Law overruled: strengthening the rule of law in postconflict states.
Derived from political theory, the rule of law was always an ideal. This is reflected linguistically. European languages use the word law (droit, diritto, derecho, recht) to express both the idea of a legislated norm and the idea of a right. It is in this second sense that the "law" in the "rule of law" should be interpreted. Etat de droit, stato di diritto, estado de derecho, and Rechtsstaat refer to a state run on the higher principles of rights and justice and are opposed to a state merely administered by laws, which in German is called Gesetzesstaat.
When considering approaches to strengthen the rule of law in postconflict states, it must therefore be remembered that this concept is tightly bound with the development of a liberal democratic discourse in Western political thought. It has developed as part of a system of thought that includes the concept of natural rights--of a government controlled by the people and by checks and balances. Further, it must be remembered that the successful rooting of the rule of law in the West is a confluence of different interests and ideas applied on the body politic over time, and its application in Western countries has adopted multiple forms. In many ways, it still remains an ideal, and its application is constantly adapted and modified by new interests, ideas, and events. Note the effects that the terrorist attacks in New York and London have had on the rule of law in the United States and the United Kingdom.
The rule of law is associated with certain institutional arrangements, such as a constitution that sets up a political architecture based on the separation of powers and that grants individuals certain "natural" or "human" rights. Within this architecture, the judiciary must be independent and capable of reviewing executive and legislative action. There are, however, many different variations possible on this theme. Some countries have civil law systems, others common law; some do not have a constitution (the UK), but most do; in some, judges are elected, whereas in others, they are appointed; the scope of judicial review can be limited (France); the legal profession can be self-regulating or subject to a government's control.
It has been argued, however, that focusing on institutional arrangements amounts to advocating a "thick" version of the rule of law, too tightly bound with a particular cultural context, and that it is possible to posit a "thin" version, which would emphasize the efficacy and consistency of a legal system. Such a thin version would be limited to defining the entities that can create laws and the rules used to do so. Also, the body of laws passed must fulfill certain "formal" requirements, (1) and tribunals that apply the laws must be available and impartial. The prompt and effective implementation of the legal system's decisions must be ensured. Finally, there must be a "basic institutional requirement so that official discretion can be limited by law in some significant portion of the state's activities." (2) It is argued that limited to these attributes, the rule of law can be entrenched in a variety of political arrangements. (3)
The rule of law also needs a certain cultural anchorage. According to John Rietz, "The culture which institutes the rule of law to limit both private and public power consists of a combination of beliefs that law should limit the exercise of power backed up by sufficient behavior to make it reasonable to think that law in fact does exercise such a restraining function. In this sense, it has been said that the essence of the rule of law is the belief that 'law matters and should matter.'" (4) In postmodern terms, a discourse on the rule of law must come into being. Michel Foucault's archaeology of ideas sheds some light on this process. He has argued that this discourse was made possible by a slow process that combined the application of administrative techniques (such as statistical methods and urban planning) on the body politic with norm internalization. The result is a society that knows how to discipline itself and a state that can identify and socialize (or isolate) those that do not--a "disciplined" society. (5)
Finally, a brief note on the use of the term donors in this essay: I conflate bilateral donors (whether acting through their development arm or their political arm), multilateral agencies, private foundations, and international nongovernmental organizations (NGOs) in the term donors. Although their interests and positions do not always coincide, they can be seen as part of the same "team" of foreign entities acting within a host state to further reform agendas. They certainly are often seen as such by the host state, which stands bewildered by the number of acronyms before it.
The Context and the Tools
Donors attempting to strengthen the rule of law in postconflict states face a tough and particular context. In the words of Lakhdar Brahimi, "Conflicts, more often than not, are preceded by a breakdown in the rule of law. In some cases, the conflict will take place in a country or territory where there was not much rule of law to begin with. But in all cases, the conflict may rapidly lead to a total destruction of the existing security, judicial and legal systems." (6) With such a rule of law vacuum, criminality can quickly fill the void. Rule of law activities usually begin in this environment. Basic criminal justice must be addressed; legal personnel must be identified and trained; wider legislative needs should be identified; and heavy investment in infrastructure is usually needed.
A common problem in a postconflict context is that the law will traditionally have been a tool to exercise power, used only for the benefit of the elite and inaccessible to the majority of the population. Because there can be a language barrier to access, a minimum level of education and literacy in the "official" language is usually needed. Another barrier is that legal systems tend to be urban based, while the majority of the population is likely to be rural. According to Beatrice Pouligny, "In many contexts, the local law is no more than a paper somewhere which has nothing to do with the reality and the informal rules that have been developed, along the history, by the population." (7) It is therefore likely that the majority of the population will not seek recourse through the legal system but rather through alternative, possibly violent, mechanisms. It can be difficult to change these, because, as Rietz explains, "other social systems which partially substitute for the rule of law, patrimonial or patronage based systems, a credible commitment or authoritative guarantee by those in power, or even systems of rule by law may provide enough social stability and protection for the bulk of the population so that most people are unwilling to risk putting their trust in courts and the rule of law." (8) As such, donors in postconflict environments face not only acute supply-side problems, but also difficult demand-side issues.
