Non-State Justice Providers

Local/non‐state actors often play an important role in the provision of justice and security services in many of the world’s fragile and (post‐)conflict countries. With a view to improving their effectiveness, donors seeking to support justice and security development in thosecountries frequently look for ways to incorporate them in their programmes. However, given that non‐state actors can also be detrimental to local security and justice (for example when they form part of organized crime), supporting them also involves huge risks. With this dilemma in mind, the Clingendael Institute’s Conflict Research Unit investigated conceptual, policy and practical opportunities and challenges for including local/non‐state security and justice networks in security and justice programming. The project consisted of a conceptual desk‐study; case studies in Colombia, the Democratic Republic of the Congo (DRC) and Burundi; and a synthesis phase focusing on the lessons learned from the project, complemented by an expert brainstorm meeting, on the practical issues that donors must deal with if they are to successfully include local/non‐state actors in security and justice programmes.The present report summarizes the findings from this synthesis effort. It concludes that in each of the cases examined, it was possible to identify local/non‐state actors suitable for support and ways to support them. They included actors such as local courts, lay judges, neighbourhood watch groups, community development councils, and trade associations. However, the research also identified a number of practical risks and challenges that donors need to manage and overcome in order to ensure that such actors are included effectively into broader, overall security and justice programmes.

This handbook is a practical guide, primarily intended for World Bank staff involved in justice sector assessments. It also may be of interest to the wider justice reform and
development community. Assessment methodologies for other sectors and justice sector assessment methodologies from other institutions have informed the handbook. As far as we could ascertain, this is the first time that practices in justice sector assessments as they have evolved have actually been described. This handbook is not the last word in assessments; rather, it is a basis for further development.

This paper will proceed in four parts. The first part will examine the basic theoretical relationship between legal systems and market-oriented poverty reduction. The second part will examine various elements of legal and judicial reform and current activities. The third part will describe a strategy framework and methodology for designing and preparing legal and judicial activities. Lastly, the fourth part will examine the role of the World Bank and the organizational mechanisms available to the Bank to ensure that its
theoretical and policy approaches are constantly refined for new circumstances and in light of new interdisciplinary research.

Legal and judicial reform is a long-term process, and for the process to be sustainable, it requires a corresponding long-term commitment from the countries. For this reason, it is critical that any effort in this area is grounded in a long-term sector strategy that includes reforms targeted at the legal and judicial system as whole and all the relevant stakeholders. Law and justice sector activities must be approached strategically, bringing together all the elements that promote the rule of law through holistic and comprehensive sector reform programs. This approach entails the following sequence:
* Legal and Judicial Sector Assessments
* Development of a comprehensive plan
* Identification of priorities and sequencing based on available capacity and in coordination with other active donors
* Dialogue with the stakeholders throughout each stage

This paper aims to provide a tour d’horizon of common operational initiatives and policy approaches adopted by agencies and institutions involved in the area of rule of law reform in fragile or post-conflict countries, and identify key lessons highlighted in the policy literature.

The paper reviews some of the key lessons to have emerged from the last two decades of rule of law experience, typically undertaken in fragile or post-conflict countries (and more generally in developing countries) by a multiplicity of uncoordinated actors and projects. There is a striking lack of systematic results-based evaluations of the programs, especially independent rigorous cross country evaluations, or comprehensive case studies of all the programs in a country. The rule of law expertise that exists is not centralized or institutionalized, and resides in individuals who have often learnt through trial and error. The field lacks a common foundation or basic agreement on the goals of rule of law reform, on how different aspects should be sequenced to avoid them working against each other, and fundamentally what sortsof strategies are effective. The paper highlights 11 important lessons: lack of coherent strategy and expertise; insufficient knowledge of how to bring about change; a general trend to focus on form over function; emphasis on the formal legal system over informal and traditional systems; short-term reforms in contrast to longer term strategies; wholesale vs. incremental and context-determined change; the need for local change agents; how to engender local ownership; rushed and compromised constitution making; poorly designed training and legal education programs; and the need to sequence and prioritize change.

