Key Debates
Last Updated: April 6, 2009
Two general debates are addressed here, which are addressed in greater detail and with some variation in each subsection of the Justice and Rule of Law thematic area:
- The peace versus justice debate;
- The debate about global and local approaches.
Peace versus justice
There is a persistent misperception, especially among practitioners and policymakers, that the term "rule of law," connotes order (stability) and "negative peace" (the absence of violent conflict). As a result of this misperception, some academics choose to avoid the term "rule of law" altogether. This debate, known as "order versus justice" or "peace versus justice," is often presented in the following terms: in post-conflict peacebuilding, should peace (understood as "negative peace") be prioritized over justice, or vice versa?1In practice, this dichotomy is actually a false one--peace and justice must coexist if a post-conflict society is to achieve a sustainable peace. This is especially true from a long-term view of peacebuilding, where peace and justice are mutually reinforcing in a virtuous cycle. But post-conflict societies face unique and daunting dilemmas: "Although peace and justice seem inseparable natural allies in peacetime, their relationship is fraught in the aftermath of conflict. Material and political obstacles are frequently encountered in seeking to restore both peace and justice simultaneously."2 Especially in the immediate aftermath of violence, the fragility of "negative peace" is a central concern; an overemphasis on justice (particularly in terms of demands for accountability for past crimes) may create more risks, in particular as some political entrepreneurs may, as a result, seek to undermine the peacebuilding process. At the same time, neglecting justice issues runs the risk of recreating the previous system of impunity and thus undermining the peacebuilding process. This debate has been described by some academics as being particularly acrimonious between human rights advocates and conflict resolution specialists.3 In practice, this cleavage may be less as acute as each field seeks to find concrete accommodations to execute their daily work.4
This perennial debate between peace and justice was succinctly summarized by former UN Secretary-General Kofi Annan:
"Ending the climate of impunity is vital to restoring public confidence and building international support to implement peace agreements.At the same time, we should remember that the process of achieving justice for victims may take many years, and it must not come at the expense of the more immediate need to establish the rule of law on the ground. [...]
We also know that there cannot be real peace without justice.Yet the relentless pursuit of justice may sometimes be an obstacle to peace. If we insist, at all times, and in all places, on punishing those who are guilty of extreme violations of human rights, it may be difficult, or even impossible, to stop the bloodshed and save innocent civilians. If we always and everywhere insist on uncompromising standards of justice, a delicate peace may not survive.
But equally, if we ignore the demands of justice simply to secure agreement, the foundations of that agreement will be fragile, and we will set bad precedents.There are no easy answers to such moral, legal and philosophical dilemmas."5
While there are no straightforward solutions to the peace vs. justice dilemma, there seems to be an emerging consensus that says that sensible peacebuilding strategies should combine elements of both peace and justice, whether by sequencing peace and justice activities (as in the case of some Latin American countries, such as Argentina and Chile, where justice/accountability issues were addressed decades after democratic transitions), or by undertaking peace and justice activities simultaneously (as in the case of Rwanda, Sierra Leone, Uganda, Timor Leste). Some would say that "justice and peace are not contradictory forces. Rather, properly pursued, they promote and sustain one another. The question, then, can never be whether to pursue justice and accountability, but rather when and how."6 In other words, the main challenge is to find the right combination and the right sequence in each specific context.
The strategy ultimately depends on the political realities and social needs of a given post-conflict society. Among the political factors that play a decisive role in that process, two are especially important: a) the nature of the transition from war (or political repression) to peace; and, b) post-war power relations. The social needs of local populations are also critical because they are the ones who will rebuild their lives in that society. So, rather than imposing universal principles of justice and accountability, pragmatists would first and foremost consider the perspectives and aspirations of the local population.