There are a number of tools available for donors to conceptualize rule of law interventions, two of which I present here. First, Thomas Carothers posits three different types of reforms that can be used. (9) Type one reforms work directly on the laws, modernizing them, making the body of law coherent, adding new, more technical laws, ensuring compatibility with international standards. Type two reforms aim at strengthening legal institutions, both their human resources and their infrastructure. Judges, prosecutors, and police are trained, courthouses and law schools are built, and judicial decisions are published and distributed to courts and lawyers. This is where most current reform efforts lie. Type three reforms attempt to strengthen the rule of law by increasing judicial independence and state compliance with the law. This type of reform, in Carothers's view, depends more on enlightened leadership than on technical assistance and is the most difficult to achieve. Carothers's analysis is useful but does not help clarify how to tackle the most important area, type three reforms. It also does not provide a frame to see how the different types of reform interact with each other.
A second tool, a framework that addresses these weaknesses, is used by the UK's Department for International Development (DFID). (10) The legal sector is divided into four interrelated areas, each with corresponding institutions, processes, and agents:
1. The articulation, formulation, and drafting of rules. This encompasses norm creation by government and state bodies, reform advocacy by nongovernmental players, and advice and lobbying by professional associations.
2. The application and interpretation of rules. This process is reflected in public response to legislated norms, government and state application of these norms, and judicial and academic usage and legitimation.
3. The provision of legal representation and advice. This includes services by the legal profession, law schools, trade unions, and legal aid organizations, as well as public bodies such as ombudspersons and human rights commissions.
4. Public access and understanding. Again, advocacy groups, governmental and nongovernmental organizations, educational establishments, and the media can all be engaged for this process.
Using this framework, it is possible to look at which actors are involved in the various processes that contribute to strengthening the rule of law and how they interrelate and mutually affect each other. Any analysis of a legal system must look at each of these four processes, how they relate to each other in a particular context, and why actors interact as they do with such processes and thus behave as they do. This framework provides a flexible way to identify the processes that are weak and the actors that can be used to intervene.
It must be noted, however, that designing a single conceptual framework suited for use in very different fragile environments is an extremely difficult task, and the dogmatic use of any one framework should be eschewed. In practice, the problems that need to be addressed are rarely the same, and the tools used to address them need to be infinitely flexible and capable of adaptation to suit local realities. Although each situation is unique, recent practice provides important lessons to complement a theoretical analysis of ways to strengthen the rule of law in postconflict states. I therefore look at two case studies: Kosovo and Haiti.
On 24 March 1999, NATO started bombing the Federal Republic of Yugoslavia (FRY), after reports that massacres of the Kosovar-Albanian population were being perpetrated by Serb forces. Seventy-eight days later, the Security Council passed Resolution 1244, which provided for the withdrawal of the Yugoslav administration and security forces from Kosovo and their replacement by a United Nations Interim Administration Mission in Kosovo (UNMIK), buttressed by the NATO-led Kosovo Force (KFOR) to provide security. UNMIK, composed of four pillars, was to take over responsibility for every aspect of the state, including the administration of justice. The UN was put in charge of the civil administration, the European Union (EU) was to head reconstruction efforts, the Organization for Security and Cooperation in Europe (OSCE) was tasked with institution building and democratization, and the United Nations High Commissioner for Refugees (UNHCR) was in charge of humanitarian affairs. All four pillars were under UN jurisdiction and headed by a special representative of the secretary-general (SRSG).
Premission planning had been weak. The small United Nations Department of Peacekeeping Operations (DPKO) team that began planning and designing the mission lacked time and staff, and existing studies of the legal sector in Kosovo previously undertaken by the OSCE were not available. When UNMIK and KFOR entered the scene, the security situation was dire:
[There are] high profile killings and abductions, as well as looting, arsons and forced expropriation of apartments. The security problem in Kosovo is largely a result of the absence of law and order institutions and agencies. Many crimes and injustices cannot be properly pursued. Criminal gangs competing for control of scarce resources are already exploiting this void. (11)
KFOR arrested hundreds of suspected criminals, but there were limited correctional facilities, no judicial system to prosecute, and no law to apply.
