Copyright is owned by the Author of the thesis. Permission is given for a copy to be downloaded by an individual for the purpose of research and private study only. The thesis may not be reproduced elsewhere without the permission of the Author. i Integrating Community-Oriented Policing and Traditional Justice Systems as Police Reform and Development in Post-Conflict Countries A research project presented in partial fulfilment of the requirements for the degree of Master of International Development School of People, Environment and Planning Massey University Manawatu, New Zealand Catriona McLeod 2014 ii iii AAbstract Police reform in post-conflict countries has seen the increasing implementation of the community-oriented policing model as a means to introduce democratic policing as a component of the peace building process. However, in many post- conflict countries the situation of legal pluralism exists, where multiple justice systems operate in the same space. Many communities often rely on customary or traditional forms of justice as the formal state justice system does not extend to their location or have any real influence or authority. This research project used document analysis to investigate the contribution community-oriented policing can make to those communities that rely on traditional justice systems. This report introduced two community-oriented policing mechanisms, tara bandu ceremonies in Timor-Leste and the Community Officer Project in Solomon Islands, as case studies. These two mechanisms were analysed and compared with a specific focus on their respective levels of community participation and how they responded to raising awareness of the principles of human rights. The case study analysis found that the tara bandu ceremonies had high levels of community participation and support due to them being an endogenous social structure and the extensive involvement the communities had in developing their respective tara bandu ceremonies. This was in contrast to the Community Officer Project which is an introduced structure and one in which the community appeared to have no real input into the design and implementation process. These findings led to the conclusion that in integrating community-oriented policing and traditional justice systems, consideration should be given to utilising pre-existing traditional structures that have the support of the community. iv v AAcknowledgements To Kevin, for without you I would not have started this process let alone finished it. Thank you to my supervisor Dr Maria Borovnik for all your support and positivity. Thank you Jas and Andrew for taking the time to read my draft's and offering your expert opinions. To my family, especially mum, who have always supported me in whatever endeavour I have undertaken. vi vii GGlossary Arbakai Pashtun tribal security system in Southeast Afghanistan Horok Symbol of prohibition, hung from a tree Kastom-law Customary law Maklehat Person who holds the highest authority in tara bandu ceremonies Nehe biti Traditional resolution process Suco Village Tara bandu Traditional community resolution ceremony Xefe suko Head of village viii ix AAcronyms CAP Community Auxiliary Police CO Community Officer COP Community-Oriented Policing BCPP Bougainville Community Policing Programme IMF International Monetary Fund NGO Non-Governmental Organisation NZAID New Zealand Agency for International Development PLA Participatory Learning and Action PNTL Policía Nacional de Timor-Leste PPF Participating Police Force RSIPF Royal Solomon Island Police Force RAMSI Regional Assistance Mission to Solomon Islands UN United Nations UNCIVPOL United Nations Civilian Police (prior to 2003) UNMIT United Nations Integrated Mission in Timor-Leste UNPOL United Nations Police (post 2003) UNTAET United Nations Transitional Administration in East Timor x xi TTable of Contents Abstract ....................................................................................................................... iii Acknowledgements ..................................................................................................... v Glossary ...................................................................................................................... vii Acronyms .................................................................................................................... ix Chapter one- Introduction ......................................................................................... 1 1. Introduction ....................................................................................................3 1.2 Research Project Aims ..............................................................................4 1.3 Research Question's ..................................................................................4 1.4 Methodology .............................................................................................5 1.5 Ethical Considerations and Biases ...........................................................5 1.6 Research Project Structure and Development Theory ...........................6 Chapter two- What is Community-Oriented Policing? .......................................... 9 2. Introduction ................................................................................................. 11 2.1 Community- Oriented Policing Origins ................................................ 12 2.2 How is the Community- Oriented Policing Concept Defined? ........... 12 2.3 Criticism of the Community- Oriented Policing Concept .................... 16 2.4 The implications of Community-Oriented Policing for Development18 2.5 Chapter Conclusion ............................................................................... 21 Chapter three- The Implementation of Community- Oriented Policing and Democratic Policing as Part of Police Reform ...................................................... 23 3. Introduction ................................................................................................. 25 3.1 Police Reform and the Role of Police in Post-Conflict Countries ....... 25 3.2 The Role of Community-Oriented Policing in Police Reform and Peace Building .............................................................................................. 27 3.3 Police Reform in the Context of Post-Conflict Countries .................... 29 3.4 Timor-Leste............................................................................................ 29 3.5 Solomon Islands .................................................................................... 32 3.6 Chapter Conclusion ............................................................................... 35 xii CChapter four - The Intersection of Traditional Justice Systems and Formal Justice Systems .......................................................................................................... 37 4. Introduction ................................................................................................. 39 4.1 Traditional or Customary Justice Systems ............................................ 39 4.2 The Existence of Duel Judicial Systems or Legal Pluralism ................ 44 4.3 Legal Pluralism in Timor-Leste ............................................................. 46 4.4 Legal Pluralism in Solomon Islands ...................................................... 48 4.5 Issues of legal pluralism for police reform and development .............. 49 4.6 Chapter Conclusion ............................................................................... 50 Chapter five - Mechanisms to Engage Communities with Formal Policing in Timor-Leste and Solomon Islands ......................................................................... 51 5. Introduction ................................................................................................. 53 5.1 A Comparison of Two Mechanisms to Engage Traditional Justice Systems with Formal Justice Systems: Tara Bandu and the Community Officer Project .............................................................................................. 53 5.2 The benefits of Tara Bandu and the Community Officer Project ..... 58 5.3 The Negative Aspects of Tara Bandu and the Community Officer Project ........................................................................................................... 63 5.4 Chapter Conclusion ............................................................................... 66 Chapter six - Analysis and Evaluation of Tara bandu and the Community Officer Project and their Ability to Integrate Community-Oriented Policing with Traditional Justice Systems ...................................................................................... 69 6. Introduction ................................................................................................. 71 6.1 Evaluation of the Community Officer Project and Tara Bandu Ceremonies .................................................................................................. 71 6.2 The Effectiveness of Tara bandu and the Community Officer Project 72 6.3 Conclusion ............................................................................................. 79 References ................................................................................................................. 81 References ........................................................................................................ 82 1 Chapter one- Introduction 2 3 11. Introduction This research report investigates the implementation of community-oriented policing as part of the process of police reform in post-conflict locations. When working as a New Zealand police officer deployed to Solomon Islands, I was a small cog in a large machine of security sector reform and police development and reform. My role was to advise host-state police in how to carry out criminal investigations and therefore I experienced police reform and development at an implementation level. My pre-deployment training did not teach me much about traditional Solomon Island life or the widespread use of kastom law in the more remote areas of the country. However, when I was deployed to an isolated village, accessible only by boat or air, I found that the formal state legal system was largely irrelevant and that the local community, as well as the host-state police, relied heavily on traditional justice structures and systems in resolving conflict and crime. This appeared to be the case because of a number of reasons; the difficulty for the police and judiciary in accessing remote villages, the lack of resourcing for the formal system in rural areas, the unfamiliarity of the formal system and a community preference for customary law. While I could see that the police reform and rebuilding programmes were having some success in urban areas it was less so in the rural areas. Even when police officers were involved in conflict resolution, the actions of the police officer often mirrored that of the village chief or they assumed a coordinating role. Very rarely did the host-state police prosecute people according to the state laws, instead they relied on traditional methods of resolving disputes. The continued use of traditional and customary justice systems have however been questioned by members of these communities and outsider actors. Issues in terms of the treatment of women and children were not consistently of concern, as traditional systems do not always adhere to certain principles of human rights. I became interested in how judicial systems could be developed that were considerate of the cultural context and of traditional values yet also protected all members of the community equally and recognised the rights of individuals. A possible solution to this predicament is the integration of existing 4 traditional justice systems with the principles of community-oriented policing, and therefore democratic policing, in a manner that recognises not only cultural diversity and non-Western concepts but also recognises and adheres to the principles of human rights (Chopra & Hohe, 2004; Hohe, 2003; McLeod, 2009). Security sector reform can be considered a development issue as the success or otherwise of the overall internal security and stability of a country can have an impact on economic and social development (Holm & Eide, 2000). Community-Oriented Policing (COP) has been introduced to many police services including in Timor-Leste and Solomon Islands as part of the process of police reform, the rebuilding and reforming of the states police services. This research project aims to carry out a literature review of the implementation of COP in post-conflict and developing countries as part of the process of police reform by focusing on two particular mechanisms, the Community Officer Project in Solomon Islands and tara bandu ceremonies in Timor-Leste, which have been developed and used to integrate the principles of democratic policing with traditional or customary justice systems. 