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Criminal justice reform in post conflict States
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UNITED NATIONS OFFICE ON DRUGS AND CRIME,Criminal justice reform. in post conflict States,A guide for practitioners,Developed jointly with. the United States Institute of Peace,UNITED NATIONS. New York 2011,United Nations September 2011 All rights reserved. The designations employed and the presentation of material in this publication do not imply the expression. of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status. of any country territory city area or of its authorities or concerning the delimitation of its frontiers or. boundaries,This publication has not been formally edited.
Publishing production English Publishing and Library Section United Nations Office at Vienna. The reform of criminal justice systems has become a priority for the international com. munity in its efforts to assist transitional and post conflict societies in re establishing the. rule of law In different parts of the world from Afghanistan to Iraq Haiti to Liberia. numerous international and regional organizations bilateral donors and non governmen. tal organizations are engaged in a variety of activities aimed at rebuilding or developing. criminal justice systems, The men and women sent by the international community to advise post conflict States. on specific facets of criminal justice reform are talented dedicated and hard working. However their determination to make a difference can lead them especially those. unfamiliar with the requirements of operating in unstable and unpredictable post conflict. environments to focus solely on their own aspects of criminal justice reform and lose. sight of the challenges and complexities of criminal justice reform as a whole. While focusing on one s own reform project is understandable such a focus is decidedly. detrimental to the prospects of rebuilding an effective criminal justice system These sys. tems may have many moving parts that do not function in isolation but rather are elabo. rately interconnected with each component affecting all others For instance a seemingly. modest change in the law on domestic violence may influence the number of arrests made. by the police which may have a cascading affect on the caseloads of prosecutors and. defence counsel the work of the courts the number of people sent to prison and the pro. grammes to reintegrate offenders back into society. Such connected systems cannot be successfully reformed in an unconnected fashion One. should not expect to improve policing in a post conflict State merely by redrafting police. procedures and giving the police more resources Significant and sustainable improve. ments in policing also depend on changing the capacity of the courts enhancing respect. for human rights remoulding public attitudes towards law enforcement and introducing. a range of other measures some of which may seem only distantly related to policing. In recognition of these complexities the United Nations Office on Drugs and Crime. UNODC and the United States Institute of Peace USIP have collaborated to produce. a guide designed to introduce individuals whose experience in promoting the rule of law. may be limited whether in extent or scope to the entire landscape of criminal justice. reform Previous studies by other organizations have explored specific areas of criminal. justice reform but this guide seeks to examine the full breadth of activity from policing to. courts to prisons from the formal justice system to customary courts to civil society. criminal justice reform in post conflict states a guide for practitioners. Over the course of the project UNODC and USIP enlisted experts in all facets of criminal. justice reform and experienced practitioners of programmes in many different post. conflict and transitional countries and areas e g Afghanistan Bosnia and Herzegovina. Cambodia El Salvador Haiti Iraq Kosovo Liberia Malawi Nepal Sudan Timor Leste. to contribute their knowledge and experience to the project That expertise has been dis. tilled into this volume through a process of review and revision designed to create a work. of substantive quality and practical value, This guide s chief ambition is not to offer detailed advice to specialists but rather to pro. vide a general overview and to enable specialists in all areas to see their own activity within. the broad context of the criminal justice reform process The guide examines particular. facets of reform activity courts detention police reform surveys the wider landscape of. criminality in post conflict and transitional States