United Nations Justice: Legal and Judicial Reform in Governance Operations

Ethics & International Affairs, Volume 24.3 (Fall 2010)

September 28, 2010

United Nations Justice: Legal and Judicial Reform in Governance Operations

United Nations Justice: Legal and Judicial Reform in Governance Operations, Calin Trenkov-Wermuth (New York: United Nations University Press, 2009), 304 pp., $36 paper.

Scott N. Carlson (Reviewer)

The United Nations has only recently undertaken full-fledged executive peacekeeping missions, under which it has assumed authority for the governance of postconflict territories, including the task of reforming the judicial systems and instilling the rule of law in postconflict societies. To place this expanded field of UN operations in context, United Nations Justice appropriately begins its analysis and discussion with an exploration of the more limited peacekeeping missions that have preceded the two executive peacekeeping missions that are the primary focus of this book, namely, the United Nations Interim Administration Mission in Kosovo (UNMIK) and the United Nations Transitional Administration in East Timor (UNTAET), both established in 1999. Surveying the UN's varied non-executive mandates, from the UN Observer Mission in El Salvador (ONUSAL, 1991–1995) to the UN Transitional Authority in Cambodia (UNTAC, 1992–1993), the introductory material seeks to distill the essence of the UN's formative experiences in governance operations.

While debate on the subject will surely continue, United Nations Justice ably makes the case that at least some lessons about the essential ingredients for legal and judicial reform arising in the non-executive context should apply in the executive context. This increasingly accepted proposition provides not only a means with which to judge the UN's sophistication and capacity to manage executive functions but also non-executive ones as well. If the lessons identified in the earlier missions are to be converted to lessons learned, logic dictates that they should apply wherever appropriate and consistent with the mandate.

Where the discussion of the UN's experiences embarks on a more controversial path is with Trenkov-Wermuth's characterization of these experiences as a function of several "assumptions" underlying the formulation of UN mandates and their subsequent implementation. The five assumptions are goals, or desired end states, for the UN operation: 1) application of previously applicable laws; 2) implementation of human rights standards within the legal framework; 3) establishment of a regular court structure; 4) prosecution of past atrocities; and 5) local participation in the judicial reform process (pp. 23–28).

Unfortunately, this characterization is overly generous, implying a level of reflection and forethought in the management of UN peacekeeping operations that has been absent throughout most of the UN's existence. Only within the last decade has the UN Department of Peacekeeping Operations (DPKO) received sufficient support to possess this type of capacity. For a variety of historical reasons, the early years of UN peacekeeping were largely reactive and ad hoc. That said, the five "assumptions," such as the establishment of a regular court structure, do in fact represent recurring themes of substantial significance to the reconstruction and stabilization process that drives modern UN peacekeeping. Consequently, their use as a lens with which to examine UN implementation of executive mandates is both fair and useful, and the author is modest and careful to avoid claiming that his selection of criteria is exhaustive or comprehensive.

To supplement this set of analytic criteria forged from practical experience, the author turns to Lon Fuller's well-known The Morality of Law (1969). Specifically, the author employs Fuller's principles of legality—whose disregard, as Fuller aptly describes, leads to "eight distinct routes to disaster"—to develop additional criteria for evaluating whether peacekeeping programs are effectively pursuing and realizing a sustainable legal system (The Morality of Law, p. 38). In the process, Trenkov-Wermuth proposes his own "ten distinct routes to judicial disaster," including, for example, the "failure to provide access to effective counsel and a failure to hear cases within a reasonable amount of time" (p. 37). As with his choice of "assumptions," academics and practitioners alike will find much to debate and discuss as to whether these criteria are viable or the most appropriate, but the author deserves credit for accepting the existential challenge of how best to bring rigor to evaluating and improving UN peacekeeping operations.

Moreover, as Trenkov-Wermuth employs his chosen set of analytic criteria to the UNMIK and UNTAET case studies, a substantive discussion unfolds that critically examines a variety of shortcomings in the UN's approach to reconstituting governance structures. Some of the shortcomings, such as the confusion and loss of momentum from the failure to appropriately define the "applicable law," are now relatively well known in the international community. However, other problems, such as the devastating effects of language politics on both structural and day-to-day management, are not often explored in detail, and the analysis of UNMIK and UNTAET brings a number of such more obscure issues to light, describing their pernicious effects. For instance, the author draws attention to the logistical nightmare that resulted from the decision to select Portuguese as the key legal language in East Timor, despite the fact that very few people spoke it. Taken together, the issues discussed and the lessons identified constitute a useful compendium of benchmarks that the UN will need to fully address to improve operations in the future.

Interestingly, the appearance of this book coincides with an unusually productive year for DPKO in terms of guidance on best practices in governance operations. At the close of 2009, DPKO issued two significant publications designed to address many of the concerns that this book covers: Policy for Justice Components in United Nations Peace Operations and Methodology for Review of Justice and Corrections Components in United Nations Peace Operations. With these publications, which represent an explicit statement about the principles that should guide future peacekeeping operations, DPKO has demonstrated its capacity and commitment to tackle many of the challenges that this book addresses. A work examining past and future peacekeeping operations in light of the new policy pronouncements would be a welcome addition to the field, and Trenkov-Wermuth's creative and rigorous intellect would be well suited for the task. Until then, United Nations Justice will remain a thoughtful and useful contribution to the understanding of how UN governance operations have evolved.

—Scott N. Carlson

The reviewer is Senior Justice Advisor at the U.S. Department of State. Any views expressed herein are solely those of Mr. Carlson, and they do not necessarily reflect the position of the US Department of State.