11.2 Research Project Aims To analyse systems used to integrate Community-Oriented Policing with traditional justice systems as part of the process of police reform in post-conflict countries. 1.3 Research Question's 1. What contribution can Community-Oriented Policing bring to post-conflict countries? Objectives: To demonstrate Community-Oriented Policing as part of police reform in post-conflict countries To describe the contribution of Community-Oriented Policing in the development context. 5 2. What processes have been used to introduce Community-Oriented Policing to communities that use traditional or customary justice systems? Objectives: To contrast the traditional or customary justice systems of Timor-Leste and Solomon Islands in the post conflict environment after international and State involvement. To compare the mechanisms used to integrate Community-Oriented Policing with traditional or customary justice systems in Timor-Leste and Solomon Islands. To identify the mechanism most suitable for development. 11.4 Methodology This literature review will be carried out through content analysis and examination of a combination of different literature sources. They are: academic literature grey literature and reports from police services, international organisations such as the UN and the Regional Assistance Mission to Solomon Islands (RAMSI), non-governmental organisations (NGOs) and governmental departments such as The New Zealand Aid Programme. The limitations of this research are that it is desk bound and I am therefore reliant on research previously carried out by others and their interpretation of that research. 1.5 Ethical Considerations and Biases Throughout the research process there is a responsibility to examine all the processes through an ethics lens so as to ensure that the integrity of the entire research is fundamental throughout (O'Leary, 2013). In this case the ethical considerations are guided by the Massey University Code Of Ethical Conduct For Research, Teaching And Evaluations Involving Human Participants, which 6 in turn is guided by section 6 of the Education Act 1989 (Massey University, 2013). As this is a desk based research project there is no requirement to seek approval from the Massey University Human Ethics committee. One area of ethical consideration is related to my positionality and the disclosure of potential conflicts of interest. I am a New Zealand Police officer who has worked on a Community Policing program in Timor-Leste and my husband is also a New Zealand Police officer employed by the police division of the United Nations (UN). With regards to the obtaining of documents or reports, official channels will be used to obtain such documents so all literature is gathered in a transparent manner. 11.6 Research Project Structure and Development Theory Alternative approaches to development, such as participatory development, include those approaches that have a focus on bottom up and sustainable development that include the subjects of development in the design and processes of development (Potter, 2002). Participatory development is carried out in an attempt to ensure that the focus of development is on those who are to benefit from it (Peet & Hartwick, 2009). The inclusion or the participation of the beneficiaries of development has become common place within the development discourse since the 1970s and is now so widespread that it is considered by many to be the new orthodoxy (Mohan, 2008; Peet & Hartwick, 2009; Simon, 2006). Participatory development can mean many things to many people; however, it is characterised by an increasing recognition that the involvement of the beneficiaries of a development project is important if that project is to succeed (Mohan, 2008; Peet & Hartwick, 2009). Other qualities of participatory development include learning from each other, understanding each other's values and transformative participation, where development itself is seen as flawed and that beneficial change can only occur when other viewpoints are valued (Mohan, 2008; Peet & Hartwick, 2009). The implementation of COP as part of police development and reform could be considered a form of participatory development in that the state, represented by the police, relinquish some degree of power and authority to the community and in turn the 7 community assumes greater responsibility for regulating and maintaining social order. The community is placed in the position of determining how social order should be maintained and what the appropriate response to transgressions of the agreed rules should involve. However, there is also the possibility that the state's endorsement or encouragement of a mechanism that incorporates COP serves an ulterior motive and as a result could be viewed as an example of anti- politics. The concept of anti-politics, as conceptualised by James Fergusson, is not a position of being hostile or oppositional to politics but rather it examines the actual role and outcomes that development projects have (Ferguson & Loman, 1994). The basis of Ferguson's critique of development, that he calls the anti- politics machine, is that development projects tend to define what are essentially political problems as technical problems, therefore changing them into a form that can be seen to be solved through technical assistance or intervention (Ferguson & Loman, 1994). This results in a situation that "seems to suspend "politics" from even the most sensitive political operations at the flick of a switch" (Ferguson & Loman, 1994, p. 180). The other aspect of the anti-politics machine as described by Ferguson is the role that development practices have in strengthening and extending the reach of the state (Ferguson & Loman, 1994, p. 176 & 181). The (unintended effects) of development, further summarised by Paul Nadasdy, are that it "obscures the political dimensions of poverty and state intervention while simultaneously facilitating the expansion of state bureaucratic power" (Nadasdy, 2005, p. 218). Pieter de Vries discusses the role of anti- politics in participatory development in his argument that people desire development and that "the promise of participatory development and empowerment has been banalised into simplistic technologies for the management of change" (De Vries, 2007, p. 30). The idea that COP, tara bandu and the Community Officer Project may serve a purpose other than exclusively addressing the justice needs of communities will be discussed with reference to anti-politics, in that the implementation of COP may distract from issues around 8 effective and representative government and the development of policing and judicial structures that meet the needs of the population. The following chapter, Chapter two, examines COP, how and why it developed and what COP as a policing model can contribute towards development, specifically in post-conflict countries. Chapter three discusses how COP has been implemented in post-conflict environments as part of the process of security sector reform and more specifically, police reform. This is followed by a brief discussion on the police reform process that has taken place in Timor- Leste and in Solomon Islands. Chapter four examines the intersection of traditional justice systems and formal justice systems and how the two different forms operate. This chapter also examines the existence of legal pluralism, a situation where both traditional and formal justice systems operate within the same space. Legal pluralism occurs in both post-conflict and developing countries and exists in Solomon Islands and Timor-Leste. Chapter five analyses two mechanisms, means or techniques, by which to integrate formal state justice systems with traditional justice structures. Although these mechanisms are systems in themselves, the term here is used to describe them as a means or process in which to facilitate a certain result. One mechanism is tara bandu, a Timorese customary ceremony that aims to re-establish peace through reconciliation. The other mechanism is the Community Officer Project in Solomon Islands in which a community member is selected to act as a link between the formal state justice system and traditional justice systems. These mechanisms are examined and compared in how they address the issue of legal pluralism and whether access to justice structures is improved for those people who might otherwise be marginalised. The final chapter discusses whether tara bandu and the Community Officer Project are examples of COP and participatory development and if there are aspects of anti-politics in either. 9 Chapter two- What is Community-Oriented Policing? 11 22. Introduction This chapter aims to address the first objective of the first research question in that it will describe what community-oriented policing is and what part it plays in police reform in post-conflict countries. This chapter will briefly discuss the origins of COP, how it has been defined and interpreted, criticisms of COP and the benefits that COP brings to development. The Cambridge Dictionary defines police as "the official organization that is responsible for protecting people and property, making people obey the law, finding out about and solving crime and catching people who have committed a crime" (Cambridge Dictionaries Online, 2014). Similarly, The Oxford Dictionary defines police as "The civil force of a national or local government, responsible for the prevention and detection of crime and the maintenance of public order" (Oxford Dictionaries, 2014). While these definitions would accurately describe the functions of police services in Western countries, all societies and communities have some way of ensuring public order and resolving acts or behaviours that the collective community deems unacceptable (HPCR International, 2008). There are many different models of formal policing ranging on one hand from that of a civil police force which has a high level of independence from the state and acts in accordance with established laws and not at the direction of the state. On the other hand is the state police model where police are not autonomous of the state but rather their actions can be directed or controlled by the state. At the extreme end of the spectrum there is the military police model and martial law model in which the military and police carry out much the same functions and are used by an authoritarian or totalitarian state to control the population (Wright, 2002). COP, as will be discussed in this chapter, has been described as a model of democratic policing in that it acts independently of the state and is responsive to the needs of the community (Carty, 2008; Grabosky, 2009a). 