United Nations Justice: Legal and Judicial Reform in Governance Operations

Overview
Sample Chapter
  • Calin Trenkov-Wermuth

    77085823[1]
    PUBLICATION DATA:
    ISBN-10: 9280811738,
    ISBN-13: 9789280811735
    LANGUAGE:
    English
    PAGES:
    304
    PUBLISHER:
    United Nations University Press
    PUBLISHED:
    January 2010

    At the end of the 20th century, and at the dawn of the 21st, the United Nations was tasked with the administration of justice in territories placed under its executive authority, an undertaking for which there was no established precedent or doctrine. Examining the UN’s legal and judicial reform efforts in Kosovo and East Timor, this volume argues that rather than helping to establish a sustainable legal system, the UN’s approach detracted from it, as it confused ends with means. In the process, justice standards were sacrificed for the sake of prosecutions; the legal vacuum was not filled effectively; the UN’s desire to create functioning courts exceeded its efforts to deal with detainees; local ownership was erroneously regarded as a means to the end of achieving a sustainable legal system; and the UN’s adoption of rights standards unsuited to the circumstances led it to break its own laws. As a result, instead of easing key tensions at the heart of governance operations, the UN’s approach aggravated them.

    Dr. Calin Trenkov-Wermuth offers the first full account of the UN’s endeavours with the administration of justice in governance operations. He also suggests some methods by which these efforts can be improved upon. Relevant audiences include academics and practitioners in multiple disciplines: international law, political science, ethics and applied philosophy, and transitional justice.

    “Extensively researched and powerfully argued, United Nations Justice is a penetrating criticism of past efforts to bring the rule of law to conflict-ridden countries and an inspiring effort to identify better practices that can help the UN assist those countries in the creation of a sustainable peace.”
    —Michael W. Doyle, Columbia University

    “Establishing sustainable justice systems in societies torn by civil strife is an enormously complex, sensitive, and ambitious task. Few have tried it, fewer have succeeded. United Nations Justice provides a candid assessment of two such efforts: the United Nations’ attempts to nurture such transformations in Kosovo and East Timor. The author questions the UN’s approach as much as its delivery. In doing so, he raises timely questions that demand further reflection by scholars, policy analysts, and practitioners alike. Not everyone will agree with his provocative conclusions, but we could all benefit from the debate that should ensue.”
    —Edward C. Luck, Senior Vice President, International Peace Institute, and Professor of Practice, School of International and Public Affairs, Columbia University

    “As Dr Trenkov-Wermuth argues in this important book, the UN’s attempts to craft judicial and legal systems in the territories it has found itself administering has been deeply fl awed, partly because they have been too ambitious and partly because they have too often failed to take note of local custom and reality. His critique deserves to be read by all those, scholars and practitioners alike, with an interest in improving the process of post conflict reconstruction.”
    —James Mayall, Emeritus Sir Patrick Sheehy Professor of International Relations, University of Cambridge

    “Calin Trenkov-Wermuth’s book is a sobering assessment of the considerable obstacles and small victories, but also the avoidable fumbles and troubling legacies, of the UN’s unprecedented efforts at comprehensive legal and judicial reform in Kosovo and East Timor-a remarkable and sorely needed memento for future operations.”
    —Cesare P.R. Romano, co-Director, Project on International Courts and Tribunals and Loyola Law School Los Angeles

    “This study marks an important new contribution to the scholarship on legal and judicial reform carried out under the auspices of the UN. It is highly relevant to scholars and practitioners from all disciplines who explore the relationship between international rule-of-law reform and local ownership.”
    —Carsten Stahn, Leiden University & Grotius Centre for International Legal Studies, The Hague

    “This important and timely book analyzes the very considerable deficiencies of international legal and judicial interventions. What the author demonstrates is that these failures are as much conceptual as programmatic, with outcomes that can undermine the very ideals that inspire them. The study is well grounded, unflinching in its findings and conclusions and provides compelling insights important for practitioners, planners and theorists.”
    —Jim Whitman, Head, Department of Peace Studies, University of Bradford

    Calin Trenkov-Wermuth holds a Ph.D. in International Relations from the University of Cambridge. He has taught politics at Cambridge, and is currently Visiting Fellow at the European Union Institute for Security Studies in Paris.

    Table of contents

    Legal and Judicial Reform and the United Nations: Early Practice and Assumptions

    • The UN’s early legal and judicial reform effort
    • The assumptions about legal and judicial reform
    • Application of previously applicable laws
    • Implementation of human rights standards within the legal framework
    • Establishment of a regular court structure
    • Prosecution of past atrocities
    • Local participation in the judicial reform process

    Introduction to the Case Studies

    • Criteria for assessing the sustainability of a legal system
    • Fuller’s Principles of Legality
    • The judicial norms
    • The fundamental human rights standards and principles
    • The viability of the legal system in terms of its security-related implications
    • Introduction
    • Case study guidelines
    • Terminology
    • Methodology
    • Case selection

    Kosovo

    • Background
    • The Kosovo Conflict
    • The United Nations Interim Administration Mission in Kosovo (UNMIK)
    • The Five Elements in Practice
    • Concordance of the applicable law with prior legal codes from mission’s beginning
    • Completeness of human rights catalogue from mission’s beginning
    • Reinstitution of a regular court system from mission’s beginning
    • Pursuit of prosecutions for past atrocities from mission’s beginning
    • Local participation in the judicial process from mission’s beginning
    • Legal and judicial reform developments
    • Analysis and discussion
    • Adherence to Fuller’s Principles of Legality
    • Compliance with basic judicial norms
    • The incorporation of human rights principles as part of the legal framework
    • The legal and judicial framework and its acceptability within the community
    • Legal and judicial reform and its security-related implications
    • Conclusion

    East Timor

    • Background
    • The conflict in East Timor
    • The five elements in practice
    • Concordance of the applicable law with prior legal codes from mission’s beginning
    • Completeness of human rights catalogue from mission’s beginning
    • Reinstitution of a regular court system from mission’s beginning
    • Pursuit of prosecutions for past atrocities from mission’s beginning
    • Local participation in the judicial process from mission’s beginning
    • Legal and judicial reform developments
    • Analysis and discussion
    • Adherence to Fuller’s Principles of Legality
    • Compliance with basic judicial norms
    • The incorporation of human rights principles as part of the legal framework
    • The legal and judicial framework and its acceptability within the community
    • Legal and judicial reform and its security-related implications
    • Conclusion

    Legal and judicial reform reconsidered

    • Filling the legal vacuum
    • Issues raised
    • Responses from academics and practitioners, analysis, and discussion
    • Human rights in a post-conflict legal context
    • Issues raised
    • Responses from academics and practitioners, analysis, and discussion
    • Establishing an institutional structure
    • Issues raised
    • Addressing past atrocities and serious crimes
    • Issues raised
    • Responses from academics and practitioners, analysis, and discussion
    • Local actors in the legal and judicial reform process
    • Issues raised
    • Responses from academics and practitioners, analysis, and discussion
    • Conclusion