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Global and local approaches
Rule of law assistance is part of what has been called the "liberal peace" project, and as such, subject to many of the same critiques. In this approach, peacebuilding is mainly conceived as political liberalization (democracy-building) and economic liberalization (market economies). This project is deeply embedded in a particular Western liberal paradigm of how the political and socio-economic world should operate.Go to Introduction to Peacebuilding: Key Debates - Peacebuilding as liberal peace and its critics
Yet, on the ground, it may face resistance. A recent book published by the United States Institute of Peace (USIP) on the subject notes: "The ambition of international organizations to refashion the military forces, the police forces, and the justice system of a nation reflects tremendous ideals and, indeed, hubris. These vital structures of a state rest on cultural and historical foundations whose features resist change."7 In that context, practitioners of the justice and rule of law program may be perceived as idealistic and often naïve [...] agents of the Western world order, even when they attempt to adapt that order to local realities and east its entry."8 As such, rule of law assistance may often "fall prey to the classical reflex, well known in the field of development aid, of offering a new framework exported from outside, as the local society has seemingly been incapable of establishing it itself and has thus drifted towards conflict."9 The common assumption of such a perspective is that local modes of conflict regulation are defective. "It is not surprising, then, that these local modes of regulation usually remain insufficiently understood and widely marginalized."10
Given their will to promote the rule of law, the challenge for outsiders is not only to adapt international norms to changing contexts, but to understand what is changing inside war-torn societies. "Contrary to a widespread view, the lack of rule of law, in a given society, does not mean that there is no local norm that might contribute to its restoration. But this means that a new social and political contract needs to be designated. This kind of process is rarely a linear or an easy one. This also means that it probably will not coincide with the extremely short periods forecast by most of the operations claiming to 're-establish the rule of law.'"11
As such, "the 'rule of law,' far from being a foundation, as may be sometimes implied by the discourse of foreign intervention, is the product of concrete histories, the expression of worldviews and social relations."12 It cannot be constructed without integrating local actors' different frames of reference and organization, with all their historical baggage and including their relation to other cultures. In no way does this mean that everything that is "local" is "good." As some of the local "cultural resources" may have been tainted in the process of war, they too must be subjected to scrutiny by communities seeking to re-assert a reality that is not war-based. [...] Without some outside tools and options local communities may remain trapped in the power of war-based structures of thought, with little to move them to another perspective. [...] In order to work in communities at a level that is appropriate, the matter of insider and outsider knowledge must become a dialogical exchange in the hands of the local community."13
Several crucial and controversial issues derive from that relationship between global and local approaches:
- The choice of local interlocutors and intermediaries: Who decides what the local "culture resources" and norms are and presents them to outsiders,14 noting that some may be unrepresentative or have a stake in keeping the old order. 15
- The facilitation of relationships between insiders and outsiders: The need to ensure a number of minimum conditions for effective dialogue necessary inside each society and with its international environment.16
- The deficit of knowledge about the conditions of the emergence of rule of law: "Aid providers [...] do not really know how countries that do not have such systems attain them. That is to say they do not know what the process of change consists of and how it might be brought about."17 "Serious empirical studies are rare, and the multifaceted nature of the rule of law means that multiple factors impinge on its emergence and character."18
- The issues of national/local ownership and international accountability: "The responsiveness and accountability of international actors towards the local population remains one the most fundamental obstacles to the enhanced legitimacy of rule of law reforms."19
- The paradox of the use of coercion by outsiders: All situations in which coercion is used by outsiders to enforce peace pose a contradiction particularly difficult to manage. "The idea of using coercion to convince people of the value of the rule of law is inherently paradoxical."20
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The current challenges of rule of law assistance in peacebuilding contexts
Despite the high-level interest and the large sums invested by international donors, "many experts agree that programs seeking to strengthen or reestablish the rule of law in peacebuilding contexts have rarely achieved their nominal objectives of delivering human rights, security, or development."21 The main weaknesses of the current rule of law assistance are:- The risk that justice and rule of law professionals tend to "reproduce technical solutions and rely on 'template' strategies that fail to integrate adequate conflict analysis in their design, in that they are not based on a thorough understanding of the political situation in a given country;"22
- The assumption that there is "a harmonious and mutually reinforcing relationship between development, human rights, and security," something that many analysts contest in practice, as contradictions often appear between these different agendas and require political choices to be made.23
- A persistent knowledge deficit as "research on international rule of law programs is still in its infancy."24 While there are numerous justice and rule of law programs underway today in many post-conflict societies, the actual effects of such endeavors remain understudied and more time will need to pass to accurately assess them. This knowledge deficit is noticeable in all components of the justice and rule of law agenda.As for other aspects of peacebuilding, it is progressively reduced as important good practices are now known and better understood but part of this knowledge remains anecdotal and fragmentary. Historically, the study and practice of justice and the rule of law have been informed by normative and theoretical premises as well as value-based judgments, more than actual empirical analysis. As a result, there is a lack of solid empirical data to monitor and assess the impact of justice and rule of law initiatives in peacebuilding contexts.