12 22.1 Community- Oriented Policing Origins In the late 1980s police managers in Western countries were realising that conventional methods of policing had limitations and that there was a point where increasing the number of police or improving response times did not correlate to a reduction in crime or to an increase in the number of crimes solved (Skolnick & Bayley, 1988b). There were also other factors that police did not have control over that had a significant effect on crime types and resolution rates, such as social heterogeneity and population, income levels and employment rates (Skolnick & Bayley, 1988b). With these limitations in conventional policing methods, police managers had to develop new ideas to reduce and solve crime with the result that police and communities "have to become co-producers of crime prevention" (Skolnick & Bayley, 1988b, p. 3). It is from these new ideas that the concept of COP arose. Although the COP model developed because of a particular set of circumstances at a particular time in Western countries, COP is being implemented in a wide range of environments and how it is defined or conceptualised in those environments depends on the context. The following section will look at how COP is being defined in diverse environments. 2.2 How is the Community- Oriented Policing Concept Defined? The concept that people consent to having controls placed on them in order to ensure public order and avoid anarchy is apparent in the social and legal reforms of the 19th Century (HPCR International, 2008). The first modern police force as such was created in 1829 by Sir Robert Peel, the then British home secretary. It is the prototype for Western democratic policing in that the prevention of crime and disorder was to be achieved not through force but by having the respect and cooperation of the public (Wiatrowski & Goldstone, 2010). Peel established principles that were to govern the actions and behaviours of police officers which included that they were to be fair, impartial, incorruptible and accountable for their actions and that any use of force must be the minimum necessary to effect compliance with the law. He recognised that the use of excessive force would be counterproductive in establishing trust with 13 the public. Their role was also to be restricted to enforcing the law and not be involved in judgment or punishment as that was the role of the courts (Wiatrowski & Goldstone, 2010). These principles, in a sense, allow for the situation where the public are willing to give their consent to being policed (Wright, 2002). It is this consent by the community to being policed and therefore their acceptance of the existence and functions of a police force that is an important aspect of COP, a model of policing that has its origins in Western countries and one that Grabosky (2009a) states is a model of democratic policing as envisioned by Robert Peel . However, Bayley (2005b) argues that democratic policing is not COP but that COP shares some elements of democratic policing. The objectives of a democratic policing model is that police maintain law and order, prevent and solve crime and are responsive to the requirements and expectations of the public (Carty, 2008), whilst being accountable to the law which has been established through the process of democratic deliberation by a government which is representative of society (Bayley, 2005b). The authority of the state should only be used in the interests of the public. Police should not then be directed by the government or its members but only by the established rule of law and then their actions are endorsed or otherwise by the courts. Values attributed to democratic policing include that it is impartial, fair, independent, transparent and accountable (Bayley, 2001, 2005b; Carty, 2008; Grabosky, 2009b). The concept of COP is increasingly being implemented in post conflict environments as part of the process of police reform. So widespread and popular has COP become that now the majority of Western police services practice some form of COP and it is a strategy that is generally supported by the public, academics and politicians (Grabosky, 2009a). While there are accepted universal descriptors around what COP is or what it is meant to be, COP is a term that has been used to describe many and somewhat different styles and tools of police work. How it is interpreted depends on the context in which it is being implemented (Newburn, 2005; Skolnick & Bayley, 1988b). Maguire has 14 described COP as the "new orthodoxy" and also more cynically as the "new rhetoric" of policing (Maguire, 1997, p. 554). Grabosky (2009a), along with Bayley (2005a), provides a universal descriptor of COP as the encouraging or mobilising of the public or community to engage with the police in responding to crime. This is achieved through consultation with the wider community as well as at an individual level, responding to community needs and using problem solving tools to address recurrent crime issues. How COP differs from other previously used or more traditional Western styles of policing is that the police are no longer considered to have the sole responsibility for maintaining law and order and ensuring the safety of the community. The community in its entirety should be partners with the police to achieve this (HPCR International, 2008). COP has been further defined as a means or vehicle to give the community greater control and responsibility for solving and preventing crime and developing strategies and tactics to do so through the decentralisation of authority and the empowerment of communities (Davis, Henderson, & Merrick, 2003; Trojanowicz & Bucqueroux, 1990). It has been suggested that a partnership of the public and the police provides a more humane and effective means of ensuring public safety and order (Skolnick & Bayley, 1988b). Another method of defining COP, as described by Brogden and Nijhar (2005), is to describe what it is not. It is not measured by efficiencies such as arrest rates nor is it a military style of policing or one that has no accountability to the public and is only reactive to crime. COP is policing that requires the police to have the trust of the community that is being policed, which is in turn closely related to legitimacy, that the police hold a mandate given by the community to carry out their role (Goldsmith, 2005). Four broad components of the COP model that are community centric have been identified by Mathias (2006) as being integral to implementing COP. The first is that the philosophy of COP should be the foundation of all COP programmes and that COP is consultative with the community, applies problem solving approaches and promotes community-police partnerships that share a mutual responsibility for ensuring 15 safe communities. The second is the requirement for the organisational structure to delegate authority and commit to local needs. The third component is the management policy which emphasises a grass roots approach with little deference to rank. The fourth component is that the operational strategy must identify the existing relationship the police have with the community and implement COP through pilot initiatives (Mathias, 2006). However, some definitions of COP have assumed that the police are in some way separate from the community and even though police officers may be members of that community only some members of the community are police officers. Police officers are people specifically employed and tasked with the role and are given legislative powers to carry out their functions (Bayley, 2001). There are, however, other situations which have been termed as community policing, also referred to as community based policing, indigenous policing, public self-policing or informal policing, where the actual community itself carries out the tasks and functions of a police service due to a lack of access to a formal state police service. Vigilante groups, militias or community self defence groups may provide security (HPCR International, 2008) or as in the case of the Arbakai in Afghanistan, suitable members are selected by the community as the need arises to carry out a specific task that relates to security or resolving crime problems (Schmeidl & Karokhail, 2009; Tariq, 2008). The existence of groups such as the Community Patrollers in New Zealand demonstrate another aspect of community policing, in that a group of volunteers independent of the New Zealand Police but who work alongside them, carry out patrols of their local community to prevent and report criminal activity (CPNZ, 2014). For a community to successfully police itself certain conditions should exist such as there being an environment where there is trust and stability in terms of societal relationships with consensus on what are deemed to be acceptable standards of behaviour and that people will conform to those standards (Somerville, 2009). Several key factors which can influence the success of COP implementation exist. They are that there must be a political will and strong leadership to override any institutional resistance, that the COP initiatives adopted are 16 adapted to meet the local context and interact with local institutions and that there is ownership of the initiatives by the community and police (Mathias, 2006). Inhibitors to the success of COP include a lack of trust between the community and police which can affect the establishment and sustainability of partnerships. Also, incompetence or corruption within other sectors of the justice system can undermine the effectiveness of COP (Casey, 2010; Mathias, 2006). Mathias (2006) argues that COP working with existing traditional or customary judicial systems should be encouraged. However, practices that are contrary to the law or principles of human rights should be acknowledged as such and should cease (Mathias, 2006). This aspect of COP and traditional judicial systems will be discussed in Chapters four and five. However, while COP is a model of policing that has a broad level of support there are criticisms of the concept, specifically how and why it has been implemented in some locations as will be discussed in the following section. 