and addresses key skills such as pro. gramme management and capacity development pertinent to all types of reform It also. encourages readers to delve more deeply into particular areas and lists a wide range of. further reading and resources to facilitate such explorations. The breadth of coverage in this volume reflects the scope of interests of the two organiza. tions that conceived and piloted the project UNODC is mandated by the United Nations. Commission on Crime Prevention and Criminal Justice to assist nations in reforming their. criminal justice systems with international standards and norms and it operates in all. regions of the world through an extensive array of field offices USIP is mandated by the. United States Congress to promote research education and training in the prevention. management and resolution of international conflict and conducts or supports work that. seeks peaceful solutions to conflicts around the globe Among the many ways in which. these two institutional missions overlap is the interdependence of security rule of law and. development As is increasingly recognized the presence of security and the rule of law. provide a platform for development in the economic social and political arenas Develop. ment in turn can assist in strengthening long term security and the rule of law. UNODC and USIP s partnership on this project is a natural outgrowth of past collaboration. between two organizations recognized as leaders in the field of criminal justice reform. Members of USIP s Rule of Law programme participated in reviewing drafts of UNODC s. Criminal Justice Assessment Toolkit and UNODC s partnership was valuable in the develop. ment of USIP s Model Codes for Post Conflict Criminal Justice Both the Criminal Justice Assess. ment Toolkit and the Model Codes have been widely hailed for their authoritative and original. contributions to a rapidly evolving and highly challenging field of international endeavour. We trust that this new guide will prove equally valuable to those individuals and organiza. tions who strive to help the citizens and governments of post conflict and transitional States. rebuild the rule of law,Yury Fedotov Richard Solomon. Executive Director President, United Nations Office on Drugs and Crime United States Institute of Peace. Acknowledgements, This study was prepared by a team of authors Claudia Baroni UNODC Deborah Isser.
USIP Christina Murtaugh USIP Lelia Mooney Governance and Development. Strategies Consulting Vivienne O Connor USIP William O Neill Conflict Prevention. and Peace Forum Colette Rausch USIP Mark Shaw UNODC and Adam Stapleton. The Governance Justice Group The authors would like to acknowledge the contribu. tions made by Scott Carlson and Mark Lalonde to earlier drafts of this manuscript and to. Yolande Bouka and Rebecca Wharton for their research assistance Special thanks go to. Nigel Quinney who expertly edited the manuscript, UNODC and USIP wish to acknowledge the valuable contributions made by the follow. ing experts who have reviewed at different stages various drafts of this study Lord John. Alderdice Aly Alibhai Nina Berg Frits Bontekoe Charles Briefel Melanne Civic Yvon. Dandurand Michele Greenstein Anna Giudice Saget Isabel Hight Stephane Jean Neil. Kritz David Marshall Kaoru Okuizumi Robert Pulver Slawomir Redo Ali Saleem. Caroline Smit Sandra Valle Thierry Vircoulon and Ronald Woodbridge. Foreword iii,Acknowledgements v,1 Introduction 1,1 1 Terminology and definitions 2. 1 2 Guiding principles for criminal justice reform efforts 3. 1 3 How the guide is organized 6,2 Criminal justice institutions and actors 9. 2 1 Introduction 9,2 2 State institutions and actors 9. 2 3 Customary and non State systems of justice 13,2 4 Civil society and related actors 14.
2 5 International donors and actors 14, 3 Residual violence and post conflict criminality 15. 3 1 Introduction 15,3 2 Categories of crime 15, 3 3 Assessing the nature and scope of criminality and violence 16. 4 Managing criminal justice reform initiatives 19,4 1 Introduction 19. 4 2 Assessment of the criminal justice sector 19,4 3 Project design 23. 4 4 Project implementation 25,4 5 Monitoring and evaluation 27.
5 Addressing the needs of vulnerable groups 31,5 1 Introduction 31. 5 2 Who are the vulnerable 31,5 3 Assessing the needs of vulnerable groups 32. 5 4 Programmatic options to address the needs of vulnerable groups 33. 6 Capacity development 37,6 1 Introduction 37,6 2 Defining capacity 37. 6 3 Defining capacity development 38, 6 4 Capacity development supporting factors and inhibitors 38. 6 5 The capacity development cycle 39, 6 6 The phases of the capacity development cycle 40.
