The justice "triad"
Different actors conceptualize judicial and legal reform/(re)construction differently. That said, scholars and practitioners have increasingly thought of the justice system in post-conflict societies as consisting of three parts (institutions): the judiciary, police, and prisons. This is often referred to as the justice "triad." This way of conceptualizing the justice system stems from a recognition that these distinct institutions are functionally interdependent, and that reform strategies must therefore be holistic. The justice triad can function properly, however, only if civil society actively participates in the process of reforming or rebuilding the justice system. As such, it is an important component that should not be forgotten.1
"Three interdependent institutions emerge as the most salient in rule of law reform, and are referred to as the tripod or triad of the justice system--the judiciary, police and prisons. The three are interdependent: once police officers intercept suspects, prisons are required to hold them in safe custody until trial; courts--a functioning and dependable judiciary--are needed to accord fair trial to suspects; and an efficient, humane penal system is necessary to incarcerate guilty offenders for the length of their sentence. If any leg in this triad is weak or inefficient, the work of the other two institutions may be undermined or negated." Source: Rama Mani, "Beyond Retribution: Seeking Justice in the Shadows of War" (Cambridge: Polity/Blackwell, 2002), 56.
This holistic approach to justice reform is evidenced in the "Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies," under the rubric "strengthening of national justice systems and institutions,"2 which includes the following areas of reform:
[Back to Top]
- Strengthening legal and judicial institutions (e.g., prosecution, ministries of justice, criminal law, legal assistance, court administration, and civil law), policing, penal reform, the administration of trust funds, and monitoring;
- Customary, traditional, and community-based justice and dispute resolution mechanisms go to traditional justice;
- Victim and witness protection and assistance;
- Combating corruption, organized crime, transnational crime and trafficking, and drug control. Go to SSR and Public Administration;
- Legal education;
- Public law issues (e.g., land and property, registration, national identification, citizenship, and statelessness);
- Interim law enforcement and executive judicial functions performed by the United Nations; and
- Security support to national police agencies. Go to SSR and community policing
The key components of judicial and legal reform/(re)construction
Judicial and legal reform/(re)construction can be thought of as a subset of justice system reform. It usually encompasses the following elements that complement what is done in matters of police and prison reform.3
Law reform is crucial in many post-conflict societies because existing laws often tend to be outdated, irrelevant to the post-conflict context, or associated with the ills of the political system that generated the violent conflict in the first place. Moreover, existing laws may not sufficiently accord with international human rights standards. There may also be a great deal of confusion as to what is, or should be, the applicable legal framework. Revision or rewriting of laws is therefore an important element of judicial reform.
Many law reform activities in post-conflict societies entail aligning the domestic legal framework with international human rights standards, especially by revising criminal codes. Also, law reform is a way to enhance the independence of the judiciary by revising or drafting laws on the selection and appointment of judges and on the management of the judiciary's budget. Law reform activities can also serve as capacity-building initiatives, involving the parliament, law professionals, and the public, and not only technical advisors who draft the laws.4
Enhancing adjudicative capacity5
This area of reform aims to improve the judiciary's capacity, efficiency, integrity, and responsiveness. A post-conflict judiciary is often characterized by a lack of judicial capacity (such as personnel, facilities, and financial resources) and a lack of legitimacy as a result of a history of political intrusion and manipulation. Therefore, enhancing adjudicative capacity entails strengthening both judicial capacity and legitimacy. The effort to increase judicial capacity in post-conflict settings includes such activities as training judges and prosecutors, improving court administration and case management, rehabilitating or constructing judicial infrastructure (such as court facilities), and providing adequate salaries to judicial personnel.
