lawmakers Review
Court Nominees, The New York Times, May 17, 2006, at A1; Scott Baldauf, The
West Pushes to Reform Traditionalist Afghan Courts, The Christian Science Monitor,
February 21, 2006, available at http://www.csmonitor.com/2006/0221/p01s04-wosc.html.
194 Jones et al., Establishing Law and Order after Con¬‚ict, supra note 17, at 137.
195 Id., at 137, 143.
196 Id., at 143.
197 David Marshall & Shelley Inglis, The Disempowerment of Human Rights-Based Justice
in the United Nations Mission in Kosovo, 16 Harv. Hum. Rts. J. 95, 123“125 (2003);
Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 55“57;
International Crisis Group, Finding the Balance: The Scales of Justice in Kosovo, supra note
179, at 8.
198 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 55.

and their requests for translation into Bahasa Indonesian or Tetum generally
have been denied. Thus, it is perhaps not surprising that in January 2005, the
President of the Court of Appeal announced that all the Timorese judges and
prosecutors had failed their qualifying exams for permanent appointment.
As a result, they began a full-time, year-long training program at the Judicial
Training Center in Dili, while international judges stepped in to serve as the
judiciary of East Timor.199 Given this dif¬cult history, it would have been
far more ef¬cient to have provided more sustained and systematic training
for Timor™s judges and prosecutors before they assumed their professional
The particular kind of training that is most needed will, of course, be coun-
try speci¬c. Judges, as well as prosecutors and public defenders, need to be
educated on applicable law, including criminal law and procedure. Training
in fundamental international human rights principles can also be an impor-
tant and valuable investment. Some practical training, too, is likely to be
invaluable “ such as training in opinion writing and courtroom management.
In Afghanistan, for instance, participants in judicial training sessions “have
no experience in producing written opinions, no experience with defense
advocates in the courtroom, and are accustomed to disposing of issues with-
out any reference to legal texts.”200 As a result, “[w]orking to impart the
basic idea of making judicial decisions based on actual law has been an
important element of the training.”201

3. Trap to Avoid: Premature Empowerment of Judges, before
Adequate Training and before Credible Disciplinary and Removal
Mechanisms Established
The experiences in several post-con¬‚ict societies underscore a trap to avoid:
premature empowerment of judges. In East Timor, as discussed above, judges
were appointed and deployed without adequate training and support, and
they have been struggling with the consequences ever since.
Equally problematic is the appointment of judges before credible disci-
plinary, removal, and complaint mechanisms are established. In Kosovo,
for instance, when allegations of judicial misconduct arose, “the necessary
transparent judicial disciplinary procedures were nonexistent.”202 Although
UNMIK regulations outlined the grounds for judicial dismissal, they did not

199 Judicial System Monitoring Programme, Overview of the Justice Sector: March 2005, at
7, 12, 27“28; Progress Report of the Secretary-General on the United Nations Mission of
Support in East Timor, February 18, 2005, UN Doc. S/2005/99, at 5“6.
200 Miller & Perito, Establishing the Rule of Law in Afghanisan, supra note 32, at 10.
201 Id.
202 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 379
(footnote omitted).

spell out “speci¬c, transparent complaint procedures.”203 In Afghanistan,
although the Supreme Court is responsible for investigation of judicial mis-
conduct, the procedure is not suf¬ciently transparent. An Amnesty Interna-
tional study found that: allegations of misconduct and corruption were not
effectively investigated, particularly outside of Kabul; a potential con¬‚ict
existed between the Supreme Court™s role in recommending judicial candi-
dates and also investigating misconduct; the Supreme Court itself was not
subject to effective oversight; and there was no functioning mechanism for
public complaints.204 Amnesty International thus urged that a judicial ser-
vices commission be established in Afghanistan with a mandate to investigate
judicial and prosecutorial misconduct and also to create a public complaint
Although there can be “a delicate balance between judicial independence
and accountability, a strong mechanism for oversight and discipline is criti-
cal particularly in the formative stages” of a judiciary.206 In a country that
has a weak rule of law tradition, poorly trained and compensated judges,
and no politically neutral mechanism for removing judges, an “independent
judiciary” can end up meaning little more than a judiciary that is free to be
as corrupt and incompetent as it can be. Effective disciplinary, removal, and
complaint mechanisms are therefore crucial. Charles Call argues that it may,
in fact, be necessary to focus on accountability ¬rst in order to achieve a
more impartial and independent judiciary in the longer run.207

C. A Good Practice: Finding an Effective Mix
of International and Local Jurists
One method for strengthening judiciaries after con¬‚ict has been to blend
international with domestic jurists. On the one hand, building local capac-
ity, ownership, leadership, and responsibility is fundamental. On the other
hand, experienced judges, prosecutors, and defense counsel from other coun-
tries can provide an infusion of skills that can assist new domestic legal
personnel. International judges, for instance, can provide valuable balance
in highly charged, ethnically divided post-con¬‚ict settings. But ¬nding an

203 Id. (discussing UNMIK Regulations 1999/7 & 2000/6).
204 Amnesty International, Afghanistan: Reestablishing the Rule of Law, supra note 15, at 23“
205 Id., at 25.
206 International Crisis Group, Finding the Balance: The Scales of Justice in Kosovo, supra note
179, at 7. For a thoughtful discussion of the challenges of advancing independence and
accountability, see Linn Hammergren, Judicial Independence and Judicial Accountability:
The Shifting Balance in Reform Goals, in AID, Guidance for Promoting Judicial Indepen-
dence and Impartiality, supra note 171, at 149“157.
207 Call, Conclusion: Constructing Justice and Security After War, supra note 61, at 394 (stress-
ing the need to promote “both judicial independence and accountability” and the need to
establish “mechanisms of accountability before judicial autonomy becomes entrenched”).

effective mix of international and local personnel is highly context spe-
ci¬c, and it has proven dif¬cult in a number of post-con¬‚ict situations.
The uneven experience highlights the need for more systematic thinking
up-front about designing effective international/national arrangements and
To start with, ¬nding experienced judges who can deploy to post-con¬‚ict
settings in a timely manner has not been easy. In some instances, international
judges lacked necessary experience in critical areas, such as criminal law,
and had limited knowledge of, or sensitivity toward, local law, culture, and
practice. Also, even experienced judges did not necessarily have effective
mentoring skills. Judging and mentoring are two quite different activities,
and not everyone is good at both. In some instances, patronizing attitudes,
coupled with differential pay and bene¬ts, have engendered resentments on
the part of national judges. Language dif¬culties have also impeded effective
give-and-take between international and national jurists.
But international judges have also made enormously positive contribu-
tions to domestic justice systems. Judge Teresa Doherty is a case in point.
An Irish national who spent years as a magistrate and Supreme Court judge
in Papua, New Guinea, Judge Doherty also served in Sierra Leone™s domes-
tic justice system as a judge of the Court of Appeal and High Court. Her
intelligence and ef¬ciency, the high standards she expected of the lawyers in
her courtroom, and her well-reasoned rulings earned her enormous respect
among the bar in Sierra Leone and served as an impressive model of fair and
impartial justice. While in Sierra Leone, Judge Doherty also visited prisons
and made recommendations to the Chief Justice of the Supreme Court for
addressing delays in appeals and other urgent problems. Judge Doherty is
now serving as a judge on the Special Court for Sierra Leone “ the hybrid war
crimes tribunal based in Sierra Leone composed of national and international
judges, prosecutors, defense attorneys, and other personnel.
In East Timor, greater reliance on international judges in the domestic jus-
tice system at the beginning could have helped avoid dif¬cult problems later
on. Instead, as discussed above, Timorese judges were appointed without
adequate experience or training and expected to function as judges from day
one, only to later fail their qualifying exams for continued service as judges.
In the words of one international prosecutor, Suzannah Linton:

The task of institution-building would undoubtedly have been better served by having
international expertise brought in for the transitional period, with East Timorese
appointed as deputies on probation in order to receive the appropriate training on
the job. At the end of the transitional period, their training would have empowered
them to assume full responsibility as judges, prosecutors and public defenders.208

208 Linton, Rising from the Ashes: The Creation of a Viable Criminal Justice System in East
Timor, supra note 11, at 134.