The overall objective of the Justice Sector Reform Strategy is to create a joint framework of reform for justice sector institutions in BiH that sets out agreed priorities for the future development of the sector as a whole, as well as realistic actions for reform.
This strategy was created through a joint effort between the ministries of justice of the State of BiH, the entities, and cantons, as well as Brčko District Judicial Commission and the High Judicial and Prosecutorial Council. It is the result of a highly participatory and consultative process that encompassed key justice sector institutions of Bosnia Herzegovina, including representatives of professional associations of judges and prosecutors, bar associations, association of mediators and NGOs. Its aim is to provide a strategic framework for addressing key issues within the justice sector over a five year timeframe.

The purpose of this How to Note is to provide hands-on guidance and inspiration on how to put these strategic priorities into practice in Danish development cooperation.
This How to Note focuses on one particular aspect of the support to the realisation of human rights – building societies based on justice and the rule of law through support to justice sector reform. Danish support to justice sector reform often includes support to formal and informal institutions, and to state as well as non-state actors. Further guidance on how to promote equal access to justice through informal justice systems is provided in a separate How to Note.

Most people in the world do not take it for granted that the state can or will provide justice and security. Donors who seek to improve access to these services should abandon their concern with ‘what ought to be’ and focus on ‘what works’. This means supporting the providers that exist, and accepting that while wholesale change is not possible, gradual improvement is.

Although the ‘rule of law’ is now widely recognised as indispensable to eff ective peace operations, its delineation remains elusive. Researchers contest its substance while those most responsible for its implementation ( e.g. the United Nations) promulgate only abstract notions needed to inform detailed decisions. At its worst, this means that competing reform activities undermine each other, making long term success less likely. The questions we address are about the deficiencies in how rule of law is conceived. Particular attention is paid to the little recognised assumption that the Weberian state ideal corresponds to the societies on the receiving end of international
interventions. After a review of extant academic and practitioner viewpoints, we set out a post-Weberian framework which expands the dominant imagination to include non-state rule of law ‘providers’. We argue that the optimum sources for immediate yet sustainable rule of law solutions may often be those which bear little resemblance to the conventional state-based providers that populate mainstream conceptions.

Following the establishment of the international ad hoc tribunals, the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR respectively), a new model of justice administration emerged at the end of the 1990s through the development of hybrid or internationalised courts. Hybrid tribunals are conceived as a mixture of international and domestic law and staff, as a way to provide the necessary resources and guarantees for justice closer to those whose work matters to most. This paper looks at the two most recent tribunals, the Extraordinary Chambers in the Courts of Cambodia (ECCC) and the War Crimes Chamber in the State Court of Bosnia and Herzegovina (WCC) and examines their practice related to the expectations that hybrid tribunals have raised in terms of peacebuilding. Based on the authors’ fieldwork in Bosnia and Herzegovina and Cambodia, this paper focuses particularly on the tribunals’ impact on the rebuilding of the rule of law, the strengthening of public institutions in the countries in which they operate and the perception of the public of their work. It considers the experience of the tribunals so far, problems and ongoing challenges in order to draw some lessons which can impact both their future work and other potential tribunals in post-­‐conflict settings.

Afghanistan’s justice system is in a catastrophic state of disrepair. Despite repeated pledges over the last nine years, the majority of Afghans still have little or no access to judicial institutions. Lack of justice has destabilised the country and judicial institutions have withered to near non-existence. Many courts are inoperable and those that
do function are understaffed. Insecurity, lack of proper training and low salaries have driven many judges and prosecutors from their jobs. Those who remain are highly
susceptible to corruption. Indeed, there is very little that is systematic about the legal system, and there is little evidence that the Afghan government has the resources or
political will to tackle the challenge. The public, consequently, has no confidence in the formal justice sector amid an atmosphere of impunity. A growing majority of Afghans have been forced to accept the rough justice of Taliban and criminal powerbrokers in areas of the country that lie beyond government control.