22.3 Criticism of the Community- Oriented Policing Concept Despite its growing popularity in terms of its widespread implementation, COP is not always practiced well (Grabosky, 2009a) and sometimes what has been termed a COP approach is in actuality not a COP approach (Maguire, 1997; Skolnick & Bayley, 1988a). While COP can be seen as a means to improve relationships between the public and the police (Skolnick & Bayley, 1988a), another view is that it can be more a case of a public relations programme to improve the image of the police (Maguire, 1997). Another criticism of the approach is that community engagement may result in power differences or inequalities, resulting with those who have the resources and ability to having a greater say or control over what happens in their community than those who are already marginalised (Grabosky, 2009b; Skolnick & Bayley, 1988a). This could also mean that a "shrill minority" might dominate an apathetic or indifferent majority (Grabosky, 2009b, p. 34). In the same vein, COP could allow for the emergence of a majority tyranny, a situation where the majority of a community hold beliefs and advocate for resolutions that are exclusory to a minority group or that fall outside the law (Grabosky, 2009b, p. 34). Also raised is the issue of 17 overly democratising a police force, a situation where the police become intimidated and ineffective or paralysed due to overly fervent civilian oversight and which could also lead to police not developing their own effective oversight processes (Celador, 2005). Problems arise when it comes to assessing the successfulness or effectiveness of COP. Vagueness of a definition in different contexts and the many and varied interpretations of COP make it difficult to determine what actual practices or activities lead to favourable results (Coquilhat & New Zealand Police, 2008; Reisig, 2010). Reisig (2010) writes that there is a lack of recently published ethnographic studies or qualitative accounts on how police officers actually manage disorderly individuals or become familiar with the cultural and social behaviours of particular communities and what effect COP interventions actually have on the collective efficacy of a community. Reisig (2010) questions if these COP interventions do encourage a shared sense of engagement or commitment for community members and does this lead to communities having lower incidents of crime and disorder and increased feelings of safety. Brogden (2005) raises a number of criticism's of COP in relation to its implementation as a tool of police reform. COP is often transplanted directly from a Western model developed in a Western context into post-conflict and transitional states which do not take into account the actual reasons why police reform may be necessary or the context into which a new policing model is being introduced. Brogden (2005) and others also question the motivations for donor countries in promoting police reform and COP, comparing it to colonialism where policing structures were installed, not to protect the local populations, but to ensure the security and safety of trade structures (Stenning & Shearing, 2005). The donors, who may also be trading partners, customers or neighbours, may have a vested interest in the establishment and maintenance of the social and economic stability of a state. This can be reflected in the focus they give on the type of training or resources they provide to the recipient country; for example, there may be particular attention given to training and resourcing around people smuggling, drug trafficking, terrorism or other 18 transnational crimes as these are problems which can adversely affect the donor countries (Brogden, 2005). 22.4 The implications of Community-Oriented Policing for Development The significance or importance of COP towards development will be discussed in more detail in the following chapters in relation to the particular context. However, this section will discuss in more general terms how COP can benefit development. Police reform and COP can contribute towards economic development, the recognition of and adherence to international human rights standards and the recognition and implementation of judicial systems and processes that are culturally relative and that have legitimacy for the population (HPCR International, 2008; Leith, 2014; Marenin, 2005b; United Nations, 2000; Wiatrowski & Goldstone, 2010). More Specifically, for post-conflict countries, the benefits can be summed up in the statement that the Prime Minister of Solomon Islands, Gordon Darcy Lilo, made to the Royal Solomon Islands Police Force (RSIPF) in January 2014 "that without good law and order economic development is jeopardised and investors will be reluctant to come" (Office of the Prime Minister and Cabinet, 2014). Similarly, the former director of The World Bank's Development Research Group, Paul Collier, has explained that economic development is important to post-conflict countries as there is a 40 percent chance that those countries will return to a state of conflict within ten years if they have a low per capita income (Leith, 2014, p. 160). Holm and Eide (2000) argue that peace building efforts in West Africa have resulted in the security first approach in which it is considered essential that a sufficient level of security is present before social and economic progress can occur. The emergence of an effective civil society is impeded if people are otherwise occupied with struggling to survive and are in constant fear for their lives and their property. Further to this, the perceptions of fear and security and how "a 'climate' or 'culture' of security is necessary in order to effectively promote a process of development" (Holm & Eide, 2000, p. 3). The International Monetary Fund (IMF) and The World Bank invariably place conditions on post-conflict or transitional countries receiving economic 19 assistance and one of these conditions typically is that the policing institutions of that country must undergo reform and further that the shape of the reform should be moving towards that of a community policing model (HPCR International, 2008). However, the value of police reform is not limited to economic development. Police reform is also linked to the global spread of democratic and liberal principles and standards in that in implementing police reform the values and standards of one country can be introduced to another where they might not have previously been known (Greener, 2009). The introduction of liberal democratic ideals relates to what Holm and Eide (2000) discuss in Peacebuilding and Police Reform, that police reform in terms of development in post-conflict countries is more concerned with managing change than it is about returning a state to the systems that were in existence prior to or during the conflict, systems which may have contributed to that conflict. Democratic policing as an institution should therefore be considered in terms of a wider strategy of human, economic and democratic development (Pino & Wiatrowski, 2012, p. 5). Police reform is usually undertaken initially with the help of outside police organisations, for example the UN Police (UNPOL), and these police services are expected to not only develop an effective police force in terms of crime fighting and maintaining law and order but also one that respects international human rights standards (Holm & Eide, 2000). Whereas the police force that was operating before and during the conflict may have been acting as a repressive tool of the state and in doing so harming the civilian population, the impartial international force has a duty to ensure that the same police force is reformed and takes a lead in investigating allegations of war crimes and human rights abuses and bringing those who committed abuses to account (Wiatrowski & Goldstone, 2010). This process is necessary to reassure the population that injustices will be recognised and dealt with, allowing for a move towards a national reconciliation (Holm & Eide, 2000; Ziadeh, 2014). 20 Two questions can then be asked; firstly, can the structures of a democratic police model that incorporate the concepts of COP, a Western model, be sustainably implemented in a context that is culturally and politically very different, in that there is a absence of democratic principles (HPCR International, 2008), and secondly; what legitimacy will these new structures have with the population? If new security or judicial structures are introduced to communities that have previously be policing themselves independently of the state, what is there to ensure that their established systems are taken into account in the new structures? Further to this, the legitimacy and democratic principles of those established systems, such as what values are being enforced and who decides how infractions of those values are to be resolved, need to be examined (Marenin, 2005a). Police reform and COP has been implemented in post conflict environments and transitional nations with the assistance or guidance of external organisations, such as the UN, Non-Governmental Organisations (NGOs) or donor nations as part of bilateral agreements (Brogden, 2005; Greener, 2009). However, no doctrine or agreed model of COP has been formulated and if this reform or restructuring is to be sustainable in the long term there must be widespread support from the government, the population and civil society organisations (Carty, 2008; HPCR International, 2008). This in turn provides a degree of legitimacy to the resulting reformed structures. A COP model developed in partnership with all stakeholders may provide social stability that can contribute to social and economic development. The participation of the largest stakeholder group, the community that the police are going to serve, is particularly important if the policing style and structure is going to have legitimacy and a true mandate to operate. Tara bandu, an example of a grass roots participatory approach to developing COP in a post-conflict environment will be discussed in Chapter five. 21 22.5 Chapter Conclusion In this chapter COP has been defined as a mechanism to create community- police partnerships so that policing is no longer the sole responsibility of the police but rather that the maintenance of law and order and ensuring the safety of the community is shared between the police and the community. COP is a form of democratic policing in which the police act independently of government, adhere to democratic principles such as respecting human rights and are accountable to the rule of law of the state. There are however criticisms of COP, in that it can lead to communities being manipulated or misrepresented by certain social groups who have the means to be able to dominate the rest of the community, resulting in marginalised or minority groups being further marginalised. In relation to development, COP has been implemented as part of the process of police reform in developing and post- conflict environments as it is seen as a method to empower communities and to help develop and foster democratic principles. It can also contribute towards the establishment of a secure and stable environment in which economic and social development can flourish. The following chapter will examine further the role that COP has in security sector reform and more specifically police reform in Timor-Leste and Solomon Islands. 22 23 Chapter three- The Implementation of Community- Oriented Policing and Democratic Policing as Part of Police Reform 24 25 33. Introduction In continuing on from Chapter two in answering the first research question, this chapter will outline how COP has been implemented in post-conflict countries as part of the process of police reform. What police reform actually is will be discussed first along with the motivations for carrying out police reform by various actors and stakeholders. The benefits of implementing COP as part of the police reform process is then discussed as are any potential negative aspects and in doing so will address the second research objective. The last section of this chapter will look at the process of police reform in two contexts, Timor- Leste and Solomon Islands. 