rule of law vetting en

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UNITED NATIONS

IcE Of ThE UNITED NATIONS

hIgh cOmmISSIONEr fOr

hUmAN rIghTS

RULE-OF-LAW TOOLS FORPOST-CONFLICT STATES

Vetting:an operational framework


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OFFICE OF THE UNITED NATIONSHIGH COMMISSIONER FOR HUMAN RIGHTS

RULE-OF-LAW TOOLS FORPOST-CONFLICT STATES

Vetting: an operational ramework

UNITED NATIONSNew York and Geneva, 2006


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NOTE

The designations employed and the presentation o the material in this publication do not imply

the expression o any opinion whatsoever on the part o the Secretariat o the United Nationsconcerning the legal status o any country, territory, city or area, or o its authorities, or concern-ing the delimitation o its rontiers or boundaries.

Material contained in this publication may be reely quoted or reprinted, provided credit isgiven and a copy o the publication containing the reprinted material is sent to the O ce othe United Nations High Commissioner or Human Rights, Palais des Nations, 8-14 avenue de la

Paix, CH-1211 Geneva 10, Switzerland.

This publication has been produced with the nancial assistance o the European Union. Theviews expressed herein can in no way be taken to refect the o cial opinion o the EuropeanUnion.

HR/PUB/06/5


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CONTENTS

Page

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. VETTING, INSTITUTIONAL REFORM AND TRANSITIONAL JUSTICE. . . . . . . . . . . . . . . . . . . . . . 3

II. ROLE OF INTERNATIONAL ACTORS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

III. CONDITIONS OF TRANSITIONAL PERSONNEL REFORM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

A. Post-confict or post-authoritarian context: the need or pragmatism . . . . . . . . . . . . . . . . . . . . . . 9

B. Legal mandate or personnel re orm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Priorities in personnel re orm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

D. Public in ormation and consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

IV. OPERATIONAL GUIDELINES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

A. Assess the situation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. De ne the parameters, standards and outcomes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

C. Design the process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32


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FOrEwOrd

The O ce o the United Nations High Commissioner or Human Rights (OHCHR) has increasingly recog-

nized the need to enhance its assistance in United Nations-wide e orts to work quickly and e ectively tore-establish the rule o law and the administration o justice in post-confict missions. Countries emergingrom confict and crisis are vulnerable to weak or non-existent rule o law, inadequate law en orcementand justice administration capacity, and increased instances o human rights violations. This situation iso ten exacerbated by a lack o public con dence in State authorities and a shortage o resources.

In 2003, OHCHR, as the United Nations ocal point or coordinating system-wide attention or humanrights, democracy and the rule o law, began to develop rule-o -law tools so as to ensure sustainable,long-term institutional capacity within United Nations missions and transitional administrations to re-spond to these demands. These rule-o -law tools will provide practical guidance to eld missions and

transitional administrations in critical transitional justice and rule o law-related areas. Each tool canstand on its own, but also ts into a coherent operational perspective. The tools are intended to outlinethe basic principles involved in: Mapping the Justice Sector, Prosecution Initiatives, Truth Commissions,Vetting and Monitoring Legal Systems.

This publication sets out an operational ramework or vetting and institutional re orm and is intendedto assist United Nations eld sta in advising on approaches to addressing the challenges o institutionaland personnel re orm in post-confict States through the creation o vetting processes that excluderom public institutions persons who lack integrity. The tool is divided into three majors sections: theconcept o vetting in the context o institutional re orm and transitional justice; the political conditions

o post-confict or post-authoritarian re orm, identi ying the sources o a personnel re orm mandate,recommending priorities in transitional personnel re orm, and proposing the development o a publicconsultation and in ormation strategy; and the operational guidelines themselves.

The principles used in this tool have been primarily garnered rom previous experience and lessonslearned in developing vetting processes. Clearly, this document cannot dictate strategic and program-matic decision-making, which needs to be made in the eld in the light o the particular circumstanceswithin each post-confict environment. However, the tool is meant to provide eld missions and tran-sitional administrations with the undamental in ormation required to advise e ectively on developingprocesses to ensure the exclusion rom public institutions o persons who lack integrity, in line with

international human rights standards and best practices.

The creation o these tools is only the beginning o the substantive engagement o OHCHR in transitional justice policy development. I wish to express my appreciation and gratitude to all those who havecontributed to the preparation o this important initiative.

Louise ArbourUnited Nations High Commissioner or Human Rights


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Acknowledgements

OHCHR wishes to thank the individuals and organizations that provided comments, suggestions

and support or the preparation o this tool. In particular, it would like to grate ully acknowledgethe consultant who had primary responsibility or developing the tool, Alexander Mayer-Rieckh.OHCHR would also like to acknowledge the organization that provided essential support to theconsultant, the International Center or Transitional Justice.

Special thanks are due to the United Nations Development Programme and the European Com-mission, whose fnancial contributions made it possible carry out this project and publish thistool.


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INTrOduCTION

Re orming institutions contributes to achieving a central objective o an e ective and legitimate

transitional justice policy: the prevention o uture human rights abuses. One important aspecto institutional re orm e orts in countries in transition is vetting processes to exclude rompublic institutions persons who lack integrity. The multi aceted shortcomings o post-confictor post-authoritarian public institutions call, however, or a comprehensive approach to institu-tional re orm. These operational guidelines situate vetting in the broader context o re orminga public institutions personnel and propose a ramework to develop an e ective and legitimatepersonnel re orm programme in countries in transition.

The document is divided into three major sections. The rst de nes the concept o vetting inthe context o institutional re orm and transitional justice. The second discusses the politicalconditions o post-confict or post-authoritarian re orm, identi es the sources o a personnelre orm mandate, recommends priorities in transitional personnel re orm, and proposes the de-velopment o a public consultation and in ormation strategy. The third presents the operationalguidelines themselves and recommends a three-stage methodology emphasizing the need toassess the situation and needs; to de ne the personnel re orm objectives; and to design a ea-sible personnel re orm process that respects undamental rule-o -law standards.

The qualities o public personnel all into two basic categories, capacity and integrity. Capac-ity re ers to the qualities that enable personnel to ul l the technical tasks o the institutions

mandate. Integrity relates to the qualities that enable it to ul l this mandate in accordance withundamental human rights, pro essional and rule-o -law standards.

There is no one-size- ts-all response to vetting and personnel re orm in transitional contexts.A context-speci c approach based on public consultations and a realistic assessment o needsand available resources is, there ore, a basic condition or e ective re orm. 1 The operationalguidelines provide a methodology to develop context-speci c vetting and personnel re ormprogrammes. Not every point o these guidelines will, however, be relevant in each situation;speci c types o institutions raise particular challenges that are not all elaborated; and the politi-

cal and practical realities o a country emerging rom confict or authoritarian rule might placeconsiderable constraints on the re orm process. While it is advisable to ollow the three basicsteps o the proposed methodologyassess the situation, de ne the objectives and design theprocessthese guidelines should be used as a toolbox rather than an operating manual.

1 Report o the independent expert to update the Set o Principles to combat impunity, Diane Orentlicher (E/CN.4/2005/102,para. 9).


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I. VettIng, InstItutIonal RefoRm andtRansItIonal JustIce

Re orming public institutions is a core task in countries in transition rom authoritarianism orconfict to democracy and peace. 2 Public institutions that perpetuated a confict or served anauthoritarian regime need to be trans ormed into institutions that support the transition, sus-tain peace and preserve the rule o law. Institutions that abused human rights and de endedthe partisan interests o a ew need to become institutions that protect human rights, preventabuses and impartially serve the public. Dys unctional and inequitable institutions that createdear need to turn into e cient and air institutions that enjoy civic trust.