The first official act of the SRSG was to declare that the law of the FRY was to be the applicable law, insofar as it was consistent with international standards. No prior consultations with local actors had, however, been held, and the local UNMIK-appointed Kosovar-Albanian judges objected to applying this body of laws, identifying it with the Serbian system that had marginalized them. Instead, they began applying the law in force in Kosovo prior to 22 March 1989, corresponding to the date when Kosovo lost its status as an autonomous province. The result was that inconsistent laws were being applied in the courts. Some months later, the SRSG changed the applicable law to the pre-1989 law.
The other immediate problem UNMIK discovered was that the conflict had inflicted serious damage on the infrastructure of the legal system. As William O'Neill found, "Court buildings looked like a plague of heavily armed locusts had swept through scouring the ground for anything valuable and leaving broken windows and ripped out electric sockets in their wake." (12) Immediate efforts were made to rehabilitate premises and basic administration. Work on the establishment of a Supreme Court was started and, meanwhile, an ad hoc Court of Final Appeal and an ad hoc Office of the Public Prosecutor were established. Provisional district courts and offices of the District Public Prosecution Service began to function in four of the five regions.
Judges were also needed. The SRSG decided to use local judges, with the rationale that international judges would take too long to become familiar with the applicable law. He established the Joint Advisory Council on Provisional Judicial Appointments, which in turn nominated nine judges and prosecutors, including three Serbs. They began serving in a mobile court in July 1999. The Serb judges immediately suffered threats and aggression and soon left. The others were under severe pressure not to pursue cases against Albanians. Further, as a result of the discriminatory policy of the Serbs during the ten years prior to UNMIK, the capacity of these judges and prosecutors proved to be insufficient for the task. After an episode of violence in Mitrovica in early 2000, the decision to use only local judges was reversed. A small number of international judges were therefore recruited on three-month contracts and started to work in mobile courts, dealing mainly with serious crimes. Two commissions were meanwhile set up to advise on local judicial appointments. Within a year, 600 positions had been filled, although legal training was badly needed. The Kosovo Judicial Institute was set up for this purpose.
Problems immediately emerged. Although the international judges could apply international standards and procedures, they were not familiar with the applicable law. Allegations of corruption of local judges also surfaced, but no mechanism was in place for judicial discipline. The Kosovo Judicial and Prosecutorial Council and the Judicial Investigations Unit were eventually set up to deal with this issue. Local judges were also increasingly placed under political pressure from extremist elements in the ethnic Albanian society, compromising their independence and integrity. A loss of confidence in the judiciary followed. This led, along with other factors, to UNMIK making increasing use of executive orders for detention, which undermined the very rule of law that UNMIK was seeking to build.
Institutionally, the responsibility for the judiciary went to the Judicial Affairs Office, which in March 2000 became the Department of Justice. It was placed under the deputy SRSG for civil administration, reporting to the SRSG. This clearly did not give the legal system a high degree of independence. Even after the new Constitutional Framework was promulgated, creating the Kosovo Provisional Institutions of Self-Government, UNMIK retained power over the judiciary and criminal justice, including the power to appoint and dismiss judges. As the office of the ombudsperson noted in its Second Annual Report in 2002, "UNMIK is not structured according to democratic principles, does not function in accordance with the rule of law and does not respect important international human rights norms." (13) UNMIK was not leading efforts to strengthen the rule of law by example.
Finally, the ambiguous final status of Kosovo in UNMIK's mandate was a fundamental flaw in attempts to strengthen the rule of law, although the issue is now being addressed as described below. The self-government of Kosovo was emphasized at the same time as the territorial integrity of the FRY. With this ambiguity over the institutional and political structure that was being built, there was little hope that anything more than a thin version of the rule of law could be rooted. This uncertainty over the future, combined with a failing economy, triggered the 17 March 2004 anti-Serb and anti-UN riots, showing that much remains to be done to entrench even this thin version. Nevertheless, foundations have been laid. UNMIK rebuilt and reformed the Kosovo legal system. Investigations are now undertaken, indictments are filed, and courts operate. The efficiency and independence of the system need to be improved, and the transfer of international resources to national resources must be increased. These processes will take time to mature. An encouraging sign was the way in which the indictment of Kosovo prime minister Ramush Haradinaj for war crimes was handled. (14)
The issue of final status determination is now under way. In October 2005, the UN secretary-general appointed former Finnish president Martti Ahtisaari to seek a solution to the final status of Kosovo. In February 2006, Ahtisaari entered into direct talks with Serbia and Kosovo leaders. In February 2007, he presented them with a proposal, which was promptly rejected by the parties who persevere in their intractable positions. Kosovo's Albanian majority wants independence while Serbia and the remaining Kosovo Serbs want Serbia to retain sovereignty. Ahtisaari nevertheless submitted his proposal to the UN secretary-general, who endorsed it and forwarded it to the Security Council in March 2007.
