Post conflict legal education

Journal of Conflict and Security Law

Volumn 10, Issue 1, 2005, Pages 101-119

  Waters, Christopher P M ^a  

^a UNIVERSITY OF READING   (United Kingdom)

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[No Author keywords available]

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EID: 27744556346     PISSN: 14677954     EISSN: None     Source Type: Journal    
DOI: 10.1093/jcsl/kri005     Document Type: Review

References (89)

1. I use the terms armed conflict, conflict and war interchangeably here and adopt the broad definition of armed conflict given by the International Criminal Tribunal for the former Yugoslavia in Tadić [Case No. IT-94-1-AR 72]: 'an armed conflict exists whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organized armed groups or between such groups within a state.' The term post-conflict is admittedly a nebulous one, and the examples used in this article fit at various places along the conflict spectrum following the cessation of main hostilities.
2. On the challenges facing those seeking to rebuild a legal system, see generally M.S. Ellis, 'International Legal Assistance', in M.C. Bassiouni (ed.), Post-conflict Justice (2002);
3. N.J. Kritz, 'The Rule of Law in the Postconflict Phase', in C.A. Crocker, O. Hampson & P. Aall (eds.), Turbulent Peace: The Challenges of Managing International Conflict (2001).
4. C. Gall, 'Afghan Council Gives Approval to Constitution', New York Times, 5 January 2004, A1.
5. P. Marshall, 'Taliban Lite', National Review, 7 November 2004. Available at .
6. The equally important topic of professional legal education after conflict is not directly addressed in this article. Although related, professional legal education has different goals (skill development and preparation for practice) and modalities (course length, teaching methods, subject focus and numbers of students) from university-based legal education. Furthermore, in the post-conflict environment international actors have addressed professional legal education more quickly, and with more resources, than they have university-based learning. Both practitioners and academics have considered vocational training as more central to legal reconstruction (or at least more urgent) than university learning. The former has been called 'pivotal' to this success: H. Strohmeyer, 'Making Multilateral Interventions Work: The U.N. and the Creation of Transitional Justice Systems in Kosovo and East Timor', (2001) 25 Fletcher F. World Aff. 107 at 124.
7. See, e.g., L. Davies, Education and Conflict (2004);
8. D.M. Berman, The Heroes of Treća Gimnazija: A War School in Sarajevo, 1992-1995 (2001).
9. L. Davies, Education and Conflict (2004).
10. On schools after World War II, see K.-H. Füssl & C. Kubina, 'Educational Reform Between Politics and Pedagogics - The Development of Education in Berlin After World War II', (1985) History of Education Quarterly 133
11. P. Utgaard, Remembering and Forgetting Nazism: Education, National Identity, and the Victim Myth in Postwar Austria (2003).
12. On universities following the war, see, e.g., V.R. Cardozier, Colleges and Universities in World War II (1993);
13. D.W. Logan, 'London University at War', (1946) 17 The Journal of Higher Education 421.
14. See, e.g., Ellis & Kritz, loc. cit.
15. See, e.g., International Crisis Group, 'Courting Disaster: The Misrule of Law in Bosnia & Herzegovina', 25 March 2002, 47-48, at .
16. I have explored these areas in C.P.M. Waters, Counsel in the Caucasus: Law and Professionalization in Georgia (2004).
17. This teaching took place under the auspices of employment with the Civic Education Project, now incorporated into the Open Society Institute (Georgia, 1998-1999), the Organization for Security and Co-Operation in Europe (Kosovo, 1999-2000), the American University of Armenia (Armenia, intermittently, 2001-2003) and a World Bank-funded assistance programme to the University of Tirana (Albania, November 2004).
18. See D. Lynch, 'Separatist States and Post-Soviet Conflicts', (2002) 78 International Affairs 831.
19. N. Arnhold, J. Bekker, N. Kersh, E. McLeish & D. Phillips, Education for Reconstruction (1998) at 15.
