7.6 Necessary Condition: Public Order
7.6.1 What is public order? Why is it a necessary condition?
Public order is a condition characterized by the absence of widespread criminal and political violence, such as kidnapping, murder, riots, arson, and intimidation against targeted groups or individuals.226 Under this condition, such activity is reduced to an acceptable minimum, perpetrators are pursued, arrested, and detained, and the local population—no matter which party to the conflict they may belong to—is able to move freely about the country without fear of undue violence. Public disorder can be profoundly destabilizing for societies emerging from conflict. It can instill constant fear in the local population, undercut efforts to strengthen state security institutions, and jeopardize the success of the peace process. Criminal and politically motivated activity is often accompanied by widespread violation of human rights, including torture; rape; cruel, inhuman, or degrading treatment; and arbitrary arrest and detention. The population has few means by which to address these threats—the police are usually in short supply, with a legacy of abuse and corruption. There are few judges, and confidence is low in their ability to adjudicate cases independently. Prisons are overflowing. Without public order, people will never build confidence in the public security system and will seek security from other entities like militias and warlords.227
7.6.2 Guidance for Public Order
7.6.3 Approach: A Comprehensive System
Public order is the domain of police or other policing agencies, courts, prosecution services, and prisons—all of which make up the criminal justice system. Understand that this system is chain-linked—all elements need to work together.
7.6.4 Take a holistic approach when developing a strategy for public order. Often, the police are prioritized at the expense of other parts of the criminal justice system, especially criminal defense and corrections.228 While reconstructing police may be a priority, nest this within a broader strategy. Police require criminal codes, courts, and prisons, and courts require timely delivery of evidence by the police to adjudicate cases. Arbitrary or politicized sentencing, an incompetent or corrupt judiciary, or inhumane prison conditions will undermine the benefits that come from better policing and public order in general.229 Increased information flow and cooperation among criminaljustice actors is critical. The goal is not to simply grow the number of institutions and officials, but to improve the overall delivery of criminal justice.
7.6.5 Transform systemic threats to public order as a prerequisite. In these environments, it is unlikely that peace accords will recognize and address all abuses and sources of dysfunction that have afflicted judicial systems. It is also highly unlikely that the parties to accords will comply fully without any need for assistance in dealing with the impunity of spoilers, the legacy of politicization of the legal system, or the risk of institutional criminalization rooted in illicit revenue sources.230 In this context, local police, judges, and jailers who seek to uphold the law will not survive for long, even with comprehensive vetting, training, and mentoring programs. To enable public order, the mission may need a very broad spectrum of capabilities that goes beyond establishing institutional capacity to include disrupting and dismantling spoiler networks that subvert the rule of law. For more on spoilers, see Section 6.5.10; for a discussion on economic-based threats, see Section 9.6.
7.6.6 Approach: Interim Law Enforcement
Law enforcement—the capacity to apprehend and arrest suspected criminals—is vital for security and cannot be postponed for months. Because local forces will likely be weak, discredited, or a party to the conflict, assistance from international actors may be necessary to ensure that urgent law enforcement functions are performed while local institutions undergo reform. International police, both individual and formed units, can fill this role.
7.6.7 Move quickly to prevent criminal elements and political spoilers from cementing their grip on power.231 In the lawlessness of these environments, asserting authority early on is essential to securing the trust of the population. Waiting too long to confront violence can permit spoilers, organized crime syndicates, and their militias to perpetuate instability and entrench themselves in the new political system, which allows them to protect their interests and solidify public support through intimidation. A culture of impunity results.
7.6.8 Be prepared to perform critical law enforcement functions when necessary. Certain public order functions are critical whether performed by international or host nation actors. Calibrate the international police mandate according to needs on the ground. International police may have to perform critical law enforcement functions on the ground in cases where public disorder is high, local capacity is nonexistent, or local forces are responsible for systemic human rights violations. The performance of law enforcement functions by international forces typically requires an executive mandate for the UN mission or other authority. Key law enforcement functions include the following:232
Arrests and detention
Criminal intelligence and surveillance
Criminal investigations and evidence collection (including war crimes)
Crowd and riot control
Public dispute resolution
Protection of critical infrastructure
Witness protection to address the impunity of political criminals
High-risk arrest capacity for political violence and extremism.