In building air and e cient institutions, institutional re orm contributes to providing transitional justice in two principal ways. First, air and e cient public institutions play a critical role in pre-venting uture abuses. Following a period o massive human rights abuse, preventing its recur-

rence constitutes a central goal o a legitimate and e ective transitional justice strategy. 3

Second, institutional re orm contributes to transitional justice in that it enables public institu-tions, in particular in the security and justice sectors, to provide criminal accountability orpast abuses. A re ormed police service, or example, can pro essionally investigate the abusescommitted during the confict or the authoritarian regime; a re ormed prosecutors o ce cane ectively issue indictments; and a re ormed court can impartially render judgement aboutthose past abuses. Institutional re orm may, there ore, be a precondition or providing domesticcriminal accountability or the abuses o the confict or the authoritarian past.

2 See generally the report o the Secretary-General on the rule o law and transitional justice in confict and post-confictsocieties (S/2004/616).

3 Question o the impunity o perpetrators o human rights violations (civil and political), Revised nal report prepared byMr. Louis Joinet pursuant to Sub-Commission decision 1996/119, in which he re ers to guarantees o non-recurrenceto avoid victims having to endure new violations a ecting their dignity (E/CN.4/Sub.2/1997/20/Rev.1, para. 43); and theupdated Set o Principles or the protection and promotion o human rights through action to combat impunity, principle 35(E/CN.4/2005/102/Add.1).


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E ective and sustainable institutional re orm is a complex and challenging task. Institutionalre orm measures may include, or example, the creation o oversight, complaint and disciplinaryprocedures; the re orm or establishment o legal rameworks; the development or revision oethical guidelines and codes o conduct; changing symbols that are associated with abusivepractices; and the provision o adequate salaries, equipment and in rastructure. E ective re orme orts might also have to review the unctioning o an entire public sector and consider merg-ing, disbanding or creating public institutions. The precise content and scope o those measureswill depend on the countrys circumstances.

While a comprehensive approach to institutional re orm is critical to ensure its e ectivenessand sustainability, these operational guidelines ocus on one area: the re orm o an institutionspersonnel. The principal constituents o a public institution are its employees. The institutionacts through its employees and is represented by them. Past mal unctioning and abuses wereo ten the result o various de cits o an institutions personnel. Personnel re orm is, there ore, acentral component o any e ective and sustainable institutional re orm process.

Vetting is an important aspect o personnel re orm in countries in transition. 4 Vetting can bede ned as assessing integrity to determine suitability or public employment. 5 Integrity re ers toan employees adherence to international standards o human rights and pro essional conduct,including a persons nancial propriety. 6 Public employees who are personally responsible orgross violations o human rights or serious crimes under international law revealed a basic lacko integrity and breached the trust o the citizens they were meant to serve. The citizens, inparticular the victims o abuses, are unlikely to trust and rely on a public institution that retains

or hires individuals with serious integrity de cits, which would undamentally impair the insti-tutions capacity to deliver its mandate. Vetting processes aim at excluding rom public servicepersons with serious integrity de cits in order to (re-)establish civic trust and (re-)legitimizepublic institutions.

Integrity is measured by a persons conduct. Vetting processes should, there ore, be based onassessments o individual conduct. Purges and other large-scale removals on the sole basis ogroup or party a liation tend to cast the net too wide and to remove public employees o in-tegrity who bear no individual responsibility or past abuses. At the same time, group removals

may also be too narrow and overlook individuals who committed abuses but were not memberso the group. Such broadly construed collective processes violate basic due process standards,are unlikely to achieve the intended re orm goals, may remove employees whose expertise is

4 E/CN.4/2005/102/Add.1, principle 36 (a); see also E/CN.4/2005/102, para. 68.5 See also S/2004/616, para. 52: Vetting usually entails a ormal process or the identi cation and removal o individuals re-

sponsible or abuses, especially rom police, prison services, the army and the judiciary.6 For a detailed discussion on the meaning o the term integrity and the scope o integrity required to hold public o ce, see

below (sect. IV.B.3 (b)).


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needed in the post-confict or post-authoritarian period, and may create a pool o discontentedemployees that might undermine the transition.

In addition to supporting institutional re orm e orts, vetting and excluding abusers can ul lanother important unction in a comprehensive transitional justice strategy. The scarcity omeans and resources in a post-confict or post-authoritarian context, as well as legal impedi-ments, a lack o personnel and large numbers o perpetrators, o ten preclude the criminalprosecution o all abusers and leave a so-called impunity gap. While vetting processes alsorequire signi cant resources, they are procedurally less complex than criminal prosecutions. Un-der circumstances o limited or delayed criminal prosecutions, the exclusion rom public serviceo human rights abusers may help to ll the impunity gap by providing a partial measure onon-criminal accountability. 7 Exclusions rom public service have a punitive e ect as they takeaway or pre-empt employment, public authority, and other privileges and bene ts. Excludingabusers should, however, not be used as a pretext or not pursuing criminal prosecutions. Notonly is there a duty to prosecute serious human rights crimes (see sect. IV.B.3 (b) below), but atransitional justice strategy will also be more e ective and legitimate i the various transitional

justice initiatives, in particular prosecutions, truth-telling, reparations and institutional re orm,complement each other. 8

More o ten than not, integrity de cits are not the only shortcomings o public employees inpost-confict or post-authoritarian situations, and the exclusion o persons who lack integritymay not bring about the personnel changes necessary to build a air and e cient public in-stitution, and prevent abuses rom recurring. 9 The employees o a public institution may, or

example, not only be human rights abusers, but also lack quali cations and skills, and the per-sonnel as a whole may ail to represent the population it is called to serve and/or have an ine -cient organizational structure. Many o the employees may have been appointed unlaw ully,violating procedural and quali cation requirements. The multi aceted shortcomings o a publicinstitutions personnel o ten represent complex and interrelated causes o past mal unctioningand abuses. The ollowing operational guidelines, there ore, integrate vetting processes intobroader personnel re orm programmes without ignoring the speci c challenges o integrityscreening in post-confict or post-authoritarian contexts.

7 E/CN.4/2005/102, para. 68.8 E/CN.4/2005/102/Add.1, principle 1 (listing the general obligations o States to take e ective action to combat impunity). See

also the other OHCHR rule-o -law tools or post-confict States in this series, e.g., those on truth commissions and prosecu-tion initiatives.

9 S/2004/616, para. 53: [V]etting processes should include attention to the technical skills, objective quali cations and integ-rity o candidates.


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II. Role of InteRnatIonal actoRs

In countries emerging rom confict or authoritarian rule, international actors o ten play animportant role in supporting ragile domestic institutions and in assisting to build peace andthe rule o law. International involvement in the design and implementation o a personnelre orm programme requires an invitation rom domestic authorities or, in the case o domesticopposition, an international mandate that provides international actors with an authority andmeans to intervene directly in domestic a airs and overrule domestic procedures i necessary.Depending on the circumstances and the mandate, international actors could advise domesticauthorities in designing a transitional personnel re orm programme, assist in its implementationthrough training, advising, monitoring and providing resources, or take the lead role in person-nel re orm and establish an internationalized personnel re orm process.

In general, personnel re orm processes under domestic leadership will be pre erable to interna-tionalized processes, as they prevent resentment against external imposition, provide a betterbasis or local buy-in and sustainability o the process, and ensure the application o local know-how. Personnel re orm processes are, however, o ten contested in the ragile political environ-ment o a country emerging rom confict or authoritarian rule, as they a ect access to andexclusion rom governmental power structures. This is true in particular when representatives oa ormer abusive Government continue to wield ormal or in ormal authority, which they standto lose through the re orm. Internationalized processes might then bring the necessary leverageand impartiality to ensure an e ective and air implementation o a personnel re orm.