To reverse these trends, the Afghan government and international community must prioritise the rule of law as the primary pillar of a vigorous counter-insurgency strategy
that privileges the protection of rights equally alongside the protection of life. Restoration of judicial institutions must be at the front and centre of the strategy aimed at stabilising the country. The Afghan government must do more to ensure that judges, prosecutors and defence attorneys understand enough about the law to ensure its
fair application. Reinvigoration of the legal review process and the adoption of a more dynamic, coordinated approach to justice sector reform are critical to changing
the system. Justice is at the core of peace in Afghanistan and international engagement must hew to the fundamental goal of restoring the balance of powers in government and confronting governmental abuses, past and present. Urgent action is also needed to realign international assistance to strengthen support for legal education, case management, data collection and legal aid.

The linkages between good governance, rule of law and economic growth, once more fully understood, have the potential to unshackle economies and decrease poverty throughout the developing world. Currently, however, most initiatives are heavy in rhetoric and light on directly addressing the legal structures and policies that affect the poor. Until developing countries can enable their vast populations of poor citizens to actively participate in their economies, their growth and the creation of egalitarian societies will be severely hampered. Analyzing and building on the final report of the Commission on Legal Empowerment of the Poor and other previous work, this article outlines a functional approach to addressing the most critical needs of the poor, including but not limited to issues that directly affect livelihoods and economic opportunity. It accordingly aims to help the poor gain a foothold in effecting their own development and making legal empowerment a reality. By introducing important lessons in ommunity-based justice from an access to justice program in Bolivia, the article provides tangible examples that might help shape legal empowerment initiatives to best address the needs of the poor.

Support for justice provision, both formal and informal, constitutes a significant element of donor assistance in Nepal. An initial shift towards supporting informal justice mechanisms (IJMs) began during the decade-long violent conflict between the state and the Maoists that continued until the signing of the Comprehensive Peace Agreement (CPA) in 2006. Donors have since renewed support for the reform and trengthening of the formal justice sector, but have continued to support IJMs. In particular, they have supported ‘new’ IJMs such as paralegal and community mediation committees. These systems today make up one layer of an increasingly complex matrix of formal and informal justice mechanisms, which include both traditional and other non-donor supported IJMs.
This paper builds on questions raised by earlier Saferworld research into IJMs, conducted between November 2009 and April 2010. This research revealed a complex and seemingly disjointed patchwork of donor-supported IJM projects, most of which were operating at a fairly small scale and without clear links either to formal or to other informal justice mechanisms. The research raised a number of challenging questions, including how and why donors first began supporting new IJMs, whether and how these new systems contribute to the strengthening of a broader system of justice in Nepal and to what extent their creation has supported ongoing peacebuilding efforts across the country.

A weak legal system can undercut efforts to develop a modern, market-oriented economy. What is the relationship between legal reform and economic reform, and what
specific steps can countries take to encourage the former?

This paper aims to provide
• a high-level analysis of what needs to be done over the next 12 years to build and maintain a minimally functional justice system in Afghanistan
• a preliminary forecast of what it would cost to fill its gaps
• an analysis of current gaps in programming and funding

This Note approaches the interplay of formal and informal justice systems and their respective merits by focussing on the justice needs of people. Needs, as expressed through the demand for justice services, has been neglected by the donor community as a factor in informing approaches and attitudes towards plural legal systems. Instead much of the current debate, both in academia and in the communities of law and development practitioners, has run along quasi-ideological lines, with positions often rooted in beliefs and anecdotes but not in evidence.

Like other donors, SDC has dealt with rule of law issues for years. In several countries, SDC supports judicial reform and the improvement of the legal framework for economic and social development. This concept paper aims to provide information and guidance to SDC’s staff and partners at headquarters and in partner countries. The concept paper begins by identifying the essential elements of the rule of law. Although there is no internationally accepted definition of the rule of law, key elements generally include: non-discrimination and equality before the law, the hierarchy of norms, and the substantive coherence of the legal framework, the government is bound by law, the separation of powers, the independence and impartiality of the judiciary, and respect for human rights.
The rule of law is interlinked with other concepts used in international cooperation: the rule of law is a means to realize human rights and gender equality, a key element for good governance, decentralization, poverty reduction, economic development, and peace building. Depending on these different perspectives, the concept is multicoloured, and it results in different and sometimes even conflicting approaches to and priorities for legal and judicial reforms. SDC will use the rule of law concept as a means to realize human rights, and implement its principles with flexibility, taking into account the relevant context, and potential entry points for cooperation.
Part two of this concept paper looks at the growing trend to include the rule of law dimension in legal and judicial reform projects. The performance of judicial institutions depends not just on operational efficiency, but also on their accessibility to vulnerable groups and effectiveness in realizing human rights. Justice sector reforms are increasingly seen from a systemic perspective, as a series of interconnected institutions and procedures to be analysed and improved. Moreover, legal and judicial systems are not restricted to formal, “modern” laws and institutions: they include informal and traditional law and procedures.
Part three provides illustrative examples of SDC’s engagement and experience involving the rule of law dimension both in legal and judicial reform and in other areas of development cooperation. The examples show that the legal dimension of development can be addressed in a variety of contexts and manners with different partners and entry points.

