Max Planck Institute for Foreign and International Criminal Law

The importance of the rule of law to the re-building of postconflict societies and the re-establishment of peace and security is widely acknowledged. A plethora of activities have been, or are currently being, undertaken in postconflict states in the rule of law sphere by international and local actors. One of the core activities in this sphere is criminal law reform.

Effective, responsive and fair criminal laws are pivotal to establishing a state based on the rule of law. At a minimum, criminal laws should aim to comply with basic international human rights norms and standards. In addition, they must be responsive to the current postconflict reality and tackle the immediate threats to public security, such as those caused by the perpetration of serious crimes; a common phenomenon in a postconflict setting. In the majority of postconflict states, the pre-existing laws are deficient and do not meet the criteria of effectivenes, responsiveness or fairness. They may also violate core human rights norms and standards. Furthermore, the laws may lack the necessary legal provisions and tools required to investigate and prosecute serious crimes problems that may be perpetratred with impunity in their absence.

There are a number of reasons underlying the deficiencies in the postconflict criminal law framework. For example, the authorities may have failed to adequately revise or update the law. Therefore the laws are out-dated and unresponsive to current crime problems, particularly criminal offenses with a "transnational" element like organized crime, terrorist acts, trafficking in persons and persons smuggling that often proliferate in a postconflict context. In other postconflict states, deficiencies in the postconflict legal framework may be attributable to the fact that the regime in power during a conflict used the law as a vehicle of oppression, introducing arbitrary and unfair laws that violated the rights of the population, or certain sectors of it. Such oppressive laws are inappropriate for application in a postconflict state and therefore needed to be replaced with new laws.

The need for postconflict criminal law reform is clear and efforts to reform pre-existing laws have been undertaken in a number of different settings since the 1980s with varying degress of success. Law reform is a highly complex and challenging task, requiring sufficient time, resources and expertise. Conducting this task in the high pressure environment of a postconflict state significantly adds to this challenge. In 2000, the Report of the Panel on United Nations Peace Operations (otherwise known as the "Brahimi Report") sought cause to reflect upon the practical and legal difficulties that had been faced by the United Nations in designating, applying and reforming the laws in postconflict states. The report highlighted the importance of proactive reponses to postconflict law reform, and specifically, it outlined the need for the creation of generic tools to assist those actors involved in future criminal law reform efforts. The 2004 Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies reiterated this pressing need. These sentiments have also been echoed by the multitude of practitioners who have been involved in law reform in postconflict states and who readily admit the difficulties they faced in this regard.

The ultimate aim of the Model Codes for Postconflict Criminal Justice Project is to create a set of model codes that could be used as tools by both international and national actors engaged in the criminal law reform process in postconflict states around the world. In pursuit of this aim, the model codes were drafted in a way that takes into account their potential cross-cultural application and use, in addition to the inevitable exigencies of a postconflict environment. The substantive provisions of the codes were inspired by a variety of the world’s legal systems, which were blended to create a coherent body of criminal laws tailored to these exigencies.

From 2001-2006, the model codes were drafted in consultation with over 250 leading experts from all around the world and from a variety of backgrounds, including international and national judges, prosecutors, defense lawyers, police, corrections officials, human rights advocates, military lawyers and international, comparative and criminal law scholars. Drafts of the codes were extensively vetted through a series of intensive individual and institutional consultations. In addition, a series of regional consultation meetings were conducted in 2004 to assess both the potential compatibility of the model codes with legal systems in different regions of the world and to examine the potential utility of the model codes as a law reform tool in diverse regional contexts.

