The Role of International Law in Rebuilding Societies after Conflict: Great Expectations

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THE ROLE OF INTERNATIONAL LAW IN REBUILDING SOCIETIES AFTER CONFLICT

International law can create great expectations in those seeking to rebuild societies that have been torn apart by conﬂict. For outsiders, international law can mandate or militate against intervention, bolstering or undermining its legitimacy. International legal principles promise equality, justice and human rights. Yet international law’s promises are difﬁcult to fulﬁl. This volume of essays investigates the phenomenon of post-conﬂict state-building and the engagement of international law in this enterprise. It draws together original essays by scholars and practitioners who consider the many roles international law can play in rehabilitating societies after conﬂict. The essays explore troubled zones across the world, from Afghanistan to Africa’s Great Lakes region, and from Timor-Leste to the Balkans. They identify a range of possibilities for international law in tempering, regulating, legitimating or undermining efforts to rebuild post-conﬂict societies. b r e t t b o w d e n is a Senior Lecturer in Politics in the School of Humanities and Social Sciences at the University of New South Wales at the Australian Defence Force Academy. h i l a r y c h a r l e s w o r t h is an Australian Research Council Federation Fellow and Director of the Centre for International Governance and Justice, Australian National University. j e r e m y f a r r a l l is a Research Fellow at the Centre for International Governance and Justice, Australian National University.

THE ROLE OF I N T E R N A T I O N A L LA W I N REBUILDING SOCIETIES AFTER CONFLICT Great Expectations

Edited by BRETT BOWDEN HILARY CHARLESWORTH and JEREMY FARRALL

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521509947 © Cambridge University Press 2009 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009

ISBN-13

978-0-511-53436-2

eBook (NetLibrary)

ISBN-13

978-0-521-50994-7

hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Contributors page vii Preface xiii Abbreviations xv Introduction BRETT

1 BOWDEN,

HILARY CHARLESWORTH

AND JEREMY FARRALL

1

The ‘state-building enterprise’: Legal doctrine, progress narratives and managerial governance 15 OUTI KORHONEN

2

Democratisation, state-building and politics as technology 38 NEHAL BHUTA

3

International law, human rights and the transformative occupation of Iraq 64 PETER G. DANCHIN

4

Deﬁning democracy in international institutions

90

BRETT BOWDEN AND HILARY CHARLESWORTH

5

Democracy and legitimation: Challenges in the reconstitution of political processes in Afghanistan 111 WILLIAM MALEY

6

Impossible expectations? The UN Security Council’s promotion of the rule of law after conﬂict 134 JEREMY FARRALL

v

vi

contents

7

Legal pluralism and the challenge of building the rule of law in post-conﬂict states: A case study of Timor-Leste 157 LAURA GRENFELL

8

From paper to practice: The role of treaty ratiﬁcation post-conﬂict 177 HELEN DURHAM

9

Selective universality? Human-rights accountability of the UN in post-conﬂict operations 198 ANNEMARIE DEVEREUX

10

‘Security starts with the law’: The role of international law in the protection of women’s security post-conﬂict 218 AMY MAGUIRE

11

Grappling in the Great Lakes: The challenges of international justice in Rwanda, the Democratic Republic of Congo and Uganda 244 PHIL CLARK

Conclusion: Hope and humility for weavers with international law 270 JOHN BRAITHWAITE

Select Bibliography Index 315

289

CONTRIBUTORS

nehal bhuta is Assistant Professor of Law at the University of Toronto. He holds a Masters in Political Science from the New School and an LLM from New York University. Nehal has previously worked with the International Justice Program of Human Rights Watch and as a consultant with the International Center for Transitional Justice in New York. His areas of interest are human-rights law, humanitarian law, political theory and political economy. In 2006, he observed the trial of Saddam Hussein in Baghdad, on behalf of Human Rights Watch. brett bowden is a Senior Lecturer in Politics at the University of New South Wales at the Australian Defence Force Academy. He has held visiting positions in the Centre for International Governance and Justice at the Australian National University, the Centre for the Study of Democracy at the University of Westminster, London, and the Centre for Interdisciplinary Research at Bielefeld University, Germany. His recent major publications include Global Standards of Market Civilization (co-edited with Leonard Seabrooke, Routledge, 2006), Terror: From tyrannicide to terrorism (co-edited with Michael T. Davis, University of Queensland Press, 2008), and The Empire of Civilization: The origins of an imperial idea (forthcoming, 2009). Brett is an interdisciplinary scholar whose many publications range across disciplines such as politics, philosophy, history, international relations and international law. He is a regular commentator in both the electronic and print media in Australia and abroad. john braithwaite is an Australian Research Council Federation Fellow, a Professor in the Regulatory Institutions Network (RegNet), which he founded, and a member of the Australian National University Centre for International Governance and Justice. John’s books have won prizes in the US and Europe. He was awarded the Grawemeyer Award for Ideas for Improving World Order (for Global Business Regulation with Peter Drahos) and the inaugural Stockholm Prize for Criminology. He has been active for forty years in social-movement politics in Australia and vii

viii

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internationally. His most recent book is Regulatory Capitalism: How it works, ideas for making it better (Edward Elgar Publishing, 2008). hilary charlesworth is an Australian Research Council Federation Fellow, and Director of the Centre for International Governance and Justice in the Regulatory Institutions Network at the Australian National University. She also holds an appointment as Professor of International Law and Human Rights in the ANU College of Law. Her research interests are in international law and human-rights law. She has held visiting appointments at Washington and Lee School of Law, as Manley O. Hudson Visiting Professor of International Law at Harvard Law School, New York University Global Law School, as Wayne Morse Professor at the University of Oregon and at Paris I. She was co-winner (with Christine Chinkin of the London School of Economics) of the Goler T. Butcher Medal awarded by the American Society of International Law in 2006 for ‘Outstanding contributions to the development of international human rights law’. phil clark is a Research Fellow in Courts and Public Policy at the Centre for Socio-Legal Studies, University of Oxford, and co-convenor of Oxford Transitional Justice Research. He has a DPhil in Politics from Balliol College, University of Oxford, where he studied as a Rhodes Scholar. His doctoral research, based on extensive ﬁeldwork, explored issues of post-genocide justice and reconciliation in Rwanda, focusing on the gacaca community courts. Following his doctorate, he was the researcher and author of a forthcoming book project for the Open Society Justice Initiative, exploring issues of the complementarity of the International Criminal Court (ICC) and national and communitylevel institutions in the Democratic Republic of Congo (DRC) and Uganda. The project was based on nine months’ ﬁeldwork in the DRC and Uganda in 2006–2008. Dr Clark was also technical advisor and co-author of a 2007 UN Ofﬁce of the High Commissioner for Human Rights project surveying popular perceptions of transitional justice and peace-building in northern Uganda. He has advised the Danish, Swedish, Sudanese, Ugandan and UK governments, the ICC, the International Criminal Tribunal for Rwanda, Human Rights Watch and Crisis Group on conﬂict issues in Africa. peter danchin is Assistant Professor at the University of Maryland School of Law. He received his JSD in 2006 from Columbia Law School,

contributors

ix

where he was a Bretzfelder International Law Fellow. From 2000 to 2006, Peter was Director of the human-rights programme at Columbia University’s School of International and Public Affairs, where he lectured on public international law, international human-rights law and institutions, and international humanitarian law. He has also been a visiting professor at the universities of Cape Town in South Africa, Externado in Colombia, and the University for Peace in Costa Rica. Peter has written a number of articles on international law and human rights and is the co-editor of Protecting the Human Rights of Religious Minorities in Eastern Europe (Columbia University Press, 2002). annemarie devereux is an international lawyer who has a particular interest in international human-rights law and the enforcement of international-law norms at the international and domestic levels. She received her PhD from the Australian National University. From 1995– 2000, Annemarie worked for the Australian Attorney-General’s Department, primarily in the Ofﬁce of International Law before moving to practise with the United Nations. Her work with the UN has included working with the human-rights component of peacekeeping missions in Timor Leste (2000–2002 and 2003–2005), and with the Security Council’s Counter Terrorism Committee Executive Directorate as well as with the Ofﬁce of the High Commissioner for Human Rights. During the period of research of this piece, Annemarie was undertaking research as Senior Research Fellow at Queensland University of Technology Law School. helen durham is a Senior Research Fellow and the Program Director for Research and Development at the Asia Paciﬁc Centre for Military Law at the University of Melbourne. She teaches in the Masters of Law Program and has speciﬁc research interests in the area of women and war, recently co-editing the book Listening to the Silences: Women and war (Martinus Nijhoff Publishers, 2005). Previous to this position Helen spent many years with the Red Cross/Crescent Movement, most recently as ICRC Legal Adviser assisting Paciﬁc states to ratify and implement IHL treaties. Helen is a Doctor of Juridical Science (SJD) from the University of Melbourne and is admitted as a Barrister and Solicitor of the Supreme Court of Victoria. jeremy farrall is a Research Fellow at the Centre for International Governance and Justice at the Australian National University. He has worked extensively for the United Nations, serving as a political ofﬁcer in

x

contributors

the UN Security Council in New York, on the UN Secretary-General’s Mission of Good Ofﬁces in Cyprus and with the UN Mission in Liberia. Jeremy has a PhD in International Law from the University of Tasmania and is the author of United Nations Sanctions and the Rule of Law (Cambridge: Cambridge University Press, 2007). laura grenfell lectures in International Human Rights Law and Comparative Constitutional Law at the University of Adelaide Law School. Prior to joining academia, she practised constitutional law at the Crown Solicitor’s Ofﬁce in South Australia. She holds a BA (Hons) and LLB (Hons) from the University of Adelaide and a Master of Laws from the University of Toronto. She is currently completing a PhD at the Australian National University in the ﬁeld of transitional justice, looking at the tension between the rule of law and legal pluralism in the transformation of the legal systems in South Africa and Timor-Leste. outi korhonen completed her doctorate at Harvard Law School in 1999. Previously she studied political philosophy and law in the universities of Tampere and Helsinki in Finland. She has published ‘International Law Situated: The lawyer’s stance towards culture, history and community’ (European Journal of International Law 12/5 (2001) 1027–30). Since then she has taught and supervised research in international and European law subjects in Helsinki, Joensuu and Brussels Universities, including Boston University Brussels. Outi’s main research interest is in applying critical theories to everyday problems in international law and relations. Since 1999, her academic research and publications have focused on post-conﬂict and crisis administration and she has co-operated in or directed projects in this ﬁeld at the University of Helsinki, the UN University, the International Academy of Comparative Law, and for the Finnish Yearbook of International Law. She is currently employed with the Finnish government as Deputy Government Controller General. amy maguire lectures in Public International Law in the School of Law at the University of Newcastle, Australia. Her thesis studies relate to the right of self-determination under international law, with particular reference to the Irish and Indigenous Australian contexts. Amy has recently completed twenty-eight research interviews in Ireland and Australia. Since September 2005 she has been involved with the research team in the analysis and dissemination stages of the project ‘Re-imagining women’s security and

contributors

xi

participation in post-conﬂict societies’, and was for much of that time based in the School of Sociology and Social Policy at Queen’s University Belfast. william maley is Professor and Director of the Asia-Paciﬁc College of Diplomacy at the Australian National University, and has served as a Visiting Professor at the Russian Diplomatic Academy and a Visiting Research Fellow in the Refugee Studies Programme at Oxford University. A regular visitor to Afghanistan, he is author of Rescuing Afghanistan (London: Hurst & Co., 2006), and The Afghanistan Wars (New York: Palgrave Macmillan, 2002 and 2009); co-authored Regime Change in Afghanistan: Foreign intervention and the politics of legitimacy (Boulder: Westview Press, 1991), and Political Order in Post-Communist Afghanistan (Boulder: Lynne Rienner, 1992); edited Fundamentalism Reborn? Afghanistan and the Taliban (New York: New York University Press, 1998, 2001); and co-edited The Soviet Withdrawal from Afghanistan (Cambridge: Cambridge University Press, 1989), and From Civil Strife to Civil Society: Civil and military responsibilities in disrupted states (Tokyo: United Nations University Press, 2003).

PREFACE

The genesis of this book was a workshop entitled ‘Empire or Empowerment? The Role of International Law in Building Democracy and Justice after Conﬂict’ held at the Australian National University in Canberra on 9–10 August 2007. The workshop brought together scholars from a variety of backgrounds and disciplines to discuss the ways that ideas of democracy and justice inﬂuenced post-conﬂict societies. We would like to thank all the participants at the workshop for the stimulating and energetic conversation. Many of the presentations are included in this collection in revised form and we are grateful to our contributors for their generosity and willingness to revise their papers, sometimes right until the publication deadline! Some participants in the workshop are not represented in this collection, and we acknowledge their valuable contributions to our deliberations, especially those of Raymond Apthorpe and Anthony Regan, both of the Research School of Paciﬁc and Asian Studies at the Australian National University. The book’s title has evolved, along with the chapters themselves, since the time of the workshop. During the workshop there was a sense that the dichotomy implied in the title ‘Empire or Empowerment’ did not capture the range of roles envisaged for international law in post-conﬂict societies. The contributions to this collection focus instead on the expectations and hopes created by and for international law in such contexts and the way that these have been met or disappointed. As the pages of this book illustrate, international law can assume many different roles. Indeed, international law can be invoked in the same situation by opponents with conﬂicting points of view, goals and methods. Ultimately, as the introduction explains, we were drawn to borrow the title of Charles Dickens’ novel, Great Expectations. Both the title and the novel itself convey the need for humility and recognition of the possibility of failure in the pursuit of bold ambitions. Celeste Ecuyer provided excellent logistical support for the August workshop and in liaising between editors, contributors and publisher. xiii

xiv

preface

Scott Stephenson was an outstanding research assistant, meticulous in helping to prepare the manuscript for publication. Susan Harris Rimmer kindly assisted in proofreading. We would also like to thank Finola O’Sullivan, Brenda Burke, Richard Woodham and the team at Cambridge University Press for their work in seeing this book to publication. We are very grateful for the ﬁnancial support of the Australian Research Council, which funded the workshop and indeed the entire research project of which this book forms a part (project numbers FF0561681 and DP0667107). Thanks also to our Regulatory Institutions Network colleagues for the rich intellectual environment in which we work. Brett would like to thank his partner, Gerda Roelvink, for providing a sympathetic ear and the occasional timely kind word during this particularly busy period. Hilary thanks her family, Charles, Steph and Will, for their patience and good humour about the chaos she creates; and Jeremy thanks his wife, Lyn Henderson, for her ever-cheerful and loving support, and their six-month-old daughter Jemma, for her infectious gummy smiles and boundless sense of wonder. Canberra, March 2008

ABBREVIATIONS

AFDL ANA ANP AU CAVR CEDAW CPA CRP DFS DPKO DRC EU FNI FRPI GA HNP HRAP HRC ICC ICCPR ICG ICJ ICRC ICTJ ICTR ICTY IDEA IDP IGC IHL IMF INC