It is now widely recognized that the advancement of the rule of law is essential to the maintenance of peace and security, the realization of sustainable development, and the protection of human rights and fundamental freedoms. Rule of law assistance is a growing area of demand and significant experience has been accumulated in this field over the past 20 years. Yet, despite the centrality of the rule of law to our challenging global agenda, rule of law assistance is still too often executed in an ad hoc manner, designed without proper consultations with national stakeholders, and absent exacting standards of evaluation. A new perspective on rule of law assistance delivery is clearly needed.

The United Nations hosted a consultative process in New York resulting in this report, entitled New Voices: National Perspectives on Rule of Law Assistance. Sixteen national rule of law experts engaged in rule of law reform in 13 countries and regions, joined representatives from the United Nations system and partner countries to offer their respective views on how rule of law assistance can be better channeled to deliver results. The overall aim is to enhance dialogue between rule of law assistance providers and rule of law reformers in countries with a view to placing national perspectives at the centre of rule of law assistance.

This report outlines the following set of recommendations, corresponding to four major common conclusions which emerged from the consultative process. The national experts widely agreed that rule of law assistance is enhanced where: 1) national actors experience greater ownership over rule of law programmes; 2) local stakeholders are empowered; 3) assistance is coordinated and coherent; and 4) meaningful evaluations and assessment of impact are conducted. These common conclusions are based on the personal views and experiences of the national experts with rule of law assistance as articulated in the Voices section of this report.

It is hoped that the common conclusions and recommendations formulated by this informal forum of experts will serve as an important turning point towards a more effective approach to rule of law assistance. A clear call emerged for national rule of law policy-makers and experts and donor partners to come together to develop an internationally-recognized framework guiding rule of law assistance.

This report initiates the second phase of a large, three-step, Clingendale Institute research project into the role of local justice and security providers and non-state actors in the delivery of justice and security as public goods and services. Specifically, the report examines how, in Colombia, local justice and safety networks deliver services to citizens when a significant percentage of the population in a given community do not have confidence in the country’s centralized state agencies (national police service; judiciary and the courts) and/or where the services provided by those centralized agencies are scarce and have limited effectiveness for those living in that community. The report outlines a series of practical entry points and programmatic alternatives that donors can consider, from which a concrete and operational justice and security program (s) could be designed. Furthermore, it is suggested that in the short- to intermediate- term, donors may have few options but to support initiatives that work with these local neighbourhood providers.

This paper discusses the uneasy role of chiefs within three cycles of security and justice reform in Sierra Leone during the past decade. Interaction has been indirect, by default or marginal, and always hesitant. This has been the case, even though chiefs constitute the most important governing institution in Sierra Leone’s rural communities.

The research sought to identify literature on donor support to non-state providers of security and justice services in fragile and conflict-affected states, and to highlight any lessons learned. In particular, any lessons related to the conditions appropriate or not suited to supporting non-state actors, how to ensure services are equitable, affordable and accessible, and how performance can be assessed.

On any given day, some three million people are held in pretrial detention around the world. Countless millions are unnecessarily arrested and detained by law enforcement agencies annually. Those in pretrial detention are often held in conditions and subject to treatment that is far worse than that experienced by sentenced prisoners. Pretrial detainees—who have not been tried or found guilty—can languish behind bars for years. Some detainees may literally be lost in the system. 

Lawyers and paralegals have a central role to play in advising, assisting, and representing individuals at the pretrial stage of the criminal process.  