In short, the proposal foresees a 120-day transition period during which UNMIK's mandate continues and the Kosovo Assembly, in consultation with an International Civilian Representative, approves a new constitution. After the transition period, UNMIK's mandate will end, and all legislative and executive authority will be transferred to the governing authorities of Kosovo, making it in effect an independent state.
Russia has, however, been unwilling to support the Ahtisaari plan in the Security Council, and is firmly supporting Serbia's insistence that its territorial integrity be maintained, as stated in Resolution 1244 of June 1999. The EU and the United States have declared that prospects for a negotiated settlement on Kosovo's future have now vanished, and they are nodding to Kosovo that they would recognize a unilateral declaration of independence that follows the roadmap set up in the Ahtisaari plan. They have also indicated that they would send troops and administrators to assist with the implementation of the plan. Indeed, this may be the only solution. It will have to be a very carefully managed process as regional and national stability are at stake, both of which are needed to build independent institutions able to support the rule of law.
Haiti has been the subject of a number of international interventions and is a good example of failed peacebuilding. On 31 July 1994, UN Security Council Resolution 930 paved the way for the reinstatement by a US-led multinational force of President Jean-Bertrand Aristide, who had been overthrown in a military coup in 1991. A UN peacekeeping mission, the United Nations Mission in Haiti (UNMIH), was deployed to build the peace after the multinational force left and until new presidential elections, set for February 1996, were held.
President Aristide quickly disbanded the Haitian armed forces, the FAd'H, which not only posed a threat to him, but also had a record of brutalizing the local population. The creation of a trained Haitian police force became imperative. Security and the need for a police force had been foreseen during premission planning. The multinational force was to include a unit of International Police Monitors (IPM), which was to be replaced by the UN's Civilian Police (CIVPOL) during the UNMIH phase. The lead nations were the United States, Canada, and France, who all contributed to the IPM and CIVPOL forces and helped train the national police force. A police academy was formed and set out to train a working police force of 5,000 members before the end of UNMIH's mandate in February 1996, an unrealistic task. Contradictory donor mandates and priorities, even in this limited area of intervention, quickly became a problem. The "community policing" concept of the United States and Canada clashed with the approach of the French gendarmerie, which was more geared toward crowd control. At times, the national interests of donors were given priority over Haitian needs. For example, a US priority appears to have been the strengthening of antinarcotic investigations, and this was afforded much attention and money. As David Beer noted, "The total irrelevance of some of these programs to the Haitian realities was comic." (15)
The vast majority of the international effort was concentrated on the police, and the remainder of the legal system was all but ignored. The United States had made some plans for judicial reform prior to intervention, but the funds necessary were slow in being approved by Congress. Funds were found for a small judicial mentoring program, as well as for two-week training courses for some magistrates and prosecutors, which began in early 1995. Assistance was also provided to improve the atrocious conditions in the national penitentiary. These, however, amounted to no more than a token effort at improving the grossly inadequate state of the legal system.
After the 1996 elections, won by Rene Preval, and the expiry of UNMIH's mandate, the new UN Support Mission in Haiti (UNSMIH) was authorized with a mandate up to July 1997 and tasked with continuing to strengthen the police force. Only a small portion of funds was devoted to a sectorwide reform of the legal system; assistance was provided to the government in formulating a medium-term plan to strengthen the administration of justice, and donors cherry-picked a few projects, with little coordination among themselves. The US Agency for International Development (USAID) provided assistance in drafting laws and in setting up embryonic legal aid and legal education programs. The UN Development Programme (UNDP) focused on drafting legislation, updating the civil registry, and funding research on customary law.
After the expiry of UNSMIH's mandate in 1997, the Security Council set up the United Nations Civilian Police Mission in Haiti (MIPONUH), tasked once again with strengthening the police force. Its mandate ran out at the end of the year, when the Security Council set up the International Civilian Mission in Haiti (MICIVIH), tasked with human rights monitoring. MICIVIH was later also tasked with institution building, but as it was getting started, its mandate ran out and in 2000, another UN mission, the International Civilian Support Mission in Haiti (MICAH), was set up by the General Assembly. It was led by the UN's Department for Political Affairs, a nonoperational department, and tasked inter alia with legal sector assistance. It was wound down in under a year, however, with the majority of its staff having only just been deployed.
With an increasingly fraught political backdrop, elections were called in 2000, which Aristide won. The relation between the government and donors was at an all-time low. Mission creep had set in. Aristide became increasingly unresponsive to donors' demands, and funding rapidly decreased. International attention had, by now, long moved to other crises, allowing the precarious peace to unravel. In February 2004, armed conflict broke out in the city of Gonaives and quickly spread to other cities. Pressured by France and the United States, Aristide left the country. His departure led to a dangerous reconfiguration of the political landscape, including the reemergence of the former military and their civilian allies who had led the coup against Aristide in 1991. Although no comprehensive peace agreement had been reached, a transitional government led by Gerard Latortue as prime minister was quickly installed, with little legitimacy in the eyes of many Haitians.