Alliance des Forces Démocratiques pour la Libération du Congo/Zaire Afghan National Army Afghan National Police African Union Commission for Reception, Truth and Reconciliation (Timor-Leste) Convention on the Elimination of All Forms of Discrimination against Women Coalition Provisional Authority (Iraq) Community Reconciliation Process (Timor-Leste) Department of Field Support (United Nations) Department of Peacekeeping Operations (United Nations) Democratic Republic of the Congo European Union Front des Nationalistes et des Intégrationnistes (DRC) Force de Résistance Patriotique en Ituri (DRC) General Assembly (United Nations) Haitian National Police Human Rights Advisory Panel (United Nations Mission in Kosovo) Human Rights Committee (United Nations) International Criminal Court International Covenant on Civil and Political Rights International Crisis Group International Court of Justice International Committee of the Red Cross International Center for Transitional Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the former Yugoslavia Institute for Democracy and Electoral Assistance Internally displaced person Iraqi Governing Council International Humanitarian Law International Monetary Fund Iraqi National Congress

xv

xvi ISAF JSMP KFOR LRA MINUSTAH MONUC NATO NGO OAS OAU OTP PACE RAMSI ROL RPF SAA SC SCIRI SCSL SOFA SPSC SRSG TAL TNA UDHR UN UNDP UNMIH UNMIK UNMIL UNOMIL UNTAET UPC UPDF WILPF

abbreviations International Security Assistance Force (Afghanistan) Judicial System Monitoring Programme (Timor-Leste) Kosovo Force Lord’s Resistance Army (Northern Uganda) United Nations Stabilization Mission in Haiti United Nations Mission in the Democratic Republic of the Congo North Atlantic Treaty Organization Non-government organisation Organization of American States Organization of African Unity Ofﬁce of the Prosecutor (International Criminal Court) Parliamentary Assembly of the Council of Europe Regional Assistance Mission to the Solomon Islands Rule of law Rwandan Patriotic Front Stabilisation and Association Agreement (European Union) Security Council (United Nations) Supreme Court for the Islamic Revolution in Iraq Special Court for Sierra Leone Status-of-Forces Agreement Special Panels for Serious Crimes (Timor-Leste) Special Representative of the Secretary-General (United Nations) Transitional Administrative Law (Iraq) Transitional National Assembly (Iraq) Universal Declaration of Human Rights United Nations United Nations Development Programme United Nations Mission in Haiti United Nations Mission in Kosovo United Nations Mission in Liberia United Nations Observer Mission in Liberia United Nations Transitional Administration for East Timor Union des Patriotes Congolais Ugandan People’s Defence Force Women’s International League for Peace and Freedom

Introduction brett bowden, hilary charlesworth and jeremy farrall

In February 2008, on opposite sides of the world, two ﬂedgling states faced decisive moments. In south-east Asia, attempts were made to assassinate both the president and prime minister of Timor-Leste. The prime minister, Xanana Gusmão, narrowly escaped harm. The president, José Ramos-Horta, sustained life-threatening bullet-wounds. The assassination attempts and the political instability of the country called into question Timor-Leste’s viability as an independent state. Meanwhile, in south-east Europe, the Kosovo parliament declared independence. This was welcomed warmly by some countries, such as Australia, France, Germany and the United States, which promptly recognised the new state. But others, such as China, Russia and Spain, condemned it. The Russian foreign minister, Sergei Lavrov, claimed that Kosovo’s unilateral declaration of independence upset the fabric of international society and that a proposed European Union mission to provide support for Kosovo amounted to a violation of international law. Outbreaks of violence in the Serbian capital Belgrade and along the border between Serbia and Kosovo illustrated the fragility of the new state of Kosovo and cast a cloud over independence festivities. There is no small irony in the fact that Timor-Leste and Kosovo are struggling for their futures. Although there are many differences between the two countries, both served as late-twentieth-century laboratories for a new wave of experiments in state-building. Both Timor-Leste and Kosovo have been the object of intensive interventions, sanctioned by the United Nations Security Council and implemented by UN transitional administrations, with the aim of enabling local populations to exercise their right to self-determination in the face of domination by a stronger, larger nation. In both situations, the UN assumed temporary control of the affairs of state, in order to encourage the growth of institutions and mechanisms that would enable the Kosovar and Timorese people to govern their own affairs. Both initiatives would have been unthinkable during the cold war, when East-West antipathy prevented 1

2 role of international law in rebuilding societies

the UN Security Council from launching such ambitious projects and when the primacy of the principle of sovereignty and the politics of realism dictated that UN-sanctioned interventions into domestic polities were few and far between. Timor-Leste and Kosovo are not isolated cases. Over the ﬁnal decade of the twentieth century and the ﬁrst decade of the twenty-ﬁrst century, we have witnessed, among others, Afghanistan, Bosnia-Herzegovina, Cambodia, the Democratic Republic of the Congo, Haiti, Iraq, Liberia, Sierra Leone and the Solomon Islands descend into various degrees of conﬂict and chaos, followed by outsider-led attempts to rehabilitate and rebuild. Despite the general international commitment to the cause of securing, stabilising and restructuring post-conﬂict societies – even in cases such as Iraq where the initial grounds for intervention were vigorously contested – the various state-building ventures have had limited success. While there have been some positive developments in each of the countries just listed, none is an unqualiﬁed success story of external intervention. Each of these post-conﬂict societies continues to face challenges of legitimacy, governance, security, economic development and general viability. The precarious situations in newly independent Timor-Leste and Kosovo and other post-conﬂict environments that have been subject to external interventions in the name of peace-building raise serious questions about the endeavour of (re)building societies after conﬂict and the role played in that endeavour by the international community and international law. Can interventions that are driven by external actors and controlled by external forces trigger a process of reconstruction that will be acceptable to internal constituencies and appropriate to particular local circumstances? Can post-conﬂict peace-building deliver on its promise of empowering conﬂict-weary civilian populations to take control of their own destiny and reach for a new era of peace, stability and prosperity? What role does, can and should international law play in mediating the interactions between external and internal actors in postconﬂict interventions? This book seeks to shed light on the project of post-conﬂict statebuilding in general, and on the role that is played in this endeavour by international law in particular. It draws together original essays by scholars and practitioners, who explore from a range of perspectives the role that international law might have to play in rehabilitating societies after conﬂict. While there is a growing body of literature on many dimensions of post-conﬂict peace-building, the role of international

introduction

3

law has tended to attract less attention. An exception to this is the ﬁeld of transitional justice, which concerns the mechanisms of responsibility and accountability for major human-rights violations committed during periods of conﬂict.1 One of the primary aims of this book is to reﬂect on the role international law plays in societies that have had their fabric – social, political, legal, cultural and religious institutions and infrastructure, as well as individual and collective psyches – torn apart by conﬂict. The contributions to this volume identify a range of roles: international law can offer the promise of tempering, regulating, legitimating and undermining external interventions in post-conﬂict societies. We have borrowed the title of Charles Dickens’ famous story, Great Expectations, for this book. In the novel, Pip, an orphan, brought up in harsh circumstances, develops expectations of wealth and status which will enable him to live as a gentleman and to marry the elusive Estella. Pip rather cruelly sheds old friendships so that he can pursue his new life. His hopes of wealth and love are however dashed by a series of misfortunes and Pip faces penury, while Estella marries Pip’s adversary. These experiences eventually teach Pip humility and the value of loyalty. Dickens’ novel explores the forces that create expectations and the way that expectations shape conduct. Great Expectations reappears in Lloyd Jones’ 2006 novel, Mister Pip.2 Set in war-torn Bougainville in the 1980s, the story revolves around the effect of the only white man in a remote village, Mr Watts, reading Great Expectations aloud to a class of young people. The main character, Matilda, grows to love the book – ‘It contained a world that was whole and made sense, unlike ours.’3 She forms a close attachment to Pip and by doing so angers her mother, who sees Dickens’ story as undermining local traditions. Matilda is reminded by Mr Watts that Pip’s history is a very human one: ‘He has been given the opportunity to turn himself into whomever he chooses. He is free to choose. He is even free to make bad choices.’4 Mr Watts’ identiﬁcation with the characters in the novel ﬁnally results in his brutal killing by Papua New Guinean troops and it leaves Matilda with a great sense of the power of stories and voices. 1

2 3

Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000); Naomi RohtArriaza and Javier Mariezcurrena (eds.), Transitional Justice in the Twenty-First Century: Beyond truth versus justice (Cambridge: Cambridge University Press, 2006); M. Cherif Bassiouni (ed.), Post-Conﬂict Justice (Ardsley: Transnational Publishers, 2002). Lloyd Jones, Mister Pip (Melbourne: Text Publishing Company, 2006). Ibid., 58. 4 Ibid., 61.

4 role of international law in rebuilding societies

In the context of state-building, international law can raise great expectations – for example of recognition, order, autonomy and stability. For potential external interveners, international law may be viewed as something that mandates or militates against intervention. For those subjected to intervention, international law may bolster the legitimacy of an intervention, suggesting that it will be held to high international standards. International legal principles promise equality, justice and human rights. Yet these expectations are often dashed. Not long ago, the idea of intervening in ‘fragile’ or ‘failing’ states, with the aim of nurturing a new polity and rehabilitating state institutions, was regarded with difﬁdence and sometimes hostility. As a candidate in the 2000 race for the presidency of the United States, George W. Bush criticised the Clinton administration’s interventions in Somalia and Haiti, arguing that American troops should not be used for nationbuilding.5 But by the time of his second inaugural ceremony in 2005, President Bush had moved to describe nation-building as ‘the calling of our time’.6 The British foreign secretary, David Miliband, has similarly spoken of a moral imperative to intervene, militarily if necessary, to spread democracy across the globe.7 Commitment to the cause is not limited to individual countries or regional blocs; it has been taken up with vigour by key intergovernmental and multilateral institutions. As already noted, it was the UN Security Council that sponsored statebuilding experiments in Timor-Leste and Kosovo. Major UN instruments also provide broad support for collaborative efforts to rebuild societies after conﬂict. Indeed, the Millennium Declaration and the World Summit Outcome, adopted in 2000 and 2005 respectively, both endorse the cause of post-conﬂict peace-building and reconstruction as central to the United Nations’ broader aims and objectives.8 Although we use the vocabulary of ‘post-conﬂict’ in this book, we acknowledge that the very idea of characterising a situation as ‘postconﬂict’ is problematic. There is rarely a neat transition from a state of 5

6

7

8

See, e.g., George W. Bush’s comments during the Second Presidential Debate, 11 October 2000, available at www.cnn.com/ELECTION/2000/debates/transcripts/u221011.html. George W. Bush, ‘President sworn-in to second term’, 20 January 2005 available at www. whitehouse.gov/news/releases/2005/01/20050120-1.html. David Miliband, ‘The democratic imperative’ (Paper presented at Aung San Suu Kyi Lecture, University of Oxford, 12 February 2008). For a similar statement in 2006 by the Australian minister for foreign affairs, see Alexander Downer, ‘Australia for freedom’ (2006) 3 Looking Forward, 2. GA Res. 55/2 (18 September 2000) United Nations Millennium Declaration, para. 9; GA Res. 60/1 (24 October 2005) 2005 World Summit Outcome, para. 97.

introduction

5

conﬂict to a state of peace. Conﬂicts can persist long after peace agreements are signed, although they may look somewhat different than before. Ultimately, the peace-conﬂict-peace continuum is complex and delicately calibrated. It contains far more shades of grey than it does black and white. For this reason, some authors prefer to talk in terms of ‘conﬂict cycles’ (see Outi Korhonen’s chapter) or even of ‘conﬂictual peace-building’ (see William Maley’s chapter). Others prefer to avoid the term ‘post-conﬂict’, describing the types of situations explored in this volume as ‘post-colonial’ (see Nehal Bhuta’s chapter). The phrase ‘postconﬂict’ suggests an overly simple chronology: after conﬂict comes postconﬂict, which is in turn followed by stability. Korhonen overturns assumptions underpinning the notion of what it means for a situation to be classiﬁed as ‘post-conﬂict’ by exploring Finland as a case study of post-conﬂict societies even though it has been ninety years since that country’s most recent signiﬁcant domestic conﬂict. The term ‘postconﬂict society’ further implies that such societies are discrete and separate from societies that are deemed stable or settled – societies free from conﬂict. The image is one of post-conﬂict societies being unruly and teetering on the brink of chaos, but also of being tentatively redeemed and underwritten by the positive inﬂuence of the international community. They are measured and judged in comparison with the benchmark of the mature, stable, secure liberal democracies of the West. In this respect, the term ‘post-conﬂict’ can obscure the complex and shifting identities of the actors involved, representing them either as the nurturers (the mature agents of change) or the nurtured (entities that cannot yet survive without outside assistance). This is an image of postconﬂict reconstruction and tutelage that harks back to the era of the League of Nations when colonial possessions were deemed not ready or insufﬁciently mature for self-government. One genre of the post-conﬂict literature is that of the ‘beginner’s guide’ or ‘how-to manual’ to nation- or state-building.9 Such manuals typically present a set of lessons learned from a range of cases. Their mission is to advance universally applicable principles of post-conﬂict state-building, which can be applied in any given post-conﬂict scenario. Such approaches are inclined to see state-building as a matter of simple technology, as a set 9

See, e.g. James Dobbins, Seth G. Jones, Keith Crane and Beth Cole DeGrasse, The Beginner’s Guide to Nation-Building (Santa Monica: RAND Corporation, 2007). For the purposes of this introduction, we take state-building and nation-building to mean the same general enterprise.

6 role of international law in rebuilding societies

of technical skills or capacities, each of which can be acquired, reﬁned and applied no matter what the context (see Nehal Bhuta’s chapter). They imply that each post-conﬂict problem has a logical state-building solution. Approached from this perspective, the task of the state-builder is simply to rummage through their toolbox until they ﬁnd the most appropriate statebuilding instrument. Then all that is needed is to follow the step-by-step instructions and the problem is solved. Despite the faith of the beginner’s guide in identifying universal solutions for post-conﬂict problems, these guides rarely envisage much of a role for international law.10 They tend to have more in common with, and draw heavily on, social-scientiﬁc and social-engineering thinking that has prevailed in much of Western thought and planning since the Enlightenment era. Progress narratives of development and modernisation maintain a signiﬁcant hold over policymaking and implementation: if only they could follow in our footsteps and do it more like us. A variant on this approach is to acknowledge that we must be sensitive to context in post-conﬂict rehabilitation and restructuring, but to search for generally applicable principles and reforms that can be shaped to ﬁt. This approach, which promotes a role for international law in postconﬂict rebuilding, was exempliﬁed by UN Secretary-General Koﬁ Annan. In an August 2004 report on the rule of law and transitional justice in conﬂict and post-conﬂict societies, Annan emphasised that the success of post-conﬂict reconciliation and rehabilitation rested on ‘a common basis in international norms and standards’.11 At the same time, he warned against ‘one-size-ﬁts-all formulas and the importation of foreign models’, advocating instead that peace-building interventions should be based on national assessments, national participation and national needs.12 Annan’s approach holds out the promise of negotiating a harmonious path between the universal and the particular, between external intervention and national sovereignty. The aim of this book differs from both of these approaches. It does not set out to provide a ‘lessons learned’ manual for state-builders; nor does it propose a set of international-law principles to be translated into local situations. This volume rather brings together a series of analyses of the 10

11

12

Dobbins et al., The Beginner’s Guide to Nations-Building contains just one substantive reference to international law: 79. UN Doc. S/2004/616 (23 August 2004), The rule of law and transitional justice in conﬂict and post-conﬂict societies: Report by the secretary-general, 1. Ibid.

introduction

7

state-building process, exploring the regular weaknesses or failure of the enterprise and emphasising the particularities of context. There is no easy or natural ﬁt for international law in state-building, but its regulative idea of a universal community13 has the potential to inﬂuence the course of events in many post-conﬂict settings. The chapters are arranged to move from broad, overarching themes to more speciﬁc analyses of particular questions, concepts or case studies. The volume begins with explorations of the histories and theories of state-building. In Chapters 1 and 2, Outi Korhonen and Nehal Bhuta analyse the origins of state-building and various associated concepts such as statehood, democracy and good governance. Both authors criticise the assumption that it is possible to refashion foreign societies according to a state-building recipe book. Korhonen describes the ‘West-to-Rest transmission belt’ and views the state-building enterprise as a ‘classic assertion of hegemony and empire’. She, however, contemplates the possibility of strategies of empowerment through state-building through intensive and long-term engagement. Bhuta cautions against taking the West’s history and experience and turning it into the measure of all history and all politics. He argues that, while modern state-building is presented as an apolitical technology, it in fact transforms its objects and reinscribes structures of inequality and domination. Peace-building involves building a particular kind of politics, based on an idealised act of Western democracy. In Chapter 3, Peter Danchin studies the occupation and rebuilding of Iraq since 2003 from the perspective of two rival theories of international law: legal formalism, which understands the purpose of international law as eclectic and value-pluralist; and ‘instrumental anti-pluralism’, which identiﬁes the aim of the international legal system as the construction of a universal regime based on a universally authoritative morality. He shows the complex interaction between these approaches and their contradictory invocation by all sides. All three of these authors draw parallels between the contemporary enterprise of state-building and the historical pursuit of a policy of imperial colonialism. The remaining chapters discuss particular dimensions of post-conﬂict intervention. Chapters 4 and 5 explore the promotion of democracy. In Chapter 4, Brett Bowden and Hilary Charlesworth survey attempts at the international level to deﬁne and promote democracy. They demonstrate 13

Martti Koskenniemi, ‘The fate of public international law: Between technique and politics’ (2007) 70 Modern Law Review, 1–30.