This paper looks at the role of lawyers and paralegals in the pre-trial process and provides recommendations for governments and for legal aid organisations.

Transitional justice is often pursued in contexts where people have been forced from their homes and communities by human rights violations and have suffered additional abuses while displaced. Yet little attention has been paid to how transitional justice measures can be used to address the wide range of injustices associated with displacement and thereby serve as part of a comprehensive approach to the resolution of displacement. This report provides an overview of the relationship between transitional justice and displacement and offers specific guidance to policymakers and practitioners in the numerous fields that share a concern with displacement, including transitional justice, humanitarianism, peacebuilding, and development. Displaced persons often have a critical stake in transitional justice processes, which have the potential to contribute positively to efforts to uphold their rights and well-being. When displacement is linked to large-scale human rights violations, the concerns of refugees and internally displaced persons (IDPs) should be incorporated in appropriate ways into transitional justice efforts. At the same time, responses to the problem of displacement should integrate transitional justice measures.

Security sector reform (SSR) is an integral part of the international community’s efforts to build peace and enhance security in weak post-war states. It has, however, proven difficult to undertake SSR in such contexts. A number of factors constitute a challenge to create security forces that are able to provide security to the population.

Based on previous research, this report highlights some of the challenges to SSR in weak post-war states. Through an analysis of the SSR process in the Central African Republic, this study shows that informal power structures, a volatile security situation and failure to understand how SSR is influenced by other political processes, negatively impact on the prospect for successful  implementation of reforms. Furthermore, this study demonstrates that weak capacity and lack of political will on behalf of the national government, is a challenge to local ownership and sustainable reforms. Despite a holistic approach to reforms aiming to improve both the capacity of the security forces and to increase democratic control of the security institutions, insufficient international engagement, scarce resources, lack of strategic direction and inadequate donor coordination have limited the prospect for implementation of reforms.

Most people in the world do not take it for granted that the state can or will provide justice and security. Donors who seek to improve access to these services should abandon their concern with ‘what ought to be’ and focus on ‘what works’. This means supporting the providers that exist, and accepting that while wholesale change is not possible, gradual improvement is.

This paper builds on questions raised by earlier Saferworld research into IJMs, conducted between November 2009 and April 2010. This research revealed a complex and seemingly disjointed patchwork of donor-supported IJM projects, most of which were operating at a fairly small scale and without clear links either to formal or to other informal justice mechanisms. The research raised a number of challenging questions, including how and why donors first began supporting new IJMs, whether and how these new systems contribute to the strengthening of a broader system of justice in Nepal and to what extent their creation has supported ongoing peacebuilding efforts across the country.

The dysfunctional state of Haiti’s justice system has impeded implementation of democratic reforms since the collapse of the Duvalier dictatorship. In spite of robust international efforts for six years following Aristide’s 1994 restoration, little lasting progress has been made, and there has even been regression in some areas. The lack of political will of successive Haitian governments has been the major factor but donor approaches have also suffered from flawed methodology.

Strengthening the rule of law in Haiti poses a major challenge to both the Haitian Government and several donors. For the Government the challenge is to ensure that the opportunity presented by the return to constitutional order in 1994 is used to construct new and reformed rule-of-law institutions against a background of decades of repression and systematic human rights violations. For donors, the challenge since 1994 has been how to advance a reform process in a political environment not conducive to change and characterized by protracted political crisis and paralysis.

The report provides a detailed analysis of three key aspects of administration of justice in the country: law enforcement and the Haitian National Police; the judiciary; and the system of detention facilities and prisons. As part of this analysis, the Commission addresses the particular problem of impunity and lack of public confidence in the justice system as well as the involvement of the international community in Haiti.

