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Introduction
What Cicero said is not entirely untrue. Where conflicts begin the
Rule of Law ends and where the conflicts end, the Rule of Law begins.
But in ‘failed states’ that have not known the Rule of Law for years
at a stretch, if not decades, the Rule of Law principles remain only
on paper even after cessation of hostilities. Therefore, when the
process of ‘Nation Re-building’ is attempted one will find some
incredible contradictions and some incredible truisms. I would,
therefore, like to address some of the characteristics of contemporary
conflicts vis-ŕ-vis Rule of Law issues based mostly on lessons learned
in the past. I also would like to outline the broad road map for
promoting transitional justice as a tool for successful peace
building.
Characteristics and Dynamics of Conflicts
In terms of nature, dynamics and impact violent conflicts in the
present day context are more regional and less national. The civil
wars have transcended national boundaries; thanks to porous borders,
and regional powers/neighbors have been sucked into the vortex of
economic crisis, ethnicity, organised criminal net works, terrorism,
genocide etc. Sierra Leone, former Yugoslavia and Rwanda are tell all
examples. Therefore, tribunals like ICTR, ICTY had to address the
economic, ethnic aspects of war crimes. The non-state actors i.e.
mostly rebels have raised viable combatant structure and developed
criminal net works replacing state actors. Resultantly, they have
little or no respect for law. The Law of Armed Conflicts (LOAC) have
no place in their dictionary. The criminal investigations in West
African States have amply demonstrated this. In nutshell, the
conventional warfare of defined armies is slowly becoming a thing of
past confined to history books. In such scenario, for 'Post-Conflict
Peace Building' to be set on an irrevocable course, one of the six
well identified component’s is rule of law and respect for human
rights, which must be seriously considered.2
Rule of Law
Rule of Law is one of the core principles of good governance and no
state can be an exception to this time tested fundamental doctrine. In
war torn states or countries ravaged by internal strife, ethnic
conflict and dissension strict adherence to Rule of Law need not be
gainsaid. In order to make the transition from conflict to peace
keeping to peace building to peace irreversible, strengthening the
security sector to address the much broader agenda of ‘human security’
alone would not suffice. A stable lean, transparent, functional and
effective Rule of Law system is imperative for peace building to
succeed.
While strengthening the Rule of Law system, all its essential
components or ‘pillars’ as one may call them, viz, the Police, the
Judiciary, the Judicial Administration and the Correction System
should be strengthened and issues concerning them should be addressed
simultaneously.3 Neglecting any of the components or tardy progress in
any one may weaken or may even endanger the progress made in other
areas.
Judiciary and Judicial Administration
Addressing the issues concerning Administration of Justice towards
successful peace building is not without its share of problems. In
fact, promoting transitional justice is easier said than done. The
problems could be due to varied reasons and may vary from state to
state. The malaise undermining the judicial system can be categorised
broadly under two heads, viz, one ‘Institutional’ and the other
‘Individual’, who make the system(s) work.
Institutional Malaise
Stability and sustainable peace in a failed state would be a mirage if
Rule of Law in general and a strong and vibrant Judiciary in
particular are non-existent or weak. The problem would be further
compounded where the laws are unfair, there is lack of appropriate
legal institutions and trained personnel and the Judges who administer
the law are ill trained and not impartial.
Former Yugoslavia and Kosovo are classic examples of negation of Rule
of Law. Several years after the conflicts, judicial impartiality can
by no means be taken for granted in these societies, which are split
on ethnic lines. In politically sensitive cases local Jurists were
often suspected of being biased against members of the other ethnic
groups.
The basic structure and division of a country’s judicial set up
coupled with the dichotomy between modern and traditional legal
systems could also pose a key challenge to peace building efforts. The
post conflict peace building in West Africa (Sierra Leone, Liberia to
cite a few examples) is a case in point. These erstwhile colonial
(ruled) states generally have a three tier legal system. The
Magistrate Courts dealing mostly with criminal and commercial cases
along with Local Courts applying customary law and courts operated by
War Lords/Local Chiefs based on customs and traditions. While the
Magistrate Courts apply outdated statutory laws, the Local and Chiefs
Courts work on non-codified customary law.
In most of these states, 80 per cent of the population hail from rural
areas and are illiterate. The legal disputes of fundamental importance
to their basic sustenance and livelihood like lease, tenures,
inheritance and family law issues like marriage, divorce etc. are
decided based on customs. There is an inherent danger in deciding such
legal cases by Local Courts and Paramount Chiefs based on customs, and
the standards are far from satisfactory in the absence of codified
laws. Absence of avenues of appeal from the decision of community
heads further adds to the problem.4
Lack of experience on the part of international community in
implementation of Rule of Law in multi-dimensional peace operations
has also contributed in equal measure to the cup of woes. In Kosovo,
Bosnia and Herzegovina to restore judicial independence and
impartiality, international judges and prosecutors were imported and
appointed. While, handling of War Crimes, Human Rights violations
Witness Protection Programs etc. showed considerable success, serious
shortcomings also came to the forefront. English as a language
barrier, lack of knowledge of local laws on the part of ‘international
actors’ due to diverse law systems and backgrounds caused great
impediments. Absence of skilled interpreters and lack of cohesive
local capacity building plans, lack of job specific and country
specific training programs leading to loss of institutional memory and
clear exit strategy were not addressed.5
Individual Malaise
At the individual level, the difficulties may be even more pressing.