With Resolution 1542, the UN Security Council authorized for an initial six-month period a mission called MINUSTAH, consisting of a Multinational Interim Force to stabilize the country and a follow-on peacekeeping mission. MINUSTAH was mandated to create a stable environment; assist in the political transition, including a constitutional review process and fresh elections; and monitor and seek to improve the human rights situation. Deployment was slow, however, leaving a security vacuum. Further, it failed to immediately tackle the disarmament of illegal armed groups, which began acting as security providers. After a number of delays and postponements, first-round presidential and legislative elections were finally held on 7 February 2006; the winner was Rene Preval, who received just over 50 percent of the vote. He now needs to urgently address not only security, but also the rest of the legal system. Crimes are not being prosecuted, and the court system is in a state of collapse. The prison system is saturated and dysfunctional. MINUSTAH must assist in a sectorwide legal reform program. Unfortunately, this does not appear to be clearly incorporated in the mandate, with the focus being, once again, on police reform and human rights monitoring.
Problems with the Design and Implementation of Rule of Law Programs
The two case studies highlight a number of common problems with international efforts to build the rule of law in postconflict states. They also point to some tentative solutions.
A conflict can polarize the legal system if one side uses it as a means of repression, as was the case in Kosovo. In such cases, thought should be given to applying a law other than that in place prior to the conflict, but only after extensive consultations have led to agreement on this issue. In this respect, the idea of an off-the-shelf criminal and civil code is gaining some currency. (16) International judges, prosecutors, and police would be familiar with such codes before deployment, making international assistance more effective. No time would be lost in ironing out inconsistencies between the applicable law and international standards, nor in filling legislative gaps. On most occasions, however, the local law should be applied, as it will already be anchored in society and will be easier to apply by local judges; it should, though, be modified and updated in line with international standards, maybe using parts of the off-the-shelf codes.
An increasing use of mapping studies should be made prior to any intervention. This was a problem in both Kosovo and Haiti. In Kosovo, the valuable studies of the legal sector undertaken by the OSCE were never available to the UN when it was planning UNMIK. As a result, UNMIK was caught unawares by avoidable problems such as the applicable law and the use of local judges. In Haiti, the UN had done a good analysis of the justice sector in 1993, but it did not take this analysis into consideration when designing UNMIH. If it had, the emphasis placed on the police reform may have been diluted in favor of a sectorwide approach. MINUSTAH appears to be repeating this error.
The quality of the mapping study is all-important. Too many such studies are merely a compilation of data by Western legal specialists and are usually blind to local reality. If long-term sustainability is to be achieved, efforts to understand the reality on the ground must be taken seriously, and with a multidisciplinary lens. As Mark Plunkett has noted,
This is first and foremost an exercise in anthropology and sociology. In planning the field survey mission, the key questions to be asked are: What is not known about the area where the rule of law negotiations are proposed and about the target groups? What information is already available about past and present rule of law assets, social dynamics and community practices for conflict management and dealing with violence? How do you find out what is not known? How much is it going to cost? How long will it take? (17)
Clearly, having such studies in advance of any deployment is critical, and in this respect, building a common database of knowledge that can be shared among donors is essential.
According to Pouligny, "The rule of law cannot be constructed without integrating local actors in different frames of reference and organization, with all their historical baggage and including their relation to other cultures." (18) The integration of local systems of dispute resolution and of customary law into parts of the legal system must therefore be considered. In Haiti, for example, although the urban population had some connection with the formal legal system based on French law, the rural population--the majority--had very little contact with it. Language was a problem, because the legal system operated in French and the rural population spoke Creole. The legal system that reached the rural population was applied by justices of the peace, who incorporated local practices and unwritten norms to make dispute resolution more resonant to local needs and custom. These mechanisms were largely ignored by donors. How, and to what extent, local practices should be incorporated into the formal legal system will vary according to the local context. The compatibility of local practices with international norms, whether these practices are dispersed or cohesive, whether they can be integrated within the formal justice system or have to stand alongside it, whether the practices serve to divide society or unite it are all factors that need to be taken into consideration.
Getting People Involved
A common problem with aid programs is that they can be purely donor driven and focus on supply-side institution strengthening. The reasons for this are many. In postconflict situations, the perception is that there is no time to consult with a war-ravaged population, that action needs to be taken immediately. There may be a perception that the population is too "politically immature" to have decisionmaking powers. A host government may not be too encouraging about a wider dialogue with civil society, which could weaken its control of where funds are applied. Donors may be wary of engaging in a difficult consultation process with the many undefined groups of which civil society is composed, and they generally prefer working with Western experts who are "safe" choices and who work in parameters they can understand and accept. Where donors decide to consult with civil society, they may end up talking to the wrong people. Donors have a preconception as to what civil society is, narrowing down their interface with the local community. This approach leads to the exclusion of traditional arrangements preexisting in society and ignores the extent to which these groups can participate in attempts to restore the rule of law.