The meaningful participation of beneficiaries in aid programmes directed to human rights reform is crucial to their success. Their views on ways to improve them deserve serious attention. In interviews with beneficiaries in four countries we were told that aid for reform has had an impact. In the justice sector (the focus of our study) foreign
aid has facilitated constitutional development and legislative reforms and helped expand civil society and transform the justice system. Aid programmes have helped introduce human rights concepts into public consciousness and public institutions in societies where such notions were once seen as subversive.
We were also told that human rights assistance can be wasteful and even do harm. Badly conceived and implemented programmes have sheltered repressive regimes from scrutiny, wasted vital resources and distorted domestic institutions. Donors sometimes promote inappropriate models and put their foreign policy interests before human rights. They can be unreliable partners, subject to quick fixes and too much attention on “exit strategies”. Success depends on many factors, not least paying more attention to local perspectives. This report sets out some of the main issues. It offers signposts that we hope will be useful to both donors and beneficiaries looking for ways
to strengthen the impact of human rights assistance.

Over the past two decades, in response to the underwhelming results of international development efforts across the Third World, arguments concerning the importance of local ownership have been gaining currency within the international development community. At its core, the discourse around ownership revolves around fundamental questions of agency: who decides, who controls, who implements, and who evaluates. The growing emphasis on local ownership, then, emerged as a critique of mainstream development practice and the broader cult of Western expertise which underpins it. As Joseph Stiglitz argued a decade ago, a vision of development in which all the answers and all the agency are seen to lie in the hands of foreigners is inherently problematic and ultimately self-defeating: ‘We have seen again and again that [local] ownership is essential for successful transformation: policies that are imposed from outside may be grudgingly accepted on a superficial basis, but will rarely be implemented as intended’. Since then, the principle of local ownership has been viewed increasingly as a precondition for effective development assistance, even if
the translation of the principle into actual practice remains an ongoing challenge.

This practice note is intended to suggest strategies for UNDP support to access to justice, particularly for the poor and disadvantaged, including women, children, minorities, persons living with HIV/AIDS and disabilities. Part II of the note emphasizes the need to focus on capacities to seek and provide remedies for injustice and outlines the normative principles that provide the framework within which these capacities can be developed. Part III of the note sets out principles for action, approaches and techniques that can be used by UNDP practitioners involved in access to justice programming. It also suggests steps in policy dialogue, partnership building, design, implementation and execution that are intended to increase the likelihood of success of access to justice programmes. Part III also highlights issues related to monitoring and evaluation that are particularly important, including the use of disaggregated data to indicate whether there have been results for different poor and disadvantaged groups. Part IV suggests ways to capitalize on UNDP’s advantage as an impartial and trusted partner of developing countries, and suggests possible entry points for programming. Finally, Part V lists knowledge resources for practitioners engaged in access to justice programming.

USIP has been working with lawmakers and other reform constituencies in Haiti as they strive to reform Haiti’s criminal laws that date back to the early 19th century. In March
2009, USIP commissioned two reports that were written by Louis Aucoin, a professor at the Fletcher School at Tufts University, and Hans Joerg Albrecht, the director of the Max Planck Institute of Foreign and International Criminal Law. At the request of Haitian lawmakers, USIP has also provided copies of the Model Codes for Post-Conflict Criminal Justice, a law reform tool developed by USIP’s Rule of Law Program to assist in the drafting of new laws.

Stabilisation Issues Notes provide a short summary of what the Stabilisation Unit has learned to date. They have been developed on the basis of experience and are aimed at improving the effectiveness of our practical engagement in various aspects of stabilisation. They are aimed primarily at the Stabilisation Unit‟s own practitioners and consultants, and those of other HMG departments. They are not a formal statement of HMG policy.

Key Messages
1) Stabilisation planning and implementation is about identifying / addressing the specific activities required to achieve political stability in countries emerging from conflict.
2) Promoting the rule of law in stabilisation environments can help a state to increase its legitimacy, allow fairer political negotiation and uphold the implementation of political agreements. The most urgent priority is often establishing law and order, meeting internal security needs and ensuring basic functioning of the criminal justice system.
3) Security Sector Stabilisation (SSS) activities enable essential and minimum security functions to be established and maintained to achieve stabilisation  objectives. They are not the same as Security System Reform (SSR) in more benign environments; they should however help create the conditions for SSR, when conditions permit.
4) The urgency of meeting security needs has often led to quick fix approaches and a singular focus on expanding the size of a single organisation often with a „train and equip‟ mentality. This will often fall short of providing the kind of support that will contribute to lasting security outcomes.