The product of the Model Codes for Postconflict Criminal Justice Project is a set of four integrated model codes. The model codes package consists of the Model Criminal Code, the Model Code of Criminal Procedure, the Model Detention Act and the Model Police Act. The Model Criminal Code is a "criminal code" or "penal code" similar to those found in many states that focuses on substantive criminal law. Substantive criminal law regulates what conduct is deemed to be criminal, the conditions under which a person may be held criminally responsible and the relevant penalties that apply to a person convicted of a criminal offense. The Model Code of Criminal Procedure focuses on procedural criminal law, which is a body of rules and procedures that governs how a criminal case will be investigated and adjudicated. The Model Detention Act governs the laws and procedures to be applied by the criminal justice system to persons who are detained prior to and during a criminal trial and also to persons who are convicted of a criminal offense. Finally, the Model Police Act sets out relevant powers and duties of the police in the sphere of criminal investigations, in addition to relevant procedures to be followed in investigating criminal offenses. Moreover, the Model Police Act contains additional police powers and duties and the relevant procedures to be followed by police in the maintainance of public order.

The criminal laws in many states are often accompanying by "official commentaries" that are either contained in the laws or are published separately. Recognizing the potential value of having an accompanying body of commentaries, the model codes have been drafted so that each provision is accompanyied by an annotation. The model codes commentaries, integrated into the model codes, are designed to assist the reader in a number of respects. For example, they explain the choices of wording and approaches adopted by the drafters and elaborate upon the content of the legal provisions. Importantly, the commentaries also highlight the plethora of other reforms or initiatives that may be necessary if a particular provision was introduced into law in a postconflict state. This may include institutional reforms, other criminal law reforms or indeed reforms of other bodies of law outside of the criminal law, for example.

The final element of the model codes package is a publication entitled "Guidelines for Use of the Model Codes for Postconflict Criminal Justice". The Guidelines provide a valuable accompaniment to the model codes, explaining a plethora of issues relating specifically to the model codes, such as the genesis and drafting of the model codes and their potential use in a post-conflict context. In addition, the Guidelines contain a synopsis of the provisions of the model codes. The Guidelines also contain a discussion on how the model codes could fit into the broader law reform process in a postconflict state.

The potential uses of the model codes are manifold and will depend entirely upon the particular postconflict state in which they are being employed. The context-specific use of the codes will be determined by a number of factors such as the state of the pre-existing laws and whether the laws merely need to be updated or overhauled or whether the authorities in a postconflict state have opted to introduce a completely new body of criminal laws. Where the pre-existing laws are being updated or overhauled, the model codes could be used as a "gap filler", supplementing the substance of pre-existing laws with provisions of the codes, for example, to introduce provisions to tackle serious crimes problems in the postconflict state. Reform activities aimed at updating and overhauling the law might also include efforts to redraft the pre-existing laws to ensure compliance with international human rights norms and standards. The model codes, drafted in a manner that fully complies with these standards, are valuable tools to use in this process as they provides readily applicable substantive provisions of law that translate these abstract international norms and standards into concrete laws.

Where a postconflict state is completely replacing its pre-existing criminal laws, the model codes may be used as a building block or source of inspiration for the drafting of new laws. Another potential use of the model codes may be where a postconflict state chooses to establish a special chamber, division or tribunal to handle certain criminal offenses, such as international crimes (e.g. genocide, crimes against humanity and war crimes) or other serious crimes (e.g. organized crime, terrorism, economic crime). The model codes could prove to be a useful source of inspiration in drafting the laws and procedures that govern these special chambers, divisions or tribunals. In addition to these potential uses, it is likely that additional uses for such a set of codes will unfold over time. During the model codes consultation process, for example, many practitioners pointed to the potential use of the model codes in a development context or in "crisis" or "fragile" states, in addition to in postconflict states.

The model codes are due to be published in a four volume series. The first volume was published in 2007 and contains the Model Criminal Code and its accompanying commentaries. The second volume was published in 2008 and consists of the Model Code of Criminal Procedure with commentaries. Finally, the third volume will be published in 2011 and comprises the Model Detention Act and the fourth volume will also be published in 2011 and comprises the Model Police Act and their accompanying commentaries. Each of the four volumes will also contain the "Guidelines for Use of the Model Codes for Postconflict Criminal Justice".