Justice, Rule of Law & Peacebuilding Processes
Last Updated: January 1, 2009
There is consensus on the centrality of the rule of law in peacebuilding. Rule of law assistance aims to: establish immediate post-conflict stability and security; provide a mechanism for the peaceful management and settlement of conflicts (which includes governance mechanisms); address underlying conflict grievances; and, prevent the (re)emergence of violent conflicts.1 These mechanisms also work in states at risk of collapsing into conflict.
The link between the rule of law and peacebuilding
The roots of the contemporary interest in the rule of law lie in the proliferation of intrastate (or civil) wars during the second half of the last century. It is generally recognized that key causes of those conflicts have been collective, group-based grievances against oppressive, exclusionary political regimes. State institutions (for example, the judiciary, legislatures, the police, and the military) were simply tools at the hands of autocratic leaders and regimes. In other words, the perceived lack, or absence, of the rule of law led to "justice-seeking" strategies by various marginalized or disenfranchised groups, which in turn led to armed struggles and violent conflicts.With democracy becoming the norm of political governance (and the rise of the human rights movements), the establishment of democratic, inclusive and legitimate modes of governance came to be seen as the remedy to violent internal conflicts. Rule of law programs thus became inextricably linked to broader peacebuilding agenda.
Post-war societies are commonly marked by the absence of the rule of law, at least as rule of law is generally conceived of in democratic societies. Institutions associated with the rule of law (for example, the judiciary, the police) may be devastated, dysfunctional, or illegitimate. This results in what is termed a "rule of law vacuum,"2 related in part to the "security vacuum" that is often cited in post-conflict contexts. The expression "security vacuum" is itself problematic in many ways; it would be better to speak of situations of "neither war nor peace," that are highly volatile, and where the security problems faced by local people are, at best, "reframed," but not necessarily resolved. Violence may no longer refer to what is considered as characterizing a war period, but it continues and sometimes increases in multiple other forms, in particular with a rise in post-conflict crime rate and, in many cases, a growth of organized crime, regional/transnational criminal networks.3 This has a strong effect on the perception a society as a whole may have of public security and erode the overall confidence in the peacebuilding process. What is more, some post-war societies lack experience with the rule of law, resulting in an absence of a rule of law culture and trust in institutions that would guarantee it and protect the citizens.
In such contexts, the experience in the past decade has shown that peacebuilding, in the short and long term, cannot be achieved "unless the population is confident that redress for grievances can be obtained through legitimate structures for the peaceful settlement of disputes and the fair administration of justice. At the same time, the heightened vulnerability of minorities, women, children, prisoners and detainees, displaced persons, refugees and others, which is evident in all conflict and post-conflict situations, brings an element of urgency to the imperative of restoration of the rule of law."4 This quote from the Secretary Generals report Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies articulates one of the core challenges of post-conflict environments. In such contexts, rule of law mechanisms help support peacebuilding processes in different ways: "The rule of law has at its core a hard-nosed and not particularly optimistic assessment of human nature and the prospects for conflict. It assumes that pacific pledges and conciliatory rhetoric are obviously important to peacebuilding but can be too tenuous. In the worst case, the rule of law imposes a network of institutions, mechanisms, and procedures that check sources of tension at an early phase, constrain the ability of any party to engage in violent and abusive action, and force an open process and a relatively level playing field. In the best case, when diligently nurtured, this system of accountability, conflict resolution, limits on power, and the airing and processing of opposing views--all undertaken through nonviolent channels--become habit forming, reducing the likelihood another civil war."5
The overarching goal of peacebuilding is to foster a transformation in post-conflict societies so that political, social, and economic disputes are managed or resolved through non-violent means. The rule of law is seen as a framework for the peaceful management of conflict because of its defining features: laws establishing the operating rules of society and therefore providing reliability, justice and stability in the society; norms defining appropriate societal behavior; institutions able to resolve conflicts, enforce laws, and regulate the political and judiciary system; laws and mechanisms protecting citizens' rights.
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The ascendance of rule of law assistance in the context of peacebuilding
As scholar Rama Mani notes, "the rule of law has become an elixir for many ills and a panacea delivering many desirable goods."6 The ascendance of rule of law assistance in the context of peacebuilding can be attributed to global trends arising out of three distinct yet interrelated fields:Development: There is widespread agreement among development experts that an efficient judicial and legal system - meaning predictable laws and capable institutions able to enforce laws - is an important precondition for economic growth.
Human Rights: Human rights advocates agree that human rights protection is impossible without the establishment of relevant institutions (whether transitional or permanent, formal/state or informal/non-state) that can properly safeguard, enforce, and promote those rights.
Security: Security experts, diplomats, and political leaders worldwide have increasingly come to recognize that "weak," "failing," or "failed" states are potential sources of instability, wars, and humanitarian emergencies, and that such things may have unwelcome spillover effects (illicit trade in drugs and arms, refugee flows, etc.).
This ascendance of rule of law assistance has been labeled in various ways, including the "rule of law revival" and the "rule of law consensus." Some analysts have noted, however, that this apparent consensus does not resolve "the tensions between the disparate agendas of development, security, and human rights themselves...the term 'rule of law' is currently capable of too many disparate meanings depending on the international policy agenda in which it is invoked."7
Indeed, the contemporary consensus has given rise to a proliferation of actors who are now involved in fostering the rule of law in post-conflict contexts: "a veritable 'circus atmosphere' of UN agencies, international organizations, NGOs, and individual donor governments all engaged in the often uncoordinated monitoring of human rights, policing assistance, judicial rehabilitation, investigating war crimes, training police, and administering prisons."8
For many years, this have even produced a bifurcation of the field into two camps: a) specialists/practitioners of rule of law reform (often meaning judicial and legal reform); and, b) specialists/practitioners of transitional justice. It is fair to say that there is now more strategic and consistent dialogue, as well as planning and interaction, between these two groups, an evolution that would benefit from continuation and enhancement.9
1. See for instance Rama Mani, "Exploring the Rule of Law in Theory and Practice," in Civil War and the Rule of Law: Toward Security, Development, and HumanRights, eds. Agnes Hurwitz and Reyko Huang (Boulder and London: Lynne Rienner, 2008), 22; Balakrishnan Rajagopal, "Invoking the Rule of Law: International Discourses," in Civil War and the Rule of Law: Toward Security, Development, and HumanRights, eds. Agnes Hurwitz and Reyko Huang (Boulder and London: Lynne Rienner, 2008), 47.
2. Report of the Secretary General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, Summary, UN Doc. S/2004/616 (August 23, 2004), [hereafter the "Rule of Law Report"].
3. Béatrice Pouligny, Peace Operations Seen from Below: UN Missions and Local People (London: Hurst / Bloomfield (CT): Kumarian Press, 2006): 257; Charles T. Call, ed., Constructing Justice and Security After War (Washington, D.C.: United States Institute of Peace Press, 2007), 377-382.
4. Rule of Law report, 3, para. 2.
5. Neil J. Kritz, "The Rule of Law in Conflict Management," in Leashing the Dogs of War: Conflict Management in a Divided World, eds. Chester A. Crocker, Fen Osler Hampson, and Pamela Aall (Washington, D.C.: United States Institute of Peace Press, 2007), 421.
6. Mani, "Exploring the Rule of Law in Theory and Practice," 29.
7. Rajagopal, "Invoking the Rule of Law: International Discourses," 62.
8. The Stanley Foundation, Post Conflict Justice: The Role of the International Community (1997), 7.
9. Personal communication with Bill ONeil, 3 June 2008.