8 role of international law in rebuilding societies

how international institutions have offered a variety of deﬁnitions of democracy, most of which draw heavily on the Western tradition, rendering them unsatisfactory to the many groups directly affected, particularly those emerging from conﬂict situations. While they are sceptical about the deﬁnitions of democracy promoted by international institutions, Bowden and Charlesworth favour an account of democracy based on popular control over public decisions and decision-makers, and equality of respect and voice between citizens in the exercise of that control. In Chapter 5, William Maley explores the relationship between democracy and legitimacy in a particular context – Afghanistan since 2001. In his rich account of the relevant international and national political scenes, he emphasises the signiﬁcance of legitimacy to democracy. Maley is critical of the international pressure to hold elections in Afghanistan and argues that that country’s experiences illustrate the limits of Western democratic theories. He points out that democracy promotion must be understood as a long-haul enterprise, possibly taking centuries rather than years. Efforts by interveners to strengthen the rule of law form the focus of Chapters 6 and 7. In Chapter 6, Jeremy Farrall examines the UN Security Council’s promotion of the rule of law after conﬂict, describing how the rule of law is transformed from a general, abstract concept into a series of speciﬁc institutional markers for implementation on peacekeeping front lines. He argues that the concept of the rule of law seems to lose its power as a political ideal when its vagueness is resolved and it begins to take concrete shape. In Chapter 7, Laura Grenfell explores the UN’s efforts to build the rule of law in Timor-Leste, a society where there is strong legal pluralism, in that customary law operates side by side with state law. She is critical of the UN’s promotion of a formal, state-based approach to the rule of law in a context where many people had experienced state law as a tool of oppression and thus had greater conﬁdence in traditional, customary forms of law. Grenfell is critical of the imposition of international human-rights standards as part of a rule-of-law package and argues for a more nuanced, inclusive understanding of the rule of law, which embraces customary law. Chapters 8 to 11 examine the way that various aspects of international law can affect post-conﬂict states. In Chapter 8, Helen Durham explores the role of treaty ratiﬁcation in rebuilding societies after conﬂict, using the example of international humanitarian-law treaties. She argues that, although treaty ratiﬁcation in post-conﬂict states can be undertaken

introduction

9

for purely symbolic purposes, it can also allow states emerging from conﬂict to review their domestic policies and regulations in a creative and positive way. In Chapter 9, Annemarie Devereux explores the UN’s reluctance to accept institutional responsibility for human-rights violations. She analyses the current legal framework governing the UN’s relationship with human rights, particularly the extent to which the UN can be held accountable for human-rights violations by its staff. Devereux proposes steps that might be taken to increase UN accountability. In Chapter 10, Amy Maguire examines the role played by international law in protecting women’s security after conﬂict. Drawing upon interviews with women in post-conﬂict societies, Maguire argues that legal efforts achieve the best outcomes for women when they are driven by women’s direct participation in peace-building and respond to women’s demands for social transformation. She advocates a ‘gendered security’ approach, which would empower women to participate in, and indeed drive, the process of transforming their post-conﬂict societies. In Chapter 11, Phil Clark explores the role of, and challenges confronting, the pursuit of international criminal justice in the African Great Lakes region. Clark warns that the International Criminal Tribunal for Rwanda in the Rwandan case, and the International Criminal Court in the Democratic Republic of the Congo and Uganda, are struggling to fulﬁl their mandates due to a failure to navigate relations with domestic governments, judicial institutions and local populations effectively. John Braithwaite’s concluding chapter argues that international law should be conceived as one thread in a complex fabric of peace-building techniques. He distances himself from the thoroughgoing critical analyses of the role of international law offered by Korhonen and Bhuta’s chapters and suggests a more optimistic account of the discipline. For Braithwaite, while international law can be destructive in some contexts, as illustrated in Phil Clark’s account of the work of international criminal tribunals in the Great Lakes region, it can be highly effective if used in concert with other strategies, such as identifying local strategies of restorative justice, education and eradicating poverty. This entails a humble and collaborative approach to state-building, and one based above all on evidence of what works, rather than one based on an overarching theory of politics. Many of the contributors draw on particular case studies as the basis for their investigations: from Afghanistan to Africa’s Great Lakes region, and from Timor-Leste to the Balkans. Geographically, the chapters in

10 role of international law in rebuilding societies

this volume cover troubled zones across the world, encompassing Africa, Asia and the Paciﬁc, Europe and the Middle East. Some contributions focus on one speciﬁc case study (Korhonen on Finland; Maley on Afghanistan; Danchin on Iraq; Grenfell on Timor-Leste). Others survey multiple case studies (Clark on Rwanda, the Democratic Republic of the Congo and Uganda; Maguire on Northern Ireland, Lebanon and South Africa). Yet others touch upon a range of case studies, without making them the prime focus of discussion (Bhuta on colonial India; Farrall on Haiti and Liberia; Devereux on Kosovo). Some concentrate on speciﬁc issues or questions, whereas others represent broader surveys of international actions and arenas of debate. What is striking is that all the case studies of post-conﬂict societies suggest major problems with the enterprise of state-building and point to the general disillusionment of affected populations. The contributions in this volume take a range of attitudes to international law. Some explain how international law can shape domestic developments in post-conﬂict societies. One way this occurs is through declarations that national laws must not violate international humanrights norms and standards, as promulgated by UN transitional administrations in Kosovo and Timor-Leste. Another method is to encourage ﬂedgling post-conﬂict governments to sign and ratify international treaties or protocols. Laura Grenfell, Helen Durham and Amy Maguire in particular explore the ramiﬁcations of such attempts to introduce international norms into the local domain, with Durham and Maguire more optimistic than Grenfell about the transformative possibilities of such actions. Maguire suggests that international law can provide useful frameworks for rehabilitation and restructuring, at least partly because it is seen as a source of law external to the parties in conﬂict with one another. Nehal Bhuta and Laura Grenfell, by contrast, question the relevance of international legal standards in post-conﬂict situations. This volume emphasises the unpredictability of interactions between competing legal frameworks in post-conﬂict environments. Post-conﬂict situations are often characterised by a vacuum of legitimate authority, including formal legal authority, which can be both a cause and a symptom of conﬂict. A variety of alternative legal frameworks can compete to ﬁll this vacuum, including state, customary, religious and international law. International law can provide another layer of legal recourse for outsiders and local authorities to negotiate in searching for the appropriate balance. In some instances international law may empower local actors to exercise their rights. In others, it might undermine the broader human-rights project

introduction

11

by promoting standards it cannot possibly safeguard. In this sense, international law may have unanticipated consequences for local systems of justice. Phil Clark, for example, explores related tensions in his study of the operation of international judicial processes in Africa. He points out that little attention has been paid to the purpose of international criminal tribunals after conﬂict, with uncertainty over whether the aims of international justice should be to punish individual wrongdoers or to promote peace and stability. This has undermined the efﬁcacy and legitimacy of these institutions. Peter Danchin points to the contradictory role of international law in the context of rebuilding Iraq. In Iraq, international law has at times assumed an instrumentalist, moral character, facilitating the imposition of external norms on a resistant political order. But it has also provided a formal, anti-instrumental space of value pluralism that has permitted a distinct Iraqi constitutionalism to emerge. Some contributions propose the ﬂexible application of existing legal standards to accommodate unique local circumstances. For example, John Braithwaite’s conclusion suggests that international law is best viewed as just one of the important strands actors must weave into the fabric of post-conﬂict reconstruction, but one with no particular priority. The process of weaving is seen by Braithwaite as a networked activity rather than as one ‘from above’, where attunement and responsiveness of the cloth to local threads of law and governance is an apt aspiration. A recurring theme in many chapters is the problematic nature of promoting contested, abstract peace-building concepts such as ‘democracy’, ‘justice’ and the ‘rule of law’. Each of these concepts is susceptible to multiple interpretations and deﬁnitions, all can be pursued in a variety of ways, and none has been perfectly realised anywhere. Korhonen cautions that these liberal ideas generally tend to be operationalised in complex post-conﬂict environments, yet they are ‘very thinly and formally understood’. Bhuta reminds us that often apparently universal notions are in fact highly particularised historical products. Maley recalls Dahl’s contention that democracy can be approached but never fully realised. By contrast, Farrall contends that the rule of law is most powerful precisely when it remains an abstract political ideal. A related theme is the short-sightedness of focusing upon form at the expense of substance. Korhonen argues that the superﬁcial realisation of formal sovereignty is not a useful preoccupation. Bowden and Charlesworth advocate an understanding of democracy as something above and beyond elections. Maley also warns of the limitations of democratic choice mechanisms as devices for generating political legitimacy.

12 role of international law in rebuilding societies

Contributors to this volume suggest that the project of post-conﬂict rehabilitation is often shaped more by the demands and interests of the international donor community and multilateral institutions than by the needs and desires of the target population. International law potentially provides donors and institutions with a set of readily quantiﬁable benchmarks to measure the progress (or lack thereof) of rebuilding. For example, a society in the process of post-conﬂict recovery that holds elections, or ratiﬁes treaties can readily be portrayed as making progress towards post-conﬂict goals or benchmarks, whatever the reality of the situation. Some chapters in this book highlight, however, the emancipatory potential of international law in speciﬁc contexts, such as improving the situation of women. One consequence of donor-driven peace-building and reconstruction policy is the emphasis on getting in and out of post-conﬂict environments as quickly as is possible. Having a realistic exit strategy before entering a trouble zone is becoming increasingly essential to satisfy equivocal domestic constituencies. A number of the contributors to this volume question the beneﬁts of intervening and embarking on restructuring projects with such haste. Whether the goal is democratisation, securing justice or achieving self-determination, it can be counterproductive to rush to produce perceived quantiﬁable outcomes, such as elections, truth commissions and referenda on independence. Some contributors, particularly Outi Korhonen and William Maley, emphasise that historically it has taken a very long time, in many cases centuries, for stable democracies based on the rule of law to emerge. It is unrealistic to expect that small communities, let alone sovereign states, can be established or rebuilt and democracy and the rule of law developed in a few years. An analogy might be drawn here between the state-building enterprise and cuisine.14 Hurried state-building, like fast food, might fulﬁl short-term needs and wants, but it is not necessarily good for the long-term constitution. A ‘slow food’ approach might well be preferable when it comes to establishing new states and rebuilding post-conﬂict states and societies: perhaps one course at a time followed by a signiﬁcant period of time allowing for digestion or embedding of reforms. Some contributions in this book, notably those of Korhonen and Bhuta, question the assumption that genuine democracy and justice 14

Volker Böge, ‘“Lessons learned” from a comparison between the cases of Bougainville and Solomon Islands’ (Paper delivered at Searching for Peace: Southeast Asia and the Paciﬁc Workshop, Manila, 4–6 June 2002).

introduction

13

can be promoted by external intervention, no matter how well-meaning the objectives and regardless of the longevity or level of commitment to the process. On this analysis, the project of society- or state-building contains inherent contradictions that prevent it from ever meeting its goals. One such contradiction is between the idealism of promoting freedom, democracy and justice and the reality that these processes are undertaken and implemented by outsiders who tend to permit local actors and interests a limited role at best. This particular problem is even starker when those outsiders are perceived to be acting undemocratically or in a manner that is unjust, hypocritical and unaccountable. There is not yet an adequate normative framework to hold post-conﬂict interveners accountable for their activities; indeed it has been pointed out that modern democracy-builders are less accountable than those working under the League of Nations Mandate or United Nations Trusteeship systems.15 Post-conﬂict interventions often take place in lawless zones, where there is little scrutiny of professional or private conduct. Those involved in such enterprises tend to view themselves as Good Samaritans, making sacriﬁces to rescue chaotic societies from themselves. Moreover, failures in social engineering or state-building are generally attributed to the shortcomings or unworthiness of the population being ‘saved’ – ‘we tried, you failed’. This volume suggests that there is a need to understand the different ways in which post-conﬂict environments are lived and experienced by affected groups. The objectives and expectations of post-conﬂict actors will be dramatically different depending on whether they are a refugee, an ex-combatant, a politician, an international aid worker or diplomat, a child, a woman, a peacekeeper, a shopkeeper, an elderly person and so on. We rarely consider state-building projects from the perspective of the people whose society is being rebuilt. The chapter by Maguire, in particular, provides an insight into the manner in which women experience conﬂict and shape post-conﬂict environments. This is a much-neglected area in the literature on conﬂict and post-conﬂict scenarios. The chapters in this book indicate overall that international lawyers should be modest about their capacity to formulate principles that can usefully apply to state-building after conﬂict. The great expectations

15

Simon Chesterman, You, the People: The United Nations, transitional administration, and state-building (Oxford: Oxford University Press, 2004), 45.

14 role of international law in rebuilding societies

of certainty and security created by some accounts of international law should be balanced by reﬂection on international law’s actual record of partial and impermanent contributions to peace. Having great expectations is not in itself a bad thing. It can inspire and animate. As Dickens shows us, however, the challenge is to be alert to the way our pursuit of such great expectations can affect the lives of others.

1 The ‘state-building enterprise’: Legal doctrine, progress narratives and managerial governance outi korhonen

Introduction To take state-building as a focus within the large subject of justice and democracy-building after conﬂict suggests an obsession with the state, whose legitimacy and future relevance are under challenge.1 Statebuilding can be seen as a particular policy and strategy to create stability and control; its beneﬁt is the quelling and channelling of conﬂict into its (ideally) democratic governance and justice systems. Its handicap is the potential rigidity, formalism, institutional stagnation, and the suppression of genuine contestation within its structures, which ultimately brews further conﬂict-drivers, violence or repression. This chapter discusses the uses and the usefulness of the state – as a global legal commodity – in forging a social contract for a given community and/or in providing a sustainable and empowering basis for social development of a people. Since the passing of the bipolar world order, state-building has acquired the aura of a right-and-duty; the duty is a remodelled version of the colonial civilising mission comprising also elements of the humanitarian intervention doctrine, which, in turn, derives its legitimacy from the people’s right to democratic governance, human rights, and the jus cogens doctrine. The discourse on the duty or responsibility to protect is akin to these latter normative frameworks.2 State-building has, however, begun to seem more of a right than a duty since, in practice, it is trusted to the privileged and ‘interested parties’ – to states and organisations that 1

2

See, e.g., Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A feminist analysis (Manchester: Manchester University Press, 2000), 125; Martti Koskenniemi, ‘The future of statehood’ (1991) 32 Harvard International Law Journal, 397–410. International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001).