A central aspect of increasing judicial legitimacy is vetting; that is, processes of screening public employees or candidates for public employment if their prior conduct (especially their human rights record) warrants their exclusion from public institutions. Crucial though often overlooked areas of judicial reform include establishing neutral and relevant hiring/firing criteria and processes, as well as adequate oversight mechanisms.6 Another central goal of judicial reform is to free the judiciary from undue political pressures, especially from the executive branch of government. As David Tolbert and Andrew Solomon point out, "An independent judiciary is . . . at the heart of establishing the rule of law for a post-conflict society."7
Legal community support
The legal community refers to such institutions as bar associations, law societies, advocacy groups, and non-governmental organizations (NGOs). Supporting or strengthening the legal community is essentially about laying the societal foundations for sustainable judicial reform and fostering a culture of rule of law.
Reform of legal education and training
Activities in this area of reform include establishing law faculties (including courses and curricula) and formal judicial training centers, as well as training judicial personnel and other legal practitioners so as to increase their professionalism. Yet, legal education is often a neglected area of assistance. According to Richard Sannerholm, "An interesting aspect of judicial reform is that it rarely includes a focus on legal education and support to law schools. . .While quickly finding, training and appointing judges are necessary measures in the short-term period, it does not address the long-term deficit."8 Moreover, training programs should have a follow-up component that assesses the tangible and concrete impact of the training.9
Access to justice
A growing area of judicial and legal reform/(re)construction is access to justice, which refers to peoples ability to resolve disputes and access adequate remedies for grievances, through either formal or informal justice mechanisms and in conformity with human rights principles and standards. As a consequence, access-to-justice activities can either seek to expand the reach of the formal justice system or to provide alternative mechanisms of justice, namely informal/traditional/local justice practices. They also include legal awareness and legal aid and counsel. Access-to-justice initiatives have proliferated in recent times primarily because of a generalized discontent with top-down justice reforms, which are criticized for not addressing the everyday justice needs of most people in post-conflict societies.
Public administration and corruption issues (as an emerging area of reform)
It is fair to say that most reform activities focus on post-war criminal justice reform.10 While this is crucial, especially in the immediate post-conflict period, there is growing recognition that corruption and deficiencies in public administration are critical issues that need to be addressed. According to Sannerholm, "Besides reforming the judiciary, bar associations, constitutions and the criminal law system, in order to remedy violations of civil and political rights, [the reform] could also encompass administrative and commercial law reform and activities to fight corruption to redress economic and social rights and ensure the principle of legality."11 It seems that this area of reform is gaining attraction: "There is a tendency among the actors of the international community predominantly involved in rebuilding crisis states to move beyond the narrow rule of law template and also include governance and economic management issues."12 Go to Public Administration and Public Sector
[Back to Top]
Three types of reform
It may be helpful to think of judicial reform as consisting of three general types or, alternatively, three levels of reform.13
Type one reform refers to law reform (which entails the drafting of new laws, as well as the amendment of existing ones), which, though crucial, is a "thin" kind of reform because it does not necessarily lead to changes in the attitudes and behavior of political and judicial actors. Sannerholm notes, "The focus on law reform in post-conflict societies illustrates a tendency of the international community to invest in high-profile areas where tangible results are easily measured. While this is predictable, it should not overshadow the principal problem in all post-conflict and developing countries, namely that of implementation and enforcement and of making law accessible to the general public."14
Type two reform is essentially about enhancing adjudicative capacity. This represents the bulk of judicial reform efforts in post-conflict societies and focuses on reforming or (re)building institutions (e.g., courts, ministries of justice, the prosecutor's office, bar associations, and advocacy groups). This type of reform can be summarized as "the strengthening of law-related institutions, usually to make them more competent, efficient, and accountable. Training and salaries for judges and court staff are increased, and the dissemination of judicial decisions improved. Reform efforts target the police, prosecutors, public defenders, and prisons. Efforts to toughen ethics codes and professional standards for lawyers, revitalize legal education, broaden access to courts, and establish alternative dispute resolution mechanisms figure in many reform packages. Other common reforms include strengthening legislatures, tax administration, and local governments."15
Type three reform is the most intractable yet crucial aspect of judicial reform. It is about the deeper goal of increasing government compliance with the law. A key aspect of this type of reform is achieving genuine judicial independence. Some of the above measures foster this goal, especially better salaries and revised procedures for selecting judges. Yet, as Thomas Carothers notes, "The most crucial changes lie elsewhere. Above all, government officials must refrain from interfering with judicial decision making and accept the judiciary as an independent authority. They must give up the habit of placing themselves above the law. Institution reforms can help by clarifying regulations, making public service more of a meritocracy, and mandating transparency and other means of increasing accountability. The success of type three reform, however, depends less on technical or institutional measures than on enlightened leadership and sweeping changes in the values and attitudes of those in power."16
[Back to Top]
A tentative typology of post-conflict judicial and legal activities17
Judicial Capacity Building
Immediate post-conflict phase:
- Inventory of indigenous legal professionals (e.g., judges, prosecutors, lawyers);
- Selection, vetting, and recruitment of individuals for judicial positions;
- Establishment of code of conduct for judicial system;
- Establishment of oversight/accountability mechanisms (i.e., judicial disciplinary mechanisms and processes to punish malfeasance and misconduct); and
- Training of legal professionals in interim legal codes (US State Dept.).