7 Legal empowerment 47,7 1 Introduction 47,7 2 General features of legal empowerment 47. 7 3 Identifying the needs of the ordinary person 48. 7 4 Strengthening the roles of the population and civil society 48. 7 5 Establishing processes and organizations to address the justice. needs of the poor 49,7 6 Private public partnerships 54. 7 7 Drawing on experiences from other post conflict countries 55. 8 Law reform 57,8 1 Introduction 57, 8 2 What are the applicable laws in the post conflict State 57. 8 3 Why is law reform necessary 59,8 4 What are the aims of law reform 60. 8 5 Past experiences in post conflict law reform 61. 8 6 Post conflict law reform best practices 63,9 Police reform 69.
9 1 Introduction 69, 9 2 Understanding the context of post conflict policing 70. 9 3 Engaging multidisciplinary teams 71,9 4 Timelines for transformation 71. 9 5 Moving from problems to solutions 72,9 6 Managing change 73. 9 7 Consulting with police in the ranks 74,9 8 Balancing crime fighting and human rights 74. 9 9 Management tools administration practices and fiscal control 76. 9 10 Police oversight bodies 77, 9 11 Incentive recruitment and promotion structures 79.
10 Courts prosecution and defence reform 83,10 1 Introduction 83. 10 2 Programmatic options 84,11 Detention and prisons reform 91. 11 1 Introduction 91,11 2 Assessing the situation 91. 11 3 Establishing relationships with national authorities 94. 11 4 Short term programmatic options 95,11 5 Longer term programmatic options 98. 12 Working with customary and non State justice systems 103. 12 1 Introduction 103,12 2 Customary justice systems 103.
12 3 General features of customary justice systems 104. 12 4 Limitations of customary justice systems 108, 12 5 Relationship with the formal customary justice system 109. 12 6 Programmatic options 110,13 Promoting a culture of lawfulness 115. 13 1 Introduction 115,13 2 Understanding the culture of lawfulness 115. 13 3 Fostering a culture of lawfulness 116,1 Introduction. This guide describes a cross section of the key challenges and lessons that have emerged. from recent international efforts to strengthen and reform criminal justice administra. tion in post conflict and transitional States Although the body of literature in this field. is growing few publications to date share the goal of this guide namely to introduce. basic issues resources strategies and programming options to professionals who are. joining the field, As befits a guide for practitioners this book has a decidedly pragmatic focus Although it.
covers many of the scholarly issues involved in criminal justice reform it devotes the bulk. of its attention to describing in the most practical terms possible a body of knowledge. that an international justice advisor hereafter simply advisor needs in order to be effec. tive immediately upon deployment in a foreign country. The intended audience for this guide consists of the men and women who are sent abroad. by governments intergovernmental organizations and non governmental organizations to. advise and consult with local counterparts on how to develop and improve local criminal. justice systems These advisors are drawn from a variety of professional backgrounds for. example the legal profession the judiciary the police the corrections and the develop. ment community as well as non governmental organizations NGOs and civil society. communities and bring with them an equally broad range of expertise and experience. Each advisor is likely to work on a discrete element of criminal justice reform However if. an advisor is to work effectively and to integrate his or her efforts with the work of col. leagues he or she must understand all the elements involved in the criminal justice system. as a whole, As an advisor becomes more involved in assisting in the reform of a particular justice sys. tem a multitude of complex issues will naturally arise This guide does not explore all such. issues in great detail instead it is designed to serve as an introduction. Although this guide focuses on the role played by international advisors and the issues that. they are likely to face much of the material in the following chapters may also be helpful. to their national counterparts These national counterparts however often confront a. number of issues and challenges that advisors do not face These issues are outside the. scope of this guide, criminal justice reform in post conflict states a guide for practitioners. 1 1 Terminology and definitions,Rule of law, The United Nations Secretary General defines the rule of law as follows. The rule of law is a concept at the very heart of the United Nations mission. It refers to a principle of governance in which all persons institutions and entities. public and private including the State itself are accountable to laws that are pub. licly promulgated equally enforced and independently adjudicated and which are. consistent with international human rights norms and standards It requires as well. measures to ensure adherence to the principles of supremacy of law equality before. the law accountability to the law fairness in the application of the law separation of. powers participation in decision making legal certainty avoidance of arbitrariness. and procedural and legal transparency 1, This definition which has been widely accepted by practitioners and policymakers in the. rule of law community describes an ideal end state to work towards one that features a. system of government that is transparent and accountable and embodies other checks and. balances Criminal justice reform is seen as being subsumed within the broader rule of law. reform agenda The work of the advisor is to translate this definition into a series of execut. able assistance programmes that reach achievable benchmarks demonstrating incremen. tal progress towards the end state,Post conflict, This book is concerned with post conflict States This term however can be a vague one.