7.6.9 Coordinate public order functions between the military and the police and ensure that any gap is filled. Establishing public order in war-torn societies requires unique capabilities that do not belong solely to either the military or the police. Incidents involving political violence and extremism, for example, may require greater force than the police can employ. Ultimately, military and police capabilities must be coordinated to fill this gap and share critical intelligence, while overcoming differences in culture,capabilities, legal constraints, and command and control structures. For more on intelligence, see Section 6.5.15. The military will likely be first on the scene and will probably have to perform some public order functions, but it is not the ideal instrument for the job. Equipped with lethal firepower, the military is better primed to confront threats to the peace process and could actually jeopardize the mission by using excessive force. The police are better trained in the measured use of force, negotiation techniques, and control over lawlessness.233 In the emergency phase, the military may have to perform critical law enforcement functions. These responsibilities, however, should be transitioned as quickly as possible to an international police force or, if they are reliable, the local security forces. Sound rules of engagement for the military should define the procedures for investigation, arrest, and detention. Public order activities by the military include protecting high-value facilities to prevent looting, run security checkpoints, perform vehicle inspections, regulate public gatherings, undertake high-risk searches, arrest and detain people who disrupt public order, and regulate the freedom of movement, which is further discussed in Section 6.9.3.
See Trade-off: Section 6.10.4, Public order functions performed by the military vs. the police.
7.6.10 Deploy local forces whenever possible without compromising human rights and justice. As soon as it is prudent and possible, local law enforcement should participate in public order operations to begin building capacity, albeit with extreme caution. The local police force will likely have played a role in human rights abuses. Thorough reforms will have to take place. But shifting public order functions to local forces is the ultimate goal and can also minimize confrontation between international actors and the population.234 Local forces also speak the language, know the culture, and are more familiar to local populations, which is vital for good policing.235 Colocating international police with local forces at police stations can improve cooperation, the effectiveness of the mentoring process, and the transfer of skills.236 It can also help the international police better assess the state of policing. But colocation programs should be used cautiously—extended periods of colocation in isolated areas can lead to internationals losing their objectivity or impartiality. Human rights are further addressed in Section 3.7.3; police vetting is also addressed in Section 6.7.21.
7.6.11 Address illegal armed groups and informal policing structures. If illegal armed groups continue to operate, including informal policing structures, this constitutes an unacceptable threat to law and order. Whether militias, vigilante groups, or gangs; state-sponsored, community based, or private security companies; religious, ethnic, or tribal, they must either be demobilized and reintegrated into society or, if they qualify on an individual basis, allowed to be integrated into one of the entities comprising the security sector. In most cases the process for doing this will be stipulated in a peace agreement, but noncompliance will need to be anticipated and dealt with effectively.237
7.6.12 Support the building of host nation police capacity. Careful decisions need to be made about the type of equipment, infrastructure, training, and ongoing monitoring that is provided to the police force and leadership. The law and the rules and regulations around the use of weapons should be analyzed to ensure compliance with international human rights norms and standards.238 Undertake training to improve the operational law and order skills of the police, organizational management, and supervisory skills of police leadership and education about democratic principles of policing (e.g., representative policing, responsive policing, accountable policing).239 Police mentors can provide training on the job (e.g., UNPOL or other international police advisers). Promote accountability by drafting, publicizing, and enforcing disciplinary procedures and codes of conduct.240 Ongoing education and training of police will be required as well as the development of training facilities (e.g., police schools or academies), if not already in place. Further efforts to enhance capacity involve human resources systems, organizational restructuring, budget and asset management, procurement rules, and infrastructure. For more on institutional governance functions, see Sections 8.6.7 to 8.6.9; for more on police reform, see Sections 6.7.21 to 6.7.23.
7.6.13 Approach: Interim Judiciary241
An interim judiciary should not be an afterthought. In the aftermath of violent conflict when local institutions are still being built or transformed, an interim judiciary may be necessary to handle urgent cases of impunity and political violence and resolve disputes that arise over housing, land, and property.242 Work must also begin to assess which host nation institutions or actors in the judiciary can perform judicial functions. A weak or politicized judiciary, a prevalent phenomenon in societies recovering from violent conflict, can lead to corruption, extrajudicial murders, and arbitrary or politicized sentencing.