- Promotion of judicial independence and identification of improper pressures on judges, prosecutors, and courts;
- Mechanisms for the appointment and selection of judges, judicial tenure, and judicial discipline;
- Law reform on issues of appointment and disciplining of judges and prosecutors and management of financial resources for judiciary;
- Training of legal professionals (judges, prosecutors, and lawyers) in judicial responsibilities, ethics, human rights, local law relevant to their jurisdiction, and legal procedures; and
- Training in lawyering techniques (e.g., how to run a courtroom, move cases along, keep track of files, write opinions, and manage heavy caseloads efficiently).
Interim criminal justice
Immediate post-conflict phase:
- Deployment of international legal professionals (judges and prosecutors) to supplement local criminal justice system (US State Dept.).
- Collation of international and local legal professionals in controversial or complex cases;
- Design and establishment of special jurisdictions to try serious crimes cases; and
- Transfer of responsibilities to indigenous justice institutions (US State Dept.).
Immediate post-conflict phase:
- Inventory of courts, law schools, libraries, and bar associations (CSIS, US State Dept.); and
- Rehabilitation of essential judiciary, police, and corrections infrastructure (UNDP).
- Rehabilitation or construction of necessary facilities (courthouses, prosecution offices, etc.) (CSIS, US State Dept.); and
- Sustainable provision of equipment and software to enhance efficiency and coordination (UNDP).
Immediate post-conflict phase:
- Assessment of court administration capabilities and resources (US State Dept.);
- Monitoring of the judicial process, including trials;
- Court administration capacity building and system modernization;
- Collection, analysis, and dissemination of criminal justice data; and
- Advise and/or assistance on court administration and management (Samuels).
Code and statutory reform
Immediate post-conflict phase:
- Review of existing laws and identification of applicable legal framework (CSIS);
- Revision of penal and criminal procedure codes to ensure due process and respect for human rights, with an emphasis on pre-trial detention (UNDP);
- Possible application of interim legal code (model codes); and
- Translation of interim and important laws into local languages (US State Dept.).
- Codification of or bringing criminal law provisions in line with international human rights standards (Samuels); and
- Promulgation of revised legal code and statutes (civil and criminal) consistent with protection of basic human rights (CSIS).
Property law reform
- Infrastructure and capacity building for law schools, professional legal training organizations, judicial training centers, and bar associations; and
- Provision of personnel for positions where local capacity is lacking.
Immediate post-conflict phase:
- Assistance in pacific resolution of conflicts over land tenure and housing due to massive displacements of the population and return of refugees.
Economic regulatory frameworks and legislative reform
- Assistance in setting up courts or tribunals to deal with recognition of property (e.g., housing, commercial enterprises, livestock, and personal effects); and
- Seeking a fair and unambiguous legal framework to deal with land tenure conflicts.