When an internationalized process is established, every e ort should be made to involve do-mestic actors rom the beginning and as broadly as possible, ensure its integration into domes-tic law, and put in place provisions guaranteeing a seamless changeover rom the extraordinarytransitional personnel re orm process to regular domestic recruitment and disciplinary proce-dures. The establishment o a mixed domestic-international commission or a domestic commis-sion supported by an international secretariat should be considered.


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III. condItIons of tRansItIonal peRsonnel RefoRm

A. Post-con ict or post-authoritarian context: the need or pragmatism

At the end o a confict or an authoritarian regime, the public sector is requently in crisis. Theinstitutional context is o ten ragmented and fuid. Frequently, the public sector continues tooperate within organizational structures that supported the authoritarian rule or perpetuatedthe confict. Public institutions o ten keep links with their ormer leaders, remain divided alongpartisan lines and continue to pursue actional political interests. Public employees rom theconfict or authoritarian era o ten remain in place and oppose changes to the status quo.The number o employees is o ten infated. Some institutions are not unctioning, leaving agovernance gap. Frequently, the public in rastructure is dys unctional, and various re orm needscompete or scarce resources. Civic trust in the public sector generally remains low.

Post-confict or post-authoritarian circumstances constitute extremely challenging environ-ments or institutional re orm. Both the need or and resistance to re orm arise rom the publicsectors entanglement in the past. Institutional re orm programmes need to take into accountthe realities and contradictions o the post-confict or post-authoritarian period. Resistanceto re orm should be overcome because unre ormed institutions threaten the consolidation opeace and the rule o law. Yet employees removed rom o ce by a personnel re orm processmight themselves turn to criminal activity and undermine the transition. Re orm e orts alsoneed to consider the publics needs in the post-confict or post-authoritarian period. In theinterim, imper ect public service is usually pre erable to no service at all. Interim arrangements

with existing institutions might have to be put in place to avoid a governance gap. Institutionalre orm in post-confict or post-authoritarian contexts requires pragmatism, determination andendurance.

B. Legal mandate or personnel re orm

The end o a confict or an authoritarian regime is o ten marked by a ormal agreement, such asa peace treaty, a powersharing agreement or a United Nations Security Council resolution man-dating peace en orcement measures under Chapter VII o the Charter o the United Nations.


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These agreements or resolutions may set out the terms o a truce, non-violent confict-resolu-tion mechanisms, interim powersharing arrangements, electoral provisions and a roadmap to-wards a constitutional State. They o ten de ne the roles and responsibilities o the parties anddescribe the tasks to be accomplished during the transition. Personnel re orm provisions may beincluded in any o these agreements or resolutions or in a separate agreement.

Personnel re orm programmes are less likely to take place or may be delayed without a ormalmandate. Moreover, while a broad provision mandating institutional re orm should be inter-preted to include the re orm o its personnel, explicit personnel re orm and vetting provisionsplace an unambiguous obligation on the parties that is more di cult to circumvent. Peace ne-gotiators should, there ore, i the political circumstances o the negotiations permit, encouragethe inclusion o speci c provisions requiring personnel re orm in peace agreements in order toplace a clear obligation on the parties.

Once a personnel re orm mandate is established, it needs to be translated into concrete respon-sibilities and procedures. Doing so o ten involves taking controversial measures with signi cantconsequences or both the State and individuals subject to the process. To avoid prolongedperiods o uncertainty, a personnel re orm programme should be enacted as expeditiously asthe political and operational circumstances permit a ter thorough consideration o the views othe major stakeholders, including where appropriate a States legislature. Furthermore, person-nel re orm legislation should comply with constitutional and international norms, and be clearand precise in order to establish legal certainty and avoid ambiguity and political inter erence. Ian internationalized process is established, its regulations should be integrated in the domestic

legal ramework (see sect. II above).

C. Priorities in personnel re orm

In a post-confict or post-authoritarian context, the entire public administration might bene trom a personnel re orm programme. Personnel re orm programmes should, however, priori-tize the military, law en orcement, intelligence services, the judiciary and other institutions thatunderpin the rule o law. These public institutions are most directly responsible or maintainingstability and undamental security, and protecting basic human rights. Re orming these institu-

tions, including the re orm o their personnel, creates important conditions or an e ective andexpeditious transition to peace and the rule o law. 10

Confict and authoritarian rule lead regularly, however, to a ragmentation o public institutions,in particular in the security sector, with similar or overlapping mandates and infated numbers opersonnel. In such circumstances, an e ective personnel re orm programme should cover not

10 E/CN.4/2005/102/Add.1, principle 36.


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only one institution but the entire sector in question. In such a context, and generally in situa-tions that involve institutions with large numbers o personnel, a personnel re orm programmemight prioritize senior managers as their authority and infuence provide them with signi cantleverage over the re orm process. Particular attention should also be paid to employees whoare publicly known to have committed gross violations o human rights. They might constitutea serious liability to the re orm process and their continued employment undermines the trust-worthiness o the public institution.

D. Public in ormation and consultation

In order to (re-)establish civic trust and to (re-)legitimize public institutions, the public needs tobe aware o and trust the institutional re orm e ort itsel . Transparency about the re orm e ortsand consultation about its objectives will help in building con dence in the impartiality and e -ectiveness o the process, in ensuring that it e ectively responds to the actual needs o victimsand society in general, and in reducing uncertainty experienced by the personnel o the institu-tions undergoing re orm. Public awareness can also help in pre-empting later attempts to castdoubt on the validity o the process and to reinsert public employees that have been removedthrough it. Not only should a re orm process, there ore, include an e ective public in ormationmechanism, but the design o the process itsel should be in ormed by broad consultations withcivil society, in particular with victim groups and other re orm-minded constituencies. 11 SectionIV.A below provides several tools to ensure that the re orm is based on a thorough assessmentand broad public consultations.

11 Ibid., principle 35 (stating that institutional re orms should be developed through a process o broad public consultations,including the participation o victims and other sectors o civil society).


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IV. opeRatIonal guIdelInes

It is advisable to ollow a three-stage approach to establish a personnel re orm programme inpost-confict or post-authoritarian contexts. First, the current status o an institution and itspersonnel should be assessed, as should its social context, in order to identi y the personnelre orm needs (sect. A). Second, on the basis o the assessment, the organizational parametersand standards or a personnel re orm, in particular the number o sta , the composition opersonnel, job requirements and integrity standards, can be determined (sect. B). Third, oncethese parameters and standards are de ned, the re orm process itsel needs to be designed(sect. C). The ollowing guidelines provide an operational ramework or a three-stage person-nel re orm programme.

A personnel reform programme: overview

M an d a

t e: P e a c e

A gr e em en t

I m p

l em en t

Public needs

Sector andits institutions Mandate Individual Organizational Capacity Integrity

Replacements

Political willand resistance

Compositionof sector

Mandate

Organizational

parameters Number of staff Organizational chart Composition

Individualstandards Competence Integrity

Outcomes

A mechanism Independence Integrity Resources Multidisciplinary

2 types Review Reselection (Discipline)

3 phases Registration Selection Certification

A. AssessSituation

B. DefineStandards

C. DesignProcess


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Di erent types o institutions raise speci c challenges. Re orming security agencies, or exam-ple, usually elicits signi cant challenges concerning the processing o large numbers o employ-ees. Screening judges creates speci c concerns regarding the independence o the judiciary.Reviewing candidates or elected o ce raises questions concerning inter erence with the will othe electorate. Not every provision o the ollowing operational guidelines applies to each typeo public institution. These guidelines allow, however, or institutional di erentiation and thedevelopment o institution-speci c personnel re orm programmes.

