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SU 2 10 December 2014 Rule of law and post-conflict transitions 18 November Zajac Sannerholm

zajac sannerholm folke bernadotte academy

richard zajac sannerholm

on 27 November 2017

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Transcript of SU 2 10 December 2014 Rule of law and post-conflict transitions 18 November Zajac Sannerholm

Capacity, knowledge, professionalism
& awareness, understanding and capability to access and use
Rule of law and peacebuilding

1) What does rule of law mean in peacebuilding
2) Who does what and where
3) Key reform activities
4) Future challenges
UN - Security Council (resolutions)
EU - European Council (decisions)
OSCE - Ministerial Council (decisions)
African Union - Peace and Security Council (resolutions)

World Bank
Bilateral state agencies, non-governmental bodies...

Lack of respect for constitutional authority
Obsolete legal framework
Repressive legal framework
Weak judicial independence
Ad hoc or confusing institutional framework
Weak capacity, professionalism, and knowledge
Weak demand and political will
Access, trust, and understanding…
When - sequencing rule of law
Immediate post-conflict
(peacebuilding & development)
Insecurity, law and order
Elections and political formation
Practical constraints
Physical destruction of office buildings, equipment and “software” – laws, regulations, orders, decrees, textbooks, judicial rulings, Standard Operating Procedures, public registries and records
Brain drain of legal personnel
Donor fatigue, testing-ground, turf-wars etc….
What rule of law?
UN, EU, OSCE etc, broad definitions
"principle of governance..."
Legality, legal certainty, legal equality, basic rights and freedoms...
Constitution, "bill of rights" legal framework, judicial decisions, practice
Judiciary, oversight institutions, police, prisons and corrections, administrative agencies, bar associations
Mandates and instructions
United Nations

To assist the parties to the Comprehensive Peace Agreement in promoting the rule of law, including an independent judiciary and the protection of human rights of all people of Sudan

Cote d'Ivoire: To assist the Government of National Reconciliation in conjunction with ECOWAS and other international organizations in re-establishing the authority of the judiciary and the rule of law throughout Cote d’Ivoire

Burundi: To complete implementation of the reform of the judiciary and correction system in accordance with the Arusha Agreement
European Union

to promote policies compatible with human rights and international humanitarian law, democratic standards and the principles of good governance, transparency and respect for the rule of law.

Kosovo EULEX:

monitor, mentor and advise the competent Kosovo institutions on all areas related to the wider rule of law (including a customs service), whilst retaining certain executive responsibilities
Administrative silence, lenght of proceedings, lenght of civil proceedings, property issues, economic, social and employment issues
Justice sector reform:
criminal law, organised crime,
judicial reform etc...
when to do what
Executive missions (International Territorial Administrations)

Office of the High Representative (OHR) in Bosnia and Herzegovina – 1995
Eastern Slavonia - 1996
Kosovo – 1999
East Timor – 1999

Historical examples of ITA
League of Nations – Free City of Danzig, Trieste, the Saar Basin
Applicable law and acts of foundation
Institutional reform
Somalia – law in force when the UN mission was established, 1969
Afghanistan Bonn Agreement – criminal code of 1969 apply, constitution from 1969
Burundi – same law but with revisions, i.e., bill of rights in constitution
East Timor – law in force when the UN mission was established
Kosovo – law in force when the UN mission was established
Libya, new interim constitution 2011
Problems with applicable law: Kosovo
UNMIK Regulation 1/1999:
Section 1.1 “All legislative and executive authority with respect to Kosovo, including the administration of the judiciary, is vested in UNMIK and is exercised by the SRSG”
Section 3 “The laws applicable in the territory of Kosovo prior to 24 March 1999 shall continue to apply in Kosovo insofar they do not conflict with standards referred to in section 2 [that all officials need to observe internationally recognized human rights standards, generally] the fulfilment of the mandate given to UNMIK by the UNSC resolution 1244 or the present or any other regulation issued by UNMIK”
Rule of law challenges
Rule of law increasing in terms of significance, resources and manpower
But problems not dealt with earlier can ignite violent conflict again...
i.e. natural resource governance, property rights, citizenship, compensation
Who is doing what (and where)?
Capacity and leverage
Executive or assistance?
Key rule of law reform activities
Int'l law as gap filling & vetting mechanism
Assuming shared values, ideas & challenges
UNMIK Regulation 24/1999:

Section 1.1, The law applicable in Kosovo shall be: (a)  The regulations promulgated by the Special Representative of the Secretary-General and subsidiary instruments issued thereunder; and (b) The law in force in Kosovo on 22 March 1989.

