Model Codes for Post‑Conflict – Criminal Justice

„Die Kritik dder Gewalt fällt mit der Kritik aller Rechtsgewalt,
das heißt mit der Kritik der legalen oder exekutiven Gewalt,
zusammen und ist mit einem minderen Programm gar nicht zu leisten“.

 Walter Benjamin

The publication of volume I and II of Model Codes for Post-Conflict Criminal Justice by Vivienne O’Connor and Colette Rausch marks in some respect an advance of international significance for post-conflict societies. Model Codes prepare the arrival of a criminal code drafted in admirably clear and uncomplicated language, supported by detailed commentaries, and designed explicitly for such societies.

This code, with its measured approach, will enable jurisdictions emerging from conflict to move faster toward reestablishing

1. the rule of law and
2. a fair criminal justice system,
3. without the need to start the reform process afresh.

This code is an outstanding piece of work, and with the publication of volume II with focus on „Model Code of Criminal Procedure“ in 2008 has done some Work for Peacbuilding and the Rule of Law.

Countries in transition from conflict routinely face seemingly irreconcilable challenges:

1. extremely limited capacity of the criminal justice system, the need to establish law and order in the midst of rising crime, and
2. the need to comport with international human rights standards — all of which have to be tackled while respecting local culture and traditions.

These challenges have vexed local governments and those in peacekeeping missions alike. Model Codes for Post-Conflict Criminal Justice provides, for the first time,

1. a guide to addressing these multiple demands and
2. should help shorten the path to consolidated peace, functioning state institutions, stability, and the rule of law.

Ambassador Lakhdar Brahimi, former Special Representative of the Secretary-General for Afghanistan, Haiti, and South Africa; and former Chairman, Panel on United Nations Peace Operations
„Many post-conflict states, including Liberia, find it necessary to reform their judicial
systems so that their laws deal effectively with crimes, address gender and human
rights issues, and conform to international norms and standards. I am, therefore,
grateful for the opportunity to have participated in this admirable project, which,
after years of arduous legal research and drafting, has culminated in the publication
of Model Codes for Post-Conflict Criminal Justice.
Model Codes for Post-Conflict Criminal Justice will be an immensely useful resource
for reformers in Liberia and elsewhere as they engage in the development and reform
of their criminal justice system. Its provisions, drawn from the laws of different states
and drafted in plain English, may be used in drafting new criminal laws or amending
existing provisions. The accompanying commentaries, as well as the references and
other resources contained in this volume, provide invaluable background information
and guidance.“
Felicia V. Coleman, Counselor-at-Law, former Associate Justice of
the Supreme Court of Liberia, and a Member of the Task Force
for the Establishment of the Law Reform Commission of Liberia
„In post-conflict countries, the challenges involved in rebuilding the judicial system are
great. A model penal code seems particularly necessary to ensure compatibility
between national criminal laws and international norms and standards. More than
merely reflecting cultural diversity, such an instrument would enable the harmonization
of national and international norms around common values.
—Mireille Delmas-Marty, Professor and Chair of Comparative Legal Studies
and the Internationalization of Law, Collège de France
The importance of this work for societies in transition from conflict and oppression to
freedom and democracy cannot be overemphasized. It is a model of clarity, and the
commentaries on each section are a valuable resource not only for practitioners concerned
with societies in transition but also for students. I also commend it to journalists
who work in the field of law enforcement.“
Richard Goldstone, former Judge, Constitutional Court of South Africa;
and former Prosecutor, International Criminal Tribunals for the former
Yugoslavia and for Rwanda
„Model Codes for Post-Conflict Criminal Justice is a valuable resource for criminal law
reform in post-conflict states. Its contents reflect recent advances in international
criminal law instruments and draw on the accumulated knowledge and experience of
the international criminal law community. Moreover, Model Codes takes into account
the particular challenges presented by post-conflict countries, making it both a targeted
and a practical tool.“
Ma Kechang, Professor of Law, Wuhan University, People’s Republic of China
„This first volume in the Model Codes series displays not only a remarkable depth of
thought but also a commendable breadth of perspective. In this time of sharp cultural
clashes, publics in the Middle East and elsewhere may regard Model Codes skeptically,
as yet another Western export intended to supplant Muslim traditions. To its credit,
however, the Model Codes Project has gone beyond the borders of Western legal expertise
and sought substantive contributions from legal experts in the Muslim world. Such
teamwork between scholars and practitioners from both Western countries and
Muslim- majority countries is all too rare, and I hope that publication of Model Codes
will help pave the way for an open, inclusive discussion on the dilemmas facing post-
conflict societies, particularly those in the Middle East. And in Muslim-majority countries
emerging from conflict, we now need to approach the lawyers working in the
Islamic seminaries and further integrate them and the language of Islamic law into the
dialogue. By doing so, we will help facilitate the process by which such states can transition from violence to an enduring peace rooted in the rule of law.
Mohsen Rahami, Professor of Criminal Law and Criminal Policy,
Faculty of Law and Political Science, University of Tehran
Model Codes for Post-Conflict Criminal Justice provides excellent guidance for the
implementation of new criminal laws in post-conflict states. The statutory offenses as
well as the general rules for criminal liability and the proposed catalogue of penalties,
including alternative sanctions and measures such as asset confiscation and victim
compensation, reflect the state of the art in international standards and best
practices.
Dmitry A. Shestakov, Professor, Doctor of Law, and President of St. Petersburg Criminology Club, Russia
It is axiomatic that conflict destroys: it destroys people, their institutions, and the
law in whole or in part. But conflict also breeds new companions who evolve, thrive,
and finally outlive the hostilities: welcome to the world of the war-profiteer. Organized
and wealthy, these individuals, and their illicit networks, often emerge from conflict
with political and social power, which they use to accumulate enormous fortunes,
siphoning off the money pouring into the country and basking in the absence of
regulatory and enforcement mechanisms that could check their rampant corruption
and criminality.
Any attempt by the international community to rebuild a shattered society will lie
in peril without the presence, early on, of institutions that promote and safeguard the
rule of law. And central to the maintenance of the rule of law is the existence of a criminal
code. In societies emerging from conflict, the local authorities may well deem part
or all of the old code unworkable, resulting in a need to refashion some provisions of
the existing code or identify a stop-gap measure to adopt until a new code can be
established. After all, even from the earliest days of recovery, police, prosecutors,
judges, peacekeepers, and most importantly the citizenry need both the assurance that
there is a law and clarity as to what that law is.
Model Codes for Post-Conflict Criminal Justice provides a crucial resource to address
this need. It reflects clearly the input of hundreds of experts and practitioners drawn
from across the globe. The codes and their commentaries will be invaluable to local
governments and peacekeeping missions involved in law reform, providing a clear
legal framework that meets with international standards and is cognizant of the challenges
that come with post-conflict environments.
H.R.H. Prince Zeid Ra’ad Zeid al-Hussein, Ambassador of the Hashemite
Kingdom of Jordan to the United States, former Permanent Representative of
the Hashemite Kingdom of Jordan to the United Nations, and former President,
Assembly of States Parties, International Criminal Court