Absence of rule of law, exacerbated by corruption and culture of
unaccountability of Judges, coupled with absence of formal legal
training in handling sensitive and complex court cases is a major
threat to the judicial system in post conflict societies.
Discriminatory practices against women and children are also generally
wide spread in such societies, particularly, in those areas where the
influence of Islamic laws is predominant. Gender discrimination and
cultural values make it difficult for the marginalised sections of the
society to demand accountability from the Local Councillors/Chiefs/Judges.
The Road Map
In the recent past, the UN as part of its overall efforts to enhance
the efficacy of post conflict peace building measures took decisive
steps concerning Rule of Law issues in ‘failed states’. While such
steps were at executive level in respect of some missions, for
example, United Nations Mission in Kosovo (UNMIK), it was broad based
Rule of Law mandates in respect of few missions, sans executive
authority for example, Liberia and Siera Lone. In other words, the
former what one may call as “trustee -ship approach’, witnessed take
over of full or partial governmental authority for an interim phase
including but not limited to the responsibility for Securing Sector
Reforms (SSR) based on Rule of Law principles. Whereas, in respect of
the latter called ‘light foot print’ approach, it was only to assist,
guide and cooperate with the National government(s) towards good
governance and restore its authority as a viable state. I must
however, hasten to add here that the results of both the approaches in
the field have been mixed neither providing an assured success route.
One may, therefore, think in terms of ‘longer and leaner approach’
after identifying the areas that require urgent remedial measures and
take on the rest after stability is ensured.
Suggestions
| (a) |
Any attempt towards re-establishing judicial
system as part of transitional justice programme must first
begin with a thorough stock taking capabilities, the
infrastructure if any, available including the ‘Judicial
Structure Tree’ and statues remaining in the area of conflict.
But such an attempt should not be aimed at recreating the old or
pre-conflict institutions, which were the root causes for
failure. Simply restoring such institutions will not bring
sustainable peace. |
| (b) |
While revamping the judicial system in a post
conflict scenario, it should not be merely country specific
approach, but global, regional and sub regional issues and their
systems need to be studied cumulatively and the problems should
be addressed. Most importantly, the gap between local concepts
of Rule of Law and global concept ie internationally acceptable
standards must be taken cognizance of, and the solution should
be found, lest the approach may turn inadequate. ‘The way things
are done at home’ approach may be inappropriate, and even
damaging in a post-conflict society. |
| (c) |
A comprehensive law reform to codify the laws
in conformity with international standards should be carried out
to promote stability and security. This in turn will lead to
economic development. If necessary, international legal experts
on specialised fields like Constitutional Law, Criminal Laws
(substantive and procedural) should be brought to enact codify
the laws. |
| (d) |
Infrastructure needs in terms of proper
buildings to house courtrooms, accommodation for judges and
staff, equipment and connected facilities matched by
availability of sufficient funds must be established. |
| (e) |
Recruitment and promotion of Judges should be
codified and corps of jurists be created to provide necessary
skills throughout the period of transformation. Systematic,
practical and effective legal training to Judges and court staff
must be instituted to improve the efficiency of judicial
service. A Judicial training institute to develop the
professional abilities of Judges may even be the need of hour.
Professional abilities cannot be allowed to be practiced by
lawyers alone. |
| (f) |
Proper anti-corruption measures aimed at
prevention as well as eradication of corruption, which has many
faces including culture of UN accountability, should be ensured
by regular monitoring and oversight. |
| (g) |
Arresting root causes of crime and crime
prevention should be one of the core themes instead of focusing
on visible symptoms of organised crime. The space in which
criminals thrive must be minimised to a great extent, if not,
altogether eliminated. |
| (h) |
The issue of restoring Rule of Law should be
addressed as a rule immediately and simultaneously with the
peace building process. And not as Mission Creep at a later
stage. The international community in Bosnia-Herzegovina
launched judicial reform programs in 2002, seven years after
Dayton Agreement was concluded in 1995. But by then valuable
time had been lost.6 |
| (i) |
Legal kits’ should be conceived, prepared and
used as a tool at the start up process, since the Rule of Law is
virtually non-existent in early phase of post conflict
situations. For example in East Timor as well as in Kosovo,
there was no law for a period of six to eighteen months. |
| (j) |
The Brahmi Report has advocated and called
for integrated approach on Rule of Law issues. A classic example
of multifaceted planning is seen in United Nations Social
Conflict Report (UNSCR) 1509 concerning Liberia. Therefore,
Peace Keepers in general and law enforcement agencies in
particular must act as catalysts for change. They must not only
work to restore the Rule of Law but should also aim to create
legacies towards local capacity building in terms of well
trained lawyers, judges, prosecutors, police etc. Because,
ultimately, the ‘sons of the soil’ can alone bring in stability
and peace albeit in a painful, slow and phased manner. |
| (k) |
Confidence in a functioning judicial system
can only grow where the rule of equality and equal protection
under law are practiced without discrimination on grounds of
color, creed, race, religion, sex etc. |
Conclusion
Let me conclude by stating that there are no ready made or easy
solutions to these challenges. It should be the ultimate objective of
international community to visibly, clearly and firmly demonstrate and
establish that ‘Pen is mightier than Sword’. Further, reforming the
customary legal system would be much more complex and challenging
task, for it would involve a fundamental transformation of strong
social and cultural traditions and values which contributed to the
root causes of the conflict.
If peace building has to succeed, Justice and Rule of Law with all its
vigour and efficiency must co-exist side by side. The examples of,
Haiti, Liberia, East Timor should serve as a warning to planners and
policy makers.
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