Today, senior Timorese of¬cials likewise say that international jurists should
have staffed the justice system initially, giving Timorese judge-designates the
opportunity for meaningful training before undertaking their duties.209
At the time, of course, the choice was not easy. The decision to immedi-
ately appoint Timorese judges and prosecutors was in¬‚uenced by a number
of factors: the desire to empower Timorese and build local ownership; the
urgent need for judicial personnel to address the growing number of pretrial
detainees and other problems of law and order; the need for judges familiar
with Indonesian law (which was the controlling law to the extent that it did
not contravene international law); and the enormous expense of deploying
international jurists, dependent on translators and other support, and the
likely delay in doing so.210 But once Timorese judges and prosecutors were
appointed by UNTAET, the failure to provide adequate training and men-
toring in a language understandable to the jurists was an enormous setback
to the development of East Timor™s judicial system.
In Kosovo, many argue that UNMIK was also too slow in deploying inter-
national judges and prosecutors.211 UNMIK ultimately did provide explicitly
for panels with a majority of international judges “if it determines that this is
necessary to ensure the independence and impartiality of the judiciary or the
proper administration of justice.”212 The open-endedness in the criteria for
appointing international prosecutors or majority judicial panels, however,
coupled with the considerable discretion in their application, undermined
public con¬dence about the fairness of the system.213
All in all, international judges and prosecutors have made a valuable
contribution to Kosovo™s justice system. They have helped address sensitive
criminal cases, and they play a vital role in combating organized crime and
in prosecuting war crimes and “ethnically motivated crimes.”214 Neverthe-
less, their continuing involvement has some costs. For one, if internationals
continue to address all cases of any sensitivity, local jurists “will not be given
the opportunity to take on dif¬cult cases to build their competence and test
their impartiality.”215 International judges are also very expensive, and they

209 Interviews with senior Timorese of¬cials, Dili, November 2003.
210 Strohmeyer, Collapse and Reconstruction of a Judicial System, supra note 9, at 54“55; Simon
Chesterman, You, the People: The United Nations, Transitional Administration, and
State-Building (2004), at 170“171.
211 See, e.g., Michael E. Hartmann, International Judges and Prosecutors in Kosovo: A New
Model for Post-Con¬‚ict Peacekeeping, United States Institute of Peace Special Report 112,
October 2003.
212 UNMIK Regulation 2000/64, On the Assignment of International Judges and Prosecutors
and/or Change of Venue, December 15, 2000.
213 International Crisis Group, Finding the Balance: The Scales of Justice in Kosovo, supra note
179, at 8“9. We discuss this more fully in Chapter 7.
214 Id., at 8.
215 Id., at 9.

have contributed less to domestic capacity-building than initially hoped. As
the ICG reports, “there is no mechanism for the mentoring of local judges
by internationals”; international and national judges in Pristina are located
in different buildings; and even in the districts “there is little interaction”
between them.216
In Bosnia and Herzegovina, however, judges in Brcko credit international
judges and prosecutors for making vital contributions to the general reap-
pointment process and to legal reform more generally. As one Brcko judge
put it: “If the internationals were not involved during and after the judicial
reform to assure the integrity of the process and fend off attacks after the
reform, there would have been an open run at the judiciary.”217 In Bosnia
more broadly, particularly in war crimes trials, international judges have
helped provide “balance, independence and expertise” in cases that other-
wise “test local judges™ disinterestedness and ability to resist political and
tribal pressures.”218 International judges likewise played an essential role in
Bosnia™s successful Human Rights Chamber, and they continue to be critical
in Bosnia™s hybrid War Crimes Chamber in the State Court.
No one model or approach for combining international and national
jurists will work across the board. In some settings, national leaders may
reject the idea of deploying international judges altogether. Iraqi leaders, for
instance, had no interest in international judges serving on Iraq™s war crimes
tribunal. The point here is simply that ¬nding an effective mix of national
and international jurists and other experts is a complex and context-speci¬c
matter that requires systematic thinking from the start.
In addition, a more effective international capacity to deploy interested
and experienced jurists to post-con¬‚ict settings is needed. Finding suitable
judges (as well as prosecutors and defense counsel) who are familiar with
civil law or common law systems (as the case may be), knowledgeable about
criminal law or international law, ¬‚uent in a relevant language or languages,
willing to live in often dif¬cult environments, and are culturally sensitive “
and who ideally also have a capacity to relate well, to mentor, and to learn
from local judges “ is exceedingly dif¬cult.219 Finding them and deploy-
ing them quickly in time-urgent circumstances is even harder. Yet having a
greater network of potentially available jurists is vital, and a number of orga-
nizations are well-placed to create and update rosters of such individuals.
The International Association of Women Judges, ABA/CEELI, and the Inter-
national Legal Assistance Consortium, to name only three, could potentially

216 Id.
217 International Crisis Group, Courting Disaster: The Misrule of Law in Bosnia & Herzegov-
ina, supra note 158, at 54.
218 Id., at 34.
219 International Crisis Group, Finding the Balance: The Scales of Justice in Kosovo, supra note
179, at 5“6.

coordinate with other organizations to maintain active rosters of interested
judges and other legal personnel, which could be provided to the United
Nations as well as to other organizations and states involved in justice sys-
tem reform in post-con¬‚ict societies.220

D. Additional Reforms to Encourage Impartial Adjudication
A fair and effective justice system requires more than quali¬ed and honest
judges selected in a transparent manner; it depends, too, on a legal and polit-
ical system that supports and permits impartial adjudication. Moving away
from long-standing practices of corruption and, more generally, of external
pressure on judges “ an endemic problem in many post-con¬‚ict societies “ is
a particularly daunting challenge. The obstacles to greater judicial indepen-
dence and impartiality “are generally embedded in a country™s history and
culture and are not easily eradicated,” with the consequence that changes
made in the judicial system will typically “need to go hand-in-hand with
broader societal changes.”221 Although it must always be remembered that
a particular model for judicial reform that works well in one country may not
work well in another,222 a number of key reforms are likely to be necessary
in most post-con¬‚ict situations. Among other things, the legal framework
itself must be clear and provide adequate procedural protections to litigants;
the judiciary must have an adequate budget and resources; and court opera-
tions and proceedings must be transparent to the public. Attitudinal changes
“ among judges, powerful elites, and ordinary citizens alike “ concerning
the role and purpose of courts within the justice system can take years, but
such changes are indeed possible “ as the reform efforts in Brcko District in
Bosnia suggest.

1. Resources and Budgets
The adequacy of resources and the question of control over budgets are key
factors in developing an impartial judiciary that decides cases based on the
law rather than on external pressure, intimidation, and corruption. With-
out adequate resources, judiciaries cannot offer salaries suf¬cient to attract
good candidates or to reduce the prospects of corruption; courts may lack
220 A number of these organizations already have membership directories and rosters of judges
available to assist with training and other matters; but more attention could be devoted to
developing rosters of jurists potentially able to deploy into post-con¬‚ict settings on short
notice. A potential resource for such an effort is the global database that the International
Association of Women Judges (IAWJ) is developing. This database, the IAWJ notes, “will
be a useful tool to identify quali¬ed women judges when vacancies arise on international
judicial and investigative bodies, or when speakers or trainers are needed to address var-
ious legal topics, and for serving as a resource to governments, NGOs and international
organizations.” See IAWJ Web site at http://www.iawj.org/what/other.asp.
221 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171, at
222 Id.

basic legal materials, such as laws and higher-court decisions, necessary for
principled decision-making; and adequate records of judicial proceedings
cannot be compiled, “undermining the appeal process and transparency and
accountability.”223 Insuf¬cient resources can also result in severely “inade-
quate physical working conditions that undermine respect for the judiciary
both in the judges™ own eyes and in the eyes of the public.”224 Lack of
resources may also mean that the physical security of judges is compromised,
making them more vulnerable to intimidation.
All of these problems are apparent in Afghanistan. Despite legal guaran-
tees of judicial independence, pressure and interference from “armed groups,
persons holding public of¬ce and private individuals” are a major problem,
aggravated by a lack of physical security for judges, increasing their suscep-
tibility to external threats and pressure.225 Low and irregular salaries con-
tribute to widespread corruption among judges and prosecutors.226 Many
courts have little access to basic legal materials, including statutes, and
“many judges are unfamiliar with the law and make decisions without refer-
ence to it.”227 In this environment, examples of corruption and intimidation
in the judiciary are all too common, and “certain individuals remain above
the law because of their place in the community or because they are able
to use threats, intimidation and other forms of pressure to in¬‚uence judicial
Problems of political and economic in¬‚uence and corruption are not lim-
ited to Afghanistan. In Bosnia, domestic prosecutors and judges are vulner-
able to in¬‚uence and intimidation by powerful individuals, particularly in
the absence of adequate security measures, and prosecutors are sometimes
reluctant to pursue war crimes and other cases against politically prominent
suspects.229 In Sierra Leone, the judicial system is perceived by the public

223 Id. at 25.
224 Id.
225 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 15, at 18,
226 Id., at 21. Miller & Perito, Establishing the Rule of Law in Afghanisan, supra note 32, at
7. Amnesty International reports: “Judges in Afghanistan currently receive approximately
$50 a month” and in some provincial regions, “judges and prosecutors had not received
their salaries for three months,” evidently because of dif¬culties in a “safe method of salary
distribution.” Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra
note 15, at 22“23.
227 Miller & Perito, Establishing the Rule of Law in Afghanisan, supra note 32, at 7.
228 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 15, at
19. Examples include extrajudicial detention of individuals without charge on the order of
regional commanders or wealthy individuals, intimidation against prosecutors and judges
to drop cases involving serious crimes, pressure from family members to incarcerate young
girls who resist forced marriages, and bribes to judges and prosecutors to not proceed with
cases or to secure release of detainees. Id., at 19“22.
229 International Crisis Group, Courting Disaster: The Misrule of Law in Bosnia & Herzegov-
ina, supra note 158, at i“ii.