20. See art. 48 of Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (1977) (hereinafter Protocol 1) and the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954).
21. S. Muthesius, The Postwar University: Utopianist Campus and College (2000), ch. IV.
22. C.P.M. Waters, 'Legal Education in Kosovo', (2001) 30(4) Peacekeeping and International Relations 7.
23. See N. Malcolm, Kosovo: A Short History (1998) at 349.
24. International Legal Assistance Consortium, 'Report from a Visit to Afghanistan, 11-20 February 2002', at 2. Available at .
25. Because in many countries university students may be aged 16 or 17, art. 77 of Protocol I is relevant: 'In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, the Parties to the conflict shall endeavour to give priority to those who are oldest.' Similar protection is offered by art. 38 of the Convention on the Rights of the Child (1989), though the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict (2000) goes further, offering protection against conscription and direct participation in hostilities for those under 18.
26. Cardozier, op. cit., 113.
27. Davies, op. cit., 98.
28. On the impact of internal disturbances on post-secondary education in Africa during the 1970s and 1980s, see M.A.B. Sherman, 'The University in Modern Africa', (1990) 61 Journal of Higher Education 363 at 370.
29. Arnhold, op. cit., 48.
30. See R.J. Wilson, 'Three Law School Clinics in Chile, 1970-2000: Innovation, Resistance and Conformity in the Global South', (2002) 8 Clinical Law Review 515.
31. Since the late 1980s the role of war memorials in the Anglo-American world - including those located in universities - has received a good deal of attention; see, e.g., M. Connelly, The Great War, Memory and Ritual Commemoration in the City and East London, 1916-1939 (2002).
32. Berman, op. cit., 7.
33. H. Ghafour, 'Kabul University Slowly Recovers', The [Toronto] Globe and Mail, 14 August 2003, A11.
34. T. Munthe, 'Will Harsh Weed-out allow Iraqi Academia to Flower?', The Times Higher Education Supplement, 25 July 2003.
35. Article 22(2) of the 1950 Convention relating to the Status of Refugees provides that 'The Contracting States shall accord to refugees treatment as favourable as possible, and, in any event, not less favourable than that accorded to aliens generally in the same circumstances, with respect to education other than elementary education and, in particular, as regards access to studies, the recognition of foreign school certificates, diplomas and degrees, the remission of fees and charges and the award of scholarships'. Principle 23(4) of the UN's Guiding Principles on Internal Displacement [E/CN.4/1998/53/Add.2] states that 'Education and training facilities shall be made available to internally displaced persons, in particular adolescents and women, whether or not living in camps, as soon as conditions permit'.
36. Of which, it should be noted, 250 were by correspondence. Waters, loc. cit., 17.
37. Interview with administrative staff at the Law Faculty of the University of South Ossetia (11 September 2003).
38. The SRSG's first Regulation (UNMIK/REG/1999/1 of 25 July 1999) declared inoperable any prior-existing law incompatible with international human rights standards. On the lack of human rights education for lawyers under the Milosevic regime, see B. Lindsnaes & T. Martin (eds.), Partners in Progress: Human Rights Reform and Implementation (Copenhagen: Danish Centre for Human Rights, 2002), at .
39. It should be noted that UN transitional administrations failed to clarify early on what the applicable law was: B. Kondoch, 'The United Nations Administration of East Timor', (2001) 6 Journal of Conflict & Security Law 245.
40. The knowledge and skills needed in a post-conflict environment may be scarce internationally as well. In this case a Canadian university - l'Université du Québec à Montréal - was used to raise a cohort of bilingual and transystemically trained lecturers to educate Rwanda's anglophone jurists. The project was funded by USAID. Available at .
41. For Timor-Leste's current practitioners, most of whom were educated in Indonesian universities, the change in legal regime is being addressed through intense retraining at the Judicial Training Centre; see Timor-Leste Ministry of Justice/UNDP, 'Joint Assessment of the Justice System', (November 2002), at .