[Back to Top]
- Advice on reform/drafting of laws dealing with commercial and contract matters, banking law, monetary policy, customs duties, taxation, foreign exchange controls, capital markets, and foreign direct investment in infrastructure sectors; and
- Training of members of the bar and the judiciary in business reorganization and insolvency law.
Categories of actors
In the last decade or so, a proliferation has occurred of actors involved in judicial and legal reform/(re)construction is post-conflict societies. According to Agnes Hurwitz and Kaysie Studdard, "The field of rule of law programming contains a wide variety of practitioners. Private sector consulting firms, non-governmental organizations (NGOs), academic institutions, individual governments and multilateral organizations, the UN [United Nations] and regional development banks have all engaged, with differing approaches, in programs that seek to enhance the rule of law. A wide spectrum of national actors also play a vital role in the actual results achieved by rule of law strategies. . .Often, different groups are involved in initiatives targeted at the same concern; such overlapping efforts can result in the nullification of reforms as countervailing strategies effectively cancel each other out or create further confusion in an already complex legal environment."17
In general, the following categories of actors are involved in judicial reform in any given post-conflict context:
A major challenge in the interaction between these different actors is the continueddominance of a donor-driven agenda. While actors involved in judicial and legal reform/(re)construction increasingly recognize that any meaningful judicial and legal reform needs to be locally owned and driven, it is hard to tell whether this rhetorical commitment to local ownership is being applied in practice. In the field, international and local actors are often in an unequal relationship.
- Governments/state institutions;
- Local NGOs, civil society organizations, and academic institutions;
- The local population at large;
- International and regional organizations (in particular, the United Nations Development Programme (UNDP), the United Nations Department of Peacekeeping Operations (UNDPKO), the Office of the United Nations High Commissioner of Human Rights (UNHCHR), the European Union (EU) and the European Commission (EC), and the Organization for Security and Co-operation in Europe (OSCE);
- Donor agencies (bilateral and multilateral);
- International NGOs, think tanks, and universities ; and
- Private firms (local and international).
Link to local ownership (cross-cutting subsection; forthcoming)
Judicial reform-related national actors and institutions
A variety of national/domestic actors and institutions are involved in judicial and legal reform/(re)construction activities in post-conflict societies.
Key related actors and institutions19
- Courts (criminal justice and civil courts);
- Court clerks and administrative personnel;
- Defense lawyers; and
- Victims associations.
- The police and other law enforcement bodies(go to SSR and community policing); and
- Prison administration. (go to SSR)
- Ministries of justice, human rights, interior, defense, and finance;
- National legislatures;
- National human rights institutions;
- Bar associations;
- Law reform commissions;
- Law faculties;
- Judicial training centers;
- Research organizations, academic centers, and think tanks;
- Police academies;
- Forensic science and medical institutions;
- Media organizations; and
The international community
The international community can be divided into two broad groups: funders and implementers.
A large number of bilateral and multilateral donors (such as UNDP, the World Bank, EC, OSCE, and regional banks) fund judicial reform projects. Private foundations also support projects in that sector.
Implementers include the UN and other international agencies, NGOs, private foundations, and private firms.
At the UN, major institutional reforms have been undertaken in the recent past to better address rule of law assistance in post-conflict settings. In 2006, a report by the secretary-general stated, "The dedicated capacities of the Organization remain shallow, both at Headquarters and in the field. The needs are particularly acute with regard to our rule of law and transitional justice expertise in conflict and post-conflict societies, in which only a small number of Headquarters staff are assigned. With limited staff and resources, the Organization has, inevitably, turned to non-United Nations actors for assistance. Though external expertise is extremely valuable, chronic outsourcing undermines any attempt at building and retaining institutional memory and dedicated expertise within the United Nations."20
As a result, the Rule of Law Coordination and Resource Group was established in 2006 to serve as "the focal point for coordinating system-wide rule of law activities so as to ensure quality control and greater policy coherence and coordination."21 The groups participating UN agencies include the Office of Legal Affairs, UNDPKO, UNHCHR, the Office on Drugs and Crime (UNODC), UNDP, the UN Fund for Women (UNIFEM), and the UN High Commissioner for Refugees (UNHCR). In July 2007, an Office of Rule of Law and Security Institutions (with a criminal law and judicial advisory section) was created under UNDPKO.