“to be slow, ineffective, and corrupt “ ˜as long as you have money you can
walk away™” is a common refrain.230
Yet the solutions are not simple. While decent and regular salaries can cer-
tainly help by providing an adequate living for judges and attracting better-
quali¬ed candidates,“reducing corruption appears to be much more closely
linked to increasing transparency and meritocracy in hiring, promotions,
and discipline.”231 More generally, transforming practices, attitudes, and
expectations among powerful actors, litigants, and members of the judiciary
can be a daunting endeavor requiring many separate, but mutually reinforc-
ing reforms. Greater transparency of court proceedings, and adequate and
transparent budgets for court operations, among others, may be critical.
The very structure of budgetary arrangements, which differ signi¬cantly
among judicial systems, can make a difference. The two main models are
a judiciary dependent on the executive (often the justice ministry) for bud-
getary and administrative support, and a judiciary that is a separate branch of
government with “the same degree of self-government and budgetary control
over its operations” as that enjoyed by the executive branch.232 “Although
there are clear examples of independent judicial decision-making under exec-
utive branch administration, the trend” is away from this model and toward
placing greater budgetary and administrative responsibility within the judi-
ciary itself.233 Yet even this is no panacea. Court presidents can gain enor-
mous in¬‚uence over their colleagues through their control over resources
and “ if they are not reform-minded “ can substantially undermine efforts
to develop a more independent and impartial judiciary. Indeed, sometimes
pressure from senior or higher-level judges on more junior judges can be
as great a barrier to impartial decision-making as pressure from litigants or
other power-holders.

2. Increasing Transparency
One of the most effective ways to strengthen the impartiality of a judi-
ciary is to increase the transparency of its activities. If court procedures
are shrouded in uncertainty, if trial proceedings are not open to the public, if
judicial decisions are not explained publicly or in writing, and if the public
has no recourse in the face of judicial corruption and misconduct, then the
230 International Crisis Group, Sierra Leone: The State of Security and Governance, supra note
21, at 21.
231 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171, at 32
(discussing World Bank study). Salary increases in Bosnia, although “welcome and neces-
sary,” could not alone “assure the independence of judges and prosecutors.” International
Crisis Group, Courting Disaster: The Misrule of Law in Bosnia & Herzegovina, supra note
158, at 6.
232 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171, at
233 Id., at 24.

prospects for increasing judicial impartiality are dim. Judicial reform expert
Linn Hammergren stresses the importance of greater transparency in four
key areas: in the selection of judges, in court operations, in judicial decisions,
and in public complaint mechanisms.234
Greater transparency in these areas can increase public con¬dence in the
justice system and help reduce the occasions for corruption. More trans-
parent court operations, clear procedures, and good management of court
records, for instance, can decrease opportunities “for bribery, intimidation,
or manipulation.”235 Criminal procedure reforms that introduce greater
transparency “ such as proceedings that are adversarial and public “ increase
public awareness and scrutiny and judicial accountability.
The publication of judicial decisions is also of crucial importance.236 All
too often, judges don™t provide any public explanation of the grounds for
their decisions. Even when limited resources in post-con¬‚ict societies do not
permit publication of all judicial decisions, a clear public statement of reasons
is critical to help deter rulings “based on considerations other than law and
Greater transparency facilitates more effective monitoring of courts by
NGOs, bar associations, and the public. A court system with “structured,
transparent practices” is far easier to monitor “than one that is either inten-
tionally opaque or merely disorganized and chaotic.”238 Yet credible moni-
toring also depends on effective NGOs that can focus on the justice system,
highlight problems, recommend reforms, and keep up pressure on the gov-

E. Good Practice: Nurture Sustainable Justice System Reforms
by Investing in Civil Society, Legal Education, and Programs
to Increase Access to Justice
Transforming a justice system is a long-term effort that requires investment
in institutions and programs far beyond the judiciary itself, as we elabo-
rate more fully in Chapter 8. Supporting local NGOs, such as East Timor™s
234 Hammergren, Judicial Independence and Judicial Accountability, supra note 206, at 153.
See also Ellis, International Legal Assistance, supra note 124, at 930, on the importance of
235 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171,
at 33.
236 Jensen, The Rule of Law and Judicial Reform, supra note 6, at 360; Ellis, International
Legal Assistance, supra note 124, at 930. The publication, in East Timor, of two volumes of
Court of Appeals decisions in 2005 is an important step in making judicial decision-making
more transparent and accessible to the public and to other legal actors in the justice system.
Judicial System Monitoring Programme, Justice Update, October/November 2005, Issue
237 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171,
at 34.
238 Id., at 35.

Judicial System Monitoring Programme, can be indispensable in helping to
build a more transparent, effective, and fair justice system.239 Supporting
legal education is also a critical investment. Although interveners typically
focus on short-term training and immediate needs, inadequate university
legal education can be a serious obstacle to the development of a fair and
effective justice system staffed by competent defense counsel, prosecutors,
judges, and other legal personnel.240 Educating ordinary citizens about their
legal rights plays a critical role by empowering them to make more effective
use of developing justice institutions.
Serious problems of access to justice must also be addressed. All too often,
in building justice institutions after con¬‚ict, interveners pay too little atten-
tion to issues of access to justice by marginalized populations or to the needs
of rural areas.241 Basic institution-building, particularly in the capital and
major cities, is an understandable focus of reform when time and resources
are limited. But ignoring problems of access to justice can mean that vulner-
able and economically disadvantaged segments of the population have little
recourse to justice at all. The legal institutions being developed may serve
only the needs of the powerful and privileged few. The impact on women
and other vulnerable segments of the population may be especially harsh.242
Access to justice can be especially dif¬cult in rural areas. In East Timor, for
instance, where a majority of the population lives in villages in the country-
side, judges and prosecutors have been reluctant to reside in rural districts,
with the consequence that court proceedings remain infrequent. The result-
ing options for litigants are to travel to the capital city, which few can afford,
or to seek a hearing during the few days a month that judges travel to the dis-
tricts to hold proceedings. Gradually, the situation is improving, but court
schedules in the districts remain extremely limited.243 In Afghanistan, the
239 For information about the JSMP, see its Web site, available at http://www.jsmp.minihub.org.
The JSMP has a Women™s Justice Unit that examines the impact of the justice system on
women and a Victim Support Service focused especially on victims of domestic violence. The
JSMP also has evaluated traditional justice mechanisms in East Timor and has examined
the work of the Commission on Reception, Truth and Reconciliation (CAVR) and the work
of the Special Panels for Serious Crimes, among other things.
240 AID, Guidance for Promoting Judicial Independence and Impartiality, supra note 171, at
29. See also Jensen, The Rule of Law and Judicial Reform, supra note 6, at 350, 359“360.
241 Jensen, The Rule of Law and Judicial Reform, supra note 6, at 350, 354“355.
242 In Afghanistan, for instance, young girls, often underage, who resist forced marriages or run
away from abusive husbands are frequently charged with crimes with no adequate opportu-
nity to prepare a defense or protect their rights. Without internationally supported programs
and reforms to provide assistance and to stand up for their interests, these young girls are
at the mercy of a harsh and discriminatory system. Amnesty International, Afghanistan:
Re-establishing the Rule of Law, supra note 15, at 43“48.
243 As the JSMP reports, “resumption of the courts in the districts is still limited in that the
judges only travel to the districts for a few days, one or two times a month.” Judicial System
Monitoring Programme, Overview of the Justice Sector: March 2005, at 12. Moreover,
“prior to the employment of international judges, the district Courts (Bacau, Suai and

challenge of strengthening the rule of law outside the capital or major cities
is especially acute because of the lack of central government authority and
oversight. In addition to the dif¬culties of policing in areas dominated by
local warlords and regional commanders, as we discussed earlier, there are
problems of access to courts in rural areas.244 The limited presence of courts
outside of provincial capitals means that for many Afghans, few, if any,
alternatives exist to “heavy reliance on informal justice mechanisms.”245
Justice system reformers thus must understand the signi¬cant role that
traditional dispute resolution mechanisms continue to play in many post-
con¬‚ict societies. These informal mechanisms and practices may enjoy con-
siderable local support and, for many citizens, are the only “law the people
see.”246 Yet these traditional dispute settlement practices may also disad-
vantage segments of the population, especially women.247 Given the delays
and dif¬culties in extending formal justice institutions into rural areas in
many post-con¬‚ict societies, reliance on informal mechanisms will persist.
As a result, reformers will need to grapple with a number of issues, includ-
ing how state justice institutions should relate to traditional mechanisms of
dispute resolution, and whether those mechanisms can be built upon in con-
structive directions (and modi¬ed if they con¬‚ict with fundamental human
rights). In Chapter 8, which focuses on building rule of law cultures, we will
take up these issues explicitly and also address other factors that can affect
the success or failure of justice system reforms.
Throughout the current chapter, and indeed throughout this book, we
have repeatedly stressed the importance of a synergistic approach to the rule
of law, which emphasizes, among other things, the interrelations between
formal legal institutions, such as courts, and other societal institutions, rang-
ing from NGOs and universities to informal or traditional dispute-resolution
practices. We have also emphasized the critical importance of ¬nding ways to