15

16 role of international law in rebuilding societies

have an interest in building another entity into a state and the not negligible capacity that it requires. The interests vary in scope and character from the more noble and altruistic ones to egoistic motivations, such as oil, trade or other resource-related ones. Whether missionary or mercantile, I view the exercise of the right–duty to state-building as a postmodern global enterprise with costs and beneﬁts. The most promoted beneﬁts include stability, democratisation and development as growth. The costs include superﬁcial democracy, lack of local ownership of governance culture, segregation, reinforcement of unequal mechanisms of control, legitimacy deﬁcit and the spread of an assimilating, hegemonic empire. As the state-building enterprise is always under great time and resource constraints, it never strives for perfection. How much and in what ways do the rule of law, democracy and humanrights ideals inﬂuence state-building?3 In order for liberal ideas to be operationalised in post-conﬂict, complex emergency or conﬂict-cycleprone environments, they are often very thinly and formally understood (as Maley demonstrates in this volume in relation to democracy, and Farrall and Grenfell in relation to the rule of law), and reinforced with the usual biases of effective governance: male, medical, market-liberal management structures for the public life. The trail of cases tells of compromising progressive policies in regard to stabilising regimes. It seems that the inﬁnitely complex legal and administrative control system of a modern state will not stand without critique-proof institutional and policy groundwork. However, the more perfectly it manages to quell contestation, the more deﬁnitively it silences grassroots-level participation.

I. A social contract? To make ground for institutional stabilisation, paradoxically, unsustainable political solutions are favoured. These include hasty constitutionalisation, recreation of historical class systems, non-critical power–knowledge systems (e.g. media, law, education policies), and rushed electoral democracy.4 The achievements reinforce conservative 3

4

Outi Korhonen, Jutta Gras and Katja Creutz, International Post-conﬂict Situations: New challenges for co-operative governance (Helsinki: University of Helsinki, Erik Castrén Institute Research Reports 18/2006, 2006). On the shortcomings of hasty elections as a democratic choice mechanism, see Maley in this volume.

the ‘state-building enterprise’

17

interpretations of policies or their adversely culturally relativised and regressive adaptations: for example, as the set-up, process, and result of the special trial of Saddam Hussein and his semi-public hanging demonstrate. As Mark Drumbl argues, the various kinds of post-war proceedings often fail to contribute to the settlement, conciliation, deterrence, retribution and the right of expression, contrary to their very purpose.5 The profound mystery of the emergence, constant renewal and progressive contestation of social contract merits little reverence in the routines of global post-conﬂict governance where the international ‘resources’ and ‘political feasibility’ lack time for long-term processes and space for complex socio-cultural compacts. It seems always too early or too late to seek multidimensional equality and to ﬁnd a sustainable exit from conﬂict cycles. The governance technologies of benchmarking, roadmaps, milestones, human-rights conditionality and periodic risk analyses with economic sticks and carrots, lofty goals (e.g. adoption of a constitution), media events (e.g. special courts) and strict time discipline (e.g. six to twelve months) illustrate the point.6 The United Nations Secretary-General Koﬁ Annan called for a common basis in international norms and standards and their use in international governance operations.7 Annan, Brahimi8 and others fought the powerful states’ preference for ad hoc-ism since the 1990s to plan ahead for post-conﬂict management in a multilateral context. Part of their achievement was the establishment of the UN Peacebuilding Commission, despite its shortcomings.9 Is there a role for international law in creating a blueprint for international peace operations, for instance, through codifying more multilateralism and local representation into a set of guidelines or an ‘operations manual’?10 In what ways, if any, could such a blueprint serve as a counter-blueprint for the current global enterprise – the right-duty of state-building? How does one institute accountability in the postmodern post-conﬂict governance in comparison to, for example, 5

6 7

8

9

10

See Mark A. Drumbl, Atrocity, Punishment and International Law (Cambridge: Cambridge University Press, 2007). Korhonen, Gras and Creutz, International Post-conﬂict Situations, 37–9. UN Doc. A/59/2005 (21 March 2005) In larger freedom: Towards development, security and human rights for all: Report of the secretary-general. See also Koﬁ Annan, ‘“In larger freedom”: Decision time at the UN’ (2005) 84(3) Foreign Affairs, 63–74. UN Doc. A/55/305–S/2000/809 (21 August 2000) Report of the panel on United Nations peace operations. Keith Krause and Oliver Jütersonke, ‘Peace, security and development in post-conﬂict environments’ (2005) 36 Security Dialogue, 447–62. See, e.g., Korhonen, Gras and Creutz, International Post-conﬂict Situations, 248–52.

18 role of international law in rebuilding societies

the times of the League or the UN trusteeships?11 The practicability of modern models of governance, for example management by performance, in the state-building context will be discussed below.

II. How wonderful is the artiﬁciality of the state?12 Many have pointed to the weaknesses of the state-based global governance structure13 and it is doubtful whether this construct is useful for building justice and democracy in any conditions, let alone those of fragile or post-conﬂict countries. The dialogue between the mainstream and the critique prompted Charlesworth and Chinkin to conclude their discussion on the state in two positions: the ﬁrst imagines the state as a position of retreat – a step-back or time-out – from subjective will and passion; whereas the other demands the unravelling of the state in a constant debate on its substance, values, power structures and their everyday impact and legitimacy.14 The state continues to operate as the benchmark of policy discussions and practical operations vis-à-vis troubled communities. It is as if we could not imagine communities,15 justice and democracy without the state.16 Without prejudice to the right to gain statehood of any people, the right to self-determination might be imagined and perhaps realised in other, and sometimes more substantive, ways. History demonstrates that the rights and obligations of sovereignty can be disaggregated by more complex arrangements, as in the Aaland Islands, Lichtenstein, San Marino and the various free-cities experiments, to the beneﬁt of the people and/or various competing interest structures. As Koskenniemi has pointed out,17 the apologies and utopias of self-determination 11

12

13 14 15

16

17

See Simon Chesterman, You, the People: The United Nations, transitional administration, and state-building (Oxford: Oxford University Press, 2004), 45. Martti Koskenniemi, ‘The wonderful artiﬁciality of states’ (1994) 88 American Society of International Law Proceedings, 22–30. Charlesworth and Chinkin, The Boundaries of International Law, 164–70. Ibid., 170. See Benedict Anderson, Imagined Communities: Reﬂections of the origin and spread of nationalism (London: Verso, 1991). See Balakrishnan Rajagopal, International Law from Below: Development, social movements, and third world resistance (Cambridge: Cambridge University Press, 2003). An example of deadlocked state-centricity is the Ahtisaari Proposal for Kosovo’s statehood: UN Doc. S/2007/168 (26 March 2007) Letter dated 26 March 2007 from the secretarygeneral addressed to the president of the Security Council. Martti Koskenniemi, From Apology to Utopia: The structure of international legal argument (Helsinki: Lakimiesliton Kustannus 1989).

the ‘state-building enterprise’

19

collapse into the same argumentation bases: they may both support and attack statehood, as in the case of Kosovo and, in turn, its enclaved minorities. The superﬁcial realisation of formal state sovereignty is not a useful preoccupation. The diffuse character of the world economy, global diasporas and international civil society support alternatives to the impermeabilisation of state borders and a rigid interpretation of territorial jurisdiction. The pragmatic implications, including the unbundling of citizenship and the porosity of borders, have also been widely discussed.18 The haggling over sovereignty and secession, although of procedural importance, is not the decisive element of the feasibility of a new state, although this is the focus in the state-building enterprise. It takes the state structure as the axiom of post-conﬂict democracy and largely ignores the management of the state, which provides the space for dialogic democracy and justice. The wonders of statehood have lost much of their appeal because of cases in which ‘democratic’ states have not remedied structural injustice, blind spots and biases. A power shift from more or less transparent public processes to covert politics, informal transnational relations and the global private sector takes place.19

III. The artiﬁcial state The state has fallen out of fashion. Its form is seen as outdated and its neutrality contested in the era of trans-boundary relations and transnational governance spaces. Yet, since the Peace of Westphalia, ‘We the West’ have striven to build and perfect ‘our’ state system. Sovereignty, international personality, rights and obligations are aggregated to states and the new global bureaucracies – the international governmental institutions – are based on states as the sovereign powers in all international relations.20 Thus, in different eras and ideological climates, the national state re-emerges as the unique theatre for the national ego – and the space-provider 18

19

20

See, e.g., Seyla Benhabib, The Rights of Others: Aliens, residents, and citizens (Cambridge: Cambridge University Press, 2004). See, e.g., Kathy E. Ferguson, The Feminist Case against Bureaucracy (Philadelphia: Temple University Press, 1984), 29; Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge: Harvard University Press, 1989), 161–2. See, e.g. James Crawford, The Creation of States in International Law, 2nd edn (Oxford: Clarendon Press, 2006).

20 role of international law in rebuilding societies

for democracy, justice, the rule of law, human rights, and the reference point of solidarity (if any). The question is what this artiﬁcial construct does and, moreover, what it can be managed to do to maintain that space ‘for all’. Also, the constitution of ‘the all’ is a matter of utilitarian rationalism: its inclusiveness is highly contextual and differs radically between human rights, immigration, constitution, external trade and other legal–political discourses. There are few grounds to contest that a state is a state however unequal the social conditions are within its borders. Human-rights violations do not cancel or stop statehood nor do gender inequalities.21 The state as an artiﬁcial construct is based on the grundnorm of sovereignty – the aggregate of rights, competences and elusive responsibilities – that can also be understood as a cultural discourse that produces the state as the natural agent of international order.22 Legal certainty, the protection of legitimate expectations, and foreseeability of legal relationships are other goods sanctioned by state authority that is built to manage stability and order, not change and renewal. This is the basis of social development that post-conﬂict state builders most keenly stress. Much less attention is given to the fact that, as a deﬁning agent, the state is as much a conﬁning box outside of, or against which, one may think but hardly act. The right to citizenship or diplomatic protection has not been widely recognised and to enforce one’s rights against a state remains extremely difﬁcult if not wholly theoretical.23 The problems of uti possidetis iuris and related doctrines have been widely discussed.24 A state may be constitutionally committed to gender equality and equal pay for equal work, participate in all the relevant international equality treaties, have a multitude of administrative guidelines on the subject, portray women in government leadership and celebrate a history of universal suffrage yet, in government employment, the same state may keep paying women 82 per cent of what men receive for equal jobs and recruit less than 10 per cent of women to the highest government ofﬁces without anyone gaining enforceable rights against it. This is the case, for example, in Finland, a state that is identiﬁed with the Scandinavian 21 22

23

24

Charlesworth and Chinkin, The Boundaries of International Law, 143. Cynthia Weber, ‘Perfomative states’ (1998) 27 Millennium: Journal of International Studies, 77–96, 90–1. See, e.g., Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (International Court of Justice, 26 February 2007). See, e.g., Malcolm Shaw (ed.), Title to Territory (Aldershot: Ashgate, 2005).

the ‘state-building enterprise’

21

equality-building and women-friendly welfare-state model.25 Thus, the social environment and the structures of power do not coincide with institutional arrangements even in situations where women’s rights movements have a long history and have gained many victories in terms of quotas and visible leadership positions. In their individual circumstances women keep running against the inability to operationalise the ofﬁcial consensus on gender equality, women’s equal liberties, opportunities and protections even within a state.

IV. The state as a sum of its parts Although the state is an artiﬁcial construct that revolves around powerful and all-but-innocent nationalist, ethnic and cultural imaginations, there are very concrete elements about it: ﬁrst, territory and population. If, in the pre-Westphalian era, states were more about the rule over territory, in the modern era the governance of population and market control take the foreground. If the state ever manage to rule the market, the contemporary discourse on globalisation is very much about the more or less voluntary acquiescence to the rule of the market without borders by states and other actors.26 Yet it is the geographical borders that delineate different spaces for different state models. Border-crossing afﬁliations, democracies and justices have always been contested – despite Kant and others’ cosmopolitan imaginations27 and despite organisational endeavours such as the European Union’s common area of freedom, security and justice.28 The reality of porous borders proven by immigration, refugee, Gastarbeiter, economic, political and cultural ﬂows mainly takes the form of a risk

25

26

27

28

Anne Lise Ellingsæter, ‘Welfare states, labour markets and gender relations in transition: The decline of the Scandinavian model’ in Thomas P. Boje and Arnlaug Leira (eds.), Gender, Welfare State and the Market: Towards a new division of labour (London: Routledge, 2000), 89–100. Susan Strange, The Retreat of the State: The diffusion of power in the world economy (Cambridge: Cambridge University Press, 1996), 4. Immanuel Kant’s Zum ewigen Frieden appeared in 1795; see discussion in Benhabib, The Rights of Others. The Common Area of Freedom, Security and Justice was ﬁrst established by the Treaty of Amsterdam and has subsequently been developed in several programmes and reforms. See Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, signed 2 October 1997 (entered into force 1 May 1999), Art. 1(3).

22 role of international law in rebuilding societies

to be controlled in the nationalistically inclined normative sphere.29 On the reverse side, international normative architectures only rarely express major scruples about the ideal that state borders should delineate between languages, nations, ethnic characteristics, cultures, histories, and even physical features, gene-pools and blood groups. Although these imaginations should be questioned in innumerable ways, they are recognised as useful ideas and arguments in fending off cultural clashes, viral pandemics, corrupted business practices and illegal aliens. Although many ‘natural’ borders exist – such as, perhaps, the Himalayas or the Atlantic – most of them are permeable and crossable to the extent that the demarcation by state borders is a hindrance rather than a protection for modern pluralist communities. The questionable value of deﬁnitive and constitutive border demarcation is clear in conﬂict cycles such as Palestine, Iraq, India and Pakistan, Timor-Leste and Sudan. The second concrete feature of the state is its population. The size and power of a state is measured in terms of the size of the population rather than, for example, its geographical extent. Today, the size of the market, the number of potential consumers, the gross domestic product and other growth indicators have become the yardstick of a state’s international power and, simultaneously, the manpower of its armies has declined and steadily lost ground to technology-based military might. Japan is the most famous example. This state that cannot boast great geographic dimensions, natural resources or strategic advantages, fought on the wrong side in the Second World War, and, consequently, possesses only a nominal military force, is, nevertheless, counted among world powers.30 On the other hand, states such as the United Kingdom that keep declining in econometric or military barometers can also use their politically strategic positions to maintain global inﬂuence. The delineation of the world markets by state borders is even more questionable than the division of the world by languages, nations, ethnicities, etc. The world’s economies are so intertwined through foreign direct investment, trade patterns, multinational actors, migrant labour, etc. that it may indeed be difﬁcult to understand, in the light of crude economic data, why the United Kingdom is part of the European Union’s internal market and not that of the United States.

29 30

Benhabib, The Rights of Others, 171, 213. See Laura Hein, Reasonable Men, Powerful Words: Political culture and expertise in twentieth century Japan (Berkeley: University of California Press, 2005).

the ‘state-building enterprise’

23

For these reasons, the concrete building blocks hardly justify an unquestioning acceptance of ‘the sovereign state’, nor do they manage to deﬁne it in a way that would make its role as a precondition and a goal of community-building – including a feasible system of good governance and justice – fully comprehensible. The signiﬁcance and role of the state in international relations can be described as ‘artiﬁcial’ – deriving from normative and conceptual imaginations.

V. Nation states The many imaginations surrounding state-building have been criticised in depth and at length.31 One of the most violent of these imaginations has been the nation state. Nationalism rose in the nineteenth century and gave way to the principle of self-determination of peoples only after the world wars.32 Yet, the ideas of the nation and the nation state are still highly potent drivers of conﬂict cycles and their settlement. This is so despite the fact that, according to critics, a human has no natural instinct or even capability to identify with a group as large as a nation.33 ‘A nation’ is an imagined construct that, through cultural means and with a number of idealised characteristics relating to family structure, history, ethnicity, shared values, language(s) and other afﬁnities, is passed on to new generations. In conﬂict cycles, these imaginations play an important and often disruptive role where the artiﬁcial start-up of political life leads to reinforcement of patriarchialisation, ethnicisation, sectarianisation, and general demagoguerising of political processes.34 The inherent danger of the nation lies in the ﬂip performed by certain ideologies whereby the cultural – imagination-, education- and beliefbased – existence of the nation is taken as natural and physical and married to the most concrete form of the state concept. The consequent insistence on the physical, inevitable and non-changeable nature of the nation coupled with a prophetic purpose – land titles, religions, 31

32

33 34

See, e.g., Francis Fukuyama, State-Building: Governance and world order in the 21st century (Ithaca: Cornell University Press, 2004); Jens Bartelson, The Critique of the State (Cambridge: Cambridge University Press, 2001). For these developments and their international legal signiﬁcance, see, e.g., James Crawford (ed.), The Rights of Peoples (Oxford: Clarendon Press, 1988). See Anderson, Imagined Communities. See, e.g., studies by Cynthia Weber, Simulating Sovereignty: Intervention, the state, and symbolic exchange (Cambridge: Cambridge University Press, 1997); Barbara Delcourt, Droit et souverainetés: Analyse critique du discours Européen sur la Yougoslavie (Brussels: Peter Lang, 2003).