3.1 Police Reform and the Role of Police in Post-Conflict Countries COP has been promoted as a panacea for the problems faced by police services in Western countries, however, it has also been implemented in non Western countries as a component of the process of police reform (Brogden, 2004; de Heyer, 2012; Grabosky, 2009a; Groenewald & Peake, 2004; Neild, 2001). Police reform itself is often part of the peace building process in post conflict environments where security and judicial systems need to be reconstructed or developed (Celador, 2005; Grabosky, 2009a; Greener, 2009; Holm & Eide, 2000). The Brahimi Report, commissioned by the United Nations Secretary General, describes peace building as the processes and activities that occur after conflict has ceased in a state or region in order to establish a strong base for a sustainable peace, ensuring that the conflict does not return (United Nations, 2000). Peace building is not restricted to activities such as strengthening the rule of law, but extends to developing democratic processes and improving human rights as well as acknowledging and investigating past and present abuses. Conflict resolution and reconciliation are important factors in peace building (Celador, 2005; United Nations, 2000). The Brahimi Report analysed peace keeping missions and found that to succeed in transitioning an area from a state of war to one of peace, peace building initiatives should be an essential element of the complex process of peace keeping (United Nations, 2000). The fundamental principles of 26 peacekeeping intervention should be that the peacekeepers carry out their duties with the consent of the local population, advocating for a focus on advancing a respect for human rights and strengthening the institutions that deal with the rule of law (United Nations, 2000). The development of a respect for the principles of human rights is found within the broader umbrella of police reform and more specifically within the concept of COP as discussed in Chapter two. The Brahimi Report also makes a distinction between the roles of the military and police, which Greener expands upon. She writes that there are fundamental differences in the way police and military use force, levels of the decision making abilities of individuals and the degree of independence each institution holds in relation to the government (Greener, 2011). Greener (2009), in analysing the changing roles and functions of police in peacekeeping missions around the world, argues that the importance of using police in the maintenance of law and order instead of relying on the military is now receiving greater recognition. The global expansion of democratic and liberal principles in general is reflected in current policing practices around the world, for example, in how the concept of the state having a monopoly over controlling policing is shifting with communities and civil society now having greater input into how policing is carried out (Stenning & Shearing, 2005). Marenin (2005a) states that the existence of a democratic, fair and effective police force is not just a result of a democratic political system but is rather a prerequisite to one and that the establishment of democratic governance relies on a democratic police force. How police reform is carried out has been the subject of debate with the emergence of what has been described as the police reform industry. While international organisations such as the UN play a crucial function by taking a significant responsibility in intervening in crisis situations and re-establishing policing functions, whether on its own or in partnership with the host-state, police reform is also carried out as a component of international assistance and 27 foreign aid programs (Stenning & Shearing, 2005). For example, The New Zealand Aid Programme provides funding for police development programs in Timor-Leste, Bougainville and Solomon Islands (NZAID, 2012). Three questions around this form of aid concern firstly the suitability of the models of policing that are being exported into a transitional country, secondly in whose interest it is that the reform takes place, and thirdly who benefit's from the intervention (Brogden, 2005; Groenewald & Peake, 2004; Marenin, 1998; Stenning & Shearing, 2005). It is accepted by many that donor assistance is often in line with their own interests and donors fund programmes that they have identified as being beneficial to them even though the recipient country has prioritised other issues that they require assistance with (Groenewald & Peake, 2004). 33.2 The Role of Community-Oriented Policing in Police Reform and Peace Building In terms of peace building and police reform, COP has been proposed as a preferred model for police in future peacekeeping missions (de Heyer, 2012). Yet for COP to succeed as a component of police reform there must be a certain level of peace and stability so that civil society and the community are able to be involved without the distraction of threats to their lives and property. There must also be a real and demonstrated political will for change and donor support must be co-ordinated and effective (Casey, 2010; Groenewald & Peake, 2004). The most prevalent definition used to describe COP in the environment where peace building is being carried out draws heavily on the Western model of COP in that it is both an organisational strategy and a philosophy that seeks to integrate the police into the community. This creates an environment where the community and the police work collaboratively to solve and prevent crime and disorder. It is meant to lead to the community having a greater say in how to improve their quality of life (Bayley, 2005b; HPCR International, 2008). The role of COP in a peace building and police reform context is viewed as COP being a mechanism that is able to transform police forces in post-conflict, 28 transitional and fragile states into organisations that have legitimacy, value and practice democratic principles and contribute towards the overall stability of the state (HPCR International, 2008). The role of the police is transformed from that of a tool of a non-representative government to a fair and impartial organisation that maintains order. COP, through consultation with the community, aims to de-politicises the police, establishing a clear demarcation between the role of the military and police (Bayley, 2005b; HPCR International, 2008). COP has been included as a component of the police reform programmes in Timor-Leste, Solomon Islands, Bougainville, Serbia, Sierra Leone, El Salvador, Northern Ireland, South Africa and Kenya (Bayley, 2005b; HPCR International, 2008). There is a general consensus that COP is a model of democratic policing, though not all agree (HPCR International, 2008). For example, Bayley (2005b), as mentioned in Chapter two differentiates democratic policing from COP. There is significant enthusiasm for the concept of COP as a component of police reform by both donors and partners as explained in Chapter two, but there are also those who are questioning its effectiveness and it's appropriateness in a non-Western environment (Brogden, 2005). This doubt concerns not just the implementation of COP but the exporting of Western policing models and judicial structures in general (Brogden, 2004, 2005; Marenin, 1998). Marenin (2005b) and de Heyer (2012) explain that the issues around implementing COP as part of police reform in post-conflict environments are that it is a Western construct and even in Western countries the effectiveness of COP is uncertain and debatable. The relevance or appropriateness of a COP approach in a post- conflict country must be examined before implementation and a definition of community policing must be agreed upon (de Heyer, 2012). Both de Heyer (2012) and Brogden (2004) point out that for COP to be effective it must have a high degree of local ownership and knowledge, be contextualised and sensitive to the local culture and its history. The following section will briefly outline the 29 police reform processes that have been undertaken in two post-conflict countries, Timor-Leste and Solomon Islands, both with the assistance of external international organisations. 33.3 Police Reform in the Context of Post-Conflict Countries The police forces of Timor-Leste and Solomon Islands are two examples of police services that have undergone reform as part of the peace building process in a post-conflict state. Both countries have endured recent civil strife and have a history of colonisation and the process of police reform has been carried out with a significant amount of assistance by external organisations and states. They also have in common the use and often reliance on traditional justice systems which operate outside of the formal or state judicial and policing structures. 3.4 Timor-Leste Timor-Leste is one of the youngest states in the world with a history of Dutch and Portuguese colonisation, Indonesian and Japanese occupation and internal civil conflict. It's population of just over one million people are some of the poorest in the world, however they have a deep cultural and spiritual heritage which is reflected in traditional customs and social structures (Belo & Koenig, 2011; Hohe, 2003; The Asia Foundation, 2013; Wassel, 2014). The Policia Nacional Timor-Leste (PNTL) which has 3,500 officers, was developed from scratch with an exceptional level of international input from the UN and development programmes by donor nations (Wassel, 2014). Its present structure is a result of this input as well as historical political manoeuvring that had taken place prior to and after the Indonesian occupation (Belo & Koenig, 2011; Wassel, 2014). The transition from Portuguese rule to independence and the subsequent Indonesian occupation saw the rise of what would become the two main political parties (International Crisis Group, 2006; Wassel, 2014). Political manoeuvrings between the two groups led to hostilities and uneasy alliances and the relationship that the military has with the police today, along with the present day organisational structure of the PNTL, is heavily influenced by the informal and formal relationships of key players (Belo & Koenig, 2011). 30 During the Indonesian occupation, a military styled police force was established and Indonesian law, based on Dutch civil law, was imposed (Hohe, 2003; Wassel, 2014). When the Indonesians left Timor-Leste in 1999 after a UN run referendum they destroyed much of the infrastructure, both physical and administrative, creating a situation where there was a total absence of any formal judicial systems (Hohe, 2003; Wassel, 2014). The UN began a mission to Timor-Leste, the United Nations Transitional Administration in East Timor (UNTAET) which was charged with transitioning the country to independent rule and included establishing the administration for the rule of law. Existing Indigenous traditional judicial processes and structures were not considered or incorporated into the developing model which itself was based on the former Indonesian model (Hohe, 2003). The PNTL was established in March 2000 by UNTEAT and it included 370 officers who had served in the Indonesian Police during the occupation. The rest were recruits who had no previous policing experience (Belo & Koenig, 2011). Criticisms of the development of the PNTL in these early years include that strong institutional structures were not established with no effective strategic planning, administrative or management systems put in place. Both the PNTL and the Timorese military were designed to strengthen the political networks of newly elected politicians such as Roberto Lobato (Belo & Koenig, 2011; Wassel, 2014). In 2006, a political and civil crisis caused by rivalries and informal networks that had developed outside of the PNTL and the military led to the near total collapse of the PNTL. This necessitated the return of the UN in the form of the UN Mission to Timor-Leste (UNMIT) (Wassel, 2014). Lobato was seen to be using the PNTL as a political tool which caused many Timorese to distrust the PNTL and members of the military were beginning to see the PNTL as a threat to their own authority and power (Belo & Koenig, 2011). UNMIT took over the policing mandate and held the executive policing authority with over 1000 police officers from around the world deployed until 2012 when the UN withdrew (Wassel, 2014). There has been a perception 31 amongst many in Timor-Leste that the PNTL has become more militarised in recent years with the language of the 2008 PNTL Organic Law using military terms to describe the structure and chains of command, the increase in the carriage of powerful weapons and the development of specialised units (Belo & Koenig, 2011). This in conjunction with the political instability of both the PNTL and the Government was not conducive to local communities taking ownership of or having significant influence in how the PNTL developed its community policing model, which appeared to take a backseat to more security focused approaches to policing (Belo & Koenig, 2011; Wassel, 2014). Also, it has been argued that a COP model was introduced partly as it was deemed acceptable by military leaders who thought that a community-oriented police force was less of a threat to their own organisation and powerbase (Belo & Koenig, 2011). Due to the remoteness and isolation of many communities in Timor-Leste, the PNTL and the formal state judicial system does not have significant influence outside of the capital Dili and as a result traditional or customary systems still play the greatest role in resolving disputes (Wassel, 2014). In retrospect the PNTL could be said to have gone through both police development and police reform and has done so with considerable outside or international assistance and direction, with many different national police forces having contributed towards how the PNTL are currently organised and operate. The PNTL have released their strategic plan for 2014 to 2018 which outlines their strategic vision which is to achieve high standards in relation to security and public tranquillity in the state of Timor-Leste (Policia Nacional Timor-Leste General Command Department, 2013). Amongst their principles are that the government, state and community have a high level of confidence in the PNTL which is ready to serve their community (Policia Nacional Timor-Leste General Command Department, 2013). The document states that the model of policing that the PNTL have adopted is that of community policing and that it is a philosophy that underpins the entire organisation not just certain groups. All police officers must adhere to the principles of visibility, involvement and 32 professionalism. (Policia Nacional Timor-Leste General Command Department, 2013). The operational objectives of the PNTL, as described in the strategic plan, are to be achieved through integrating the concepts of community policing into all aspects of the PNTL training curriculum and by strengthening the protection of all Timorese citizens, particularly vulnerable people such as children and the elderly by applying community policing approaches in police operations (Policia Nacional Timor-Leste General Command Department, 2013). The success of the PNTL and this strategic plan is to be measured in part by the levels of trust and cooperation that the community has with the PNTL and community feelings of safety (Policia Nacional Timor-Leste General Command Department, 2013). The PNTL are developing mechanisms that are designed to integrate the formal justice system and policing functions into traditional dispute resolution systems in recognition that many of Timor-Leste's population are still reliant on customary systems in the absence of access to the state systems (Everett, 2010). Amongst those mechanisms being developed is the customary resolution process of tara bandu which will be discussed in greater detail in chapter five. 33.5 Solomon Islands In 2000 ethnic tensions in Solomon Islands boiled over resulting in the collapse of the government and leading to what effectively was a civil war (Bennett, 2002; Leith, 2014). With the subsequent breakdown of law and order the police force were unable to cope and were in some cases complicit in the violence (Liloqula & Pollard, 2000). The causes of the conflict have been attributed to the history of Solomon Islands and colonisation, the Solomon Island constitution, the imposition of the British style of government as well as migration and land disputes (Liloqula & Pollard, 2000). An international intervention to halt the crisis began in 2003 as a result of the Townsville Peace Agreement and the Regional Assistance Mission to Solomon Islands (RAMSI) was established (Hegarty, 2004; Leith, 2014; RAMSI, 2014). RAMSI is a police led operation and the police involved come from around the Pacific region (Hegarty, 2004). 33 An important aspect of the RAMSI intervention is that it was a police led rather than a military led mission, although a military presence did allow the Participating Police Force (PPF), a component of RAMSI, to operate more effectively (HPCR International, 2008; Leith, 2014). The Royal Solomon Islands Police Force (RSIPF) has been undergoing reform and the process of rebuilding since 2005 (Dinnen & Haley, 2012) and the process of reform has been undertaken in conjunction with the PPF. The PPF were initially given executive policing powers, much like UNPOL in Timor- Leste, and carried out their functions with autonomy from the RSIPF (HPCR International, 2008). The reform process for the RSIPF involved capacity development of RSIPF officers, instilling human rights and democratic principles and identifying and prosecuting corrupt officers and those who had been complicit in the violence during the tensions (HPCR International, 2008; RAMSI, 2014). The initial intervention focused on security and the establishment of peace and in its planning identified the importance of custom and local level reconciliation as a form of judicial process (Hegarty, 2004). It was recognised that if a sustainable peace was to be achieved, Solomon Islanders should participate in the decision making processes (Hegarty, 2004). The question of the development of an appropriate justice system that incorporated the needs of the different sectors and cultures of Solomon Islands was raised, querying if kastom-law could be effective and fair (Hegarty, 2004). It was acknowledged that the traditional social structures and forms of governance were incompatible with the Westminster model of governance and the centralisation of government. Also, the concept of the nation state had not been widely accepted by the population (Hegarty, 2004; Rohorua, 2006). The importance of public consultation and debate over the constitution was another aspect of political reform highlighted by RAMSI (Hegarty, 2004). However the importance of the state and it's stability was emphasised by RAMSI and the views of many local people that power should be restored to local communities or that indigenous kastom practices or other more culturally relevant forms of policing should 34 replace introduced law's were dismissed as being extreme or romantic views and were deemed infeasible (Hegarty, 2004; HPCR International, 2008). Even though RAMSI identified the role of politics in the country's failures, the government and judicial structures have remained the same and the intervention seems to focus on repairing the existing flawed structures. The failure of Solomon Islands political structures and therefore a need to address these failures in order to attain a sustainable peace and stability was recognised and acknowledged. Yet some have argued that the peace achieved has only be maintained because of the continued presence of RAMSI and that if RAMSI withdraws Solomon Islands will return to civil unrest (Rohorua, 2006). After elections in 2006 there were riots due to what many believed were corrupt results and the Solomon Islands Government-RAMSI People's Survey 2010 found that eighty four percent of respondents supported RAMSI, forty nine percent believed that law and order would break down if RAMSI left and twenty nine percent thought that civil strife would return if RAMSI left (RAMSI, 2014). In 2009 the then RSIPF police commissioner Peter Marshall, presented the strategic directions plan for the police and in doing so stated that the priority for the RSIPF was to reduce crime thereby reducing fear felt by the community and increasing the communities confidence (Solomon Times Online, 2009). In 2012 the RSIPF commissioner, John Langsley, stated that his goal while in the position was to further develop the community policing strategy by increasing partnerships between the police, community, government and business, as dealing with law and order was a community function. The Solomon Islands Government -RAMSI partnership framework written in 2009 and the RSIPFs Strategic Directions Plan 2010-2013 outline how the RSIPF are dedicated to developing a community policing model for Solomon Islands (Dinnen & Haley, 2012). The strategic plan outlines the mission of the RSIPF as "Working in partnership with the community; building confidence in the RSIPF for a safe, peaceful and prosperous Solomon Islands" (RSPIF, 2010, p. 1). The plan lists the goals of the RSIPF which includes improving the communities confidence 35 in the RSIPF and reducing crime and the fear of crime so that people think their communities are safe and peaceful (RSPIF, 2010). In 2010 the development of a new police act began and the final document was presented to the Solomon Islands Government in 2014. This new act, as well as setting out clearly the duties and responsibilities of the RSPIF, describes the aim of encouraging community involvement and partnerships with other agencies to enable the police to improve their relationships with the community, gaining their confidence and trust (Office of the Prime Minister and Cabinet, 2014). In developing the new police act, the wider community was also consulted, including members and leaders of churches, women's and youth groups as well as traditional leaders (Office of the Prime Minister and Cabinet, 2014; Radio Australia, 2012). 33.6 Chapter Conclusion This chapter has outlined what police reform entails, that it should not only result in a change in the organisational structures and functions of a police force but also of the underlying fundamental basis for the existence of that police force and to whom is it accountable and answerable to. For police reform to be successful there must be an understanding of the actual type of police force that is to be reformed as well as a real political will for the reform to succeed. As a component of many police reform programmes, COP is viewed as an ideal method of introducing democratic principles and a respect for human rights to policing where previously they were unknown. However, the implementation of COP in post-conflict environments should be contextualised to the history and culture of the location and have high levels of local ownership. Both the police in Timor-Leste and Solomon Islands have adopted a COP model and both models appear to have their origins in Western COP models rather than having been developed endogenously as a result of extensive consultation with those communities they will serve. The police reforms also appear to have been conducted in a manner that are compatible with existing political structures even though those structures may be unstable or have previously failed. 36 37 Chapter four - The Intersection of Traditional Justice Systems and Formal Justice Systems 38 39 44. Introduction This chapter, in examining the intersection of traditional and formal justice systems, aims to answer the second research question and its associated objectives. This chapter will examine how traditional or customary justice systems differ from formal or state justice systems as found in Western societies and whilst all traditional justice systems are different there are similarities that can be found across a wide range of traditional justice structures. Many traditional justice systems have a focus on the wellbeing of the community as a whole or as a collective group rather than on the rights or wellbeing of the individual. This is in contrast to most Western judicial systems where the rights of the individual are important. The second section of this chapter will look at the existence of legal pluralism, in which both traditional and formal state judicial structures operate in the same space. Examples of legal pluralism in Timor-Leste and Solomon Islands will be given as well as the reasons why legal pluralism exists. 