In 2001, taking the lead from the Brahimi Report, and based on consultations that took place with many practitioners involved in postconflict criminal law reform, the United States Institute of Peace (USIP - Washington/USA) and the Irish Centre for Human Rights (ICHR - Galway/Irland), in cooperation with the Office of the High Commissioner for Human Rights and the United Nations Office on Drugs and Crime, launched the Model Codes for Postconflict Criminal Justice Project.

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 three in­teg­rated mod­el codes. The mod­el codes pack­age con­sists of the Mod­el Crim­in­al Code, the Mod­el Code of Crim­in­al Pro­ced­ure, and the Mod­el De­ten­tion 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.

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 three 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 con­tain­ing the Mod­el De­ten­tion Act is in the plan­ning stages. Each of the three volumes will also con­tain the "Guidelines for Use of the Mod­el Codes for Post­con­flict Crim­in­al Justice".

Meet­ing of Is­lam­ic Leg­al Ex­perts in Siracusa/Italy in Ju­ly 2004
Meeting of Islamic Legal Experts in Siracusa/Italy in July 2004
Meeting of Islamic Legal Experts in Siracusa/Italy in July 2004
From the left:
Mo­hammed Akida, De­part­ment of Crim­in­al Law, Eins Shams Uni­versity, Egypt
Awad Has­san el-Nour, Justice Coun­cil, In­sti­tute of Train­ing and Law Re­form, Su­dan
Colette Rausch, Deputy Dir­ect­or, Rule of Law Pro­gram, United States In­sti­tute of Peace
Meet­ing of Asi­an Leg­al Ex­perts in Bangkok/Thai­l­and in Novem­ber 2004
Meeting of Asian legal experts in Bangkok/Thailand in November 2004