42. On property issues peculiar to the post-conflict environment, see A.R. Smit, 'Property Restitution and Ending Displacement in Kosovo - Coordinated Effort or at Cross-purposes?', (2004) 55 Northern Ireland Legal Quarterly 182.
43. See C.P.M. Waters, 'Human Rights in an International Protectorate: Kosovo's Ombudsman', (2000) 4 International Ombudsman Yearbook 141 at 148.
44. Nagorno Karabakh's Supreme Soviet decided on 6 June 1992 that '[u]ntil the adoption of our own constitution and laws, acts of the legislature of the Republic of Armenia are in force...' (unofficial translation on file with the author).
45. South Ossetia's Supreme Soviet resolved on 29 January 1992 that 'until such time as when the laws of the Republic of South Ossetia will be put in force...law enforcement agencies...shall apply in practice the norms of Russian law'[unofficial translation on file with author].
46. North Ossetia in the Russian Federation occasionally assists South Ossetian universities, and Armenia does the same for Nagorno Karabakh.
47. Aid embargoes on universities can last decades as the Cyprus experience shows: D. Jones, 'Future Brightens for North Cypriots', Times Higher Education Supplement, 7 May 2004. Although beyond the scope of this article, the question arises as to whether non-engagement with universities in frozen conflicts is ultimately a constructive approach.
48. On transitional administration generally, see R. Caplan, A New Trusteeship? The International Administration of War-torn Territories (2002).
49. For example, OHCHR and UNDP have contributed to the development of a human rights curriculum at law faculties in Cambodia (see ) and Iran (see ), respectively.
50. See .
51. 'Report of the Secretary General on the rule of law and transitional justice in conflict and post-conflict societies', (3 August 2004), UN doc. S/2004/616 (see http://daccessdds.un.org/doc/UNDOC/GEN/N04/395/29/ PDF/N0439529.pdf?OpenElement.
52. Ibid. paras 24 and 25. It should be noted that UN human rights treaty bodies, such as the Committee on the Elimination of Discrimination against Women, have frequently made calls for increased attention to legal and human rights education in the past.
53. See .
54. See .
55. On ICRC engagement with universities, see .
56. To take two examples, the only books on the shelf of one Baku, Azerbaijan university legal clinic are books on International Humanitarian Law provided by the ICRC (observation of 24 April 2004), and at the law library at the University of Tirana, Albania, there are few books of any current relevance in international public law apart from ICRC publications (observation of 19 November 2004).
57. On the establishment of such universities in Afghanistan, see H. Ibrahimi & H. Gardesh, 'Elite Universities to Open', (29 October 2003), Institute for War & Peace Reporting, at .
58. Not surprisingly, the United States had taken the lead in supporting Iraq's universities: 'US to take lead in "modernising" Iraq', (20 June 2003), The Times Higher Education Supplement. DFID has supported a university in British-occupied Basra: [untitled article] (24 October 2003) Times Higher Education Supplement. Frequently, neighbouring countries (such as Austria in Bosnia and Turkey in Afghanistan) will devote substantial resources to post-conflict education.
59. See R. Wedgewood & H.K. Jacobson, 'State Reconstruction After Civil Conflict: Foreword', (2001) 95 American Journal of International Law 1 at 2-3.
60. On the resentment that can be built up because of real or perceived insensitivity to local legal heritage - at least in the context of professional legal education - see Human Rights Center and the International Human Rights Law Clinic, University of California, Berkeley, and the Centre for Human Rights, University of Sarajevo, 'Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors', (2000) 18 Berkeley Journal of International Law 102.
61. C. Hedges, War Is a Force That Gives Us Meaning (2003) at 15.
62. For example, several law professors from the University of Pristina sat on panels convened by the UN to review Kosovo's criminal procedure and the Joint Advisory Council on legal reform was co-chaired by a law professor.