- Peacebuilding can have a lasting impact if it is based on legal and societal mechanisms to prevent recurrence of violence.
- Long-term commitment of all relevant actors, a shared vision and a coherent approach are decisive factors for success.
- Inclusive consultative processes with civil society representatives and marginalized groups should result in more responsive and inclusive rule of law assistance programs.
- The need for the UN system and other assistance providers to act at an early stage in peace processes with a unity of effort when engaging in rule of law assistance, if the desired impact of this engagement is to materialize.
- Investment in national capacity-building and strengthening of local expertise in the area of rule of law is a critical component of UN assistance in this area.
2. Rama Mani, "Balancing Peace with Justice in the Aftermath of Violent Conflict," Development 48, no. 3 (2005), 28.
3. Ellen L. Lutz, Eileen F. Babbit, and Hurst Hannum, "Human Rights and Conflict Resolution from the Practitioners Perspectives," Fletcher Forum of World Affairs 27, no. 1 (Winter/Spring 2003): 173-193;
4. Comments by Bill ONeil, 3 June 2008.
5. Press Release, Secretary General, "Secretary-General Expresses Hope for New Security Council Commitment to Place Justice, Rule of Law at Heart of Efforts to Rebuild War-Torn Countries," UN Doc. SG/SM/8892, SC/7881, 25 September 2003.
6. Report of the Secretary General on The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN Doc. S/2004/616 (August 23, 2004), 8, para. 21 [hereafter the "Rule of Law Report"].
7. Charles T. Call, ed., Constructing Justice and Security After War (Washington, D.C.: United States Institute of Peace Press, 2007), 405.
8. Ibid., 405.
9. 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 (September 2003): 372.
10. Ibid., 372.
11. Ibid., 373-374.
12. Ibid., 373.
13. Roberta Culbertson and Béatrice Pouligny, "Re-imagining Peace After Mass Crime: A Dialogical Exchange Between Insider and Outsider Knowledge," in Pouligny, et al., After Mass Crime: Rebuilding States and Communities (Tokyo/New York/Paris: United Nations University Press, 2007), 271-287.
14.Pouligny, "UN peace operations, INGOs, NGOs, and promoting the rule of law," 373-374.
15. Comments by Bill ONeil, 3 June 2008.
16. Ibid.
17. Thomas Carothers, "Promoting the Rule of Law Abroad: The Problem of Knowledge," Carnegie Endowment for International Peace, Rule of Law Series no. 34, January 2003, 9.
18. Call, Constructing Justice and Security After War, 10.
19. Agnes Hurwitz, "Toward Enhanced Legitimacy of Rule of Law Programs in Multidimensional Peace Operations" (International Peace Academy), 17.
20. Jane Stromseth, David Wippman, and Rosa Brooks, Can Might Make Rights? Building the Rule of Law After Military Intervention (Cambridge University Press: 2006), 390.
21. Agnes Hurwitz, "Introduction: Civil War and the Rule of Law: Toward Security, Development, and Human Rights," 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), 2.
22. Ibid and Balakrishnan Rajagopal, "Invoking the Rule of Law: International Discourses," in Civil War and the Rule of Law: Toward Security, Development, and Human Rights, eds. Agnes Hurwitz and Reyko Huang (Boulder and London: Lynne Rienner, 2008), 47.
23. Hurwitz, "Introduction: Civil War and the Rule of Law," 62; and Rajagopal, Invoking the Rule of Law: International Discourses, 47.
24. Hurwitz, "Introduction: Civil War and the Rule of Law," 9.
25. United Nations Peacebuilding Commission, Working Group on Lessons Learned (UN PBC - WGLL), Comparative lessons from the United Nations Rule of Law Assistance (20 October 2008), 2.