4.1 Traditional or Customary Justice Systems The current Anglo-American and Western styles of policing are derived from that envisioned by Sir Robert Peel who has been credited with developing the first modern police service, as discussed in Chapter two (Wiatrowski & Goldstone, 2010). However, beyond the influences or pressures of Western culture and dominance there are many societies or groups of people who police themselves without any or minimal involvement of the state and formal judicial systems that may or may not exist in their countries (Dinnen, 2009; Dinnen & Braithwaite, 2009; McLeod, 2009; Tariq, 2008). Traditional systems, also referred to as customary systems and non-state systems, that in this context refer to non-Western traditional systems, are unique to the cultures and societies they have developed in and are therefore highly contextual (Dinnen, 2009; Dinnen & Braithwaite, 2009; Hohe, 2003; McLeod, 2009; Melton, 1995; Tariq, 2008). They are systems, processes, beliefs and customs that were established prior to the development of modern state systems characterised by a centralised form of government, often a result of colonisation (Bennett, 2002; Dinnen, 2009; Dinnen & Braithwaite, 2009; Hohe, 2003; Rohorua, 2006). Even though the roots or origins of traditional and customary judicial systems may be very old they have not necessarily remained 40 unchanged over time as they can be dynamic, flexible and adaptable to the changing circumstances of the people who use them (Dinnen, 2009). They may also have been influenced in part by colonisation and globalisation (Wallis, 2012). In recognising that alternative forms of policing are practiced in what could be considered traditional societies, there should also be an understanding that there is much variety in how these different societies and cultures practice judicial processes (Babo-Soares, 2004; Dinnen, 2009; Dinnen & Braithwaite, 2009; Hohe, 2003; McLeod, 2009). The importance of recognising the existence and prevalence of traditional justice systems in terms of development and police reform initiatives in post-conflict environments can be connected to participatory development practices and the need to include the recipients or beneficiaries of development in the development process (Mohan, 2008; Peet & Hartwick, 2009; Stenning & Shearing, 2005). The disintegration of centralised government and the failure of state functions such as the police and judiciary, as was the case in Solomon Islands and Timor-Leste (International Crisis Group, 2006; Liloqula & Pollard, 2000) as well as in other locations, has seen a call for the use of alternative judicial processes that have a more restorative or reconciliatory focus than many Western models of law which have retributive and punitive characteristics (Stenning & Shearing, 2005). Traditional systems have demonstrated their ability to be durable and able to withstand civil strife and still be able to function if the formal state systems fail (Dinnen, 2009). This in part could be due to the traditional systems being relevant and familiar to people as they are endogenous and contextual (Bennett, 2002; Dinnen, 2009; Dinnen & Braithwaite, 2009; Rohorua, 2006). It is also important to consider the role of colonisation in examining how some traditional societies police themselves as many have been subjected to both overt and passive control and domination that included the imposition of laws and processes that were foreign and often irrelevant to those people and which actually worked to maintain them in a state of subjugation (Dinnen & Allen, 2013). Not only were the colonisers laws and systems strange but they sometimes disrupted the social order. For example in the Timor-Leste context, Dikur (2012) writes that the European colonisers who arrived in Timor-Leste in the 16th Century either 41 misinterpreted or ignored the Timorese concepts of feminine and masculine power and authority and imposed their own concepts of gender roles. Timorese women and men were traditionally not restricted from social, ceremonial or political functions because of their gender but more for reasons concerned with their individual capacity to perform such tasks. However, the colonisers placed their own gender biases on such roles and excluded women from their interactions with the Timorese and placed often inappropriate people in positions of political power therefore upsetting the social balance (Dikur, 2012). There is also an element that many cultural groups were forced to become members of a larger state as a result of colonisation, an example being Solomon Islands. Prior to the establishment of Solomon Islands as a protectorate of the British Empire in 1893, the inhabitants of the hundreds of islands that make up Solomon Islands did not identify as a group comprising a single nation but rather as many entirely different groups of people each with their own language and customs (Bennett, 2002; Dinnen, 2009; Rohorua, 2006). Whilst traditional systems are by no means homogenous and in fact have a very broad spectrum of types, even within relatively small populations and geographical areas (Babo-Soares, 2004; Bennett, 2002; Dinnen, 2009; Dinnen & Braithwaite, 2009; Rohorua, 2006), there are some aspects which are common amongst many traditional systems, and not just within the Pacific region (Dinnen, 2009). Of these are the concepts of resolution, reconciliation and restoring the community to a state of harmony (Dinnen, 2009; Hohe, 2003; Melton, 1995; Rohorua, 2006). For example, Native American traditional justice systems share with traditional Timor- Leste systems a holistic structure where disputes or conflicts are not between individuals but families or communities. Wrongdoings are not seen to have been committed against an individual but against the group and the resolution process aims to bring harmony and peace back to the entire community (Hohe, 2003; Melton, 1995; Wallis, 2012). Another common feature of traditional systems is that all those involved in the process are members of the group. Those people who hold a role that could be compared to a judge or arbitrator, such as village chiefs, do not necessarily have the same function as a judge in Western countries as they might not make unilateral decisions as to guilt but act more as facilitators to help 42 the parties involved reach a consensus to resolve the matter (Babo-Soares, 2004; Dinnen, 2009; Dinnen & Braithwaite, 2009; McLeod, 2009). They are also known to the parties involved and are aware of their history (Dinnen, 2009). Other commonalities between traditional justice systems are that they are consented to by the parties involved and are participatory in that all the parties are involved to some degree in the decision making process which is consultative (Dinnen, 2009). Traditional systems in Papua New Guinea, Timor-Leste, the South Pacific and the South Eastern region of Afghanistan share a common feature in that dialogue between the parties in conflict is seen as an essential part of the resolution process (Dinnen, 2009; Hohe, 2003; McLeod, 2009). Unlike Western systems where rules are written into codified laws which are separated into criminal and civil matters, these traditional systems do not distinguish between the two. Knowledge of what is wrong and how transgressions should be dealt with is passed on through oral traditions to elders and people who have a knowledge and understanding of the complex social systems and the people involved (Dinnen, 2009; Dinnen & Braithwaite, 2009; Hohe, 2003; Melton, 1995). Traditional judicial systems will deal with all aspects of social strife and issues, not just those that would be considered a criminal matter in a Western system (Chinn & Everett, 2008). Another aspect of traditional justice systems that differs significantly from Western systems is the distinction of offenders and victims as individuals in Western criminal judicial systems, whilst in traditional systems problems or transgressions are considered more communal and offence is not caused against a single person but their family (Hohe, 2003). For example, in traditional Timor-Leste society, rape is not recognised as a crime against the individual, the woman who was assaulted, but against her husband or family. Compensation is paid to the male members of the victim rather than to the victim herself (Hohe, 2003). These are considered legitimate structures by the community in general. In the Pashtun tribal area of Afghanistan and inTimor-Leste, due to a collective or communal rights approach, peace or harmony between groups is considered more important than the rights of individuals (Schmeidl & Karokhail, 2009). This can pose a problem in relation to human rights as traditional justice systems have been described as weak when it comes to protecting the rights of the 43 marginalised or less powerful in a community, often women and children (Dinnen, 2009). Actions or behaviours that in the West would be recognised as a crime, such as domestic violence or child sex abuse, are not necessarily recognised as such in other societies and traditional systems can serve to reinforce unequal power dynamics (Dinnen, 2009; Hohe, 2003; The Asia Foundation, 2013). An example of traditional systems superseding human rights are processes of resolution that involve the payment of compensation which in the case of Pashtun tribes may require that a female member of the offender's family is given as compensation to the victim's family (Tariq, 2008). Other issues or problems that relate to the execution of traditional justice systems are that there is often a lack of accountability in a formal sense and that there may not be available mechanisms that allow a person to appeal a judgement or protest at a decision made by someone who is incompetent or corrupt (Dinnen, 2009). People, likely to be those who lack power or influence, may also be coerced into agreeing to a resolution in order to appease other people (Dinnen, 2009). The above discussion on traditional justice systems has focused on the totality of the judicial systems, including not only the processes but the end result. However in the context of police reform, policing in Western countries typically has more of a focus on the investigation and prosecution of criminal offences and the courts and judiciary are responsible for determining guilt and imposing sanctions (Bayley, 2001; Skolnick & Bayley, 1988b; Wright, 2002). The delegation of the role of identifying those who have offended to specific people, like police officers, might not be necessary in small localised communities where everyone knows everyone else and where they live. Many traditional justice systems share not only the processes of justice but also what the ultimate goal or outcome should be. These features of traditional justice systems are a result of the practicalities of life in a village setting or in a small community where people live in close proximity to each other and are often reliant on each other to survive. There is a need for conflict to be settled so that everyone can resume a harmonious existence as there is no facility for people to be 44 incarcerated. Restoration of the social balance and harmony of a community is a common goal and sanctions against the wrongdoers often involve a form of reparation or compensation (Babo-Soares, 2004; Bennett, 2002; Dinnen, 2009; Dinnen & Braithwaite, 2009; McLeod, 2009; Wallis, 2012). In traditional Timor- Leste communities, the concept of incarcerating a person for committing a crime can be viewed as alien as in prison a person does not work and grows fat, something that happens to rich people. Also a person who cannot work cannot pay compensation to their victims, a process necessary to achieve resolution (Hohe, 2003). Instead traditional Timorese reconciliation customs such as nahe biti, which has the literal meaning 'stretching the mat,' involves the essential world view and cosmology of the Timorese people. This entails that there must be a balance between the world of the living and the world of the spirits and ancestors and if this balance is upset there will be harmful repercussions and conflict for those in the living world (Babo-Soares, 2004; Hohe, 2003). Nehe biti is the process of bringing together people who are in conflict to dialogue and facilitate a reconciliation. The people involved sit on a woven mat in a designated venue and discuss the problems with the goal of healing mistakes. Prior to beginning and taking part in the process the participants must commit to seeking a solution to the issues (Babo-Soares, 2004). Similarly, in Solomon Islands where kinship is the traditional basis of social order, kastom-law is the traditional system used to regulate behaviours and it is described as practices that embody the important values and principles of Solomon Islanders. It is a system that aims to mend or strengthen relationships through a process of restorative justice and the payment of compensation (Bennett, 2002; Dinnen & Haley, 2012; Rohorua, 2006). 