63. This frequently causes problems, inducing these students to neglect their classes for on-the-job training in well-paid jobs.
64. This is certainly the experience in the South Caucasus; see Waters, op. cit.
65. Again, the University of Pristina Law Faculty provides a good example having, among other things, followed the European Union's Bologna model. See Waters, loc. cit.,
66. This proposition is now axiomatic for multilateral lenders such as the World Bank: See .
67. The term reconciliation is not used here in any fixed way; rather, 'reconciliation may mean quite different things in different societies at different times'. J. Sarkin & E. Daly, 'Too Many Questions, Too Few Answers: Reconciliation In Transitional Societies', (2004) 35 Columbia Human Rights Law Review 661 at 725.
68. On the culture of peace concept, see D. Adams, UNESCO and a Culture of Peace. Promoting a Global Movement (1995).
69. L.R. Pruitt, 'No Black names on the Letterhead? Efficient Discrimination and the South African Legal Experience', (2002) 23 Michigan Journal of International Law 545 at 565.
70. See G. Smith et al. (eds.), Nation Building in the Post-Soviet Borderlands: The Politics of National Identities (1999).
71. Hedges, op. cit., 64.
72. Though rarely are nationalist teachings so explicitly imported into the legal curriculum as in Nazi Germany, where the three-year law programme 'was modified to incorporate coverage of the cornerstones of National Socialist thought; race, soil, blood, Teutonic history and folklore'; see M. Lippman, 'The White Rose: Judges And Justice In The Third Reich', (2000) 15 Connecticut Journal of International Law 95 at 109.
73. On links between cultural identity and globalised law, see N. Kasirer, 'Lex-icographie mercatoria', (1999) 47 American Journal of Comparative Law 653.
74. On 'sustainable diversity in law', see H.P. Glenn, Legal Traditions of the World (2000) at 333.
75. Georgian and South Ossetian police already conduct joint patrols.
76. Article 8 of the Constitution of the Republic of South Ossetia (8 April 2001) (unofficial translation on file with author).
77. Declaration on the Proclamation of the Nagorno Karabakh Republic (2 September 1991) (unofficial translation on file with author). The passing of 'laws' can be a powerful symbol, even when there is not only no de jure right to pass the law but also no de facto power. A good example is the proclamation of a constitutional law for a 'Republic of Kosovo' in 1990 by Albanian members of a provincial assembly, acting in secret (Malcolm, op. cit., 347).
78. On the 'fragmented' nature of legal education in Bosnia, see International Crisis Group, loc. cit., I intend to further explore Bosnian legal education in late 2004 through a grant from the Socio-Legal Studies Association.
79. 'Assessment of Legal education in BiH', a document prepared for the Independent Judicial Commission in March 2002 (copy on file with author).
80. Smith et al., op. cit.,
81. Hedges, op. cit., 32-33.
82. N. Silva (ed.), The Hybrid Island: Culture Crossing and the Invention of Identity in Sri Lanka (2002) at i.
83. Glenn, op. cit.,.333.
84. At a law class on genocide observed on 24 April 2004 in Baku, Azerbaijan, students were asked to name genocides. Although Armenian actions during the Nagorno Karabakh war were listed as constituting genocide, no student mentioned the Armenian genocide under the Ottoman Empire, which is generally recognised as the first modern genocide. On the role international law can play in avoiding conflict, see S.R. Ratner, 'Does International Law Matter In Preventing Ethnic Conflict?', (2000) 32 New York University Journal of International Law 591.
85. S.H. Barnes, 'The Contribution of Democracy to Rebuilding Postconflict Societies', (2001) 95 American Journal of International Law 86.
86. See generally Davies, op. cit.
87. Though for a look at peace education written by a legal scholar, see M. Minow, 'Education for Co-Existence', (2002) 44 Arizona Law Review 1, Vol. 1.
88. Recommendation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms (19 November 1974), art. 6.
89. Davies, op. cit., 5.