24 role of international law in rebuilding societies

cultural norms – has led to conﬂicts between nations that have imagined themselves opposed to each other and, worse, reciprocally offensive to the extent of not being able to agree on peaceful coexistence, sharing of resources, neighbouring occupations of land, etc. Taken to this extreme, the only way to change or be rid of a nationality is to extinguish it.35 Through political interests, the strong appeal of nationalist identiﬁcation may be manipulated leading to ever further essentialisation and prioritisation of ‘us’ against ‘others’. Extremist, physically understood nationalisms have contributed to such atrocities as ethnic cleansing, the Holocaust, and mass rapes to produce offspring of a wished nationality or simply to humiliate and dehumanise the other. Governments of patriotic nation states have manipulated their internal and external politics on inter-nation rivalries.36 States may tell their histories through wars and conﬂicts.37 The International Court in the Bosnia Genocide Case demonstrated the catastrophic incapability of mainstream adjudication to condemn violence produced by nationalist extremism.38 The nation and the state eluded responsibility as they were taken as devoid of substantive personality when subjected to analytical dissection. Such a paradox prevents the realisation of state responsibility and the inviolability of human rights as it condones the artiﬁciality of the state (and its personality) when seeking the holder of sovereign powers but pulverises it when seeking those responsible for their abuse. In less extreme cases, the determination of the characteristics of a particular nation has led to the emergence of minorities, stateless nations and their peculiar problems. The thousands of secessionist groups and nations that today exist within the states of the world and who wish for autonomy or other greater rights do so because they do not identify with the existing determinations. Minorities face exclusion, unequal 35

36

37

38

See Amartya Sen, Identity and Violence: The illusion of destiny (New York: W. W. Norton, 2006). See, e.g., Mary Kaldor, ‘European institutions, nation-states and nationalism’ in Daniele Archibugi and David Held (eds.), Cosmopolitan Democracy: An agenda for a new world order (Cambridge: Polity Press, 1995), 68–95; Mary Kaldor, New and Old Wars: Organized violence in a global era (Stanford: Stanford University Press, 1999). See J. Ann Tickner, Gendering World Politics: Issues and approaches in the post-cold war era (New York: Columbia University Press, 2001); Joshua S. Goldstein, War and Gender: How gender shapes the war system and vice versa (Cambridge: Cambridge University Press, 2001). Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) (International Court of Justice, 26 February 2007).

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25

treatment, and different forms and levels of discrimination based on language or dialect, ethnic origin, religion or sect, date of immigration, etc. To build a nation state that can meaningfully mitigate these conﬂicts and resolve a fair number of them is a very long and imperfect process of governance that will be discussed in connection with the case of Finland below. Even when based on similar imaginations, nationalisms differ and attach to a wide variety of political agendas.39 Disruptive conﬂict and healthy contestation are difﬁcult, if not impossible, to balance. Containment and suppression mock the vows of freedom, openness, dialogue, pluralism and transparency. Despite problems and variations, the nation alongside gender remains the strongest identiﬁcation and value base in the modern global discourse on social relations.40 Both are central in counting the costs and beneﬁts of the state-building enterprise.

VI. Evaluation of state governance Besides the alpha and omega, the state has become the chicken and the egg of global governance both in peace and in conﬂict. Governance is directed at states and it is practised by states – sovereign states dominating the world scene as the leading actors. It is states or nations, democracies, institutions, etc. within states that are being built, developed and reﬁned on an inﬁnite trajectory towards perfection of the same statist governance despite the incoherence of rhetoric, practice, forms and substances.41 Modern governance is conscious of its imperfection and concerned with its own reﬁnement. This is true whether a state is located in the North, South or in-between, geographically or ﬁguratively. The same mantras for renewal and reform resound in government programmes only with slightly varying nuances. The elaborations of the socio-economic and political architectures for communities that emerge from a ‘lower’ global status present many points of interest for a diversity of actors who become the donors or

39

40

41

See, e.g., Jan Jindy Pettman, ‘Nationalism and after’ (1998) 24 Review of International Studies, 149–64; Kaldor, ‘European institutions, nation-states and nationalism’; Kaldor, New and Old Wars. Andrew Parker, Mary Russo, Doris Sommer and Patricia Yaeger, ‘Introduction’ in Andrew Parker, Mary Russo, Doris Sommer and Patricia Yaeger (eds.), Nationalisms and Sexualities (New York: Routledge, 1992), 1–20, 13–14. Delcourt, Droit et souverainetés, 409.

26 role of international law in rebuilding societies

contact groups through exercising ‘the responsibility to protect’.42 Some authors emphasise the positive aspects of the ensuing lopsided inﬂuence and see it as a transmission belt of liberal democratic values and practices.43 Others regard it as a necessary attachment to politically feasible development co-operation and post-conﬂict assistance, thus adopting a more pragmatic or realist viewpoint. Constituting states is an industry of the modern era, especially the post-1990 period. The foreign powers, their institutions and private actors are closely involved in the establishment of statehood and contribute to the fulﬁlment of the criteria when a new, fragile or conﬂictridden territory, or a ‘failed state’, attempts to control a people, deﬁne itself territorially, govern effectively and participate in global free trade and international governmental organisations.

VII. Creation of warm monsters To reduce the state to the sum of its parts does not explain the actual building of a viable state and sustainable society. The elements of the statehood doctrine require (1) the exercise of effective control over and (2) the ability to enter into foreign relations for (3) a deﬁned population that permanently occupies (4) a deﬁned territory.44 The state, surely, must signify more than its elements to explain the emergence of the rightduty of state-building, its eager implementation and the lack of success of any principled formulae.45 The classic doctrine of international law on states is involved in the growth of the global enterprise of state-building today, substantiated with 1970s interdependence theories, in very complex ways. State-building revolves around a set of issues and questions that escape and bypass the constitution of entities identiﬁed by international law. To evaluate how the state-building enterprise situates itself the structure and mechanics of the state become more interesting than its doctrinal building blocks. 42

43

44

45

International Commission on Intervention and State Sovereignty, The Responsibility to Protect, 11. Outi Korhonen, ‘Liberalism and international law: A centre projecting a periphery’ (1996) 65 Nordic Journal of International Law, 481–532, discussing the limitations of democratic teleologies. See also Anne-Marie Slaughter, ‘Building global democracy’ (2000) 1 Chicago Journal of International Law, 223–9. Montevideo Convention on the Rights and Duties of States, opened for signature 26 December 1933 (entered into force 26 December 1934). As demonstrated by Fukuyama’s book and the policies that it seeks to serve, Fukuyama, State-Building.

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27

According to Foucault, the modern state system and the state model are part of a package that he terms the era of governmentalism (gouvernmentalité).46 Governmentalism is global by nature and often imperial by style in particular vis-à-vis weaker – poor, fragile or conﬂictual – communities. Modern governmentalism and the state are closely linked. As Foucault put it, ‘The State, far from a historico-natural given, that would develop as “a cold monster” according to its own dynamics … is the correlation of a certain manner to govern.’47 As it is modern and enlightened, the modern state’s manner of governing is conscious of itself, autolimiting and rational – that is, ‘warm’ – as liberal principles require, according to Foucault. A static cold structure, by deﬁnition, is incapacitated in the face of the modern global challenges and the need of constant renewal. Foucault’s discussion is illuminating when pondering why a formal/ cold state structure is not enough to stop a conﬂict cycle, and why it remains alienating and void at the core in so many of the attempts at ‘liberation’ and ‘democracy’ from above. Foucault’s governance (or govern-mentality) exercised by ‘the warm monster’, on the contrary, is about the careful manipulating and balancing of complex individual and public interests; social goals and economic proﬁts; a healthy market and an effective public power; the fundamental rights and the independence of the governed subjects.48 Consequently, governance – whether ‘good’ or ‘transitional’ – is as far from a neutral act as one can imagine. The state as a tool and locus of this governance is not a neutral structure, which the classic and the formalist doctrines of state constitution seem to assume. And, there is no prototype, no universally applicable model to benchmark ‘good governance’.49 There is no consensus on the ‘good’ without the qualiﬁers ‘for whom and for what’. Internally within the state borders, governmentalism is about the making of people and divergent communities into a manageable society;

46

47 49

There are many translations of Foucault’s simple term gouvernmentalité. Although I have chosen to use the equally simple English substitute of ‘governmentalism’, the other aspects should not be forgotten: governmentality, governmental mindset, governing mindset, governance-orientation. Michel Foucault, Naissance de la biopolitique: cours au Collège de France (1978–1979) (Paris: Seuil/Gallimard, 2004). Ibid., 7. 48 Ibid., 46. See Merilee S. Grindle, Going Local: Decentralization, democratization, and the promise of good governance (Princeton: Princeton University Press, 2007); Ved P. Nanda, ‘The “good governance” concept revisited’ (2006) 603 Annals of the American Academy of Political and Social Science, 269–83.

28 role of international law in rebuilding societies

that is, making the private actions and aspects of life the charge of social policy and management through health and family policy, education, and legal systems.50 To build a state today entails the building of this complex structure and breathing life in to it – constantly. The latter is impossible if the building process fails to synchronise with the contested issues that press on the community at that moment. It is of very limited value to offer constitution drafting or reorganisation of the party system, police force or the like – a roadmap that is more ‘a horizon’ of a mature welfare state – if a community needs to solve something else ﬁrst – say land title, right of return of displaced persons, basic health and family life resources, or other unsettled claims. A ‘warm’ state-building enterprise would entail a massive invasion into the private and intimate aspects of life. Whether one agrees with Foucault’s famous critiques or not, the signiﬁcance of modern governmentalism is that, through globalisation and foreign control of the set-up of state structures and, thereby, the biopolitical51 management of target communities, a number of conﬂicts between the West and others have emerged. They are often termed cultural clashes and the Western position often describes them as utterly complex and regrettable problems of modern rational governance clashing with primitive cults, superstition, barbarism – in short, with the irrational and/or irresponsible position of the ‘less-developed’ or the ‘rogue’.52 As a counterweight to such concerns about clashes in the relationships between donors and ‘targets’, it is sometimes claimed that the Westto-Rest ‘transmission belt’, for all its faults, also spreads human rights into the four corners of the world. Nonetheless, even within the jurisdictions of the toughest human-rights courts of the globe, rights offer only a 50

51

52

See Foucault, Naissance de la biopolitique. See also Foucault’s later work: Michel Foucault, Histoire de la sexualité, vols. 1, 2 and 3 (Paris: Gallimard, 1994). One deﬁnition for Foucault’s term ‘biopolitics’ is that, contrary to the pre-modern or (approximately) pre-Westphalian era, it means to see the state population as a coexisting group of living beings whose lives need to be guided by a responsible government authority in all aspects of what they do and what they become in their lives, and who display biological and pathological traits that necessitate the development of speciﬁc knowledge and governmental techniques by the modern state. See Michel Foucault, Sécurité, territoire, population: cours au Collège de France (1977–1978) (Paris: Seuil/ Gallimard, 2004), 373, 377. See, e.g., Muhammad Lutﬁ al-Sabbagh, Islamic Ruling on Male and Female Circumcision: The right path to health (Health Education through Religion No 8) (Alexandria: World Health Organization, 1996). See also Karen Engle, ‘Female subjects of public international law: Human rights and the exotic other female’ (1992) 26 New England Law Review, 1509–26.

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29

relativised protection to individuals,53 of which the enjoyment requires solid personal resources, for example information, money, and time. Ultimately, the rights regimes are but one block of modern governmentalism that is set to manage in its myriad and imperfect procedures the social and biopolitical human condition. Very often governmentalism falls short of keeping the society ‘warm’. Amy Chua’s studies of various communities on different continents display the dynamics of superﬁcial governance and imported policies setting ﬁre to social orders.54 In many cases, the state-building enterprise fails to breathe life into the monster that it created or, alternatively, it gives it a dragon’s breath; the exigencies of modern governance do not automatically balance out in a newly built institutional, constitutional and electoral system; metaphorically, the systems either remain cold – if they fail to channel the contestations that are most pressing in the community – or they catch ﬁre – if they enable the violent outburst of profound social conﬂicts. For better or worse, it is the contestation and the struggle between interests that deﬁne the ‘temperature’ of the (state) corpus.

VIII. The performing state In a modern, self-conscious, autolimiting, utilitarian rational state such as Finland, the renewal agenda of post-industrial governmentalism emphasises the virtues of the more or less neoliberal new public management. Ninety years after the independence struggle and civil strife, ﬁftyﬁve years after the last payments of war indemnities, it is the structural problems, productivity and decline in democratic engagement that concern the government. Neoliberal doctrine centres on management by performance – setting goals, indicators and targets to quasi-autonomous sectors, leaving them to ‘perform’ as they see ﬁt. Norm intensiveness is regarded as old-fashioned. Administrative performance control is divided into a number of foci: agency, internal environment, objectives, risk identiﬁcation, risk assessment, risk response, controls, information and monitoring. 53

54

See Alexander Orakhelashvili, ‘Restrictive interpretation of the human rights treaties in the recent jurisprudence of the European Court of Human Rights’ (2003) 14 European Journal of International Law, 529–68. Amy Chua, World on Fire: How exporting free market democracy breeds ethnic hatred and global instability (New York: Doubleday, 2003).

30 role of international law in rebuilding societies

It is not, however, self-evident how such management succeeds – and more difﬁcult still to implement it in a simpliﬁed format in post-conﬂict cases as designed by the roadmaps and benchmarkings of various postconﬂict administrations.55 First, the elusive meanings of this complicated and disengaged, if not laissez-faire, governance style get lost in the systemic intricacy and detail; and second, the new public management models fail to provide tools to negotiate highly explosive social issues. In other words, they do not recognise the possibility of passionate ‘clashes’. Many post-conﬂict societies struggle between international and national reform agendas. Thus Bosnia-Herzegovina keeps failing to satisfy the international expectations of institution-building, for example in the ﬁelds of constitutional, press, and law and order reform. The top-ranking international envoy in Bosnia-Herzegovina sighed after inﬁnite rounds of talks to break the deadlocks on police reform had failed: ‘We do not have an agreement … We do not have hope and we do not have a chance for this country to move toward Europe.’56 The European Union has set deadlines for a variety of benchmarks and conditions for the signing of Stabilisation and Association Agreements (SAAs) for the Balkan nations as a part of its post-conﬂict stabilisation policies for the region.57 Despite formal independence, the phasing out of the UN governance moves slowly. The international community wills the Balkan stabilisation through EU integration and is stupeﬁed when the locals elect an anti-EU or otherwise ‘nationalist’-branded government. This results in a jigsaw of reform agendas; for example, in the conﬁnes of the integration framework, the High Representative of Bosnia-Herzegovina used his executive powers – including implementation of legislation and removal of ofﬁcials – on thirty-one occasions in order to advance EU-proof state-building between January and September 2007,58 a circumstance that fatally handicapped and destabilised the locally elected government that had a different approach. If the internationals were frustrated, so were the locals after the international administrators for the umpteenth time decided to ‘streamline’

55 56

57

58

Korhonen, Gras and Creutz, International Post-conﬂict Situations, paras. 1.2, 1.3. ‘Bosnian leaders fail again to agree on key police reforms’, Agence France Presse (12 October 2007). The European Agency for Reconstruction manages the European Union’s main assistance programmes in the Balkans region. See the Agency’s website: www.ear.europa.eu. Commission of the European Communities, Bosnia and Herzegovina 2007 Progress Report (Brussels: Commission of the European Communities, 2007).