7.6.14 Deploy core elements for an emergency judiciary.243 Prevent arbitrary exercise of power. An interim capacity for administering justice and resolving disputes, particularly highly sensitive cases, may be needed from international actors. This may include the deployment of international judges, prosecutors, defense attorneys, court administrators and court reporters to accompany deployments of international police for law enforcement functions. Without these judiciary elements, the police function will be of little or no value. This holistic judiciary team should help host nation personnel set up hybrid special courts to adjudicate cases of political violence and organized crime until host nation institutions are capable of confronting impunity.
See Gap/Challenge: Section 6.11.8, Holistic security strategy.
7.6.15 Employ informal systems when it makes sense. Before a formal justice system is functioning or strengthened, it may be necessary to rely on informal mechanisms for resolving disputes. These could include independent bodies like complaint commissions or an ombudsmen office or even an informal, non-state justice system. These institutions should be held accountable for their actions.244 The arbitration of disputes can have many political ramifications in many decisions; be cautious in how the resolution of these cases is communicated to the population.
7.6.16 Protect the judiciary from physical harm and outside influence. Three elements of the judiciary must be protected from outside influence and physical harm:
Facilities, such as courts and auxiliary locations
Documents and evidence, including both criminal and property records
Individuals who participate in the system, such as court personnel and witnesses.245
Courts must operate with security in mind. Over the long term, security improvements will require significant resources, but interim measures, such as creating a corps of court security officers and clarifying practices about where both victims and witnesses will sit while awaiting proceedings and during court hearings, can also have a high impact. Often mission components can provide some security to the judiciary and affiliated individuals.246 Also manage court personnel to ensure their impartiality. International staff can assist with judicial functions until host nation personnel are adequately vetted and trained. For more on judicial independence and accountability, see Sections 7.7.7 and 7.7.8.
7.6.17 Ensure that witnesses and victims are adequately protected and supported. Key witnesses and their families may be threatened because of their involvement in a trial. Methods to protect witnesses before, during, and after the trial (e.g., close protection, witness protection measures, witness relocation programs) are necessary.247 Victims, who are potential witnesses, may also be in danger. They may need other types of support, particularly in cases of domestic and gender violence or trafficking.248 NGOs or legal resource centers can help victims to claim their rights and provide support services.249
7.6.18 Vet the judiciary. In these environments, some judicial personnel may have committed human rights violations, are corrupt, or are connected to spoilers and criminal elements. Lustration or vetting may be necessary and result in a need to recruit new personnel. These personnel should be strictly vetted for past human rights violations or links to criminal organizations. Ensure that judicial personnel reflect the population in terms of gender, ethnicity, religion, and linguistic groups.
7.6.19 Use mobile courts and paralegals to meet immediate needs.250 Where courthouses are destroyed or nonexistent, consider mobile courts that can move around the country to administer justice. Mobile courts can handle more cases than regular courts. Another option is to leverage judicial power (if it exists under the law) to set up a court anywhere. Consider establishing this power under a new law if it is not in the current code. Judges can hear applications for bail and dispense with cases on the spot, demonstrating responsiveness. Mobile investigation, prosecution, and defense teams should complement the mobile courts. A society emerging from conflict will likely have a severe shortage of lawyers and no state-run legal aid programs. In this situation, paralegals can be employed to provide legal advice.
7.6.20 Approach: Humane Detention and Imprisonment
Detention and prison management and capacity are critical security priorities that are too often neglected relative to police and judicial functions.251 The ability to run detention centers and prisons effectively in adherence to international standards has a direct impact on the possibility for lasting peace and security. The capacity to securely incarcerate dangerous spoilers is critical to transform systemic threats to the rule of law. Common challenges include dilapidated facilities, chronic underfunding, lack of training for prison staff, antiquated prison laws, overcrowding, prolonged pretrial detention, and serious violations of human rights.252
See Gap/Challenge: Section 6.11.3, Corrections.