Oecussi) had been basically non-operational in their respective districts for many months due
to lack of personnel.” Id., at 28, note 19. See also Judicial System Monitoring Programme,
Justice in the Districts 2003, December 2003.
244 Miller & Perito, Establishing the Rule of Law in Afghanistan, supra note 32, at 10“11. See
also Amnesty International, Afghanistan: Police Reconstruction Essential for the Protection
of Human Rights, March 2003, at 7, 48“49.
245 Amnesty International, Afghanistan: Re-establishing the Rule of Law, supra note 15, at 7.
246 See Owen Alterman, Aneta Binienda, Sophie Rodella, & Kimyia Varzi, The Law People See:
The Status of Dispute Resolution in the Provinces of Sierra Leone in 2002, National Forum
for Human Rights, January 2003.
247 The ability of women to participate and protect their interests in these largely patriarchal
systems is often limited. See Amnesty International, Afghanistan: Re-establishing the Rule
of Law, supra note 15, at 50“51. In East Timor, although women have more limited rights
than men to present their cases to the traditional system, a majority surveyed “support
women advocating for themselves” in the customary dispute settlement process. The Asia
Foundation, Law and Justice in East Timor: A Survey of Citizen Awareness and Attitudes
Regarding Law and Justice in East Timor, February 2004, at 3.

give ordinary people a stake in rule of law reforms. In Chapter 8, we focus
on those issues in detail, looking in particular at the crucial role of civil
society, education, customary and informal dispute resolution, and other
seemingly “nonlegal” issues such as community organizing and economic
development. As we argue, these tend to be marginalized or forgotten when
interveners conceptualize rule of law programs “ but, in practice, linking
more traditional rule of law programs to a broader array of reforms can be
integral to their success or failure.


As this chapter has argued, building fair and effective justice systems after
con¬‚ict is an exceptionally dif¬cult, long-term process that usually requires
many far-reaching reforms. Recruiting and training capable police, judges,
and other justice system personnel is necessary for success, but it is not suf¬-
cient. Building up a basic institutional infrastructure and providing resources
is also critical, but it, too, is not suf¬cient. None of this will result in a justice
system that advances the goals of the rule of law unless the larger legal and
political system supports fair, effective enforcement of the law and impartial
Signi¬cant systemic reforms will often be crucial: a workable legal frame-
work that protects basic rights; transparent and merit-based appointment
procedures rather than appointments based on patronage and cronyism;
greater transparency and accountability in the components of the justice
system; more effective monitoring, disciplinary, and oversight arrangements;
better education for legal professionals, and public education to make citi-
zens aware of their rights and better able to demand justice, among others.
Changing attitudes and expectations “ of of¬cials, police, judges, the public “
regarding how the system should operate may be the hardest challenge of
all, particularly in societies in which police and courts previously served
as tools of self-interested leaders and other powerful actors rather than as
instruments of justice.
The obstacles to justice system reform and the accomplishments have
varied signi¬cantly in different countries, as we have discussed. But we have
also tried to highlight some of the more positive and effective practices “ as
well as recurring challenges and traps to avoid. To sum up:
r Reformers must go beyond surface reforms and work to build solid polit-
ical foundations for the justice system. This requires addressing prob-
lems of political in¬‚uence, factional control, and corruption that may be
deeply rooted in the political and legal system. Unless such problems are
addressed, interveners risk simply providing institutional tools to power-
ful elites rather than genuinely building the rule of law.

r As the synergistic approach to justice system reform stresses, a clear artic-
ulation of goals, an adaptive strategy that builds upon existing cultural
foundations, and systemic reforms that address connections and build
synergies between key institutions (such as police, prisons, and courts)
are essential.
r Each post-con¬‚ict society presents unique obstacles and opportunities for
strengthening justice systems after con¬‚ict. A critical starting point for
reform is a strategic assessment that takes account of the con¬‚ict legacy
in that society, the available human, cultural, and material resources, and
the obstacles and threats to reform, and that identi¬es promising external
interventions to promote and buttress reform. Core capacities “ including
law-making, law enforcement, and adjudication “ need to be built on solid
foundations of legitimacy, accountability, human rights protection, and
r Law reform is usually a critical task in post-con¬‚ict societies. Existing
law “ or parts of it “ may lack public legitimacy, fail to address com-
plex criminal activity, and fall short of international human rights stan-
dards. Reform of criminal law and procedure is often particularly urgent.
Although model codes can be helpful resources in law reform, the pro-
cess of law reform can be just as important as the substance. Building
domestic capacity for compromise is crucial. More effective assistance
to legislatures in post-con¬‚ict societies is needed to help build this and
related law-making skills.
r Police reform often moves more quickly than reforms in other parts
of the justice system, but without corresponding reforms in prisons
and the judiciary, problems such as extended pretrial detention, lack
of due process, and unfairness in treatment of suspects will undermine
the impact of police reform. Changing organizational culture in police
organizations is critical to sustain reform. Necessary elements include
fair and transparent selection and promotion criteria, adequate pay, good
training, incentives for good performance, and improved police“society
r Prisons are usually shortchanged in post-con¬‚ict justice reform. Yet, as
experience in Iraq and elsewhere has shown, neglecting prisons can result
in severe abuse and can have devastating long-term costs. Effective prison
reform requires clear rules, good training, competent personnel, credible
monitoring and accountability, adequate resources, and often sustained
international interest and support.
r Judicial reform “ building more impartial and competent judiciaries “ is
probably the most complex and dif¬cult aspect of justice system reform.
The speci¬c challenges and obstacles vary in different countries, but crit-
ical reforms generally include transparent and merit-based appointments
procedures; good training; building structural protections for impartial

decision-making by increasing the transparency and accountability of
judicial operations; providing adequate resources and budgets; supporting
independent court monitoring organizations; investing in legal education;
and, above all, addressing larger systemic problems of external in¬‚uence,
political control, and corruption that prevent impartial adjudication.
r Although reformers will face a variety of unique obstacles in particular
societies, there are also some common and recurring traps to avoid. These
include the failure to provide for applicable law that enjoys local legiti-
macy or to involve local decision-makers suf¬ciently in law reform; pre-
mature institution-building without corresponding political reform; pre-
mature empowerment of judges or other justice system of¬cials, before
adequate training and before credible disciplinary and removal mecha-
nisms are established; failure to address suf¬ciently the needs of vulner-
able segments of the population, including women and girls, who often
face increased violence after con¬‚icts; neglecting rural areas and problems
of access to justice more generally; and focusing on institutional building
blocks “ and surface indicators “ with insuf¬cient attention to building
the solid political foundations of a fair justice system.
r We also highlighted a number of positive practices, including looking for
mutually reinforcing synergies in reform efforts; deploying an effective
mix of national and international actors in the justice system; promoting
greater transparency in the justice system; instituting merit-based selection
and promotion standards and procedures; working to develop inclusive
and representative composition in justice institutions; working to promote
sustainable reforms by investing in civil society organizations and legal
education; and paying greater attention to problems of access to justice,
as we discuss more fully in Chapter 8.
Ultimately, building a fair and effective justice system will depend on a
political framework and culture that supports such a system. It will require
long-term, synergistic efforts to reform many interrelated components of the
justice system and to nurture attitudes and expectations “ among those who
work in the system and those who turn to it for help “ that the system should
serve the goals of the rule of law. To change attitudes and expectations can be
especially hard in societies that have endured horri¬c atrocities and human
rights abuses, leaving deep pain, devastation, and anger in their wake. In
Chapter 7, we examine the challenges of pursuing meaningful accountability
for atrocities after con¬‚ict. We explore, in particular, the impact these efforts
can have on building domestic capacity for the rule of law.

Accountability for Atrocities:
Moving Forward by Looking Backward?