A. Assess the situation

As a result o the confict or authoritarian rule, the public sector is o ten ragmented, theboundaries between public institutions are fuid and porous, and the number o public em-ployees is infated. Frequently, public employees were recruited in ormally without adequatetraining. O ten, public employees were involved in the confict or the authoritarian regime, hu-man rights abuses were widespread and systemic, and the consequences o these abuses are amatter o debate in the post-confict or post-authoritarian period. The organizational structureo an institution is o ten distorted during this period and does not meet the needs o a coun-try governed by the rule o law. Commonly, an institutions personnel does not represent thepopulation it is mandated to serve.

Some o these circumstances may or may not apply to the country in question. In countriesemerging rom confict or authoritarian rule, basic in ormation about a public institutions per-sonnel is requently not available. A thorough assessment should be carried out to identi y the

personnel re orm needs and risks, and design a suitable personnel re orm programme. Theassessment should involve (1) an evaluation o the public needs and capacities; (2) a review othe institutions personnel; (3) an appraisal o the pool o potential replacements; and (4) ananalysis o the political will to re orm.

1. Assess public needs and capacities

The needs o the public that an institution is called to serve should determine its organizationalstructure and the required pro le o its personnel. A society with a high number o gender-

related crimes, or example, may need to create specialized units with expert personnel todeal with these problems. A thorough assessment o the publics needs is necessary be oredetermining the personnel re orm requirements and designing a personnel re orm programme.Broad consultations with civil society and an opinion survey will ensure a comprehensive identi-cation o the public needs. Particular attention should be paid to the needs o victims, women,minorities and vulnerable groups.

Not only should the public needs be assessed but also the States capacities and resourcesavailable to establish and implement the personnel re orm. Capacities are generally limited and


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resources scarce in a society emerging rom confict or authoritarian rule. Realistic planningshould take into consideration the resources available to the process.

2. Assess personnel

(a) Capacity and integrity ramework

The capacity and integrity ramework provides a simple methodological tool to assess the per-sonnel o public institutions and to develop realistic personnel re orm measures. 12 It identi estwo undamental dimensions o public personnel, the individual and the organizational, anduses two basic categories to describe the qualities o public personnel: capacity and integrity.

The personnel o a public institution comprises the total number o individuals holding posi-tions. Personnel, there ore, has an individual and an organizational dimension. On the onehand, an institutions personnel consists o individual employees. On the other, the personnelo a public institution is de ned by an organizational structure.

The qualities o public personnel all into two basic categories, capacity and integrity. Capac-ity re ers to the qualities that enable personnel to ul l the technical tasks o the institutionsmandate. Integrity relates to the qualities that enable it to ul l this mandate in accordance withundamental human rights, pro essional and rule-o -law standards.

Capacity and integrity framework: a simple tool to assess

12 The capacity and integrity ramework was developed by Serge Rumin and Alexander Mayer-Rieckh, and has been applied inseveral United Nations peacekeeping operations.

INDIVIDUAL

I N T E G R I T Y

C A P A C I T Y

ORGANIZATIONAL

Education

Experience

Aptitude

Human Rights

Conduct

Propriety

Number

Structure

Composition

Accountability

Oversight

Service

M a n

d a t

e

Personnel of a public institution


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The two vertical columns represent the individual and the organizational dimensions. The hori-zontal rows correspond to the two basic qualities, capacity and integrity. The resulting our eldsrepresent a basic ramework to assess comprehensively the status o an institutions personnel:

Individual capacity relates to an employees quali cations, such as general educa-tion and pro essional training, pro essional experience and competence, as well asher or his physical and mental aptitude.

Individual integrity re ers to an employees adherence to international standards ohuman rights and pro essional conduct, including a persons nancial propriety.

Organizational capacity re ers to institutional qualities o personnel, such as thenumber o sta , the organizational structure and composition (gender, ethnicity,origin and religion).

Organizational integrity relates to procedures employed to institutionalize theprinciples and values o an institution, including disciplinary and complaint proce-dures, oversight mechanisms, ethical guidelines and codes o conduct.

(b) The institutions mandate

Using the capacity and integrity ramework as a methodological tool, the assessment starts withan analysis o the mandate o the institution to be re ormed. De ning the tasks and responsibili-ties o an institution, the mandate provides the substantive parameters or the organizationalstructure and or the terms o re erence o each individual position. The mandate is describedin the laws and statutes regulating the establishment, organization and responsibilities o theinstitution, and any internal rules and regulations.

During confict or authoritarian rule, public institutions requently take on tasks that di er romtheir mandated responsibilities. Some institutions transgress their responsibilities, other institu-tions take on the mandate o a di erent institution, and others again are marginalized or ceaseto unction. The assessment process should briefy map the confict or authoritarian historiesin order to appreciate the actual tasks carried out by the public institutions in question. Map-ping their histories provides basic in ormation on institutional re orm needs and also acilitatesthe integrity screening o public employees, as it provides indications on the past conduct oindividual employees.

(c) Pilot registration

At the end o the confict or the authoritarian regime, reliable in ormation on the number andstatus o employees is o ten limited, in particular in the large institutions o the civilian andmilitary security sectors. Frequently, personnel les and records have never been established orhave been improperly maintained, manipulated or destroyed. Assignments o individual staremain unclear and the organizational structure o a public institution is o ten ill-de ned. Theregistration is necessary to assess the capacity and integrity o a public institutions personnel.


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Registering is an important yet relatively uncontroversial start or a personnel re orm process.In general, the registration o public employees can be carried out even when the politicalcircumstances do not yet allow or the implementation o a comprehensive personnel re ormprogramme. The registration provides in ormation on the employees pro essional experienceand skills, as well as basic data on their activities during the confict or authoritarian rule.

Registration is time-consuming and resource-intensive, in particular when the number o em-ployees o a public institution (or several institutions) is large. Maintaining and updating the reg-istry once the initial registration is completed requires additional resources. During the assess-ment stage, it is generally su cient to carry out a pilot registration o a representative sampleo employees in order to identi y broad personnel re orm needs and design a personnel re ormprogramme. (For details on registration processes, see sect. IV.C.3 (a) below.)

(d) Integrity databank

Frequently, there is a particular lack o reliable in ormation on the integrity o public employeesand applicants or public service, especially on their conduct during the confict or the au-thoritarian rule. During such periods, human rights abuses are o ten covered up and evidenceis destroyed. The police and judiciary rarely investigate or prosecute abuses and indeed maymaintain a climate o impunity. Non-governmental organizations (NGOs) monitoring and inves-tigating human rights abuses are requently suppressed. While registration will uncover somebackground in ormation, it is usually not su cient to assess the integrity o individual publicemployees and applicants or public service comprehensively.

To collect reliable data on the integrity o public employees or applicants, an integrity databankshould be established through a proactive process o collecting background in ormation rom avariety o sources. Pertinent in ormation should be registered by alleged perpetrator rather than byincident. Sources o in ormation include personnel les, court records, party les, election registers,United Nations reports, NGO reports, truth commission reports, media reports and independentinvestigation reports. In ormation needs to be cross-re erenced and assessed or its credibility andreliability, in particular when it originates rom the period o confict or the authoritarian rule.

Secret police agencies that keep extensive secret les on individuals are a regular eature oauthoritarian regimes. In principle, these les can eed into an integrity databank. In ormationcontained in secret les is, however, o ten suspect and has to be treated with great caution.Moreover, the privacy o individuals, in particular o victims, witnesses, potential witnesses andpersons not involved in the personnel re orm, needs to be protected in accordance with basichuman rights standards.