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the operations of Bosnia’s central government.59 At the government’s resignation the outgoing prime minister of Bosnia-Herzegovina expressed his disapproval of the contingency of his country’s political independence: ‘Twelve years after Dayton, foreigners have exclusive rule over this country, and I believe this isn’t good for this country or its citizens.’60 The question that comes back to the international community is whether it can require a post-conﬂict society to set only externally approved goals, meet similar conditions and match corresponding indicators in order to advance in steps that are externally veriﬁed even when democratically elected local leadership is of a different feather.

Case study: Independence of Finland To gain perspective on state-building, state maturing, the repression of conﬂict and the gradual adoption of the modes of modern governmentalism, it is useful to consider a case study of the Finnish independence struggle and the ensuing period of stabilisation spanning several decades.61 Finland is often regarded as a representative of Nordic-Scandinavian welfare liberalism, women’s rights, immunity to corruption, rule of law, and various other key virtues associated with good governance. Its history and its present, however, can also been seen in the light of a colonial background, non-native elite, class struggle and violent civil conﬂict in the wake of independence, and, consequently, the pitfalls, challenges and failures of the state-building enterprise. Finland, although connected to the Scandic mountain range in the north, is separated from Sweden through the cleavage of the Gulf of Bothnia (the northern part of the Baltic Sea). Sweden, a powerful regional seafaring empire in medieval times, ruled Finland as well as a number of other Baltic territories from the twelfth until the beginning of the nineteenth century. By the 1809 Treaty of Fredrikshamn between Russia and Sweden, the latter conceded Finland to her eastern neighbour (Russia), which undertook to govern the new province as an autonomous GrandDuchy.62 The autonomy fared well under Finland’s Swedish-speaking upper social strata who occasionally sent their sons to become high-ranking 59 60 61

62

‘Bosnian PM resigns to protest envoy’s actions’, Agence France Presse (1 November 2007). Ibid. I have dealt with the Finnish case study in Outi Korhonen, International Law Situated: An analysis of the lawyer’s stance towards culture, history and community (The Hague: Kluwer Law International, 2000), covering the period of the independence struggle. Treaty of Fredrikshamn (also known as the ‘Treaty of Hamina’) (17 September 1809).

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ofﬁcers in the St. Petersburg military academy and, in various ways, kept good relations among the transnational European elites. The Estates of Finland started to convene regularly, according to the Swedish Constitution of the Grand-Duchy, in the 1860s. An era of liberalism and socio-economic ﬂourishing ensued. However, as a result of changes in the Russian political climate the Czar’s government launched a programme for the Russiﬁcation of Finland in the late 1890s. A difﬁcult and disoriented struggle to regain autonomy and, later, independence ensued. The following elements of the Finnish struggle illustrate a typical, if not historical, narrative of dilemmas and conﬂict-drivers in state-building. 1. Passive versus activist resistance and extremism. At the start of the integrative measures of the Russian government (1899 and after), the Finnish resistance divided into ‘activists’ and ‘passivists’. Whereas passivists seemed to acquiesce, activists formed foreign alliances (with Sweden and Germany), smuggled guns, sent young men to be trained for the vanguard of liberation ﬁghters in foreign military training camps and sponsored protest acts by individuals against authorities. Despite the abundant hero stories on both sides, both activist and passivist strategies caused little change and resulted in mutual resentment within the resistance. 2. Spearheaded struggle versus broad popular basis. The elite sought popular support for the autonomy struggle. The late nineteenth-century ideologies of liberalisation, democratisation and national romanticism supported the arguments for a new political entity (Finland) that would be much less threatening to Russia than the cultural tie of the elite to Sweden suggested. The small numbers of the governing classes were eventually broadened by the grant of general and equal suffrage in 1906. The granting of full voting and representation rights also to women was aimed at strengthening the national entity much more than at equality – even though the latter was embraced in discourse. The result was, however, an unpredicted disempowerment of the old elite, who hardly managed a quarter of the seats in the new parliament. The spearhead of the national cultural movement was crushed and a bundle of new populist directions emerged as competitors. 3. Dire straits: famine, security and foreign involvement. External events weakened central power in Russia. External conﬂicts (the Japanese War and the First World War) took a heavy toll on the empire and the Czar’s government was toppled by revolution in 1917. Throughout

the ‘state-building enterprise’

33

Russian rule, Finland had relied on imperial food imports, which ground to a halt during the wars. The activists conspired with Germany to drive the more than 100,000 troops, governors and other Russians out, but, contrary to expectations, the co-operation never materialised. Finland was struck with famine and the remaining imperial troops looted as the wheat trains stopped coming. The elite faced a socialist majority in the parliament and a threat of bolshevist revolt spreading from nearby St. Petersburg. Famine, strikes and general disorder reigned. Sweden refused calls for ‘humanitarian invasion’. 4. Independence and civil war. In December 1917 the conservative minority government declared independence and gained recognition by the Soviet government. A German prince was invited as king because the Swedish Constitution of 1772 envisaged a monarchy, no other constitution existed and the government embraced ‘the strong man’ approach to stabilisation. Germany, however, was defeated and the king-elect never arrived. A bloody civil war broke out with the sidestruggle against the looting Russian troops. Western powers provided military equipment to the ‘White’ minority government. The ‘Red’ movement was defeated in a few months. Tens of thousands of Finns lost their lives in the struggle – although most died in the primitive prison camps and through general famine and terror after the ceaseﬁre. A fragile peace took hold by the end of 1918. 5. Post-conﬂict state- and democracy-building. A new republican constitution was promulgated by the ‘Whites’. The Communist party was outlawed and socialists were kept out of the government for nearly three decades. Gradual state-building was managed with a number of restrictions on the freedom of opinion, assembly, press and any offensive political sensibilities. In the 1930s, a number of revolutionary sparks were repressed by political intimidation. Politically motivated crime took place without punishment and militias were formed. 6. The wars and national uniﬁcation. The Winter War and the Second World War are commonly regarded as the decisive drivers of national uniﬁcation in Finland. The external enemy, the burden of the war effort, the lost territory and the reparations paid, at the very least, focused the threat outside. Again, a strong-man strategy was adopted with amendments to the Constitution.63 President Kekkonen, who 63

A special Act was promulgated by the parliament (17 March 1973) in the order of a constitutional amendment; thereby the presidential election of 1974 was cancelled by virtue of mutual consent and the president’s term extended by four years.

34 role of international law in rebuilding societies

presented himself as the personal guarantor of external peace, was the head of state from 1956 to 1981 when illness forced him out. Throughout these years, stability, caution, non-alignment and support for multilateralism were consolidated as national political virtues. 7. Long-term effects. The repression, the outbreak of extreme violence and the superﬁcialities of the early democracy scarred the political development of Finland for decades. Many repressed passions and peculiarities of the modern state – both in governance and law – ﬁnd explanation when investigated through the lens of the early decades. Ninety years on, the state-building years still mark the political corpus of the state. Through these struggles and their imperfect governance, the Finnish state acquired its ‘temperature’ – the ongoing process of contestation represented in national politics and its blind spots. Through the management, mitigation and mediation of the formative social costs and beneﬁts, Finland developed into a modern Western democratic state with its scars, handicaps, privileged interests and ‘freezes’. It can, for example, guarantee a minimal social-welfare system and a quota of women in public and private leadership, but it cannot easily overcome its structural problems that, on the other hand, helped to guarantee its stability. The more stable Finland becomes, the colder it turns. The more consolidated its state structure and the more intricate its management technologies, the more elusive their political meaning – and the less people ‘enjoy’ their civil liberties and their political voice. The times of overt repression and forced political silence aside, in terms of post-industrial democracies, it is a path to declining voting rates, acquiescence to structural corruption, the tube-vision of economic growth, and the lack of interest in civilsociety dialogue. As Finland enters into the era in which the largest challenge is an aging population and the governmentalist response is the introduction of ‘performance management’, the question becomes whether the old state-building enterprise has ﬁnally come to its ﬁnale. Relying on a 2007 McKinsey country report, the Financial Times said: when Finland’s economic performance [3.4 per cent annual average growth for over a decade] is adjusted to take purchasing power into account, a completely different picture appears … Finland is running to [a] standstill … it can either take action to tackle a complicated assortment of structural weaknesses and stave off a possible crisis, or let the anaesthetic of steady economic growth numb it to the full extent of its future problems.64 64

David Ibison, ‘All is not as it appears in frozen land’, Financial Times (4 September 2007).

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Beyond the national economic ﬁgures, Finland’s problems encompass the problems of increased youth and family violence, ‘digital divides’ of all sorts, social relegation, alienation and the like.

Conclusion The state-building enterprise is one aspect of the globalisation enterprise – a facet of the global restructuring processes65 that occur at different sites with different strategies and means. Susan Marks,66 Kerry Rittich67 and others have raised fundamental questions about what rights, what democracy and what compacts of policy alternatives are prioritised over others in these processes that are taken as apolitical or neutral in the same sense as I have argued above regarding the state-building enterprise. The consequences in terms of women, children, labour rights and policies, migration patterns and rules, health and education policies, structural-adjustment programmes, and the different projects and administrations of reconstruction have been critically examined.68 How these chips fall in the global casino of transnational ﬁnance and technologydriven economies, where the prime social policy is the policy of growth, is the game to manage in order to ﬁnd the openings for empowerment.69 Challenging monolithic images of both power and resistance, Foucault wrote: Power comes from below; that is, there is no binary and all-encompassing opposition between rulers and ruled at the root of power relations, and serving as a general matrix … manifold relationships of force that take shape and come into play in the machinery of production, in families, limited groups, and institutions, are the basis of wide-ranging cleavages that run through the social body as a whole. [And similarly] there is no

65

66

67

68

69

Marianne H. Marchand and Anne Sisson Runyan (eds.), Gender and Global Restructuring: Sightings, sites and resistances (London: Routledge, 2000). Susan Marks, The Riddle of all Constitutions: International law, democracy, and the critique of ideology (Oxford: Oxford University Press, 2000). Kerry Rittich, Recharacterizing Restructuring: Law, distribution, and gender in market reform (Boston: Kluwer Law International, 2002). V. Spike Peterson and Anne Sisson Runyan, Global Gender Issues: Dilemmas in world politics (Boulder: Westview Press, 1993); Georgina Waylen, ‘Gender, feminism and political economy’ (1997) 2 New Political Economy, 205–20; Cynthia Enloe, Maneuvers: The international politics of militarizing women’s lives (Berkeley: University of California Press, 2000). Susan Strange, ‘World order, non-state actors, and the global casino’ in Richard Stubbs and Geoffrey R. D. Underhill (eds.), Political Economy and the Changing Global Order, 2nd edn (Oxford: Oxford University Press, 2002), 82–90, 82.

36 role of international law in rebuilding societies single locus of great Refusal, no soul of revolt, source of all rebellions, or pure law of the revolutionary. Instead there is a plurality of resistances, each of them a special case.70

I have discussed Finland, a rather unfamiliar ‘post-conﬂict state’, as an example. Despite its mature and virtuous image, it is reasonably young and even reasonably post-colonial and, thereby, offers a more interesting lesson than the ‘model pupil’ of the European Union. There is no metanarrative for state-building and Finland certainly does not represent the archetypal progress narrative for state-building. It is evident that the birth of a nation and/or the emergence of a new state evolve from the mysteries of social contracting for which there is no recipe and which, fortunately, is open to inﬁnite heteronomies, differences and innovations. The global state-building enterprise offers the brand solution – the classic state doctrine together with new public management as the meat on the bones. This is, however, the world vision of a single empire.71 Fortunately, however, ‘America’ or any other modern and governmentalist real-life state or other actor will always remain too imperfect in its governance to measure up to its own performance standards. As Foucault’s poikilothermal, self-conscious, autolimiting and utilitarian monsters struggle between their own colds and fevers, openings for empowerment remain. Modern social philosophy leads to the general conclusion that a hegemon never possesses its structure in an exclusive manner.72 Whatever the hegemon undertakes, it is simply impossible to maintain relations of property and identity with the structure within which it operates. Therefore, the hegemon can assert hegemony only through political and artiﬁcial constructions of, for instance, institutions and conceptual systems. This applies also to the concept and doctrine of the state. Statebuilding as an enterprise is a classic assertion of hegemony and empire. There are, however, strategies of empowerment and resistance. The more challenging opening would be to identify alternatives to the right–duty of state- and institution-building. It would entail unravelling state sovereignty, questioning the doctrine and addressing the riddle of democratic constitutionalisation. In more pragmatic terms it would entail long-term intensive and invasive co-development support 70

71 72

Michel Foucault, quoted in Duncan Kennedy, ‘The stakes of law, or Hale and Foucault!’ (1991) 15 Legal Studies Forum, 327–66, 352–3. Niall Ferguson, Colossus: The price of America’s empire (New York: Penguin Press, 2004). Korhonen, International Law Situated.

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in various kinds of partnerships between the more mature and transitional or post-conﬂict societies. It would require the human, material and time resources to negotiate culturally speciﬁc conditions for the rule of law, democracy, human rights, equality and sustainable development case by case. The second alternative is much less demanding in resources, modest in virtuous ambitions and savvy in political feasibility. In this volume, Bowden and Charlesworth present one and Maley another kind of these solutions. Bowden and Charlesworth offer a middle ground of localising ideas of democracy. Maley’s strategy of encouraging initial acts of statebuilding, followed by democratic choice mechanisms that are accompanied by broader initiatives to inculcate political legitimacy, can be read as a kind of performance-management scenario. With political leaders elected and legitimated, the entities would be left to perform. Here, however, without the intricacies of modern governmentalism, it will be evident that structures of domination will be stabilised, hegemonic interests will gain, the meaning of intended good-governance concepts and instruments will often transform and mutate in unexpected directions. Perhaps, however, narratives will be produced where the state corpuses will neither be stillborn cold nor burst into ﬂames. It may be that social contracts of other kinds will also emerge as windows of empire and empowerment open and close.

2 Democratisation, state-building and politics as technology nehal bhuta

Introduction This chapter develops a critical history of the contemporary uses of state-building and ‘democracy-building’ as frameworks governing increasingly intensive interventions in the politics of post-colonial societies (so called ‘post-conﬂict peace-building’). It builds this history by situating the emergence of these concepts and programmes within the history of American political science, and within geopolitical history of the last twenty years. The chapter points to an analogy between imperial liberal reform and contemporary notions of state-building, which have in common a notion of ‘politics as technology’.