As used throughout this guide post conflict refers to the aftermath of a conflict and. usually applies to a post war situation but it can also apply to the aftermath of an internal. rebellion a situation that does not necessarily fit conveniently into standard conceptions. of war 2 Moreover there is often no clean divide between a conflict State meaning a. State experiencing conflict and a post conflict State While a conflict may have officially. ceased small scale conflict may still be ongoing, Another term used frequently is transitional State referring to a State that is emerging. from a totalitarian regime and moving towards a State built on the rule of law Operations. in post conflict States and in transitional States have obvious differences but also share a. number of similarities For example a transitional State that is moving away from a totali. tarian past may have the same pressing need for code reform that a post conflict State. does Although much of the discussion in this book focuses on post conflict circumstances. it may be equally relevant to transitional environments. United Nations Security Council UNSC Report of the Secretary General on the Rule of Law and Transitional Justice in. Conflict and Post conflict Societies 2004 UN Doc S 2004 106 para 6. This definition of a post conflict State is from United Nations Development Programme UNDP Programming for Justice. Access for All A Practitioner s Guide to a Human Rights Based Approach to Access to Justice Bangkok United Nations Develop. 2 ment Programme 2005 178,chapter 1 introduction, 1 2 Guiding principles for criminal justice reform efforts. In April 2008 on the heels of his 2004 report Rule of Law and Transitional Justice in Con. flict and Post conflict Societies 3 the Secretary General issued the Guidance Note of the. Secretary General UN Approach to Rule of Law Assistance which provides a set of eight. guiding principles for United Nations rule of law activities in all circumstances includ. ing in crisis post crisis conflict prevention conflict post conflict and development. contexts 4 For those within the UN system these guiding principles shape all rule of law. activities including criminal justice reform related activities For those outside the sys. tem the principles are equally valuable not least because they draw together best prac. tices in the field of rule of law, The eight principles are described as follows in the Guidance Note of the Secretary General. UN Approach to Rule of Law Assistance, 1 Base assistance on international norms and standards. The normative foundation for UN rule of law work is the Charter together with the. four main pillars of the international legal system international human rights law. international humanitarian law international criminal law and international refugee. law The countless UN treaties declarations guidelines and bodies of principles. represent universally applicable standards As such they incorporate a legitimacy. that cannot be said to attach to exported national models reflecting the values or. experience of donors and assistance providers These standards form the normative. parameters for UN engagement for example the UN will neither establish nor. directly participate in any tribunal that allows for capital punishment nor endorse. peace agreements that allow for amnesties for genocide war crimes crimes against. humanity or gross violations of human rights All UN approaches to rule of law. issues should take their guidance from and be developed in conformity with the. applicable international standards,2 Take account of the political context.
The international community has sometimes underestimated the extent of politi. cal will necessary to support effective rule of law development and invested inad. equately in political dialogue on rule of law promotion Rule of law activities take. place in neither an economic nor a political void and require changes in the legal. framework and the institutional structures of governance and their functioning. Rule of law development like all national reforms generates winners and losers. They are therefore political questions as well as technical ones Rule of law assist. ance has often overemphasized technical dimensions and paid less attention to. political and strategic considerations Until national stakeholders see the utility in. supporting rule of law development technical assistance will have little impact. UNSC Report of the Secretary General on the Rule of Law and Transitional Justice in Conflict and Post conflict Societies. UN Doc S 2004 106, United Nations Guidance Note of the Secretary General UN Approach to the Rule of Law Assistance 14 April 2008.


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