7.0 What is the rule of law?189
Rule of law refers to an end state in which all individuals and institutions, public and private, and the state itself are held accountable to the law, which is supreme. Laws must be consistent with international human rights norms and standards, legally certain, legally transparent, drafted with procedural transparency, and publicly promulgated.190 This end state requires equal enforcement and equality before the law, independent adjudication of the law, fairness in the application of the law, and avoidance of arbitrariness. Access to justice—the ability of people to seek and obtain a remedy through informal or formal institutions of justice—is a mutually reinforcing component of rule of law. The rule of law requires the separation of powers and participation in decision-making. Rule of law is the ideal that states strive for; stabilization requires urgent focus toward this end.
7.1 What are the key rule of law challenges in societies emerging from conflict?
Historically, the justice system may have been repressive and discriminatory, particularly against marginalized populations, and may have been used only as a tool of powerful elites or criminal power structures. Impunity for those in power constitutes another common barrier to reform. Compounding this challenge is the likelihood that conflict has paid handsomely—through illicit means—leading to criminalization of state institutions, including the justice system. Public trust may be very low. The population may prefer to access justice through non-state, localized systems of justice or vigilante groups to solve grievances instead. The justice system may be severely debilitated or may have collapsed. Its infrastructure (e.g., court houses, public buildings, prisons, police stations, and ministries) may be destroyed, looted or dilapidated and in need of repair. Basic material resources may also be lacking. There may be a shortage of qualified rule of law actors (e.g., judges, court staff, police, prosecutors, prison officials, lawyers).
7.2 Why is the rule of law a necessary end state?
Without rule of law, criminal and politically motivated violence will perpetuate the threat that warring parties posed during violent conflict. A poorly functioning justice system will allow petty crime, violent crime, politically and ethnically motivated crime, sexual and domestic violence, and organized criminal activities to flourish. Crime may be perpetrated or tacitly supported by those in power, where government structures have become criminalized, and by former warring parties that have transformed into organized crime gangs. Unless groups that have been involved in violent conflict regard the justice system as a more attractive alternative to violence for resolving disputes, peace will not be sustainable. For the population, rule of law is necessary to ensure safety and security for individuals, families, property, and businesses and to allow freedom of movement to access public services such as education and health. Rule of law is the foundation for economic and political recovery191 and prosperity.192
7.3 What are the necessary conditions to achieve the rule of law?
- Just Legal Frameworks is a condition in which laws are consistent with international human rights norms and standards; are legally certain and transparent; are drafted with procedural transparency; are equitable, and are responsive to the entire population, not just powerful elites.
- Public Order is a condition in which laws are enforced equitably; the lives, property, freedoms, and rights of individuals are protected; criminal and politically motivated violence has been reduced to a minimum; and criminal elements (from looters and rioters to leaders of organized crime networks) are pursued, arrested, and detained.
- Accountability to the Law is a condition in which the population, public officials, and perpetrators of past conflict-related crimes are held legally accountable for their actions; the judiciary is independent and free from political influence; and horizontal and vertical accountability mechanisms exist to prevent the abuse of power.
- Access to Justice is a condition in which people are able to seek and obtain a remedy for grievances through formal or informal institutions of justice that conform with international human rights standards, and a system exists to ensure equal and effective application of the law, procedural fairness, and transparency.
- Culture of Lawfulness is a condition in which the general population follows the law and seeks to access the justice system to address its grievances.
7.4 General Guidance for the Rule of Law
7.4.1 Build host nation ownership and capacity. Partnership rather than substitution is an appropriate paradigm for host nation ownership. Host nation actors who are committed to making the peace process work should be involved from the beginning. Promoting ownership takes time and commitment and has two components: capacity and willingness. Capacity can be developed through helping the host nation articulate needs,193 engage in strategic planning, manage reforms, and build rule of law knowledge. Strengthen willingness by demonstrating that violent opponents of the peace process will be confronted and that those who take risks for peace will be supported. Willingness may be fostered through dialogue with justice institutions, and among justice institutions, civil society, and the population.194 Where there is little political will at the top, a push from the bottom, namely civil society and the general population, may stimulate reform, although this will be a long-term process.
7.4.2 Act only with an understanding of the local context.195 A proper rule of law assessment is vital because assistance should be designed in relation to the context rather than universal templates. A multidisciplinary team comprising both host nation and international actors, that covers both urban and rural areas, is optimal. Consult the users of the system as well as justice institutions. Key questions for assessment include the following:
- What does the formal justice system look like on paper and in practice? Can it perform basic rule of law functions?
- What are the informal rules, traditions, and culture that underlie the system and its capacity196 and needs?
- What subsystems of justice are used by the population, including non-state justice and policing?
- What are the broader conflict-related factors, including regional influences, the security/crime situation, how human rights are being protected, the socioeconomic and political context, the cultural context, and the treatment of marginalized groups?
- What was the role of the justice system in the conflict? Was it part of the problem or part of the solution?
- What are the key drivers and mitigators of conflict that are affecting or could affect rule of law?
See Gap/Challenge: Section 7.11.1, Comprehensive, coordinated rule of law assessments.
7.4.3 Prioritize to stabilize. Immediately after violent conflict, a window of opportunity exists to improve the rule of law. Rather than attempting to fix everything at once, the international community and host nation counterparts should adopt a human rights–based approach to rule of law;197 pay special attention to marginalized groups, and focus on urgent problems including major crimes, human rights violations, and politically motivated violence.198 See also Section 9.5.27. Providing legitimate state monopoly over the means of violence and providing legal authority that extends to all people in all parts of the country are priorities.199 Generally no rule of law strategy exists and the groundwork for one should be laid very early on. A strategy must go beyond establishing institutional capacity and shape the local context by disrupting, dislodging, and dismantling spoiler networks that are bent on subverting the rule of law. The entire legal spectrum, from intelligence to incarceration, will need to be capable of transforming systemic threats to the rule of law. Developing effective strategies for overcoming deficits in the willingness and ability of the host nation legal system to confront systemic threats, including impunity of war criminals and warlords, will be the primary determinant of whether rule of law emerges.
See Trade-off: Section 7.10.2, Security vs. human rights.
See Trade-off: Section 7.10.4, Quick fixes vs. a strategic approach.
See Gap/Challenge: Section 7.11.3, Prioritization and sequencing.
7.4.4 Use a conflict lens. Rule of law reform involves asking political as well as technical questions,200 which can be extremely sensitive following violent conflict. Pay special attention to the political aspects of rule of law reforms.201 For example, reforming a police force is inherently political as it involves shifting of power and influence. The political buy-in of senior-level government officials is essential for funding and supporting new laws that may need to be adopted.202 Understand that officials who derive their power from violence, intimidation, and illicit sources of revenue will likely resist reforms and may use political power to influence adjudication of cases. Be aware of the need to foster political will of informal leaders who hold de facto power in society, such as religious leaders, tribal elders, and village chiefs. In the allocation of power, everything has the possibility to create conflict or be perceived as rewarding one party or another. Examples include the appointment of judges and police chiefs and the location of courts and prisons. Take this into account when assigning authority to groups or individuals or locating rule of law facilities.
7.4.5 Recognize interdependence. Rule of law requires more than an exclusive focus on formal justice institutions. It is an interdependent system of many parts involving institutions that manage justice (e.g., ministries), law enforcement agencies, courts, prisons, oversight bodies, law reform agencies, and legal education institutions. The justice system also depends on interaction with non-state justice systems, non-state actors (e.g., civil society), and the general population. Progress in security, governance, economic development and social well-being are all dependent on a functioning rule of law system.