Atrocities cast a long shadow. In post-intervention societies, reestablishing
security, reconstructing governance institutions, and reforming the justice
system are all crucial steps in promoting the rule of law, but important as
they are, they are rarely suf¬cient to grapple with the legacy of past abuses. In
most of the post-con¬‚ict societies discussed in this book, severe abuses were
widespread in the period prior to intervention. The Balkan wars, for instance,
were characterized by brutal massacres, mass rapes, and ethnic cleansing.
Sierra Leone™s civil war was characterized by the forced recruitment of child
soldiers, widespread rapes and murders, and the gruesome mutilation of
civilians. Afghanistan, Iraq, and East Timor also have had bloody pasts
marked by severe abuses.
In such societies, the traumatization caused by widespread past atrocities
does not end when the guns fall silent. Although nothing can undo the suffer-
ing caused by atrocities, ensuring that perpetrators face some reckoning may
be critical to moving forward in countries recovering from violent con¬‚ict.
Ensuring accountability may help victims move on and can also help signal
to all members of post-con¬‚ict societies that, henceforth, such abuses will
not be permitted to recur. Just as important, the process of ensuring account-
ability may, in some circumstances, reinforce broader efforts to reform the
justice system.
As with every challenge discussed in this book, however, “ensuring
accountability” is more easily said than done. In the wake of violent con¬‚icts,
national justice systems, if they function effectively at all, usually have only
limited ability to address the claims and needs of victims or render fair justice.
More often than not, citizens may view existing legal institutions skeptically
because of corruption, systematic bias, association with abusive past regimes,
failure to effectively address past grievances, or severe shortfalls in human
and other resources. Those who have committed atrocities, moreover, may
still wield political power or exert in¬‚uence behind the scenes. Even when


criminal trials are initiated against perpetrators, those facing trial and their
political allies may view the proceedings as illegitimate forms of “victor™s
justice.” And in some situations accountability mechanisms may actually
trigger further violence. Meanwhile, it is not always clear how victims can
best be served: although some victims may demand trial and punishment of
perpetrators, others may place greater emphasis on public acknowledgment
of their suffering and on reparations or some tangible form of assistance. In
such contexts, both interveners and domestic leaders “ confronted by lim-
ited resources and other urgent reconstruction challenges “ must struggle to
balance justice, reconciliation, and other compelling goals.
Yet the challenge of accountability cannot be ignored. As we argued in
Chapter 6, establishing a credible and functioning justice system that serves
the goals of the rule of law is a central part of the challenge of moving
forward after violent con¬‚ict. Even more fundamentally, strengthening the
rule of law depends on building the public™s con¬dence that they will be
protected from predatory state and nonstate actors, that they can resolve
disagreements fairly and reliably without resorting to violence, and that
legal and political institutions will function in ways that protect rather than
violate basic human rights. Only then is the rule of law, as we de¬ned it
in Chapter 3, likely to take hold: a state of affairs in which most people,
most of the time, choose to resolve disputes in a manner that is consistent
with fair rules and fundamental human rights norms, in which modern legal
institutions and laws exist, and in which there is a widely shared cultural
and political commitment to the values underlying those institutions and
This chapter explores the following question: can the pursuit of account-
ability for atrocities through criminal prosecutions and other supplementary
methods help build the rule of law and strengthen domestic justice systems?
At a broad level, this question has divided scholars and practitioners alike.
A rights-based approach argues that major perpetrators of atrocities must
be held legally accountable if a country is to make an effective transition to a
society marked by the rule of law. Defenders of criminal prosecutions see the
biggest barrier to sustainable peace as legal impunity and argue that vigorous
prosecution of at least major offenders is the only real way to remove the
stain of impunity from traumatized societies. Fair trials af¬rm that atroci-
ties are wrong and unacceptable “ drawing a clear line for all to see “ and
incarceration prevents the guilty from repeat offenses and potentially serves
as a deterrent to others.1 Trials can also give victims a sense of justice that
helps them move forward without a need to seek personal vengeance. Truth

1 See, e.g., M. Cherif Bassiouni, Accountability for Violations of International Humanitarian
Law and Other Serious Violations of Human Rights, in Post-con¬‚ict Justice (M. Cherif
Bassiouni, ed., 2003) at 3, 4, 54.

commissions can supplement trials and acknowledge more fully the truth
of what occurred and the pain and needs of victims and, many argue, may
potentially contribute to reconciliation over time.2 Even if accountability
efforts are inevitably imperfect responses to the suffering caused by atrocities,
they can symbolize a society™s desire to confront its past, to reject patterns
of impunity, and to move in a new direction.
An alternative, realist view disputes the bene¬cial impacts of trials and
argues instead that criminal prosecution of major perpetrators can be desta-
bilizing. Proponents of this view argue that conditional amnesties may be
necessary to remove “spoilers” and thus help create a better prospect for
peace and long-term development of the rule of law. Once political bar-
gains are struck among contending groups, they argue, “institutions based
on the rule of law become more feasible.”3 Pursuing accountability without
establishing “political and institutional preconditions,” they contend, “risks
weakening norms of justice by revealing their ineffectiveness and hindering
necessary political bargaining.”4
Neither camp is without its vulnerabilities. If some proponents of the
rights-based approach are at times too starry-eyed about the practical ben-
e¬ts of trials and truth commissions or sometimes unpragmatic in acknowl-
edging real-world constraints, the realists are prone to overstate the down-
sides of prosecution by focusing on the perspectives of self-interested ruling
elites rather than on a broader segment of post-con¬‚ict societies, including
victims and civil society organizations. The realists also tend to overstate the
practical bene¬ts of amnesties: even if high-ranking individuals are given an
amnesty as the price for peace, there is no assurance that the amnesty will in
fact be suf¬cient to sustain peace. In Sierra Leone, for instance, the amnesty
given to Revolutionary United Front (RUF) forces and other groups in the
1999 Lome Agreement did not stop the con¬‚ict, rooted in greed and self-
interest, from continuing.5 An international intervention led by Britain was

2 See Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity
(2001), for an extremely thoughtful discussion of truth commissions. In both East Timor and
Sierra Leone, truth commissions sought to contribute to reconciliation through community-
based reconciliation procedures that we examine in this chapter.
3 Jack Snyder & Leslie Vinjamuri, Trials and Errors: Principle and Pragmatism in Strategies of
International Justice, 28 Int™l Sec. 5, 6 (Winter 2003/04). Snyder and Vinjamuri argue that
“[j]ustice does not lead; it follows . . . [and] a norm-governed political order must be based
on a political bargain among contending groups and on the creation of robust administrative
institutions that can predictably enforce the law.” Id. Although they “agree that the ultimate
goal is to prevent atrocities by effectively institutionalizing appropriate standards of criminal
justice,” they argue that “the initial steps toward that goal must usually travel down the
path of political expediency.” Id., at 6“7.
4 Id., at 6“7.
5 The text of the Lome Agreement is available at http://www.sierra-leone.org/lomeaccord.
html. Article IX of the agreement provided that “[i]n order to bring lasting peace to Sierra
Leone, the Government of Sierra Leone shall take appropriate legal steps to grant Corporal

necessary. Realist critics also understate the degree of innovation and prag-
matism that is already re¬‚ected in more recent efforts to link accountability
for past atrocities to forward-looking reforms.
Trends on the ground, to some degree, are overtaking this broad the-
oretical debate. Advocates of the rights-based approach increasingly have
recognized the need to supplement trials with noncriminal accountability
mechanisms that offer alternatives to trials for lesser offenders. The com-
munity reconciliation process in East Timor (now Timor Leste) is one recent
example.6 Furthermore, the normative acceptability of amnesties for seri-
ous offenses is more contested today, both internationally and domesti-
cally.7 In Afghanistan, for instance, amnesty provisions proposed by the
Northern Alliance were not included in the Bonn Agreement, and a major-
ity of Afghans surveyed oppose amnesties for serious offenses.8 Further-
more, devising amnesty arrangements that effectively remove spoilers and

Foday Sankoh absolute and free pardon.” That article also provided for the Government
of Sierra Leone to “grant absolute and free pardon and reprieve to all combatants and
collaborators in respect of anything done by them in pursuit of their objectives, up to the
time of the signing” of the Lome Agreement. In addition, “the Government of Sierra Leone
shall ensure that no of¬cial or judicial action is taken against any member of the RUF/SL,
ex-AFRC, ex-SLA or CDF in respect of anything done by them in pursuit of their objectives
as members of those organizations, since March 1991, up to the time of the signing of the
present Agreement.”
6 Upon attaining independence in May 2002, East Timor became the Democratic Repub-
lic of Timor Leste. Because this book and chapter refer to multiple time periods, pre and
post independence, we use the term East Timor for ease of reference, but we recognize that
Timor Leste is the country™s preferred English name today. The community-based reconcil-
iation procedures developed by the Commission for Reception, Truth and Reconciliation
are discussed in detail in its report, Chega!: Final Report of the Commission for Reception,
Truth and Reconciliation in East Timor (2005), available at http://www.etan.org/news/2006/
cavr.htm (hereinafter Chega!: Final Report of the CAVR). “Chega!” means “Enough!” in
7 See The Secretary-General, Report of the Secretary-General on the Rule of Law and Tran-
sitional Justice in Con¬‚ict and Post-Con¬‚ict Societies, para.10, delivered to the Security
Council, U.N. Doc. S/2004/616 (August 3, 2004) (“United Nations-endorsed peace agree-
ments can never promise amnesties for genocide, war crimes, crimes against humanity or
gross violations of human rights”); Charles T. Call, Conclusions, in Constructing Justice
and Security After War (Charles T. Call, ed., 2006).
8 See Afghan Independent Human Rights Commission, A Call for Justice: A National Consul-
tation on Past Human Rights Violations in Afghanistan (hereinafter A Call for Justice), at 21,
41“43, available at http://www.aihrc.org.af/rep Eng 29 01 05.htm (noting that views varied
regionally, but that 60.5 per cent overall of those surveyed rejected the idea of “amnesties or
pardons for anyone who confessed their crimes before an institution created for transitional
justice”). As the report explains, the Bonn Agreement “af¬rms accountability as a principle”
but provides for no particular mechanisms. Although an amnesty provision proposed by the
Northern Alliance was not adopted, a clause prohibiting amnesty for war crimes and crimes
against humanity supported by the United Nations “was deleted.” Id., at 43. More recently,
however, the Afghan government has agreed that “no amnesty will be granted for gross vio-
lations of human rights.” Press release, Afghan Independent Human Rights Commission,
Truth-seeking and Reconciliation in Afghanistan (December 15, 2005), at 2.