7.6.21 Meet minimum international standards for treatment of detainees. Depending on the nature of the mission mandate, detention may be handled early on by either the mission or host nation government. When capacity is low, which is often the case, the mission will have to assume responsibility, in which case a strategy for transitioning prisoners over to the host nation government must be developed.253 At all stages of this process, detainees must be handled in accordance with international standards. The UN Standard Minimum Rules for the Treatment of Prisoners is a good place to start. Some basic principles include the following:254
All persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Everyone charged with a criminal offense shall be presumed innocent until proved guilty.
Pretrial detention shall be the exception rather than the rule.
No detainee shall be subject to torture or to cruel, inhuman, or degrading treatment or punishment or any form of violence or threats.
Detained persons shall be held only in officially recognized places of detention and their families and legal representatives are to receive full information.
Decisions about duration and legality of detention are to be made by a judicial or equivalent authority.
Detainees have the right to be informed of the reason for detention and charges against them.
Detainees have the right to contact the outside world and to visits from family members and the right to communicate privately and in person with a legal representative.
Detainees shall be kept in humane facilities, designed to preserve health, and shall be provided with adequate water, food, shelter, clothing, medical services, exercise, and items of personal hygiene.
Every detainee has the right to appear before a judicial authority and to have the legality of his or her detention reviewed.
7.6.22 Take measures to provide for prison security. Develop a prison security system that both prevents prisoners from escaping and protects corrections officers from harm. Key issues often include untrained and poorly paid prison staff, who do not have appropriate weapons and equipment, as well as the lack of prison buildings and infrastructure that can be secured. Solutions depend on the degree of damage to existing prison facilities, the proficiency of the prison staff, their affiliation with groups associated with the conflict, the international and host nation resources available, and the political will to implement reform. Establish an adequate level of prison security that meets international human rights standards and can be sustained by a new government. International corrections professionals can improve prison security by securing prison infrastructure and professionalizing staff and procedures after a careful assessment of the national prison law, existing infrastructure, and the capacity of prison staff.255
7.6.23 Address illegal and excessive pretrial detention and prison overcrowding. Work to ensure that those who are illegally detained are released from detention immediately and address the problem of excessive pretrial detention, a violation of basic human rights that puts a massive strain on overcrowded prisons. If no transportation exists to bring a detainee to court, putting a mobile court in the prison to review the legality of continued detention is an option. Consider creating a case flow management committee, which can be established with civil society participation even in the absence of other justice institutions.256 The committee can review the status of detainees and recommend release pending trial or the dropping of charges for less serious crimes. Children detained for less serious crimes should be released from custody. Establish mechanisms over the long term to protect the right to liberty,257 such as a system for bail or other alternatives to detention258 (e.g., house arrest). If the law allows, the prosecuting authority can simply refrain from pressing charges for less serious crimes. An official warning or an apology to the victim may be used. In systems that require a formal legal basis for this action, known as diversion, or that require mandatory prosecution of suspected crimes, consider drafting legal provisions on diversion.
7.6.24 Improve prison conditions. Prisons and jails in a society ravaged by conflict invariably fall far short of international human rights standards. Improving prison conditions will be an imperative. New structures should conform to international human rights standards, particularly those concerning the use of punishment units, local climatic conditions, ventilation, natural light, the number of toilets and shower units, area for preparing and cooking food, and waste disposal.259 Former “dark cells” and other punishment units within the prison should be adjusted to conform to international standards or removed entirely.260 International agencies may be engaged to provide food for prisoners or to set up prison farms. Separate women and children from men as required by international standards by at least housing women and children in a different part of the prison.
7.6.25 Prevent torture and focus on evidence-based criminal investigation. Torture by justice actors may have been commonplace prior to and during the conflict. Work to ensure that torture as a practice in criminal investigations is stopped in compliance with international human rights law.261 Focus on evidence-based investigations and integrate a prohibition on torture into the law.262 Vertical and horizontal accountability mechanisms, discussed in Section 7.7, can support the monitoring of torture in the justice system. Training of justice officials will be required, including the proper investigation of crimes (e.g., taking of forensic evidence). Finally, support from senior political and justice officials for the prohibition of torture is necessary, along with the ability to ensure there are consequences for violations of the prohibition.