I. Politics as technology and imperial liberal reform In The Social Contract, Rousseau ponders the problem of creating new political orders – new states. The pressing question is: who is capable of devising rules and institutions for another people? The task of the legislator (lawgiver) is to design a new order suited to the needs of the population based on sound principles of political theory, in order to be both stable and reasonably just. To answer this question, Rousseau retreats to an Archimedean point outside society, from which a ‘superior intelligence’ could behold ‘all the passions of men without experiencing any of them’. It would take gods to give men laws. For Rousseau this proposition is not a statement of absurdity. Rather, in a metaphorical transposition the lawgiver is equated with an engineer who ‘invents the machine’. Politics is a mechanism that ﬁrst had to be invented and designed, and then engineered, calibrated and measured. Naturally, its component parts – the people – cannot be spared from the engineer’s lathe. Thus, according to Rousseau, the lawgiver who dares to undertake 38

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the making of a people’s institutions ‘ought to feel himself capable … of changing human nature … of altering man’s constitution for the purpose of strengthening it … He must … take away from man his own resources and give him instead new ones alien to him, and incapable of being made use of without the help of other men.’1 External political engineering requires an engineering of human subjects; subjects must become objects; known, measured, calibrated and remade in the name of the telos of a normatively consecrated order. Earlier, Machiavelli also considered the problem of instituting ‘new modes and orders’.2 Much of Machiavelli’s oeuvre makes most sense as an attempt to grasp the circumstances in which a stable state can emerge and endure.3 The ﬁgure of the Prince was the medium for the realisation of such. Yet, in contrast to Rousseau’s Archimedean lawgiver, the Prince does not occupy a position outside the social world, nor does he aspire to total knowledge of this world. The Prince is neither engineer nor mechanic, nor does he successfully consolidate a state through some ﬁctional contract. The Prince is the embodiment of the political actor who acts under and within the conditions of speciﬁc historical conjunctures, bounded by pre-constituted relations of force and historical conditions that are not presumed to be inﬁnitely malleable or knowable. The ‘actual truth of the thing’ in Machiavelli emerges not from omniscience of the external lawgiver,4 but from the activity of men, a truth which exists only in the confrontation between forces. The success of the Prince is never wholly or even mostly a matter of design; it is the product of the aleatory interaction of fortuna and virtu. Accordingly, the knowledge that serves the Prince best is that of the reality of the task that confronts him and of the exigencies of political practice under that conjuncture. Indeed, when it comes to the idea that new orders can be founded ab initio through sheer technical mastery, Machiavelli shrinks from the implications: to make in cities new governments with new names, new authorities, and new men would be ‘a very cruel enterprise or altogether impossible’.5 1

2

3 4

5

Jean-Jacques Rousseau, The Social Contract and Discourses, tr. Christopher Betts (New York: Oxford University Press, 1994), 76. Niccolò Machiavelli, The Prince, tr. Peter Bondanella and Mark Musa (Oxford: Oxford University Press, 1984); Niccolò Machiavelli, Discourses on Livy, tr. Harvey C. Mansﬁeld and Nathan Tarcov (Chicago: University of Chicago Press, 1996). Louis Althusser, Machiavelli and Us (New York: Verso, 2001), 48, 56, 80. As Althusser puts it: ‘This is the thesis of the Aufklarung: like light, truth has no location; it occurs, and works through the efﬁcacy of the true, whose essence is to take effect by enlightening’: ibid., 22. Machiavelli, Discourses on Livy, 47–61.

40 role of international law in rebuilding societies

These two moments in political theory mark distinctive approaches to creating new orders. One imagines political and social space as historically conditioned, non-transparent and determined by circumstances and forces too numerous to know or control with any certainty. Successful political action resides in a kind of self-limitation in terms of the presumed malleability of the real. The other is a deeply modern ‘machine dream’.6 As Morgenthau observes, two deﬁning characteristics of modern liberalism are ‘the conception of the social and the physical world as being intelligible through the same rational processes [as science] … and the conviction that understanding in terms of these rational processes is all that is needed for the rational control of the social and physical world’.7 What this leads to, for Morgenthau, is the dangerous and self-deceiving understanding of politics as technology, a mode of political being that forgets its own historical determinacy and engages with all politics, everywhere, as if political and social spaces are homogeneous. Morgenthau further laments, ‘For the liberal reformer the domestic problems which remained to be solved after the fall of the feudal state were of a nonpolitical, rather technical nature, analogous to those with which the physicist and the technician have to deal’.8 Morgenthau castigated the liberal international lawyers of the interwar period for thinking that the legal rules and forms so beloved of liberal legalist thinking could create an international order which had already lost its social and political foundation: the nineteenth-century land order of the jus publicum Europaeum. The basic error of these lawyers was to think that fundamentally political questions such as constituting new orders could be approached in the technical manner of nineteenth-century liberal rationalism. The ideology of liberal reform promised a technology of political change, if only enough knowledge could be accumulated about the society in question. But Morgenthau maintained that social and political problems could not be treated like the problem of an ‘air-cooled engine’: the problem of the air-cooled engine was unsolvable under certain technological conditions and became solvable under others … Social problems, such as marriage, education, equality, freedom, authority, peace, are

6

7

8

See Philip Mirowski, Machine Dreams: Economics becomes a cyborg science (Cambridge: Cambridge University Press, 2002). Hans J. Morgenthau, Scientiﬁc Man vs. Power Politics (Chicago: University of Chicago Press, 1974), 3. Ibid., 27.

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of a different type. They do not grow out of temporary limitations of knowledge or temporary insufﬁciencies of technical achievement.9

Yet the consequences of this liberal mode of political being (thinking and acting) were very real: colonial state-building projects from Asia to Africa were laboratories for the reformist fantasy that whole peoples could ﬁrst be grasped as objects of knowledge, and then reconstituted as political subjects through long-term intervention and oversight.10 Liberal reformers such as Mill, Bentham and Macaulay understood that domination of one people by another involved the potential for great abuses, and were appropriately scandalised by such abuses when they occurred.11 But they ﬁrmly believed that such risks could be minimised by a commitment to the values of trusteeship, in which the title deeds of empire were underwritten by the positive transformation (civilisation) wrought by the coloniser: the rule of law was to replace arbitrary despotism; political institutions would be modelled on the political life of the metropole, but expertly adapted by colonial civil servants to the culture and values of the natives; and native practices that scandalised the morality and sensibility of Europeans would be extirpated.12 Underlying this approach was a belief in the ‘limitless malleability’ of character and politics; foreign domination could carry a people ‘through several stages of progress’ and ‘clear away obstacles to improvement’.13 As Bain’s reconstruction of the conceptual structure of trusteeship suggests, the humanitarian imperative underlying a relationship of tutelary reform is necessarily hierarchical: the external actor promotes the welfare of those who are incapable of choosing or attaining for themselves the ends for which they ought to strive.14 The tutelary subjects are encouraged to participate in the process of their own tutelage (in part to make it more effective), and they are assumed to be ultimately capable of obtaining the objectives prescribed by the tutelary power. The idea of 9 10

11

12 13

14

Ibid., 215. See Uday Singh Mehta, Liberalism and Empire: A study in nineteenth-century British liberal thought (Chicago: University of Chicago Press, 1999), 9, 37; Thomas R. Metcalf, Ideologies of the Raj (Cambridge: Cambridge University Press, 1994), 29. For example, J. S. Mill joined the ‘Jamaica Committee’ to urge the prosecution of Governor-General Eyre for his alleged excesses in suppressing the Morant Bay revolt in Jamaica: see Metcalf, Ideologies of the Raj, 52–4. See Mehta, Liberalism and Empire, chs. 1, 3, 4; Metcalf, Ideologies of the Raj. J. S. Mill, Utilitarianism, Liberty, Representative Government (London: Dent, 1964) 218–27, cited in Metcalf, Ideologies of the Raj, 33. William Bain, Between Anarchy and Society: Trusteeship and the obligations of power (Oxford: Oxford University Press, 2003), 23–6.

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domination as an end in itself was decried as incompatible with the ‘sacred trust’ of tutelage, but the path to equal emancipation nevertheless required at least temporary domination so that the tutelary subjects could be properly educated in the means and ways of a good polity.15 In contrast to liberalism’s domestic concern to limit the exercise of political power, in its imperial reformist aspect, liberal thought embraced a capacious concept of the desirable uses of political power to manage the affairs of other peoples and territories.16 For the liberal reformers of the British Empire, the primary responsibility of colonial government was the security and happiness of its native subjects.17 In India, this was to be achieved through the reconstruction of political institutions and to make Indian law more ‘rational’ and benevolent. The principles applied in such a reordering were regarded as ‘true in every country’.18 But this did not mean that these reformers were indifferent to local customs and practices. The subjects of tutelage also had to be thoroughly known as objects of sociological and anthropological knowledge, to maximise the efﬁcacy of the institutional reform and redesign.19 Hence, colonial bureaucracy was not just about control: it was also an accumulation and creation of knowledge in the service of rule, a rule which created its own objects and its own experts.20 East India Company governor Warren Hastings took great care to study indigenous systems of justice, in order to create a colonial legal order that appeared directly modelled on indigenous customs, texts and practices.21 The new legal procedures seemed fully justiﬁed as the maintenance of an Indian legal tradition, which had been rationalised and modernised to ensure the best approximation of the ‘rule of law’ that could be achieved under Indian conditions.22 Similarly, Lord Lugard’s model of indirect rule required the diligent district ofﬁcer to accumulate and codify as much knowledge about local custom as possible, in order to improve the efﬁcacy of indirect rule and its ultimate goal of reforming the political life of the colonised population.23 The colonial state was ‘relentless’ in

15 17 18

19 20

21

Ibid., 26. 16 Mehta, Liberalism and Empire, 79–80. Metcalf, Ideologies of the Raj, 25–39; ibid., ch. 3. Timothy Mitchell, The Rule of Experts: Egypt, techno-politics, modernity (Berkeley: University of California Press, 2002), 54. Metcalf, Ideologies of the Raj, 5–28. Nicholas B. Dirks, The Scandal of Empire: India and the creation of Imperial Britain (Cambridge: Harvard University Press, 2006), 209. Ibid., 212. 22 Ibid., 222. 23 Bain, Between Anarchy and Society, 59.

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its ‘quest … for detailed information’24 about subject populations, in order to rule them in an ‘enlightened’ manner and to authorise the fact of that rule. The conceit of politics as technology, of which colonial liberal reform is a variety, is that social relations can be mapped and known as objects of knowledge within a Euclidean space,25 and so rendered amenable to more and more intensive technical intervention. In the mode of Rousseau’s omniscient lawgiver-cum-engineer, colonialism’s thirst for knowledge sought a snapshot of subject societies, all the better to reconstitute and reorder them. But, as Mitchell reminds us in his study of Egypt, to claim to ‘know’ an object in this way is also to act on and transform it, through codiﬁcation, systematisation, rearticulation. Such knowledge-objects are neither mere representation nor hard ‘facts’ – they are ‘artifactual’ creations that simplify the world and underwrite claims of expertise by resolving social reality into a much simpler set of forces and oppositions.26 Expertise constructs its object as much as it claims to know it. Unsurprisingly, there is rarely a linear relation between the expert reformer’s claimed knowledge and intention, and the sought-after outcome. Thus, Hastings’ effort to establish an Indian legal tradition on rationalist principles in fact created a ‘new and radically different system of classiﬁcation and codiﬁcation’.27 Instead of ameliorating the alleged arbitrariness and cruelty of the pre-existing juridico-religious order, British justice turned out ‘to be far more draconian … than Islamic justice had been’.28 With its emphasis on ﬁxed (that is, certain, non-arbitrary) punishment, the new system imposed capital punishment much more frequently. Similarly, British rewriting of Egyptian land laws, undertaken in the name of banishing the unpredictability of the Ottoman-derived land-tenure system, created a new private realm of arbitrariness: freehold estates concentrated in the hands of village notables, but unencumbered by the networks of informal and unwritten communal obligation that had overlaid the old property rights. Rather than creating a rupture with arbitrary forms of power, the modern ‘rule of law’ in Egyptian property ‘rearranged the arbitrariness. It redistributed its operations and its effects … Law ruled on the outside, arbitrary power was hidden on the inside.’29

24 26 28

Metcalf, Ideologies of the Raj, 26. 25 Mehta, Liberalism and Empire, 108. Mitchell, The Rule of Experts, 34. 27 Dirks, The Scandal of Empire, 220–1. Ibid., 221. 29 Mitchell, The Rule of Experts, 78.

44 role of international law in rebuilding societies

II. Democracy as metonymy, good governance as techné Many trappings of nineteenth-century rationalism, such as naïve naturalism, crude teleology and racialised hierarchies of social and political organisation, are no longer with us. But the conceptual grammar and syntax of ‘politics as technology’ remains fundamentally constitutive of disciplines such as economic development and the emergent knowledgecomplex of ‘state-building’ and ‘democratisation’. These modes of political thinking are not merely ideas or representations to be corrected or adjusted. They are modes of political being that are codiﬁed, operationalised and disseminated through a variety of circuits: ﬁnancial, academic and non-governmental. They are quintessentially forms of knowledge/power in the Foucauldian sense, which actively envision, shape and discipline political subjectivities in creating new modes and orders. Almost two decades since the end of the cold war, categories such as ‘democratisation’, ‘good governance’ and now ‘state-building’, have emerged as forms of expertise characteristic of politics-as-technology. It is imperative that we analyse and debate them less as innocent categories of political or legal theory, and more as ‘privileged channels for the exportation of political technologies, economic recipes, or juridical models’.30 The imperative derives from the inherent dangers entailed in the re-emergence of substantive models of domestic order as the proper concern of international politics. This re-emergence parallels the end of the cold war, the unprecedented ideological hegemony achieved by the liberal democratic states of the West and the geopolitical hegemony of the United States. As Keene argues, the notion of a standard of civilisation in international affairs – a standard which codiﬁed and authorised imperial dominance in the eighteenth and nineteenth centuries – was not entirely banished from the juridical structure of international politics after 1945.31 It continued to be implicated in the under-determined concepts of human rights, economic and technological progress and self-determination. But under a bipolar world order, in which any international legal deﬁnition implicating the legitimacy of domestic political

30

31

Nicolas Guilhot, The Democracy Makers: Human rights and international order (New York: Columbia University Press, 2005), 8. Edward Keene, Beyond the Anarchical Society: Grotius, colonialism and order in world politics (Cambridge: Cambridge University Press, 2002), 98–118.

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and social systems was subject to vigorous contestation by each bloc, thickly prescriptive visions of domestic order could not be codiﬁed. With the collapse of the bipolar order, the institutionalisation and circulation of a radically more substantive vision of domestic order became possible. This possibility was widely embraced as marking a new frontier for liberal internationalism. Not only would the political institutions and forms of liberal democracy proliferate32 (a trend seemingly evidenced by the wave of democratic transitions following the end of the cold war), but the international legal order would ﬁnally abandon its agnosticism concerning preferred forms of governance and articulate a ‘right’ to (liberal) democratic governance on behalf of all.33 Against the dominance of realism in international affairs, a strong interest revived in the idea of liberal peace, which explicitly and elaborately theorised a causal connection between a particular kind of domestic order, and peace and cooperation between sovereign states. None of these currents of thought were novel to the post-cold war context. The claim to pit liberty against Soviet tyranny was an ideological mainstay of US interventions during the cold war,34 and the propagation of theoretical, legal and popular political arguments for the superiority of liberal democracy formed a continuous part of US policy throughout that period.35 But in the absence of an ideological and geopolitical contest, the horizon for the active realisation of these liberal democratic ideas about domestic politics and international order seemed unbounded. There was even a moment when it appeared that ‘democratic enlargement’ would be consecrated in US grand strategy as the successor doctrine to containment.36 It is in the context of this fervour that one can locate the emergence of the claim that liberal democracy should now be considered as primus inter pares among 32

33

34

35 36

Most notably in Fukuyama’s thesis on the ‘end of history’, but also, as Carothers notes, ‘many democracy enthusiasts clearly believed that, while the success of new transitions was not assured, democratization was in some important sense a natural process, one that was likely to ﬂourish once the initial breakthrough occurred’: Thomas Carothers, ‘The end of the transition paradigm’ (2002) 13 Journal of Democracy, 5–21, 7. Thomas M. Franck, ‘The emerging right to democratic governance’ (1992) 86 American Journal of International Law, 46–91. Odd Arne Westad, The Global Cold War: Third World interventions and the making of our times (Cambridge: Cambridge University Press, 2005), ch. 1. Guilhot, The Democracy Makers, chs. 1, 2. Douglas Brinkley, ‘Democratic enlargement: The Clinton doctrine’ (1997) 106 Foreign Policy 111–27; Thomas Carothers, ‘Democracy promotion under Clinton’ (1995) 18(4) Washington Quarterly, 13–25.