Giving the public an opportunity to come orward with in ormation is another use ulavenue to collect in ormation on the integrity o public employees and applicants. Provided


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the security situation permits, lists with the names o employees and applicants could bebroadly publicized and a contact point could be established to receive in ormation on theirbackground.

(e) Risks o removals

Removed public employees who do not nd alternative employment and are not integrated intosociety may dri t into criminality and obstruct the re orm process. In particular the removal o alarge number o armed security personnel may constitute a signi cant security risk and repre-sent a threat to the transition itsel . The potential risks o removals should be assessed be oredesigning a personnel re orm programme, and options or providing severance pay and othertemporary assistance should be explored, in particular or public employees who are removedor reasons other than a lack o integrity. Personnel re orm programmes may be linked with dis-armament, demobilization and reintegration programmes. However, care should also be takento consider the rights o victims and assistance to removed o cials has to be balanced with theneeds o victims.

3. Assess pool o potential replacements

A personnel re orm programme may require the recruitment o new public employees to re-place removed employees or ll new positions. Competent replacements o integrity may notbe readily available, however. To minimize the risks o governance gaps and to measure the timeand resources needed to identi y, prepare and train new recruits, the pool o potential replace-

ments, and their general capacity and integrity, should be assessed.

In countries emerging rom confict or authoritarian rule, there may be great di culties nd-ing quali ed candidates and special training courses may have to be designed to build capacityquickly. It can also be di cult to persuade more quali ed individuals to join the public serviceas public employment in a transitional context might not be viewed as an attractive and sa eoccupation.

4. Assess political will and resistance

Resistance to re orm is a regular eature in countries emerging rom confict or authoritarianrule. Individuals and groups that risk losing power and infuence through a re orm programmeo ten resist its implementation. Leaders may, or example, continue to pursue the objectiveso the ormer regime or the confict era. Public employees who were involved or complicit inpast abuses have an interest in covering up those abuses and protecting their positions. Theassessment should identi y potential resistance to the personnel re orm process and risks to thepolitical transition, as well as re orm-minded individuals and constituencies that may assist inthe design and implementation o a personnel re orm programme.


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B. Defne the parameters, standards and outcomes

On the basis o the assessment, the objectives o the personnel re orm programme should bede ned. These include:

(1) De ning an institutions mandate(2) De ning the organizational parameters (composition and structure)(3) De ning the individual employment standards (job descriptions, entry quali cations,

etc.)(4) Balancing competing objectives and(5) Determining the consequences or those removed by the process

Again, the capacity and integrity ramework can serve as a methodological tool to de ne themandate, parameters and standards.

Capacity and integrity framework: a simple tool to plan

1. Defne the institutions mandate

The mandate o a post-confict or post-authoritarian public institution may have to be changedto meet the needs and requirements o a country governed by the rule o law. Signi cantchanges to a public institutions mandate will generally require organizational changes. Institu-tions may have to be merged or consolidated, reduced in size or enlarged, newly created orabolished as a result o changes to the mandate. Such organizational changes have a majorimpact on the personnel requirements o an institution and, there ore, should be made be oreestablishing a personnel re orm programme. Changes to the mandate o a public institution willgenerally require a political process resulting in legislative changes.

INDIVIDUAL

CAPACITY

ORGANIZATIONAL

CAPACITY

INDIVIDUAL

INTEGRITY

ORGANIZATIONAL

INTEGRITY

M a n

d a t

e

Personnel of a public institution


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2. Defne organizational parameters

Depending on changes to its mandate and on e orts to improve the e ciency o a pub-lic institution, its organizational capacity may have to be strengthened. This may result inchanges to the size and kind o departments, the number o posts, the ratio o senior man-agement to middle management to normal posts, and the composition o the institutionspersonnel.

The personnel composition o a public institution in a country governed by the rule o lawshould broadly refect the composition o the population it is called to serve. Representativeinstitutions have a better understanding o the particular concerns and needs o the variousgroups in a society, and more easily gain the trust o the public. There is, however, a widevariety o views on how representative public institutions should be, which depend onthe type o institution and its mandate, the speci c social-historical situation and politicalopinion.

Representativeness relates to a number o criteria, in particular gender, ethnicity, geographic or-igin and religion. Special measures might have to be taken to integrate ormer warring actionsand ex-combatants. Institutional representativeness is o acute relevance in countries emergingrom a confict with an ethnic, geographic or religious dimension, and particularly when there orm involves integrating public institutions that were divided along ethnic, geographic orreligious lines.

Decisions on the organizational structure and composition set the organizational parameters oa personnel re orm because they determine the number and type o public employees needed,a ect the job requirements or individual employees, and limit the number o posts available oremployees rom each gender, ethnic and religious group, and geographic region.

3. Defne individual employment standards

(a) Defne individual capacity standards

Once the organizational structure and the personnel composition o an institution are de ned,post-speci c job descriptions setting out the personal and pro essional quali cations need tobe established. These criteria re er to the pro essional competence and experience, and to thephysical and mental aptitude necessary to accomplish the technical aspects o a certain posi-tion. In ormation collected during a pilot registration will provide use ul indicators to de neindividual capacity standards that are appropriate and realistic in the speci c context. Therealities o a post-confict or post-authoritarian context may impose an initially low standardo pro essional competence, which should be gradually increased ollowing the provision otraining.


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(b) Defne individual integrity standards

To hold public o ce, individuals not only have to be competent but also need to be personso integrity. Individual integrity mani ests itsel in a persons adherence to international stan-dards o human rights and pro essional conduct, including a persons nancial propriety.While there is general agreement that integrity is a undamental requirement or publicservice, there is much debate over its precise meaning, as well as over the kind and scope ointegrity required to hold public o ce, in particular in countries emerging rom confict orauthoritarian rule.

While conduct is the measure o a persons integrity, past abuse cannot be more than an indi-cation o possible uture conduct. The circumstances o confict and authoritarian rule may ex-tenuate certain past acts, and, depending on the type o abuse, integrity can be at least partiallyrestored over time. Nevertheless, persons who committed gross violations o human rights orserious crimes under international law should not hold public o ce. These include in particulargenocide, war crimes, crimes against humanity, extrajudicial execution, torture and similar cru-el, inhuman and degrading treatment, en orced disappearance and slavery. 13 These are seriouscrimes which indicate a lack o integrity at a level that undamentally a ects a persons credibil-ity to hold public service. I a person were convicted and punished or such crimesand, in act,States have an obligation to prosecute these crimesexclusion rom public service would be anormal consequence. 14 A public employee who committed such acts has or eited the specialtrust placed in her or him and should be removed rom o ce. 15 A new recruit who committedserious crimes is unlikely to gain trust. Retaining or hiring such persons is likely to undermine the

trustworthiness o the entire public institution.

For abuse and misconduct below the level o gross violations o human rights or serious crimesunder international law, certain actors may provide an indication o whether a persons integ-rity has since been restored or may be regained in the uture. The ollowing questions may helpto determine such circumstances:

What was the speci c nature o the abuse or misconduct and what was the context? Was it a generalized institutional practice (e.g., a generally corrupt professional milieu)?

13 There is broad overlap between the concepts o gross violations o human rights and serious crimes under international law.For a de nition o serious crimes under international law, see E/CN.4/2005/102/Add.1, p. 6 and E/CN.4/2005/102, para. 13.See also Human Rights Committee, general comment No. 31 (CCPR/C/21/Rev.1/Add.13, para. 18).

14 Removal rom o ce does not obviate the duty to hold abusive employees criminally accountable. See, e.g., Human RightsCommittee, Concluding observations: Guatemala (CCPR/CO/72/GTM, para. 13). On the obligation to investigate and pros-ecute serious human rights violations and relevant case law, see also E/ CN.4/2004/ 88, paras. 2456.

