Abstract
The criminal law frameworks of countries that have been the subject of international peacekeeping operations and military interventions often reveal an urgent requirement for reform. The promotion of fair and effective justice systems, the rule of law and transition from conflict to peace frequently necessitates the introduction of new state legislation. Legal transplants have been employed as a legislative tool to bring about post-conflict legal change. However, the use of transplanted law in these situations has been controversial and has raised concerns about the justification for adopting it. This paper examines the justification for employing legal transplants to develop new post-conflict criminal laws by assessing their practical utility and the motivational rationale for employing them. It reviews theoretical perspectives on transplant feasibility and reflects on the experience of previous criminal law legal transplants. The article concludes by proposing an evaluative test for prior application to post-conflict criminal legal transplants to assess their prospects of success and to gauge the necessity for later change and adaptation.
Highlights
The legal frameworks of countries seeking to transition from conflict to peace are often subject to extensive reform following international intervention
The criminal law frameworks of countries that have been the subject of international peacekeeping operations and military interventions often reveal an urgent requirement for reform
This paper examines the justification for employing legal transplants to develop new post-conflict criminal laws by assessing their practical utility and the motivational rationale for employing them
Summary
The legal frameworks of countries seeking to transition from conflict to peace are often subject to extensive reform following international intervention. Recycling pre-existing criminal law may be an attractive solution It is cost-efficient and may enhance much-needed legitimacy for a new government amongst the local population during difficult periods of transition and change.[18] Difficulties can be encountered, when identifying existing criminal law, leading to confusion in application, a problem encountered in Afghanistan following 23 years of civil war and the destruction of legal texts by the Taliban regime. Legal development involving the transplantation of foreign-designed law has been criticised for embracing a technocraticone size fits all' policy that fails to sufficiently take into account important local legal traditions and socio-political influences.[24] The controversy surrounding the use of legal transplants reflects a lack of certainty amongst the actors taking part in post-conflict reconstruction about their role in reform This is epitomised in the contrasting recommendations of the 2000 UN Brahimi Report and the Rule of Law report published only four years later. 22 J Dobbins, S G Jones, K Crane & B C De Grasse, The Beginner's Guide to Nation-Building (2007) 77–9
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