genuinely help to create conditions for strengthening the rule of law “ rather
than just permitting impunity “ is enormously dif¬cult in practice.
Nevertheless, the realists do have an important point. Moving forward
after atrocities does require a clear-eyed assessment of the underlying
forces that impede stability and reform. Holding key perpetrators criminally
accountable “ especially before international tribunals miles away “ may
advance international standards of justice; but it may have very little, if any,
impact on strengthening the domestic rule of law in a post-con¬‚ict society.
Just as we cannot assume that such trials will be destabilizing domestically “
or that amnesties will effectively neutralize spoilers and clear the way for gen-
uine reform “ neither can we assume a positive spillover effect on domestic
rule of law-building from criminal trials.
Indeed, the question of whether and how accountability proceedings can
contribute to strengthening domestic justice systems and to building the rule
of law in post-con¬‚ict societies is surprisingly underanalyzed.9 For too long,
the practical division of the ¬elds of “transitional justice” and “rule of law
reform” into two largely separate communities of scholars and practitioners
has impeded efforts to explore systematically how accountability processes
might, concretely, contribute to forward-looking rule of law reforms.10 If this
gap can be overcome, opportunities for valuable synergies between account-
ability efforts and rule of law reform programs can be pursued more effec-
tively. To be sure, we are relatively early in the process of understanding the
longer-term impacts of accountability processes “ such as criminal prosecu-
tions, truth commissions, reconciliation proceedings, vetting “ in different
post-con¬‚ict societies; furthermore, the unique circumstances and obstacles
in each society attempting to overcome horri¬c atrocities make generaliza-
tions risky. Still, more systematic thinking and empirical research on the
impact of accountability proceedings in speci¬c post-con¬‚ict societies is a
critical need and an increasingly important area of inquiry.11

9 Scholars advocating a variety of approaches to accountability acknowledge that we need
more systematic analysis of the impact of accountability proceedings on strengthening the
rule of law prospectively. For a helpful recent effort to explore the potential impact of
accountability efforts on forward-looking justice reform, see Constructing Justice and
Security After War, supra note 7, especially the Introduction and Conclusion by Charles
T. Call.
10 One scholar and practitioner who spans both ¬elds and has worked hard to bring them
together is Neil Kritz of the U.S. Institute of Peace. See, e.g., Neil J. Kritz, The Rule of Law
in the Postcon¬‚ict Phase: Building a Stable Peace, in Turbulent Peace: The Challenge of
Managing International Con¬‚ict (Chester A. Crocker et al., eds., 2001); Neil J. Kritz,
Progress and Humility: The Ongoing Search for Post-Con¬‚ict Justice, in Post-Con¬‚ict
Justice, supra note 1, at 84“87.
11 For thoughtful recent assessments of East Timor™s community reconciliation proceedings,
for example, see Spencer Zifcak, The Asia Foundation, Restorative Justice in East Timor:
An Evaluation of the Community Reconciliation Process of the CAVR (2004); Piers Pigou,
United Nations Development Programme, The Community Reconciliation Process of the
Commission for Reception, Truth and Reconciliation (2004).

This chapter aims to clarify what we know “ and don™t know “ about
the impact of accountability processes on domestic justice systems and the
rule of law in post-intervention societies. We aim to look backward and for-
ward at the same time and to explore systematically the relationships, if any,
between retrospective accountability proceedings and prospective domestic
capacity-building and reform. Before examining the experiences in a num-
ber of post-intervention societies, we ¬rst consider some of the broad trends
that have in¬‚uenced choices made in these situations regarding particular
accountability mechanisms and goals. We then offer a theory about how
accountability processes may contribute to building the rule of law in post-
con¬‚ict societies through their demonstration and capacity-building effects.
The chapter then examines the empirical record, looking in particular at the
practical impact of the international tribunals for former Yugoslavia and
for Rwanda; at the hybrid national/international tribunals in Kosovo, East
Timor, and Sierra Leone; at domestic prosecutions particularly in Bosnia; and
at the truth and reconciliation commissions in a number of post-intervention
societies. We also discuss the trials only just beginning in Iraq™s special tri-
bunal for crimes against humanity, as well as the prospects for accountability
in Afghanistan.
We argue that the long-term impact of accountability proceedings on the
rule of law depends critically on three factors: ¬rst, the effective disempow-
erment of key perpetrators who threaten stability and undermine public
con¬dence in the rule of law; second, the character of the accountability
proceedings pursued, particularly whether they demonstrate credibly that
previous patterns of abuse and impunity are rejected and that justice can
be fair; and third, the extent to which systematic and meaningful efforts at
domestic capacity-building are included as part of the accountability process.
In a number of countries studied here, we argue that trials have not been
as in¬‚uential as advocates had hoped and seem to have had little impact at
all on forward-looking efforts to strengthen justice systems and the rule of
law. But in other cases, accountability processes, particularly those located
within affected countries that enjoy considerable public support and engage
in systematic outreach, are contributing to national capacity-building and
may be reinforcing domestic expectations of accountability and demands
for fairer justice processes in the future. We identify some of the features
of the more effective processes, such as Sierra Leone™s Special Court and
East Timor™s Commission for Reception, Truth and Reconciliation, but we
also acknowledge their limitations and emphasize the challenge of sustaining
their impact and legacy.
First, however, we must provide some essential background “ on broad
trends in efforts to seek accountability for atrocities since the 1990s, and
on key goals and speci¬c mechanisms that have been pursued in different


When international and local leaders pursue accountability for atroci-
ties, they have many goals in mind beyond contributing to domestic legal
reform.12 Bringing major perpetrators to justice “ demonstrating that their
conduct is wrong and unacceptable “ is an immediate and fundamental goal.
Prosecuting and punishing major offenders af¬rms and reinforces the core
international legal rules prohibiting genocide, crimes against humanity, and
war crimes.13 Holding individual perpetrators legally accountable can also
provide some sense of justice and relief to victims and their families and
potentially help to defuse grievances and curtail cycles of vengeance.
Prosecution of major offenders, it is also hoped, may help to deter future
perpetrators by setting an example and making clear that wrong-doers will
be held accountable. But because prosecutions inevitably are selective and
because many factors contribute to individual decisions to commit atrocities,
the issue of deterring future abuses is a complex and often uncertain mat-
ter.14 Although it would be a mistake to claim too much for accountability
proceedings, alone, in preventing future atrocities, they can be a central
part of a larger effort to strengthen and to begin institutionalizing norma-
tive commitments to accountability “ rather than impunity “ in post-con¬‚ict
The selective and focused nature of criminal trials after massive atrocities,
however, means that they are limited mechanisms for achieving a number

12 See Jane E. Stromseth, Introduction: Goals and Challenges in the Pursuit of Accountabil-
ity, in Accountability for Atrocities: National and International Responses (Jane E.
Stromseth, ed., 2003) at 1, 5“13. For analysis of accountability goals, methods, and concrete
experiences, see Post-Con¬‚ict Justice, supra note 1; Martha Minow, Between Vengeance
and Forgiveness: Facing History After Mass Violence (1998); Hayner, Unspeakable
Truths, supra note 2; Steven R. Ratner & Jason S. Abrams, Accountability for Human
Rights Violations in International Law: Beyond the Nuremberg Legacy (2nd ed. 2001);
Ruti G. Teitel, Transitional justice (2000); Miriam J. Aukerman, Extraordinary Evil, Ordi-
nary Crime: A Framework for Understanding Transitional Justice, 15 Harv. Hum. Rts. J.
39 (2002); David A. Crocker, Reckoning with Past Wrongs: A Normative Framework, 13
Ethics & Int™l Aff. 43 (1999); Neil J. Kritz, Coming to Terms with Atrocities: A Review of
Mechanisms for Mass Violations of Human Rights, 59 Law & Contemp. Probs. 127 (1996).
13 See generally Ratner & Abrams, Accountability for Human Rights Violations in Inter-
national Law, supra note 12; Bassiouni, Accountability for Violations of International
Humanitarian Law and Other Serious Violations of Human Rights, supra note 1.
14 On the dif¬culties of deterrence, see David Wippman, Atrocities, Deterrence, and the Limits
of International Justice, 23 Fordham Int™l L. J. 473 (1999); David Wippman, Exaggerating
the ICC, in Bringing Power to Justice: The Prospects of the International Criminal
Court (Joanna Harrington, ed., 2005); Gary Jonathan Bass, Stay the Hand of Vengeance:
The Politics of War Crimes Tribunals (2000), at 290“295; Payam Akhavan, Beyond
Impunity: Can International Criminal Justice Prevent Future Atrocities, 95 Am. J. Int™l L. 7