It is important to involve a wide cross section of civil society in rule of law programs. The degree of involvement, which can vary, ranges from consultations to decisionmaking powers. It is rare that donors go beyond "consultations," citing capacity concerns and accountability to their taxpayers as reasons not to do so. But more than a mere token effort has to be made, and a constant and regular process to have a representative cross section of society involved and motivated in the reform process is essential. Once the local population and the elites are involved and motivated, they will have a stake in the development of the rule of law, encouraging its long-term sustainability and creating a strategic constituency for reform.
Engagement with such a constituency is a tool that donors can use to overcome the "lack of political will" problem. It has been argued that political will is not a static process or an all-or-nothing quantity. (19) It is something that can be constructed, engaged with, and strengthened. The strategic engagement with civil society as a pressure point to create political will should be encouraged. "What matters is knowing where the alliance for reform is centered in any given country and strategizing about how it can be expanded when more support is needed to implement projects effectively. Reform coalitions not only need to be built, but they must also be held together and expanded as the effects of reform come to be felt." (20) A good example of organizing such a coalition is a project set up in Haiti by the International Federation of Election Systems (IFES) in January 2002, which focused on building a coalition for legal and judicial reform by joining networks of lawyers, judges, academics, and NGOs interested in the subject matter. This resulted in a very vocal coalition that has been calling for change. MINUSTAH should engage with them.
Rule of law programs should be designed with the whole legal system in mind, integrating the different components in one coherent system. As a UNDP study concluded,
The legal system of any country is a vast web of interdependent entities comprising institutions (courts, police, prisons), norms and procedures, and the societal linkages to the goals and responsibilities of civil society. If one of these parts fails, the whole legal system is rendered dysfunctional. Therefore it is necessary to approach judicial reform in a comprehensive manner, recognizing the interdependent linkages of its components. (21)
The failure of ad hoc approaches is evident in Haiti, where the majority of the funds ended up in police reform, which was separated from the remainder of the legal system. This led to a situation where neither the prisons nor the courts could cope with the numbers arrested. At the end, some police preferred to force a shoot-out rather than hand suspects over to the courts.
Often there are no effective mechanisms to coordinate the different actions of donors, or their bilateral approaches, with a host government. In Haiti, the French and US governments encouraged civil law and common law approaches, respectively, while together advocating legal reform. This placed substantial strain on a weak Ministry of Justice, which had to deal with all donors individually as well as collectively and iron out any contradictions. A further strain is placed on the government when each donor has a different funding mechanism with different auditing and reporting requirements. Ideally, the donor community should speak with one voice to the government and pay from one purse. (22) Recipient governments are generally underre-sourced, and the burden of having to deal with a multiplicity of donors all making different demands and suggesting different approaches is usually counterproductive. Further, the impact of a single donor position will also be considerably greater in negotiating some difficult political positions.
Extending the Time Horizon
A problem in most rule of law programs is that they seek to have results and are designed to produce such results in the short to medium term. In postconflict scenarios, this usually reflects the short mandates of peacekeeping missions and the disconnect between these missions and the longer-term development work. Haiti is a textbook case of rolling short peacekeeping mandates without a long-term development strategy. Strengthening the political and technical processes that make up the rule of law is complex and is likely to need many decades in a postconflict environment. It is therefore necessary to design projects with a ten- to twelve-year time horizon and to provide consistent financial and political support throughout this period.
The problem of short time horizons is exacerbated by disbursement schedules that tie the disbursement of funds to the regular attainment of targets. It is difficult to design meaningful targets on the rule of law, and the host governments will be more concerned about achieving these arbitrary targets on time than about laying the necessary foundations to strengthen the rule of law. These foundations, which take time to build, are not necessarily reflected in immediately measurable outputs but can nevertheless be observed. Disbursements should be tied to such long-term substantive achievements in strengthening the rule of law rather than to short-term, easily measurable but superficial indicators. Such achievements can only be gauged from an engaged political dialogue.
Although general prescriptions on sequencing rule of law activities are difficult, choosing the applicable law is usually the first logical step. Establishing a secure environment commonly follows. This will involve basic investment in correctional facilities, some police training and equipment, and judicial facilities and judges. The idea is to get a bare bones system running. It is important not to focus only on the supply side, however, as was done in both Kosovo and Haiti. The local population must be consulted on what their immediate priorities are, informed of the steps taken to address insecurity, and encouraged to refer matters to the appropriate institutions. This dialogue must feed back into the reform plans. It may be necessary to prioritize the prosecution of certain crimes due to scarce resources. Violent crimes and crimes against the person, all of which challenge the state's monopoly of force, should be a priority. As regards other crimes, traditional mechanisms of dispute resolution may be used, even if just temporarily. Such mechanisms must be examined carefully and may need to be adapted to include certain international minimum standards.
