Restoring rule of law in post-conflict and stabilization operations: respective roles of law and politics.

Position:Proceedings of the One Hundred Second Annual Meeting of the American Society of International Law: The Politics of International Law - Discussion
 
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This panel was convened at 10:45 a.m., Friday, April 11, by its moderator, Melanne A. Civic of the U.S. Department of State, who introduced the panelists: Ambassador Jacques Klein, formerly of the United Nations Secretary General; Colette Rausch of the United States Institute of Peace; Jane Stromseth of Georgetown University Law Center; and Ralph Wilde of University College London. The panel comprised a roundtable discussion on the fact that, since the late 1990s, many international post-conflict and stabilization missions have featured civilian-led international efforts to create or restore a national legal system and the rule of law. The panelists were asked to consider the following questions as they prepared for the discussion: what, and whose, political considerations shape decision-making on rule-of-law reconstruction strategies?; what is the impact of rule-of-law reconstruction assistance on domestic legal and judicial capacity?; and, does such assistance conjure colonial trusteeship, and what legal and political issues are implicated in such a comparison? *

INTRODUCTORY REMARKS BY MELANNE A. Civic (a)

I would like to welcome you to this Roundtable discussion on Rule of Law coordination. We have here with us today discussants each with considerable experience in and knowledge about conflict and post-conflict situations. The format of this panel will be quite informal. I will begin with an overview of the topic, and then I will pose a series of questions to the panelists. Each of the panelists will have opportunities to respond and discuss. After some time I will open the floor to questions and further discussion.

I would like to start by defining the rather elusive term, Rule of

Law. As many of you may have experienced yourselves, even defining Rule of Law is itself a complex operation! It is a concept about which many of us have a sense that we know what it means, but cannot define it with precision.

In fact, there is no single, generally accepted definition of Rule of Law but the closest that comes to a "black-letter" definition of Rule of Law is the UN formulation--the UN Secretary General defines Rule of Law as "a concept at the very heart of the Reconstruction and Stabilization mission"--and I will read this in full:

Rule of Law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency. (1) Rule of Law is also an interconnected cluster of values--the culture of rule of law--which include internalized concepts and beliefs.

This sounds pretty straightforward and desirable, so what is the problem? For quite some time, most post-conflict stability operations were handled ad hoc and in a disconnected, segmented manner by the United States and others. Early on in Afghanistan, Iraq and elsewhere, when the heated conflict ended, the United States and international community seemed unprepared for what to do next. There was also a marked lack of coordination among international partners and with the United Nations, who had the most experience in these areas.

Additionally, the underlying legal authority for such interventions has been tenuous. Authority is generally derived from five sources--consent, delegation, the maintenance of peace and security, the promotion of human rights and democracy, and the provision of government, but all of these sources have been contested during one intervention or another or at some point in the intervention. Authority concerns are compounded by international administrations' lack of accountability to the populous, and further undermined by the limited effectiveness of many, if not most interventions. Some have alleged that such international interventions, whether or not they are driven by benevolent motives effectively represent a new form of imperialism--an imposition by the international community of systems, institutions and values that may or not be appropriate to the local conditions or sustainable or may or may not be welcomed.

QUESTIONS

(1) How do you see the dilemma of underlying authority for rule of law interventions and what effects have you observed in your research or experiences?

(2) Have you found that interventions have been overly focused on the formal legalinstitutions and technical approaches to rule of law?

(3) What role do international law principles and norms play in determining international interveners' decisions and approaches?

(4) How can international interveners improve coordination among themselves and with local leaders in building the rule of law after conflict?

(5) What has been your experience with the cultural complexity of designing rule of law programs and rule of law operations? What attitudes and beliefs are necessary to catalyze and foster a Rule of Law Culture?

(6) What impact have post-conflict accountability proceedings (such as international and hybrid war crimes trials) had on building the rule of law in post-conflict societies? What do you see as the relationship between transitional justice efforts and forward-planning for rule of law?

(7) We've discussed transitional justice accountability issues. Let' s look at accountability from a different perspective--what of accountability of the international interveners who are not answerable to the population. As was posed during the Kosovo panel yesterday, "who guards the guardians" and what of the paradox of accountability and transparency as supreme principles in Rule of Law?

(8) What is the point of all this, in trying again and again to construct rule of law, pouring so much U.S. money into the programs, and for what? Why shouldn't the international community stand by and abstain from trying to improve the conditions of territorial governance?

RALPH WILDE ** undertook to explain the dilemma of international interventions by comparing the present rule of law regime to the trusteeship systems and "civilizing missions" of the colonial era. In International Territorial Administration: How Trusteeship and the Civilizing Mission Never Went Away...

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