A growing phenomenon is the "privatization" of judicial reform in post-conflict situations; that is, the increasingly important role played by private firms in the implementation of judicial reform projects. Some of the prominent private firms are Checchi Consulting, Chemonics, DPK Consulting, Management Systems International, and East-West Management Institute.
In addition to these major actors, there is a multiplicity of "small programs targeting different elements or functions of the justice and government systems, run by small entities, legal specialists, bar associations, judges association, law schools, former police officers, human rights organizations, humanitarian organizations, and a range of other more or less qualified private firms. The funding entities generally sub-contract within this medley of actors."22
1. Comment by Bill O'Neill (June 2, 2008).
2. "Report of the Secretary-General on the Rule of Law," 13, paras. 41-42. Please note that this UN document specifies two rule of law baskets: (1) rule of law at the international level, and (2) rule of law in the context of conflict and post-conflict situations. The second basket consists of two components: (1) transitional justice, and (2) strengthening of national justice systems and institutions.
3. Mainly drawn from Skaar, Samset, and Gloppen, Aid to Judicial Reform, 6-8.
4. Comment by Bill O'Neill (June 2, 2008).
5. Richard Sannerholm, "Legal, Judicial and Administrative Reforms in Post-Conflict Societies: Beyond the Rule of Law Template," Journal of Conflict and Security Dialogue 12, no. 1 (2007): 79-85.
6. Comment by Bill O'Neill (June 2, 2008).
7. David Tolbert and Andrew Solomon, "United Nations Reform and Supporting the Rule of Law in Post-Conflict Societies," Harvard Human Rights Journal 19 (2006): 45.
8.Sannerholm, "Legal, Judicial and Administrative Reforms in Post-Conflict Societies," 83.
9. Comment by Bill O'Neill (June 2, 2008).
10. Office of the United Nations High Commissioner for Human Rights (OHCHR), Rule of Law Tools for Post-Conflict Societies: Mapping the Justice Sector (Geneva: United Nations, 2006), 8.
11. Sannerholm, "Legal, Judicial and Administrative Reforms in Post-Conflict Societies," 78.
13. Thomas Carothers, "The Rule-of-Law Revival," in Promoting the Rule of Law Abroad: In Search of Knowledge, ed. Thomas Carothers (Washington, DC: Carnegie Endowment for International Peace, 2006), 7-8.
14. Sannerholm, "Legal, Judicial and Administrative Reforms in Post-Conflict Societies," 81.
15. Carothers, "The Rule-of-Law Revival," 7.
17. This tentative typology of post-conflict judicial and legal reforms draws on several sources: Samuels, “Rule of Law Reform in Post-Conflict Countries,” 9–12; United States State Department, Office of the Coordinator for Reconstruction and Stabilization, “Post-Conflict Reconstruction Essentials Tasks Matrix: Judicial Personnel and Infrastructure”; Center for Strategic and International Studies (CSIS) and the Association of the United States Army (AUSA), Post-Conflict Reconstruction Task Framework (Washington, DC: CSIS/AUSA, May 2002); United Nations Development Programme (UNDP) and Chr. Michelsen Institute, “Governance in Post-Conflict Situations”(Bergen Seminar Series, Norway, May 5–7, 2004), 87–89. We also thank Bill O’Neil for his comments on a previous version.
18. Agnes Hurwitz and Kaysie Studdard, Rule of Law Programs in Peace Operations (New York: International Peace Academy, August 2005), 3.
19. OHCHR, Rule-of-Law Tools, 5-22.
20. Ibid., 23-30.
21. "Report of the Secretary-General: Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law," UN Doc. A/61/636-S/2006/980 (December 14, 2006), 1-2.
22. Ibid., 2.
23. Ibid., 2.