15 See Human Rights Committee, Concluding observations: Argentina (CCPR/CO/70/ARG, para. 9), in which the Committeerecommended that Argentina should take measures to ensure that persons involved in gross human rights violations are re-moved rom military or public service. See also Concluding observations: Bolivia (CCPR/C/79/Add. 74, para. 15); case o Ve-lsquez Rodrguez, Inter-American Court o Human Rights, No. 4 (series C), para. 175, 29 July 1988; E/CN.4/Sub.2/1997/20/ Rev.1, para. 43; and E/CN.4/2005/102/Add.1, principle 36.


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Has the act o abuse or misconduct concluded or is it continuous? I concluded, has the act been acknowledged? Has the record improved? Has the act undamentally a ected civic trust? I so, will it be possible to regain civic trust?

Under what conditions?

A number o international codes provide norms that may assist in the development o concreteintegrity standards in speci c post-confict or post-authoritarian contexts. These include theUnited Nations pro essional codes, in particular the Basic Principles on the Independence o theJudiciary, the Guidelines on the Role o Prosecutors and the Code o Conduct or Law En orce-ment O cials, the United Nations Convention against Corruption, and international criminal,human rights and humanitarian law. 16 In ormation collected in the integrity database will pro-vide use ul indications on existing integrity de cits and will assist in developing appropriate andrealistic integrity standards or the situation in question. There are, however, no obvious criteriato de ne the precise kind and scope o integrity standards or lesser levels o misconduct andthese will have to be de ned in context.

4. Balance competing standards

The parameters and standards de ned within the categories o the capacity and integrityramework (organizational capacity, individual capacity and individual integrity) may projectconficting objectives o personnel re orm. The design o a personnel re orm programme maythere ore require di cult trade-o s and compromises.

In general, the legitimacy o a personnel re orm programme will depend on attaining certainminimum standards in each o the three categories. A public institution with competent butmono-ethnic personnel, or example, is unlikely to be trusted by other ethnic groups and mightnot understand their languages and concerns. The personnel o another institution might havehigh levels o integrity but lack competence. Despite best intentions, the personnel will notbe able to ul l the mandate o the institution. While employees with serious integrity de citsshould not be kept on, a care ul assessment that both manages the political legacy o a particu-lar confict or authoritarian regime and aims at establishing a air and e cient public institutionshould take place.

5. Defne outcomes

Various outcomes are possible i a public employee does not meet the minimum standards orcontinued employment. Outcomes should be de ned or each standard. I a public employeewas removed or a serious lack o integrity, his or her uture access to comparable public posts

16 For the pro essional codes and other basic standards, see Human Rights and Law Enforcement: A Manual on Human RightsTraining for the Police (United Nations publication, Sales No. E.96.XIV.5).


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should be restricted because his or her reduced trustworthiness undermines the e ectivenessand legitimacy o the public institution. A public employee could be disquali ed rom a cer-tain category o post, rom all posts in a public institution or rom public service in general.The disquali cation could be permanent or temporary, and reintegration into public servicecould depend on the ul lment o certain conditions, or instance, the acknowledgement o orcompensation or certain acts o misconduct. The employee could also be reassigned, put onprobation, demoted or barred rom promotion. Disquali cations could also result in denial oprivileges and other bene ts. Decisions about appropriate outcomes are context-speci c. Whileemployees who committed gross violations o human rights or serious crimes under interna-tional law should generally be disquali ed rom public o ce, the determination o appropriateoutcomes depends largely on the speci c circumstances o the transition.

I an employee is removed only as a result o changes to the organizational structure, numberor composition o personnel, this should not have any consequences or uture employability.The employee can immediately apply or another public post. I an employee lacks pro essionalcompetence that can be corrected through additional training, the employee could reapply orthe same position or apply or a similar position as soon as he or she has acquired the missingskills. While any appearance o rewarding abusers should be avoided, great care should also betaken to prevent, or at least alleviate, the detrimental e ects that removals might have on pub-lic employees who are removed or reasons other than lack o integrity. The personnel re ormprocess might, or example, oresee the provision o alternative employment, severance pay,reintegration assistance or retraining.

C. Design the process

Once the organizational parameters and employment standards o a public institution are es-tablished, the re orm process itsel needs to be established. The ollowing section providesguidance on designing the actual personnel re orm.

1. Special mechanism

Sel -re orm is generally di cult because vested interests undermine an objective assessment o

re orm needs and obstruct an e ective and air implementation o the process. In the complexpolitical circumstances o a country emerging rom confict or authoritarian rule, the ability opublic institutions to re orm themselves is even more limited. Frequently, these institutions havean interest in covering up past abuses and resist re orm. O ten, they maintain links with ormerleaders or continue to pursue the objectives o the ormer regime or the confict era. The needor re orm arises, however, to a signi cant extent rom the institutions entanglement in thepast. Moreover, the limited resources o public institutions in a post-confict or post-authoritar-ian situation leave them little room to implement burdensome personnel re orm in addition topursuing their regular responsibilities.


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A transitional personnel re orm should, there ore, generally be administered by a specially createdmechanism in the orm o a commission. This special commission should be independent to en-sure a air, impartial and legitimate implementation o the process. Establishing an independentcommission and ensuring the impartiality o its members may not be easy in the politically tensecircumstances o a country emerging rom confict or authoritarian rule. Its members should bedistinguished citizens o integrity who are not associated with a political party or ormer warringaction. The inclusion o non-national members may increase the independence and legitimacyo the commission. Broad consultations should precede the appointment o its senior membersby a high and independent authority, such as the constitutional court, the Head o State or aninternational institution. To ensure wide acceptability o the senior members, their appointmentmay be subject to approval by a body that enjoys wide civic trust. The senior members shouldbe appointed or the duration o the personnel re orm and should not be removable during thisperiod. Depending on the political circumstances and operational challenges, there could be onecommission or the entire public sector or separate commissions or speci c public institutions.

Personnel re orm processes are complex, time-consuming and resource-intensive, in particularwhen they concern institutions with large numbers o employees. Their success or ailure sig-ni cantly depends on a thorough evaluation o operational requirements and the provision oadequate time and resources. Registering employees, screening them, assessing their compe-tence and, in particular, investigating their background are all complex tasks that take time andrequire specialized skills. The special commission will need a well-sta ed secretariat to preparethe necessary in ormation and support the decision-making process. The sta o the secretariatshould be multidisciplinary and include project managers, in ormation system managers, law-

yers and technical experts. The commission and its secretariat should also be given adequatenancial and material resources, including secure o ce space, ling and in ormation manage-ment systems, means o transport and investigation equipment.

The establishment o a special and independent mechanism may pose serious challenges or thegenerally stretched economies o countries in transition. Given the importance o transitionalpersonnel re orm processes, the international community should support the establishment othese mechanisms.

The special commission may have to make unpopular decisions that could lead to security risksor its members. Arrangements need to be put in place to provide security or them.

2. Two principal types o personnel re orm processes

There are two principal types o transitional personnel re orm processes: review and reappoint-ment. In a review process, serving employees are screened to determine their suitability orcontinued service. In a reappointment process, an institution is rst disbanded, all employeeshave to reapply to a new institution and there is a general competition or all posts. These two


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types correspond to two basic approaches to institutional re orm: institutional restructuring andinstitutional re-establishment. The choice o type depends, in particular, on the extent o over-all personnel re orm required. At the end o this section, a less likely third type is introduced:regular disciplinary procedures.