Section 1.2, If a court of competent jurisdiction or a body or person required to implement a provision of the law determines that a subject matter or situation is not covered by the laws set out in section 1.1 of the present regulation but is covered by another law in force in Kosovo after 22 March 1989 which is not discriminatory and which complies with section 1.3 [a list of international human rights conventions] of the present regulation, the court, body or person shall, as an exception, apply that law.
Constitutional reform & interim charters
Constitution-making process

Vested interest and negotiation
Interim charters = permanent constitutions?
Interim charters: the case of Afghanistan

Bypassing powers of parliament through extended rights of the president to issue regulations, and presidential veto against legislation that could only be overruled by a two-thirds majority

President has authority to legislate in the place of the parliament in “emergency situations”. The meaning of “emergency situations” is not defined in the constitution (cf “state of emergency”)

Judicial review/of administrative acts: the Supreme Court is competent but only government/lower courts can make a request
"securitisation" of rule of law
National human rights institution

Future challenges
MENA, and other non-post-conflict yet crisis and unstable countries
What to do about established informal practices
What to do when there are no established practices?
How to deal with the past?
Making the rule of law matter
Mandates and instructions
When to do what
Securitization of rule of law
Competence and capacity of "rule of law experts" - from technical to political
Rule of law work more diversified than ”at home” (cf, judge at a first instance court in Örebro responsible for setting up mobile court units in the Ivory Coast)
Practice not compatible with knowledge generated in legal education or profession
Political work, geographical and cultural differences
”Soft skills”: Somalia Afghanistan
EULEX Mission Mandate

(c) Help ensure that all Kosovo rule of law services, including a customs service, are free from political interference

(d) ensure that cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes are properly investigated, prosecuted, adjudicated and enforced, according to the applicable law, including, where appropriate, by international investigators (…)
Conceptual confusion
Not always clear what is meant by rule of law...
Tools for assessing and understanding rule of law problems are crude and underdeveloped
Measure sectors, areas of professional performance, specific problems...
Public administration: sensitive reform area

Direct contact with the executive
New favourite tool for control: de-criminalisation and administrative offences
Shielded sector
Public procurement and conflict in Liberia...
From keeping peace to building peaceful states
UN Security Council (Chapter VI & VII, UN Charter)
Regional arrangements: EU, AU, OSCE
Preventive diplomacy, peacekeeping, peacebuilding/political missions
Outside support and assistance
Rule of law "system"
User friendly
rule of law
Rule of law
and conflict prevention
Assistance missions

Executive missions

Hybrid missions

UN Charter, Chapter VII
Peace agreements - specify rule of law reform

Advice to national authorities, training, assist in legal drafting - Liberia, Sierra Leone, Afghanistan

Substitute for national authorities, power to legislate, appoint and vet public servants - Kosovo, East Timor

Co-location programs, national and international actors together, assistance with direct conditions - Liberia

Afghan Constitution 2004
Article 3
In Afghanistan, no law can be contrary to the beliefs and provisions of the sacred religion of Islam

Article 7
The state shall abide by the UN charter, international treaties, international conventions that Afghanistan has signed, and the Universal Declaration of Human Rights.

(Bonn Agreement 2001) AFGHANISTAN
1) The following legal framework shall be applicable on an interim basis until the adoption of the new Constitution referred to above:
i) The Constitution of 1964, a/ to the extent that its provisions are not inconsistent with those contained in this agreement, and b/ with the exception of those provisions relating to the monarchy and to the executive and legislative bodies provided in the Constitution; and
ii) existing laws and regulations, to the extent that they are not inconsistent with this agreement or with international legal obligations to which Afghanistan is a party, or with those applicable provisions contained in the Constitution of 1964, provided that the Interim Authority shall have the power to repeal or amend those laws and regulations.

Perspectives on conflict:
major civil wars dominates

Message from 2011 World Development Report: need to focus more on other forms of organised violence (organised crime, trafficking, terrorism, extremism)
Cycles of conflict: recurrence of conflict
Transnational -national -sub-national - urban-local
Early warning?
“The Government has this morning formed an anticorruption squad to look into the conduct of the anticorruption commission, which has been overseeing the anticorruption task-force, which was earlier set to investigate the affairs of a Government ad hoc committee appointed earlier this year to look into the issue of high-level corruption among corrupt Government Officers”.

Statement released by the Attorney General of Kenya; The Daily
Nation, October 28, 1997, Claes Sandgren, Korruption: Orsaker, effekter och strategier för bekämpning, Tidskrift för rettsvitenskap, 2005 (3)
(cc) photo by theaucitron on Flickr
Rule of Law
Legal equality
[a] concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights standards.

It requires, as well, measures to ensure adherence to the principle of supremacy of the law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency.
Report of the Secretary-General, 2004
OSCE Field Mission Study on the RoL

“The field operations have no recourse to a standardized, conclusive definition of the rule of law or rule of law promotion. A number of field operations… work without any definition whatsoever.

The majority, however, define the rule of law or rule-of-law promotion, some with reference to Kofi Annan's 2004 report for UN rule-of-law promotion, the Copenhagen Document (1990), or the Ljubljana decision (MC.DEC/12/05), and others according to their own preferences.“
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