Making justice sector reform work

The legal system and the judiciary have very important roles to play in maintaining or restoring legitimacy in fragile states. Injustice, deeply embedded in both the legal system and a partial or ineffective judicial system, tends to weaken state legitimacy and sometimes contributes to the eruption of armed conflict.

It is therefore hardly surprising that in post-conflict situations, multilateral and bilateral development assistance places high priority on reforming legal and judicial systems. Yet, despite generous funding, progress has been slow and achievements few as experience in Bosnia and Afghanistan indicates.

Legitimacy — defined as 'acceptance of the right to rule' by the ruler and the ruled — requires a legal system based on two elements: the concept of the rule of law and access to a judicial process that solves disputes and resolves conflicts in a timely and visibly equitable manner.

Effective peace-building

Based on experience, peace-building in post-conflict situations requires the following elements to be effective:

• Appropriate models of legal systems are needed as: simplistic models implanted in Afghanistan and Timor Leste have failed.
• Multiple sources of legal pluralism such as traditional courts and customary law, and the role of internal institutions are essential for dispute resolution (Afghanistan, Iraq).
• Strong local human resources are crucial: lawyers and judges were extremely scarce in Cambodia and Timor Leste — bringing in international outsiders as an interim response failed to build either legitimacy or sustainability.
• Legacies of the recent past require more than law reform alone. Such legacies include: impunity and corruption (Cambodia), erosion of the rule of law (Iraq), and systematic dismantling of legal and judicial infrastructure (Afghanistan, Cambodia, Iraq). Aside from dealing with issues of transitional justice (including recovering truth and reconciliation), promoting the rule of law and an appreciation of the values of human rights can help confront such legacies.
• International Peace Accords need to have realistic expectations (unlike in Bosnia and Afghanistan) and a greater focus on equitable and just strategies rather than expediency (Iraq).
• Local ownership in constitution-making processes is crucial to retain credibility and legitimacy as highlighted by the experiences in Afghanistan and Iraq.

The legitimacy of a state is determined by its performance in demonstrating and enforcing the rule of law and securing access to justice for everyone. Multilateral and bilateral development assistance must therefore prioritise reform of legal and judicial systems, and strive for greater effectiveness by:

• acknowledging legal pluralism and the complementary formal and informal legal systems that balance the internal and external responsibilities of states
• prioritising the development of local human resources including effective mentoring programmes
• prioritising truth, justice and reconciliation in the provision of transitional justice and to overcome legacies of the past
• facilitating constitution-making processes that are fully inclusive and participatory
• ensuring that principle prevails over expediency and impunity in all aspects of interim administration
• making conflict assessment and conflict prevention integral aspects of all development programming, especially those in the legal and justice sectors.

Clarence J. Dias
International Center for Law in Development, 777 United Nations Plaza, 7/E New York, NY 10017, USA
T +1 212 6870036
inhumanwrongs@yahoo.com

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