(a) Review process institutional restructuring

(i) Concept

In a review process, a special transitional mechanism is usually established to screen servingpublic employees and determine their suitability or continued service. The primary objective isto remove those who are un t to hold o ce. In a review process, basic due process standardsapply, the burden o proo alls on the reviewing body and balance o probabilities will be theappropriate standard o proo ( or a detailed discussion o basic legal standards, see below).

A decision to put in place a review process builds on two premises. First, a special mechanism isneeded to implement the necessary personnel re orms in the post-confict or post-authoritarianperiod. The normal disciplinary and dismissal processes would be overwhelmed or insu cient.Second, the re orm objectives can be achieved through the removal o those employees thatare not t or service, and other organizational changes are not required or can be implementedseparately. A review process implies contractual continuity at the individual level and institu-tional continuity at the organizational level. Individual employees remain employed unless thereviewing body nds them un t to hold o ce. At the organizational level, a review processrepresents a gradual restructuring o a continuously existing institution. A review process is bet-

ter suited to addressing individual capacity and integrity de cits than to tackling organizationalde cits. Signi cant organizational changes can be addressed more e ciently by means o areappointment process (see sect. IV.C.2 (b) below).

(ii) Legal requirements

Fundamental due process guarantees also apply to non-criminal proceedings. 17 Public employ-ees that are subject to a review should, there ore, be a orded the basic guarantees that applyto an administrative due process o law. 18

17 International Covenant on Civil and Political Rights (ICCPR), art. 14 (In the determination o his rights and obligations ina suit at law). The European Court o Human Rights holds, however, that the due process protections o the EuropeanConvention do generally not apply to disputes between public o cials and the State ( Pellegrin v France, 8 December 1999).Public o cials who are subject to a vetting process in the European context may not be protected by the due process require-ments o the Convention. The Human Rights Committee took a di erent approach stating that the concept o suit at lawunder article 14 o ICCPR was based on the nature o the right in question rather than on the status o one o the parties(CCPR/C/51/D/441/1990, para. 5.2). In a more recent decision, the Human Rights Chamber or Bosnia and Herzegovina de-parted rom the Pellegrin precedent and admitted the case o a police o cer who challenged his dismissal (Rusmir Daferovic v The Federation of Bosnia and Herzegovina (3 December 2003), CH/03/12932).

18 In international human rights law, the due process requirements or non-criminal proceedings are less explicitly de ned thanthose or criminal proceedings. The basic guarantees described herea ter apply, however, to any due process o law.


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A review process should be individualized. Thus i a person is to be removed rom public o ceon the basis o criminal conduct, personal responsibility or the act must be established (al-though not necessarily according to the criminal standard o proo ; see below). Group liabilitygenerally contravenes basic due process standards. 19

Employees subject to a review should be granted a air hearing. This right includes certain basicelements: initiation o proceedings within a reasonable time and generally in public; noti cationo the parties under investigation o the proceedings and the case against them; an opportu-nity or those parties to prepare a de ence, including access to relevant data; an opportunityor them to present arguments and evidence, and to respond to opposing arguments and evi-dence, be ore a body administering the vetting process; the opportunity o being representedby counsel; and noti cation o the parties o the decision and the reasons or the decision. Asan overall rule, a hearing should be guided by the principle o equality o arms. Also, employ-ees subject to a review should be a orded the right to appeal an adverse decision to a court orother independent body. 20

In general, the burden o proo alls on the reviewing body to establish that a public employee isnot suitable to hold o ce. Under exceptional circumstances, the burden may be reversed whenthe group or unit the public employee belonged to during the confict or authoritarian rule hasa well-known history o human rights abuse. A reversal would create a rebuttable presumptiono unsuitability to hold o ce. 21 However, the use o a reappointment process should be consid-ered when a culture o abuse permeated the entire institution and large numbers o employeesmight have to be removed (see below).

As in administrative proceedings in general, a balance-o -probabilities standard will be the ap-propriate standard o proo in a review process, in contrast to the beyond-reasonable-doubtstandard required in criminal proceedings. 22 Under this standard, the review body is to ollowthe version o events that appears the most probable, reasonable or likely, a ter taking all theevidence into account.

Public employees (including judges) who were unlaw ully appointedin violation o proceduralor quali cation requirementsmay be relieved o their unctions by law. There is no need to

19 See, e.g., Council o Europe, Parliamentary Assembly resolution 1096 (1996), para. 12.20 E/CN.4/2005/102, para. 69.21 Council o Europe, Parliamentary Assembly, Measures to dismantle the heritage o ormer communist totalitarian systems:

Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements o a State based onthe rule o law (doc. 7568, para. 16 (h)), 3 June 1996.

22 The appropriate standard o proo is relative to the potential consequences o the proceedings. Since the consequences ovetting proceedings are less severe than those o criminal proceedings, proo beyond reasonable doubt is not required.


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establish other reasons or their removal. 23 They may, however, ask or an independent andimpartial body to review the decision.

The contractual obligations resulting rom separation o public employees as a result o a re-view should be honoured, in particular when employees are removed or reasons other thanlack o integrity. These may include a severance package and other special bene ts, pensions,etc. 24

(b) Reappointment process institutional re-establishment

(i) Concept

A reappointment process reverses the undamental dynamics o a review. The public institutionin question is rst disbanded, a new institution is established and there is a general competitionor all posts. All serving employees have to apply i they want to continue working in the newpublic institution. To avoid a governance gap, the employees may remain in o ce until suchtime as a nal decision is made about their uture employment status. I a serving employeeis not reselected, she or he ceases to hold o ce. While the primary objective o a review is toremove those individuals un t or service, the aim o a reappointment process is to select oro ce the most suitable and quali ed.

A reappointment process constitutes a pro ound intervention both at the individual and atthe organizational level. At the individual level, employees are turned into applicants and con-

tinued employment is conditional upon reappointment. A reappointment process shi ts theburden o proo to the applicant, who has to establish that he or she is the most suitable orthe vacant post. Unlike employees who are terminated in the course o a review, applicants ina reappointment process generally have no right to a hearing or judicial review i they are notselected, as there is no right to be appointed to public o ce. These procedural simpli cations,including the reversal o the burden o proo , streamline the personnel re orm signi cantly. Ina country emerging rom confict or authoritarian rule, a reappointment process acilitates theselection o the most suitable employees, rather than just weeding out those who are clearlyunacceptable.

At the organizational level, a reappointment process represents the establishment o a newpublic institution. The old institution ceases to exist. This approach acilitates personnel re ormprocesses that not only address individual capacity and integrity de cits but also requiresigni cant changes to the organizational structure and composition o an organization. A

23 E/CN.4/2005/102/Add.1, principle 30 (stating that judges unlaw ully appointed or who derive their judicial power rom anact o allegiance may be relieved o their unctions by law in accordance with the principle o parallelism).

24 Council o Europe, Parliamentary Assembly resolution 1096 (1996), para. 14.


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reappointment process provides a better opportunity or undoing structural inequalities andimplementing necessary institutional re orms, such as signi cantly modi ying the ethnic orgender composition o a public institution, and acilitates the reduction or reassignment opersonnel in the context o a consolidation or disbandment o public institutions.

The opportunity or re orming a public institution by means o a reappointment process is limitedby the number o quali ed replacements. In general, a reappointment process will be openedup to external candidates in order to replace unsuitable public employees or to ll new positionsollowing changes to the composition or organizational structure o a public institution.

(ii) Legal requirements

Under regular circumstances, the procedural consequences o a reappointment process, in par-ticular the denial o a hearing and a judicial review, as well as the reversal o the burden o

proo , would violate the undamental due process rights o the serving employees who are notreselected. These procedural reversals are justi able by a transitional process that requires sig-ni cant changes to the number o personnel, the organizational structure and/or the personnelcomposition o the public institution in question.

