Chapter 5. Strengthening the Rule of Law

SUMMARY

A rule-of-law environment exists when all persons, institutions and entities (public and private), including the state, are held accountable to laws that are publicly promulgated, equally enforced and independently adjudicated. The mission, in close cooperation with the host government, has both a respon- sibility and the capacity to influence how quickly and firmly the state is able to recover and extend its authority, legitimacy and capacity to apply equitable laws in a fair manner. This requires a comprehensive understanding of the actors involved in the rule of law, including those who provide security, polic- ing and judicial services; those who manage those services; and those who hold service providers to account. The MLT therefore plays a crucial role in crafting a comprehensive and holistic approach to strengthening the rule of law. Where there is non-state service delivery of security and justice, regard- less of who provides security or justice services, they should equally be held accountable to the law and formal governance structures. All actions should be carried out in close consultation with all parties to the peace process as well as with civil society. Strategies should be needs-based and long term, and donors should be encouraged to remain engaged and stay the course.

This chapter discusses a set of seven operational-level outputs, each with its own set of activities, risks and benchmarks, which together con- tribute to the overall outcome of strengthening the rule of law:

• Human Rights and Protection Promoted. This output reflects the centrality of human rights in the work of the UN system. It is essential to maintain a strong spirit of partnership on all human rights issues within the UN and with other humanitarian, development, political and related actors. The MLT should be aware, however, that the promotion of human rights may at times, from a short-term perspective, leave the mission torn between difficult questions of peace versus justice. This illustrates one of the core leadership considerations on polarities, whereby both peace and justice should be supported and neither neglected.
• Legal Framework Strengthened. This output highlights the tendency of conflict to weaken legal frameworks over time, ranging most commonly from usurping or destroying institutional infrastructures to simply undermining their effectiveness through authoritarian control. A strong legal framework based on the rule of law and the principles of human rights provides a mechanism by which a state frames its laws in response to the will of the people. This forms the foundation for an effective rule of law environment.
• Justice Sector Strengthened. This output emphasises the importance of a sound and well-respected judicial sector, supporting reform of the police and corrections services, to a transition to a sustainable peace. It requires, among other things, a national comprehensive security strategy recognizing the linkages between justice and security. Needs assessment and mapping will identify the many activities required to support judicial reform. As capacity building in the justice sector takes time, there may be pressure for rapid justice to meet public expectations and provide evidence of reform. A balance must be found between initiating a judicial reform process that responds to the needs assessment and the capability of the host government and population to absorb the reforms.
• Security Sector Strengthened. This output stresses the need for the establishment and maintenance of effective, accountable and sustainable security services, within a framework of the rule of law and respect for human rights, in order to assure long-term security and the rule of law. This sector includes police, corrections, defence and the governance of these institutions. This is a complex and highly political process, involving contentious issues such as governance and accountability, which are often linked to the structural causes of the conflict. It will often lead to questions of national sovereignty and tensions between the mission and the host country and donors. Early on in the peace process, discussion is required with national, regional and international actors on how the mission will support SSR efforts and the most appropriate mechanisms for guiding, implementing and monitoring these activities.
• Police and other Law-Enforcement Sectors Strengthened. This output underlines the importance of an adequate level of policing and other law enforcement, without which it is impossible to reinforce the rule of law or achieve sustainable peace and security. Police and other law-enforcement agencies are the most visible expression of governmental authority. Transition to police responsibility for law and order, away from the military, is an important step towards re-establishing the rule of law and signals to a population that the government is re-establishing the rule of law within a human rights framework.
• Corrections System Strengthened. This output draws attention to the non- existent or weak security and poor conditions in post-conflict corrections systems, which generally result in violations of prisoners’ basic human rights and a lack of coherence between the elements of the criminal justice system. A corrections system that conducts itself in a humane, fair and coherent manner gains public trust, legitimacy and international respect. The corrections system must be the partner of strengthened legislative, judicial, police and other law- enforcement agencies as evidence of a legitimate and credible rule of law.
• Defence Sector Professionalized. This output points to the fact that it is of critical importance that the military re-establishes its credibility in the eyes of the public and the international community, especially if it has been implicated in conflict. The ultimate goal of professionalizing the defence sector is civilian control of the military. Professionalizing the defence sector should not simply aim at rebuilding troop levels and training military actors; it implies the holistic reconstruction and development of both the armed and non-armed elements of the defence sector, as well as its civilianized governance structures, including with regard to normative values and traditions.

Inevitably, these seven outputs, which go to the heart of a nation’s sovereignty, are deeply sensitive and often long term in nature. As such they generate numerous polarities, articulated as considerations which, however difficult, must be recognized and managed. For example:

• Balancing the relationship with the host state and the peace process with the need to report/denounce human rights violations, especially when perpetrated by the host government.
• Balancing international standards through external and donor support with the ownership expediency of local customs, religions and laws.
• Balancing the need for representative legislative and legal and judicial frameworks for the whole of society, including minorities, while advancing the reform process with the elite structures of governance.
• Managing the need and demand for results with the fact that reform related to the rule of law is a long-term process without a fixed end date.
• Supporting national ownership while incorporating principles of good governance, accountability and respect for human rights.
• Supporting what is effective and works while promoting what is right. In this sector this is often seen as a balance between credibility and legitimacy.