of other important goals, such as a comprehensive account of a con¬‚ict and
its causes. In contrast, truth commissions are more likely than trials to be
effective in compiling a comprehensive “truth” that addresses the broader
context of a con¬‚ict and provides a fuller account of the factors contribut-
ing to atrocities. Truth commissions can provide a greater opportunity for
direct participation by a larger number of victims and may also “ as in East
Timor and Sierra Leone “ seek to promote reconciliation and reintegration
of lesser perpetrators into the community through reconciliation agreements
and rituals. Unlike trials, truth commissions can make far-reaching policy
recommendations, and they may be better able to advance goals of “restora-
tive” or “reparative” justice by focusing directly on the concrete needs of
victims.15 Sierra Leone™s truth commission, for instance, has recommended
free health care and education for amputees, victims of sexual violence, and
other injured by the con¬‚ict.16 East Timor™s Commission for Reception,
Truth and Reconciliation likewise has proposed an ambitious reparations
program (calling on Indonesia and other states to contribute), as well as a
broad array of innovative reforms.17
No single mechanism or approach can satisfy the many “ sometimes con-
¬‚icting “ goals of justice, truth, prevention and deterrence, reconciliation,
and domestic capacity-building in the aftermath of severe atrocities. Recogni-
tion of this fact has contributed to a signi¬cant recent trend toward “mixed”
approaches to accountability that combine multiple mechanisms designed to
advance a number of different goals. These mechanisms may include crim-
inal prosecutions but also truth commissions, reconciliation procedures for
lesser offenders, and vetting (restrictions on access to government positions),
for instance. Generally, the more deeply rooted the causes of atrocities, the
more pressures accountability processes will face to be not only the arbiter
of justice in speci¬c cases but also to become an agent for achieving more
systemic social change.
A second trend in transitional justice is to move away from remotely
located international tribunals toward hybrid courts with national
participation situated directly in affected countries. In both East Timor and
Sierra Leone, for instance, defendants have been prosecuted for war crimes
and crimes against humanity before mixed panels of national and inter-
national judges, with the prosecutorial staff likewise composed of interna-
tional and national lawyers. Although purely international tribunals may
sometimes be necessary, international courts “ like the international criminal

15 For a thoughtful discussion of reparative justice, see Rama Mani, Beyond Retribution:
Seeking Justice in the Shadows of War (2002), at 173“178.
16 See Witness To Truth: Report of the Sierra Leone Truth and Reconciliation Commission,
Vol. 1, para. 51 (2004), available at http://www.trcsierraleone.org/drwebsite/publish/index.
shtml (hereinafter Witness to Truth).
17 See Chega!: Final Report of the CAVR, supra note 6, Part 11: Recommendations.

tribunals for former Yugoslavia and for Rwanda “ are physically and often
psychologically distant from the people most affected by the atrocities they
are prosecuting; these tribunals are also not designed to contribute resources
or training directly to the domestic justice system. In contrast, hybrid tri-
bunals located within post-con¬‚ict societies may be viewed as more legiti-
mate by domestic audiences, have greater potential for domestic capacity-
building by involving domestic jurists directly in the work of the court, and
may be better able to demonstrate the importance of accountability and fair
justice to local populations.18 These potential bene¬ts, in theory at least,
have contributed to the trend toward hybrid arrangements, a trend that may
well continue even with the arrival of the International Criminal Court.19
A third, and overdue, trend is a more systematic effort to understand the
speci¬c goals and priorities of domestic populations who, after all, are the
people who endured the atrocities and must chart a new future. The question
of how best to face the past “ and what forms of accountability to pursue “
is a dif¬cult one, and different societies ultimately may have quite different
goals and priorities. Within those societies, moreover, various actors and
groups may disagree, possibly quite strongly, over priorities. In East Timor,
for example, President Xanana Gusmao has long stressed the importance of
reconciliation and forward-looking social justice, whereas others (including
the Commission for Reception, Truth and Reconciliation in its recent report)
also emphasize the continuing importance of criminal prosecution of major
International actors, moreover, have their own priorities. Even when inter-
national commitment to accountability is reasonably strong, which it some-
times is not, international actors may not give suf¬cient attention to the
concrete problems and obstacles to achieving meaningful accountability in
speci¬c post-con¬‚ict countries. Domestic leaders often perceive international
leaders and donors as more concerned about sending a general deterrent
message regarding atrocities than about the speci¬c, long-term needs of the
particular post-con¬‚ict society directly involved.20 Yet these needs, as well
as the often deep-seated grievances, inequalities, and systemic problems that
contribute to violence and instability, must be addressed if a stable rule of
law is to take root.
The growing recognition of the importance of understanding local goals
and priorities is evident in Afghanistan. With international support, the
Afghan Independent Human Rights Commission (AIHRC) conducted a

18 See Laura A. Dickinson, The Promise of Hybrid Courts, 97 Am. J. Int™l L. 295 (2003).
19 See Jenia Iontcheva Turner, Nationalizing International Criminal Law, 41 Stan. J. Int™l L.
1 (2005); Stromseth, Introduction: Goals and Challenges in the Pursuit of Accountability,
in Accountability for Atrocities, supra note 12, at 32.
20 See, e.g., Jason Strain & Elizabeth Keyes, Accountability in the Aftermath of Rwanda™s
Genocide, in Accountability for Atrocities, supra note 12, at 98“99, 130.

countrywide survey and series of 200 focus groups to determine the priori-
ties of the Afghan people regarding accountability. In its report, A Call for
Justice, the AIHRC documents overwhelming Afghan support for removing
from power those who committed serious abuses during Afghanistan™s long
years of con¬‚ict, many of whom continue to wield power today.21 Strong
public support for criminal trials for the most serious offenders is accompa-
nied by widespread support for vetting and removing other offenders from
power. Afghans, though generally unfamiliar with “truth commissions” as
such, also expressed a strong desire for some truth-seeking mechanism as well
as deep support for “reparations” or compensation to those victims most in
need. Afghans also expressed a strong preference for conducting criminal tri-
als in Afghanistan “ not outside the country “ and for a hybrid tribunal that
includes both Afghan as well as international jurists. This impressive effort
to understand what the people of Afghanistan want holds out the potential
for tailoring accountability processes to ful¬ll deep domestic aspirations; but
whether, in fact, these aspirations will be ful¬lled remains an open question
fraught with obstacles, as we discuss below.


If the trends discussed above underscore the need for multifaceted account-
ability procedures, they also signify a growing determination on the part of
both international and domestic actors to leave behind a continuing legacy “
facilities, skills, new habits of thought and practice “ when accountabil-
ity proceedings conclude. But the impact of different accountability initia-
tives on strengthening the domestic rule of law in post-con¬‚ict societies is
not straightforward. Much depends on how accountability processes are
conducted, the uncertainties of unintended consequences, and the extent to
which local perceptions of justice are altered by the proceedings. The poten-
tially salutary impacts of accountability proceedings fall into at least two
categories: their demonstration effects and their capacity-building effects.
We consider each in turn.

A. Demonstration Effects
First, accountability proceedings can contribute to strengthening the rule
of law in post-con¬‚ict societies through their demonstration effects.22 Most
21 A Call for Justice, supra note 8, at 17“21, 27“29, 34, 46“47.
22 The idea of “demonstration effects” has been discussed by others as well. See Interna-
tional Center for Transitional Justice & United Nations Development Programme, The
“Legacy” of the Special Court for Sierra Leone, 2003, at 12, available at http://www.ictj.org/
downloads/LegacyReport.pdf. We try in this chapter to develop the concept and amplify
the ways in which accountability proceedings can have positive demonstration effects on

tangibly and directly, by removing perpetrators of atrocities from positions
in which they can control and abuse others, criminal trials (and processes
such as rigorous vetting) can have a cathartic impact by assuring the popula-
tion that old patterns of impunity and exploitation are no longer tolerable.
Barring known perpetrators from again committing atrocities and delegit-
imizing them in the eyes of the public helps to break patterns of rule by
fear and begins to build public con¬dence that justice can be fair. Many
Afghans, for instance, have made clear that their trust in justice and in gov-
ernment institutions depends on removing serious abusers from positions of
power and that they view this as essential for, not contrary to, security and
long-term stability.23
Such cathartic processes can, nevertheless, be wrenching and traumatic
in the near term. As powerful ¬gures and their allies see their authority slip
away, they may choose to mount resistance, which can aggravate existing
instabilities. Also, in circumstances where vetting processes have been exten-
sive, if inconsistent, as in Iraq, there is a risk that so many individuals may
be removed from their positions that it undermines the stability of existing
institutions or the prospects for building new ones in a timely manner.
In addition to disempowering perpetrators, the demonstration effects
of accountability processes will depend on their character and credibility.
Accountability proceedings “ particularly trials but also truth commissions “
aim to demonstrate that atrocities are unacceptable, condemned, and not
to be repeated. They aim to substantiate concretely, and to demonstrate,
a norm of accountability. If the proceedings that lead to conviction for
major offenses “ or the reconciliation rituals for lesser offenses “ are widely
viewed as fair and legitimate, they are more likely to demonstrate credibly
that previous patterns of impunity have been rejected, that law can be fair,
and that political position or economic clout does not immunize a person
from accountability. If a norm of accountability is demonstrated credibly, it
may provide meaningful justice to victims, reducing the chances of personal
vengeance-seeking and eliminating impunity as a source of grievance more
broadly. Providing a model of fair justice “ through fair criminal prosecu-
tions or through balanced reconciliation agreements for lesser offenders, for
instance “ can give citizens legitimate reason to expect (and to demand) better
accountability and fairer processes in the future in other areas of life as well.
Of course, if accountability proceedings are widely viewed as biased, or
if big ¬sh go free while much lesser offenders are held accountable, those

building the rule of law in post-con¬‚ict societies. For an interesting analysis of the “polit-
ical effects” of criminal tribunals, including their impact in delegitimating offenders and
their possible stabilizing or destabilizing effects, see William W. Burke-White, A System of
Multilevel Global Governance in the Enforcement of International Criminal Law
(forthcoming), Chapter IV.
23 A Call for Justice, supra note 8, at 17, 41“44.