44.2 The Existence of Duel Judicial Systems or Legal Pluralism Legal pluralism is a term used to describe the occurrence of two or more legal or judicial systems that exist and function within a state (Dinnen, 2009). In post conflict or transitional states the implementation or rebuilding of a Western based judicial system by external organisations can create a situation where there is legal pluralism or dual judicial systems operating; a formal state legal system and the traditional informal dispute resolution processes that are carried out at a local community level (Dinnen, 2009; McLeod, 2009). However, in Timor-Leste and 45 Solomon Islands legal pluralism existed prior to the conflict that saw the breakdown of government and state structures. Legal pluralism existed as soon as formal state laws and judicial systems were introduced by the colonisers, and this is the case in many other Pacific countries (Babo-Soares, 2004; Bennett, 2002; Dinnen, 2009; Dinnen & Braithwaite, 2009; McLeod, 2009). With post- colonisation, many newly independent countries adopted the judicial systems of their former colonial masters, including their policing styles even though they were far from what existed or were practised prior to colonisation. These systems are often still foreign to people and often, though not always, ineffective for the majority of the population (Dinnen & Allen, 2013; Dinnen & Braithwaite, 2009). There are many reasons why legal pluralism occurs, some of which have already been mentioned, such as preference for the traditional systems due to their relevancy and familiarity. In Papua New Guinea, many communities do not consider a matter resolved unless it has been dealt with by the non-state or traditional resolution process as the state legal process is seen as irrelevant (McLeod, 2009). Another reason is that state authority and resources do not always extend into remote or isolated communities. This may be due to limitations experienced by the state in operating in remote regions due to a lack of resourcing for police and the judiciary or a lack of political will to do so (Dinnen, 2009; Dinnen & Braithwaite, 2009; McLeod, 2009; Tariq, 2008). The situation of a lack of policing and judicial structures in the remote areas of Solomon Islands and Timor-Leste could be an example of what Menkhaus (2010) describes as hinterland failure when discussing a typology of failed states. Hinterland failure is a situation where a weak government has some level of control in areas of strategic importance but does not have either the political will or capacity to exercise this control in remote or unimportant areas (Menkhaus, 2010, p. 90). In countries undergoing peace building and reform and in which legal pluralism exists, Chopra and Hohe (2004) and Wallis (2012) argue that instead of introducing liberal democratic structures consideration should be given to developing local-hybrid peace structures. Local or traditional practices could be incorporated into state building processes and as such would allow recognition of the particular needs of those living in communal societies where customary 46 practices are considered an integral part of life. Legal pluralism in Timor-Leste and Solomon Islands will be discussed in greater detail in the following sections. 44.3 Legal Pluralism in Timor-Leste A 2008 community and police perceptions survey carried out by The Asia Foundation in Timor-Leste revealed that although the public in general believed that the security situation in Timor-Leste had improved and that they had high levels of confidence in the national police force, the PNTL, the majority of people considered elders and community leaders as responsible for law and order issues. In most cases the majority did not consider the PNTL as their first option when reporting a crime or if dealing with a dispute of some sort (Chinn & Everett, 2008). For example, when asked who they would seek assistance from if their cow was stolen, only 26% of the public said that they would seek assistance from the PNTL. The majority said that they would seek assistance from the their village chief or elder (Chinn & Everett, 2008, p. 45). In cases of domestic violence where a female friend or relative was assaulted by her husband, only 19% said that they would seek assistance from the PNTL while 40% said they would negotiate directly with the husband (Chinn & Everett, 2008, p. 47), perhaps demonstrating that domestic violence is viewed as a private matter that does not involve community resolution (Hohe, 2003; Wallis, 2012). What the survey revealed was that there was a lot of diversity amongst the Timorese population as to what constituted a 'crime' and who was involved in resolving the problem (Chinn & Everett, 2008). Disputes seemed to fall into the category of either 'small' or 'big' problems with big problems potentially leading to situations that extended beyond the village and could threaten the security of the community, such as murder or the theft of large numbers of cattle. In the case of a 'big' problem the village chief might seek assistance from the formal or state judicial system, as in part, they would be unable to act as an impartial arbitrator or it was not in their mandate (Chinn & Everett, 2008). The survey also revealed that levels of education and where a person lived, for example a rural or urban location, had an influence in determining who Timorese would seek help from to resolve a problem. Of the survey respondents who were victims of a crime and who had a post-secondary education, 94% reported the crime to the PNTL whilst 60% of those victims who had a secondary education or 47 lower reported the crime to the PNTL (Chinn & Everett, 2008, p. 41). People were also more likely to report a crime to the police if they lived in Dili, the capital, than if they lived in rural areas (Chinn & Everett, 2008). There was, however, a lack of consistency or agreement across the survey respondents as to which organisation or structure was principally responsible for their communities security maintenance and many people indicated they would seek help from both traditional structures and state structures, which is indicative of the complex nature of Timorese judicial systems (Chinn & Everett, 2008). Another example of legal pluralism in Timor-Leste are the grassroots and state reconciliation processes that took place after the 1999 independence referendum which saw pro-Indonesian supporters flee to West Timor (Babo-Soares, 2004; Wallis, 2012). When the Indonesian military withdrew from Timor-Leste, then known as East Timor, they caused a significant amount of destruction and violence, as did anti-independence Timorese militia. The anti-independence militia and their families were then forced to flee to West Timor by pro- independence militia (Babo-Soares, 2004). The reconciliation processes involved the return and reintegration into communities of those people who became refugees in West Timor after fleeing there following the referendum. There were also reconciliations carried out to resolve conflict between groups caused by killings committed during the brief 1975 civil war and during the period of occupation by Indonesia. UNTAET and Timorese political leaders initiated the Commission for Reception, Truth and Reconciliation in which political leaders from opposing factions would be brought together to reconcile in the hope that it would encourage the supporters of the different factions to also reconcile (Babo-Soares, 2004). At about the same time 'grass roots' reconciliation ceremonies were being held at the local level, officiated over and initiated by local community leaders such as village elders and chiefs. These local level reconciliation ceremonies were aimed at bringing back refugees that were not part of the political elite but who nevertheless had affiliations with the various factions involved in the violence perpetrated. It was realised that even though the political leaders may have reconciled, this reconciliation had not always extended to the local community level. Further to this local leaders believed that each community had its own particular 48 circumstances and therefore each ceremony should be contextualised to those circumstances (Babo-Soares, 2004). 44.4 Legal Pluralism in Solomon Islands The formal state legal system in Solomon Islands is determined by the Solomon Islands Constitution which has regulated the country's laws and judicial structures since independence was gained in 1978. The system of governance that was adopted is that of the British Westminster style of government that ensures that the police and judiciary have independence from the government (Bennett, 2002; Dinnen, 2009). Little or no consideration was given to the traditional judicial systems that were, and still are, practiced by Solomon Islands populations when the state system was established. However there was the establishment of the Native Courts Ordinance in 1942 by the British in which native courts were given jurisdiction to apply customary laws to matters of a minor criminal or civil nature (Dinnen, 2009). It is the case in Solomon Islands, like Timor-Leste, that the majority of people especially in remote rural locations rely on traditional or customary laws and justice systems, known as kastom-law. Kastom-law has a strong focus on restorative justice, intending to resolve disputes within a community with the payment of compensation being the method used to help reconcile the disputing parties (Bennett, 2002; Dinnen, 2009; Rohorua, 2006). Like the Timorese traditional justice systems, the Solomon Islands kastom-law has developed so that conflict is resolved in a manner that re-establishes the social balance and harmony of a community (Dinnen, 2009; Rohorua, 2006). Although kastom-law is still the primary justice system used in Solomon Islands, for many people it has evolved over time and some practices that were acceptable in the past, such as vengeance killings and the kidnapping of women from other clans, are no longer practiced (Bennett, 2002). The preference for kastom-law over the modern state law by Solomon Islanders was revealed in the outcomes of the Peoples Survey 2010 conducted by RAMSI. When people were asked how justice and resolution processes could be improved, 46% suggested that greater respect be given to chiefs and 26% suggested that there 49 should be a greater role for kastom in proceedings (RAMSI, 2014). Less than 10% suggested that greater access to modern judicial processes would be an improvement (RAMSI, 2014). When RAMSI began to assist in rebuilding the state structures of Solomon Islands there was a recognition that there should be participation and decision making by Solomon Islanders in the processes of state reconstruction and peace building if those processes were to be sustainable. Local customs and local level reconciliation was acknowledged as an important part of the process and the question of the development of an appropriate justice system that incorporated the cultural values and practices of the different communities that compose Solomon Islands was raised (Hegarty, 2004). Further, it was accepted by some that traditional social structures and forms of governance were largely incomp