Once basic security is in place, the wider legal system can be addressed. Activities should not necessarily focus on institutional strengthening first, especially if the government does not appear committed to legal reform. Instead, a limited amount of investment in infrastructure, so that a basic system is functional, can be complemented with demand-side activities, such as civic education and advocacy. The key is not to attempt to sequence through a linear cause and effect matrix. The interconnectedness of the legal system points to pushing all elements in the system in incremental stages, balancing supply-side with demand-side activities.
The Bigger Picture
Assistance in the legal sector tends to be too technical and divided, missing the wider context in which the rule of law is embedded. Strengthening the rule of law, especially in its thick version, requires institutional and not merely technical changes. Donors, often wary of accusations of neocolonialism, turn the whole exercise into a technical issue best left to the experts. Successful rule of law programs, however, "require a level of interventionism, political attention and visibility that many donor governments and organizations cannot, or do not wish to apply." (23) Donors should pursue the political dialogue necessary to strengthen the rule of law and accept that if they cannot engage politically with a host government, it may be better to not fund reforms at all. Spending funds on technical exercises may strengthen the power structures of a state that donors do not endorse. Bilateral donors may find it convenient to leave this political process to a multilateral organization such as the UN, which could act, through an SRSG, as the focal point for political engagement.
A Different Approach
Efforts to strengthen the rule of law should begin with patience and modesty. The rule of law does not take root quickly or easily, and there is usually much backsliding within reform processes. Such caution is especially needed in postconflict situations, where donors are likely to find a fractured society in which the moderation needed to ground the rule of law has been replaced by unrestrained power. Any hope that an equitable legal system well attuned to the local culture and compatible with international standards can be created within the space of a few years is misplaced. With patience and realistic expectations, however, progress can be made.
There are two essential processes that donors need to engage with. The first is to connect with local narratives and ground any reforms in local resources. The second is to acknowledge that rule of law reforms are intrinsically political and in their traditional thick version are historically connected with a liberal democratic state. The two can be contradictory, and the key lies in harmonizing them as much as possible, leaving the way open for a domestic alternative to develop. Efforts should initially focus on rooting a thin version of the rule of law in postconflict states. For people to have faith in the legal process, the institutions and agents involved must be seen to deliver justice. This, however, should not restrict donors to traditional police and judicial reform programs or, in Carothers's terms, type two reforms. DFID's framework provides a wider palette with which to work, indicating that other actors and processes must be targeted. The immediate aim is for the cogs of both supply and demand of the wider justice sector to start moving, harnessing all available local resources. In this respect, an initial understanding of local systems is essential.
At the same time, the rule of law needs to start forming its thick context and to be embedded in a local political discourse. This long-term activity must be developed using a variety of actors and processes. The legal and political elite should certainly be engaged by donors in an open political dialogue, but civil society should be included. Equally important are early interventions in education, especially in tertiary education, which will form the actors who will develop the local narrative to ground the rule of law and ensure the sustain-ability of the legal system. The wider population should be encouraged to participate in the development of this narrative through civic education campaigns and the creative use of communication techniques. Whether a local discourse can or should be nudged to move toward endorsing a liberal democratic state is open to question, but other workable alternatives may develop. So long as political and administrative power is constrained by an independently and efficiently administered law, and certain basic rights are guaranteed, a thicker version of the rule of law will be taking root.
The development of the rule of law may be uneven. Initially, it is likely that the legal process will be applied in favor of the interests of a few well-organized groups, such as the business community. With time, and strategic intervention in civil society, more people will see the benefits of making use of legal structures and will organize themselves to seek a legal system that will work to protect their interests. This will develop the social dynamic necessary to ground the rule of law.
In this article, I have tried to place the rule of law in a historical context and within a flexible conceptual framework that can map out the different components, actors, and processes contributing to the rule of law, and their interrelation. This initially shows how the rule of law can be seen as closely related to Western political systems; certain aspects can be stripped away, however, leaving a "thin" rule of law that may be easier to apply in different postconflict contexts. In the long run, however, the rule of law will have to develop a "thick" context to be properly grounded.
Previous international efforts to strengthen the rule of law in postconflict states indicate that the limited success of these endeavors may be attributed to a number of common errors: lack of preparation and local knowledge, failure to engage with local systems, top-down activities that fail to motivate the wider population, failure to see connections between the different parts of the legal system, and a tendency to view rule of law reform as technical exercises stripped of political context. The case studies explored in this article also point to problems inherent in international cooperation, such as a failure to coordinate, short time horizons, and fictitious targets in project designs.
