Entering the Forbidden Zone The World Bank, Criminal Justice Reform and the Political Prohibition Clause

Over the past 7 years or so, the World Bank has expanded its rule of law agenda by moving into the area of criminal justice reform. This turn to criminal justice reform, however obvious it may be from a development perspective, was — and still is — a controversial step. This is because the World Bank, like most other multilateral development banks, is prohibited by its basic legal document, the Articles of Agreement, from interfering in the political affairs of its members. It must make its decisions on the basis of economic considerations only. Following the 2011 World Development Report, which made the case for World Bank involvement in criminal justice, in early 2012 the Bank’s legal vice presidency released the Legal Note on Bank Involvement in the Criminal Justice Sector and a Staff Guidance Note: World Bank Support for Criminal Justice Activities.This paper shows how the Legal Note and the Guidance Note, by offering new interpretations of the World Bank’s mandate and of the criminal justice
sector, seek to incorporate criminal justice reform within the World Bank’s governance agenda. It argues that the interpretation offered by these documents is unconvincing in addressing the two components of the political prohibition clause, being the injunction to decide on the basis of economic considerations only and the prohibition on political interference. As a result, the Legal Note does not entirely succeed in its mission to provide ‘…a general legal framework for determining which interventions by the Bank in this sector would fall within the World Bank’s mandate under its Articles of Agreement’. This paper concludes by suggesting that some of the loose ends in the Legal Note and the Guidance Note can be explained by the purpose of this new legal interpretation of the mandate, which is not so much to provide a consistent legal argument, but rather — and above all — to play [to] constituencies with different interests and maintain the myth of a common understanding of the World Bank’s mandate and mission.