Moreover, in a country governed by the rule o law, constitutional sa eguards are in place,in particular the separation o governmental powers, to protect the rule o law and preventpolitical inter erence between public institutions, including arbitrary replacements in and re-structuring o the public sector by the executive branch o government. The independence othe judiciary provides special sa eguards or judges, in particular the principle o irremovability.Legal provisions generally protect the operational independence o the police and other secu-rity agencies. A reappointment process could undamentally undermine the rule o law andprovides opportunities or arbitrary inter erence in the workings o otherwise independentlyoperating governmental sectors. There ore, a reappointment process should be limited to cir-cumstances when the public institution in question is undamentally dys unctional and whenan overall improvement o the rule o law is unlikely to be accomplished without it. Moreover,a reappointment process should be carried out as quickly and as early as the political circum-stances permit in order to avoid protracted periods o legal uncertainty.

Again, the contractual rights resulting rom the separation o employees as a result o a re-appointment process should be honoured, in particular when employees are excluded or rea-sons other than lack o integrity. These may include a severance package and other specialbene ts, pensions, etc.

(c) Disciplinary process institutional regeneration

Review and reappointment are the two principal types o personnel re orm processes in post-confict or post-authoritarian contexts. In an established rule-o -law context, normal disciplinary


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procedures are applied to ensure the removal o public employees who lack competence orintegrity. The particular challenges o a transitional process generally overstrain these regularprocedures, and the capacity and will o public institutions to sel -re orm are particularly limitedin post-confict or post-authoritarian situations.

Nevertheless, the possibility o implementing the required personnel changes through the nor-mal disciplinary procedures cannot be entirely discarded. Normal procedures can and shouldbe used i the number o individuals that need to be screened is small or limited to a particularsection within a public institution, and i there is su ciently strong political will to implementsel -re orm. As a general rule, normal procedures should be given pre erence over any specialprocesses that in ringe on the certainty o the law.

3. Three phases o a personnel re orm process

A personnel re orm process generally consists o three phases: registration, screening and cer-ti cation.

(a) Registration

The registration o the public employees to be vetted is necessary i the personnel records oa public institution are not properly maintained and i the number and the status o publicemployees are uncertain. This is requently the case with large institutions in the securitysector that in ormally took on and dismissed personnel during the confict or the authori-

tarian rule. I the registration has not been completed during the assessment (see sect. IV.A.2 (c) above), it should be carried out as the rst phase o the personnel re orm processitsel . In a reappointment process, the registration can take place during the applicationprocess.

The basic objective o registration is to determine and close the pool o those individuals whobelong to a public institution and are, there ore, to be included in the personnel re orm. Thisdetermination has an important secondary e ect that ul ls a critical regulatory unction in acountry emerging rom confict or authoritarian rule: individuals who did not register should

not be considered members o the public institution. Once the registration is concluded,individuals should join the public institution only through the regular application and selectionprocedures.

The registration also provides the basis or assessing and screening public employees. Registra-tion orms include basic in ormation on a public employee and her or his pro essional record.The regulations guiding the personnel re orm should impose a strict obligation on the publicemployees to comply with the registration process. A signi cant material misrepresentationshould in itsel constitute grounds or disquali cation.


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Registering and maintaining a personnel registry are complex and time-consuming exercises,in particular when they concern institutions with large numbers o employees. It requiresdetailed planning, competent personnel and signi cant resources.

(b) Screening

The second phase represents the core o the personnel re orm. Once the public employees tobe included in the re orm process have been determined, they are screened to assess i theymeet the criteria or continued employment. Employment criteria are post-speci c and are de-termined in accordance with the level o the post in the organizational structure o an institu-tion (see sect. IV.B above).

In ormation on individual employees is systematically collected and stored in the personnelregistry. Data rom the integrity databank need to be integrated in order to include relevantbackground in ormation in the personnel registry. The screening consists in applying the em-ployment criteria to the data on individual employees. Additional checks and independent in-vestigations may be necessary to complete missing in ormation or veri y doubt ul in ormation.Training programmes may be put in place to raise the competence level o public employeesthat lack skills and expertise.

(c) Certifcation

Those public employees who meet the employment criteria are certi ed. Certi cation con-

stitutes the nal decision on the status o a public employee in the transition. The personnelre orm is completed once the certi cation status o all public employees has been determined.From then on regular procedures should regulate the management o personnel.

Certi cation could also require completion o a probationary period o service. This might beadvisable i the management o the re orm process is complex and the investigation o pastconduct is limited. During the probationary period, public employees and new recruits could beremoved more easily i additional in ormation emerged about past misconduct.

At the conclusion o the transitional personnel re orm process, e orts should be made to en-sure its sustainability and put in place regular appointment and oversight mechanisms. Thespecial commission could be turned into a regular appointment and oversight body or it couldbe terminated and other institutions could take on these unctions.

4. Phase a personnel re orm process

Transitional personnel re orm is politically controversial, operationally complex and resource-intensive. While operational guidelines provide a methodological ramework to develop a per-


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sonnel re orm programme, di erences in the political context, speci cities o the personnelre orm mandate and institutional particularities require context-speci c approaches. In a slow-moving and gradual transition, or example, in which ormer leaders continue to hold power,the removal o employees who committed human rights abuses may be resisted, but it may stillbe possible to change the organizational structure o a public institution, integrate the person-nel o divided institutions and remove employees who lack competence. Rather than applyingall personnel re orm criteria simultaneously, a personnel re orm process could be phased to takeinto consideration the complex political and capacity-related challenges o a transition. Suchdecisions are, however, likely to a ect public perceptions o the legitimacy or trustworthiness othe institution. While a personnel re orm process should aim at selecting competent and repre-sentative personnel o integrity, its concrete design should be adapted to the political realities,resources and re orm capacities o the transition in question.

Institutions with large numbers o personnel create signi cant operational challenges or avetting process. Again, a personnel re orm process could be implemented in phases or it couldprioritize certain groups o employees, in particular employees in senior management andsupervisory positions.


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Conclusion

Increasingly, vetting public employees, in particular in the security and justice sectors, is rec-ognized as a central component o an e ective and legitimate transitional justice strategy.

Countries emerging rom confict or undergoing a transition to democracy requently put inplace processes to exclude rom public o ce persons with serious integrity de cits in order tobuild air and e cient public institutions. There is, however, a broad variety o views about, andapproaches to, vetting. This is an emerging eld o transitional justice and lessons continue tobe learned.

While international law obliges States to adopt measuresincluding vettingto prevent therecurrence o human rights abuse, there is nevertheless signi cant fexibility regarding the ormsuch processes should take. Vetting strategies need to address the unique historical, social andpolitical challenges o each society con ronting a legacy o serious human rights abuses andseeking to re orm institutions in order to prevent the recurrence o such abuses. Di erent typeso public institutions also raise speci c concerns and vetting strategies need to respond to theparticular requirements o the institution to be vetted.

The operational vetting guidelines do not provide pre-packaged solutions and do not attemptto answer all questions that arise in the development o a vetting mechanism in a concretehistorical situation. Rather, they provide methodological tools that may help in the design ocontext- and institution-speci c vetting strategies. They emphasize, there ore, the need to be-gin any re orm e ort with broad consultations and a thorough assessment o the speci c con-

textual and institutional needs.

The guidelines also stress that the complex challenges o transitional contexts require a compre-hensive approach to institutional re orm. Vetting is but one aspect o institutional re orm, andan e ective and legitimate re orm strategy will situate vetting in its broader context. Likewise,institutional re orm should be accompanied by other e orts to deal with a legacy o humanrights abuse, including prosecuting those responsible or serious crimes, uncovering the truthand providing reparations to victims.


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