This article advocates for a modest, long-term approach. Taking into account the particularity of every situation, donors should work with both the supply and the demand side of legal systems. Immediate needs must be addressed using a multifaceted approach that makes use of traditional systems of justice as well as the formal system. The legal system must be addressed as a whole, and rationally, so that its efficacy reinforces demand. The population must be engaged through a variety of actors and processes, including the creative use of modern communication techniques, to stimulate demand and push for reforms. A dialogue must also be initiated to ground the rule of law in a wider political narrative. Donors must, however, recognize that these processes will take time to evolve and may develop unevenly.
Giovanni Bassu is currently with the United Nations Office of Legal Affairs. Previously he practiced commercial arbitration in London and worked with the United Nations High Commissioner for Refugees in Colombia and with the Delegation of the European Commission in Kenya. The views expressed in this article are his own and do not necessarily reflect those of the United Nations.
1. Laws must be general, they must have been promulgated publicly, they must not be retroactive, and they must be clear; the body of laws must be free from contradiction, their implementation must be possible, and congruence must be maintained between official action and declared rules. See Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969), chap. 2.
2. John Reitz, "Export of the Rule of Law," Transnational Law and Contemporary Problems 13 (2003): 429.
3. See Randall Peerenboom, "Varieties of Rule of Law: An Introduction and Provisional Conclusion," in Randall Peerenboom, ed., Asian Discourses of Rule of Law (London: Routledge Curzon, 2004)
4. Rietz, "Export of the Rule of Law," p. 436.
5. See Michel Foucault, Discipline and Punish: The Birth of the Prison (New York: Vintage, 1977).
6. Lakhdar Brahimi, "The Rule of Law at Home and Abroad," Dag Hammarskjold Lecture (Uppsala: Dag Hammarskjold Foundation, 2002), p. 9.
7. Beatrice Pouligny, "UN Peace Operations, INGOs, NGOs, and Promoting the Rule of Law: Exploring the Intersection of International and Local Norms in Different Postwar Contexts," Journal of Human Rights 2, no. 3 (2003): 373.
8. Rietz, "Export of the Rule of Law," p. 463.
9. Thomas Carothers, "The Rule of Law Revival," Foreign Affairs 77, no. 2 (1998).
10. See Stephen J. Toope, "Legal and Judicial Reforms Through Development Assistance: Some Lessons," McGill Law Journal 48 (2003): 357.
11. United Nations, Report of the Secretary-General on the Interim Administration in Kosovo, UN Doc. S/1999/779 (1999), pars. 5-6.
12. William O'Neill, "Kosovo: An Unfinished Peace," IPA Occasional Papers Series (Boulder: Lynne Rienner, 2002).
13. Ombudsperson Institute in Kosovo, Second Annual Report 2001-2002, sec. 1(2).
14. Ramush Haradinash, an ethnic Albanian who led KLA units during the conflict, was indicted by the ICTY just three months after being voted prime minister. He stepped down and voluntarily surrendered to the tribunal, an action that was widely praised in political circles. That a major political player gives up power over a legal process and is praised for doing so by his peers shows how a culture of legality is forming at the center of political power.
15. David Beer, "Peacebuilding on the Ground: Reforming the Judicial Sector in Haiti," in Tom Keating and W. Andy Knight, eds., Building Sustainable Peace (Edmonton: University of Alberta Press, 2004), p. 131.
16. In 2001, the United States Institute of Peace, the Irish Centre for Human Rights, and the United Nations High Commissioner for Human Rights launched a project to elaborate an off-the-shelf criminal code. To date, a Transitional Criminal Code and a Transitional Code of Criminal Procedure, as well as a Transitional Detention Act, have been elaborated. A Transitional Law on Enforcement Powers is in the pipeline.
17. Mark Plunkett, "Rebuilding the Rule of Law," in William Maley, Charles Sampford, and Ramesh Thakur, eds., From Civil Strife to Civil Society: Civil and Military Responsibilities in Disrupted States (Tokyo: United Nations University Press, 2003), p. 224.
18. Pouligny, "UN Peace Operations," p. 373.
19. See Lynn Hammergren, Political Will, Constituency Building and Public Support in Rule of Law Programs (Washington, DC: USAID Bureau for Policy and Program Coordination, Center for Democracy and Governance, 1998).
20. Toope, "Legal and Judicial Reforms," p. 384.
21. United Nations Development Programme, Management Development and Governance Division, "UNDP and Governance: Experiences and Lessons Learned," Lessons Learned Series No. 1 (New York: United Nations Development Programme), sec. 4.6.
22. This call is echoed in the OECD's Donor Assistance Committee Paris declaration.
23. Carothers, "The Rule of Law Revival."
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|Date:||Jan 1, 2008|
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