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Conflict Resolution, Justice and Law: Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies
Author: R Mani
Date: 1998
Size:
25 pages
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Summary
Rebuilding post-conflict societies has become a pressing issue in international affairs since the 1990s, and restoration of the 'rule of law' is often seen as a panacea for long-term stability. But what exactly is it and how is it achieved?
An article in International Peacekeeping discusses theory and practice with reference to recent cases. Conceptions of the rule of law traditionally diverge over the issue of 'rules' versus 'rights'. Positivists put law first, regardless of whether it is 'good' or 'bad': a bad law may be changed, but if a 'bad' law may be disobeyed then the rule of law has no strength. Naturalists argue that laws must reflect justice or be meaningless: a 'bad' law is not law and adherence to it cannot realistically be expected of people with an innate sense of justice. Multiple domestic and international actors need a common conception to harmonise efforts to re-establish the rule of law, but roles and strategies should vary according to specific situations. It must be recognised that the task is political, not simply technical, and that for long-term success it must involve local people and be grounded in local traditions.
Dozens of international agencies with varying remits are involved in judicial reform, who may at best duplicate efforts, if not actually undermine each other; the 'international community' is not as coherent as the term implies.
A common conception of the rule of law should include elements of justice such as an independent judiciary, separation of powers, and guarantees of fair trials, human rights and freedoms.
In the aftermath of Complex Political Emergencies (CPEs) faith in the law as a vehicle for justice is often eroded and needs restoring; the rule of law will not hold if it is seen to be unfair.
An amnesty on past abuses for the sake of order, or focussing on political or economic goals at the expense of justice may be counter-productive in the long term.
The international community's record on re-establishing the rule of law is mixed, but its involvement is essential even where its failures are notable. Rwanda is an example.
Negotiators should use peace agreements to bind parties to action on justice; a clear institutional mandate is often necessary to successfully confront the past, as in the truth commissions of South Africa or El Salvador.
In political manoeuvrings, justice and human rights may be seen by parties as 'soft issues' worth compromising on (as in El Salvador); negotiators should capitalise on such opportunities.
However, sensitivity to the political context is crucial: while in some cases a peace deal secured by overlooking past abuses just stores up future tensions (Cambodia), in other cases it may be more effective to draw a line under the past (Namibia, Mozambique).
The local population must be involved: an order imposed from outside, without ownership or respect for pre-existing legal and cultural traditions is likely to be unsustainable.
Assistance need not be technical advice; often the physical infrastructure of justice needs rebuilding, from courthouses to legal texts.
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Source:
Mani, R., 1998, 'Conflict Resolution, Justice and Law: Rebuilding the Rule of Law in the Aftermath of Complex Political Emergencies', International Peacekeeping, Vol 5, No. 3.
Author:
Centre for Humanitarian Dialogue, http://www.hdcentre.org