proceedings may have negative, counterproductive demonstration effects.
They may send a message that justice is not fair, that previous patterns
of impunity are continuing, and that deep-seated grievances will not be
addressed. The complete failure to pursue accountability at all can send
a similar message. In Afghanistan, for example, impunity is still rampant in
those parts of the country where regional commanders and warlords func-
tion as a law unto themselves. Accountability for current abuses is probably
of greater immediate concern for many Afghans than accountability for the
past, but the two are clearly related when, in many instances, warlords who
grew accustomed to operating with impunity in the past brazenly continue
to do so in the present.24
Pursuing accountability fairly and credibly can have empowering ripple
effects in a post-con¬‚ict society. By putting the issue of accountability on the
national agenda, credible accountability proceedings can be a focal point
for local and international nongovernmental organizations who advocate
for related domestic reforms. Interveners involved in accountability pro-
ceedings can stress the importance of accountability norms to local elites
generally,25 and local and international NGOs can magnify these effects by
working to inform and empower ordinary citizens about the importance of
accountability and fair justice and by keeping pressure on post-con¬‚ict gov-
ernments.26 To effectively strengthen the domestic rule of law in the long
term, accountability proceedings must demonstrate the value and impor-
tance of accountability and fair justice to local leaders and ordinary citizens
alike: positive domestic change is more likely if pressure can be applied both
from above and below.27

24 On the problem of impunity in Afghanistan, see Rama Mani, Afghanistan Research and
Evaluation Unit, Ending Impunity and Building Justice in Afghanistan (2003); A Call for
Justice, supra note 8, at 17 (“Many persons who committed gross human rights violations
remain in power today. This has provoked a profound disappointment in Afghans together
with an almost total breakdown of trust in authority and public institutions”).
25 For a helpful general discussion of the importance of socializing elites in achieving norm
change, see G. John Ikenberry & Charles A. Kupchan, Socialization and Hegemonic Power,
44 Int™l Org. 2283 (1990).
26 Political scientists have developed various models of norm diffusion and human rights advo-
cacy. These include a “spiral model” through which local and international NGOs put pres-
sure on domestic governments “ from above and below “ to abide by human rights principles,
and a process of “norm cascades” as values gain credence broadly through a society after
reaching a certain “tipping point.” See Thomas Risse & Kathryn Sikkink, The Socialization
of International Human Rights Norms into Domestic Practice, in The Power of Human
Rights: International Norms and Domestic Change (Thomas Risse, ed., 1999), at 1
(spiral model); Martha Finnemore & Kathryn Sikkink, International Norm Dynamics and
Political Change, 52 Int™l Org. 887 (1998) (norm cascades).
27 This analysis is consistent with Risse and Sikkink™s “spiral model.” On the critical impor-
tance of socializing elites, see Ikenberry & Kupchan, Socialization and Hegemonic Power,
supra note 25. On the importance of empowering citizens, especially the poor, in building the

Accountability proceedings, in short, can strengthen the fabric of a post-
con¬‚ict society by helping to build and spread domestic support for a norm
of accountability. As political scientists have argued, at some point in the
development of a new norm, a “tipping point” is reached where the norm,
enjoying broad acceptance, “cascades” through a society.28 Before this point
is reached, active efforts at persuasion by norm advocates, including local
and international NGOs, are essential. Accountability proceedings can serve
as a focal point for these efforts. Indeed, building toward an accountabil-
ity cascade “ in which expectations of accountability become the norm “ is
critical to overcome the legacy of a previous and pervasive impunity cas-
cade in which order and accountability simply broke down (an example of
an impunity cascade is Sierra Leone™s situation in 1991, when many factors
together tipped the country toward violence with impunity).29 The slow and
enormously hard work of building new normative expectations of account-
ability “ rooted in a real capacity to deliver it, at least at a basic level “
is often the key to establishing a viable domestic rule of law after con¬‚ict.
The demonstration effect of accountability proceedings can be an essential,
though not suf¬cient, component of that long-term effort.

B. Capacity-Building Effects
A second, related way that accountability proceedings can in¬‚uence develop-
ment of the rule of law domestically is through concrete capacity-building.
Accountability proceedings cannot simply be an “aside” “ standing totally
apart from ordinary and ongoing processes of reform. Instead, over time,
accountability norms “ the condemnation of brutal atrocities, the importance
of fair proceedings for determining responsibility, and the need for effective
and impartial procedures for resolving future disputes more generally “ must
become embedded in domestic practices. Some accountability mechanisms,

rule of law, see Stephen Golub, Beyond Rule of Law Orthodoxy: The Legal Empowerment
Alternative, Carnegie Endowment for International Peace, Democracy & Rule of Law
Project, Rule of Law Series, No. 41, 2003.
28 See Finnemore & Sikkink, International Norm Dynamics and Political Change, supra note
26, at 895.
29 Sierra Leone™s Truth and Reconciliation Commission has argued as follows: “While there
were many factors, both internal and external, that explain the cause of the civil war, the
Commission came to the conclusion that it was years of bad governance, endemic corruption
and the denial of basic human rights that created the deplorable conditions that made the
con¬‚ict inevitable. Successive regimes became increasingly impervious to the wishes and
needs of the majority. . . . Government accountability was non-existent. Political expression
and dissent had been crushed. Democracy and the rule of law were dead. By 1991, Sierra
Leone was a deeply divided society and full of the potential for violence. It required only
the slightest spark for this violence to be ignited.” Witness to Truth, supra note 16, Vol. 1,
para. 11, at 10.

by virtue of their location and degree of local participation, can help build
domestic capacity directly by increasing the skills and experience of local pro-
fessionals and through outreach efforts designed to educate and empower
citizens and civil society organizations more broadly. International tribunals
can serve important goals “ such as providing justice for victims and convey-
ing a strong international statement about fundamental international prin-
ciples, including due process “ even if their domestic impact in post-con¬‚ict
societies is less clear. But unless norms of accountability are institutionalized
domestically in a sustainable manner by strengthening national legal institu-
tions and encouraging fairer processes and greater substantive accountability
more broadly, the longer-term impact of accountability proceedings for past
atrocities is likely to be uncertain.
Even though accountability proceedings can contribute to such domes-
tic capacity-building, they also can compete with and divert resources from
domestic legal systems. Prosecutions for serious violations of international
humanitarian law are complex, costly, and time consuming, and competing
priorities “ for example, between international and domestic actors “ can
generate sharp tensions. In Rwanda, for instance, the government and ordi-
nary citizens alike resent the millions of dollars spent on the international
tribunal in Arusha, Tanzania, while Rwanda™s own domestic legal system
languishes desperately in need of aid. Even when hybrid courts are estab-
lished, as in Sierra Leone and East Timor, the contrast between the facilities
and resources of war crimes tribunals and the regular justice system is stark
and sobering. The long-term needs of “ordinary” justice institutions gener-
ally cry out for attention, while international funding typically ¬‚ows more
generously to the more dramatic accountability proceedings.
This potential tension highlights the need to think more systematically
from the start about designing processes that can both advance fundamen-
tal goals of accountability and develop domestic capacity for fair justice.
Criminal trials, of course, must focus on their core purpose of bringing indi-
vidual perpetrators to justice in fair and impartial proceedings. But modest
efforts to enhance their domestic rule of law impact (for example, through
early and well-planned outreach to local populations explaining the pro-
ceedings and the principles underlying them) can potentially make a real
Based on the framework we have outlined here, one would expect that
international trials held far from the people most affected by atrocities “
and lacking in any direct domestic capacity-building or outreach efforts “
are unlikely to have a substantial impact on strengthening the domestic
rule of law in post-con¬‚ict societies. Even if they prosecute and thereby
remove major perpetrators from domestic power structures, these trials must
also be seen domestically to be doing justice if they are to have positive

demonstration effects. Hybrid tribunals or truth commissions located in the
affected country “ with strong domestic participation and outreach “ are
more likely to leave a tangible legacy, at least if the bulk of the population
views them as legitimate and fair. Either approach will have a limited long-
term impact, however, if strategic efforts at domestic capacity-building are
never undertaken or if underlying domestic con¬‚icts (whether ethnic ten-
sions or deep-seated perceived injustices) are simply left to fester or are even


. 9
( 15)