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possible forms of political legitimation tolerated by the international legal order,37 and an increased willingness to argue that various kinds of intervention to promote or even impose liberal democratic institutions and practices are legitimate under international law.38 Even if the shifting geopolitical context opened a space for a renewed effervescence of liberal internationalism, it has not necessarily resulted in a conforming legal practice among international institutions. As Fox concludes in his survey of the ‘right’ to democracy in international law, ‘More common are statements by international bodies that strongly afﬁrm democracy’s importance but lack clear indications of whether the statements are lex lata, de lege ferenda or mere political aspirations.’39 In the practice of UN Charter organs, resolutions increasingly refer to ‘democracy’ or ‘periodic and genuine elections’ as desiderata in the context of speciﬁc regional conﬂicts, but there is little evidence that ‘democracy’ has developed a determinate legal content in international law.40 Between 1993 and 2000, the Security Council referred to democracy in ﬁfty-three resolutions, all of which implied a favourable view of democracy as conducive to the resolution of a regional or national conﬂict,41 without elaborating on the meaning of democracy. The General Assembly has similarly referred to democracy in resolutions addressing internal conﬂicts or promoting negotiated transitions from governments that assumed power in an irregular manner (such as in Myanmar and after the 1991 military coup in Haiti),42 and several

37

38

39

40

41

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See Allan Rosas, ‘Internal self-determination’ in Christian Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht: Martinus Nijhoff Publishers, 1993), 225–52; Jean Salmon, ‘Internal aspects of the right to self-determination: Towards a democratic legitimacy principle?’ in Christian Tomuschat (ed.), Modern Law of Self-Determination (Dordrecht: Martinus Nijhoff Publishers, 1993), 253–82. See the range of arguments made in favour of the United States invasion of Panama, discussed in ch. 3 of Simon Chesterman, Just War or Just Peace? Humanitarian intervention and international law (Oxford: Oxford University Press, 2001). Gregory H. Fox, ‘Democracy, right to, international protection’ (Detroit: Wayne State University Law School, Legal Studies Research Paper Series No. 07–22, 2007), para. 4. See, e.g., Nowak’s discussion of the vague content of Art. 25 of the International Covenant on Civil and Political Rights: Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR commentary, 2nd edn (Kehl: N. P. Engel, 2005), 590. Gregory H. Fox, ‘Democratization’ in David M. Malone (ed.), The UN Security Council: From the cold war to the 21st century (Boulder: Lynne Rienner, 2004), 69–84. GA Res. 48/17 (11 November 1993) (Burundi); GA Res. 48/27 (10 December 1993) (Haiti); GA Res. 48/159 (24 January 1994) (South Africa); GA Res. 49/137 (25 January 1995) (Central American peace process); GA Res. 49/197 (9 March 1995) (Myanmar).

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resolutions have endorsed regional arrangements for promotion and consolidation of democracy.43 The latter include vague deﬁnitions of democracy as ‘maximizing participation of individuals in decisionmaking’, ‘bringing the government closer to the people’, and ‘enhancing social cohesion’. At the same time, the General Assembly passed a series of resolutions reafﬁrming the principles of national sovereignty and the right to self-determination, and insisting that ‘there is no single political system or single model for electoral processes equally suited to all nations and their peoples’.44 The one body that began to articulate a thickly prescriptive, liberal deﬁnition of democracy was the now defunct Commission on Human Rights.45 But despite the absence of a clear deﬁnition of democracy, the Security Council’s invocations of the term since 1990 point to a constellation of presuppositions about democracy. The circumstances in which the Council refers to democracy as a policy objective imply a set of ideas about democracy as a means of realising certain political outcomes, and a tendency to equate those desired outcomes with the formal creation of particular political institutions and processes. The Council explicitly referred to democracy almost exclusively in the context of internal armed conﬂict or its aftermath and in connection with the peacekeeping, peace-building and ‘peace enforcement’ missions that have been deployed in unprecedented number and scale since 1990, serving as incubators for the contemporary concept of ‘state-building’. As Fox

43

44

45

GA Res. 55/96 (28 February 2001) Promoting and Consolidating Democracy; GA Res. 59/201 (23 March 2005) Enhancing the Role of Regional, Subregional and Other Organizations and Arrangements in Promoting and Consolidating Democracy. See, e.g., GA Res. 44/147 (18 December 1989) Respect for the Principles of National Sovereignty and Non-interference in the Internal Affairs of States in Their Electoral Processes, preambular para. 8. See, e.g., Commission on Human Rights Res. 2004/54 (20 April 2004) Tolerance and Pluralism as Indivisible Elements in the Promotion and Protection of Human Rights (contained in UN Doc. E/CN.4/2004/L.11/Add.5 (21 April 2004) Report to the Economic and Social Council on the sixtieth session of the Commission); Commission on Human Rights Res. 2004/70 (21 April 2004) The Role of Good Governance in the Promotion of Human Rights (contained in UN Doc. E/CN.4/2004/L.11/Add.6 (21 April 2004) Report to the Economic and Social Council on the sixtieth session of the Commission); Commission on Human Rights Res. 2005/32 (19 April 2005) Democracy and the Rule of Law (contained in UN Doc. E/CN.4/2005/135 (22 April 2005) Commission on Human Rights: Report on the sixty-ﬁrst session). See also the discussion in Bowden and Charlesworth’s chapter in this volume.

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demonstrates, the Security Council endorses democracy as a palliative political method that will ameliorate the causes of the conﬂicts that have occasioned the Council’s intervention.46 Thus, the Council praises democracy as fostering reconciliation, ensuring peace and assisting reconstruction and effectively links an internal method of organising political power to the preservation of international peace and security: ‘Democracy, in the Council’s repertoire of practice, is above all a means of ending, preventing, sublimating and diverting violent internal conﬂict.’47 And if democracy is equated with the existence of formal institutions and processes, such as elections, it is also an exit strategy. The early success of the UN mission in Namibia, in which a peacekeeping mission culminated in national elections that produced a relatively stable new order that did not relapse into conﬂict, appears to have inspired an institutionally programmatic ‘model’ of ‘peace through democracy’48 – even though the stabilisation of Namibia is more readily attributed to underlying local political dynamics that have little to do with democratic institutions or procedures.49 In a 1994 resolution on Mozambique, the Council declared that a ‘system of multi-party democracy and the observance of democratic principles … will ensure lasting peace and political stability’.50 The UN commitment to the idea of democracy as a political technology of peace engineering was adumbrated and deepened in Agenda for Democratization, where UN Secretary-General Boutros Boutros-Ghali observed that: Democratic institutions and processes channel competing interests into arenas of discourse and provide means of compromise … thereby minimizing the risk that differences or disputes will erupt into armed conﬂict or confrontation. Because democratic Governments are freely chosen by their citizens and held accountable through periodic and genuine elections and other mechanisms, they are more likely to … cope effectively with social conﬂict … They are therefore less likely to abuse power against the peoples of their own State territories. Democracy within States thus fosters the evolution of the social contract upon which lasting peace can be built. In this way, a culture of democracy is fundamentally

46 48 49

50

Fox, ‘Democratization’, 70. 47 Ibid. See Maley’s chapter in this volume; Fox, ‘Democratization’, 72. Roland Paris, At War’s End: Building peace after civil conﬂict (Cambridge: Cambridge University Press, 2004), 140–5. SC Res. 957 (15 November 1994), para. 3.

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a culture of peace … Democratic institutions and processes within states may likewise be conducive to peace among States.51

The kinship with a vulgarised ‘liberal peace’ theory is clear: the parsing of internal political conﬂicts – irrespective of their historical or social speciﬁcity – through formally democratic institutions (also irrespective of their historical development, type and provenance) necessarily minimises the risk of violence. This claim also implies that the existence of serious internal conﬂict can be attributed to the absence of democratic institutions and processes. Non-democratic institutions and processes, under this construction, are pathologies that pose a continuing risk of disorder and (internal and external) violence. Both of these claims – that democratic governance ameliorates conﬂict and non-democratic governance constantly threatens to be overcome by it – simplify and homogenise the speciﬁc historical genealogies of any given conﬂict, and simultaneously overestimate the potential malleability of socio-political relations and dynamics through formal procedures and institutions. The idea of ‘democracy’ underlying these claims bears little relation to any actually existing political system, method or context – it is rather a capacious metonym for ‘peace’, ‘good politics’, ‘order’, ‘institutional efﬁcacy’ and a number of other desirable public goods. If used in this way, it is not surprising that ‘democracy’ is serially invoked in policy documents by UN agencies confronting their new role as participants in projects of ‘peace engineering’: the organisation and its various agencies require a repertoire of norms, labels and formulae to frame (and in part, legitimate) their increasingly intensive interventions in member states’ affairs. ‘Democracy-building’ becomes shorthand for a claim to be able to identify and ameliorate the political pathologies of territories in which interventions occur. In other words, the metonymy of ‘democracy’ in the policy formulations of ‘peace-building’ stands in for the objective of engineering a certain kind of politics – one based, it would appear, on a highly idealised and de-historicised model of Western liberal democratic states. In creating this opening towards (and indeed, necessity for) the production and circulation of technologies of political reform, the metonymy of democracy in ‘peace-building’ converged with another emerging set of 51

Boutros Boutros-Ghali, An Agenda for Democratization (New York: United Nations, 1996), paras. 17–18.

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institutional prescriptions deeply committed to a model of politics as a realm amenable to technical intervention and transformation by design: ‘good governance’. The World Bank adopted the term ‘good governance’ to explain why structural-adjustment lending in Africa consistently failed to produce the outcomes predicted by its economic theories.52 In a 1989 report on sub-Saharan Africa, the Bank declared that ‘underlying the litany of Africa’s development problems is a crisis of governance’, with governance deﬁned as ‘the exercise of political power to manage a nation’s affairs’.53 The Bank’s report proposed ‘institutional reform’ and ‘political renewal’ as antidotes to the crisis of governance, indicating an expansion in policy intervention from economics to include political processes and the conﬁguration of the state. The Bank’s early notions of good governance were essentially institutional prescriptions based on idealised notions of liberal, developedworld economies.54 These prescriptions included an efﬁcient public service, an independent judicial system, the legal enforcement of contracts (‘the rule of law’), the non-clientelistic allocation of state funds and ofﬁces, the decentralisation of state functions, pluralistic party politics and a free press.55 In its initial conception, ‘good governance’ applied a technocratic lens to the political phenomenon that the Bank diagnosed as impeding the success of structural-adjustment lending. But the import of making governance an issue on the Bank’s agenda was clearly appreciated by its senior staff: it entailed the idea that ‘the governance of African states needs to be systematically rebuilt from the

52

53

54

55

Jolle Demmers, Alex E. Fernández Jilberto and Barbara Hogenboom, ‘Good governance and democracy in a world of neoliberal regimes’ in Jolle Demmers, Alex E. Fernández Jilberto and Barbara Hogenboom (eds.), Good Governance in the Era of Global Neoliberalism: Conﬂict and depolitization in Latin America, Eastern Europe, Asia and Africa (London: Routledge, 2004), 1–37, 4. World Bank, Sub-Saharan Africa: From crisis to sustainable growth (Washington DC: World Bank, 1989), 6, 15. David Williams and Tom Young, ‘Governance, the World Bank and liberal theory’ (1994) 42 Political Studies, 84–100; Rob Jenkins, ‘Mistaking “governance” for “politics”: Foreign aid, democracy, and the construction of civil society’ in Sudipta Kaviraj and Sunil Khilnani (eds.), Civil Society: History and possibilities (Cambridge: Cambridge University Press, 2001), 250–268, 252; M. A. Thomas, ‘The governance bank’ (2007) 83 International Affairs, 729–45, 742. World Bank, Sub-Saharan Africa, 60–1. For an expanded list indicating the increasingly allencompassing nature of ‘good governance’, see Derick W. Brinkerhoff and Arthur A. Goldsmith, ‘Institutional dualism and international development: A revisionist interpretation of good governance’ (2005) 37 Administration and Society, 199–224, Table 1.

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bottom up’.56 The governance agenda brought institutional design and institution-building within the ambit of Bank lending and donor funding.57 By the early 1990s, the term ‘good governance’ was ‘completely integrated into the general (development) policies of major multilateral organisations … and Western governments’.58 In the iteration of the development policies of Nordic governments59 and of the United Nations Development Programme (UNDP),60 ‘good governance’ became a term encompassing almost all aspects of ‘the exercise of economic, political and administrative authority’,61 in a manner that makes democratic institutions and human-rights principles component parts of an overarching model of the ‘good-governance state’.62 To promote good governance could include efforts to ‘establish and operate’ in aidrecipient states political and legal institutions such as national and local legislatures and judiciaries. After all, on this model, Sound national and local legislatures and judiciaries are critical for creating and maintaining enabling environments for eradicating poverty. Legislatures mediate different interests and debate and establish policies, laws and resource priorities that directly affect people-centered development. Electoral bodies and processes ensure independent and transparent elections for legislatures. Judiciaries uphold the rule of law, bringing security and predictability to social, political and economic relations.63

Good governance effectively becomes a total expertise of politics, economics and society. It is at once a descriptive claim to know how politics works (‘legislatures mediate different interests’) and also a prescriptive claim about how to make politics work in a particular way: if judiciaries 56

57

58

59

60

61

62

63

Pierre Landell-Mills, quoted in Williams and Young, ‘Governance, the World Bank and liberal theory’, 88 (emphasis added). See Martin Doornbos, Global Forces and State Restructuring: Dynamics of state formation and collapse (Palgrave: London, 2006), 79; Williams and Young, ‘Governance, the World Bank and liberal theory’, 88. Demmers, Jilberto and Hogenboom, ‘Good governance and democracy in a world of neoliberal regimes’, 4. See also Adrian Leftwich, ‘Governance, democracy and development in the Third World’ (1993) 14 Third World Quarterly, 605–24. Demmers, Jilberto and Hogenboom, ‘Good governance and democracy in a world of neoliberal regimes’, 4. In 2000, the UNDP devoted 46 per cent of its funding to good governance promotion: Paris, At War’s End, 46. United Nations Development Programme, Governance for Sustainable Development (New York: United Nations, 1997), 2–3. Since the mid 1990s, the World Bank has adopted uses of good governance that include aspects of the second and third kind. United Nations Development Programme, Governance for Sustainable Development, 14.

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that uphold the rule of law bring security and predictability, aid-recipient countries should be funded to establish judiciaries that uphold the rule of law. Good governance further allows the assumption that ‘all good things go together’64 and that there are ‘no inherent tensions, conﬂicts or difﬁcult trade-offs over time between the various goals of development – such as growth, democracy, stability, equity and autonomy’.65 More fundamentally, good governance shares two features with nineteenthcentury liberal reformers. First, it takes institutions that are the products of a particular history and trajectory of political development and posits them as the principal solutions to undesirable political dynamics and outcomes. Second, it assumes that these institutions can be produced, legitimated and stabilised as a matter of intention and design, with sufﬁcient success to generate the desired political dynamics and outcomes. A particular model of politics becomes a donor-driven template of rational politics to which all other political realities can be assimilated. Good governance is the contemporary equivalent of those ‘principles true in every country’ that were unquestioned by imperial liberal reformers. Through analysis of the idea of ‘civil society’ in governance-driven development policy, Jenkins illustrates how this mode of political being engenders both a particular construction of politics in the aid-receiving society and a particular way of intervening that tries to engineer politics to conform to that construction.66 ‘Civil society’ occupies a central place in the ‘governance agenda’ as the key link between economic liberalisation and democratisation. Conceived in an undifferentiated way as private actors, NGOs, business associations, charitable and voluntary organisations, and almost any other organised non-state interest,67 civil society was stylised as the locus of countervailing power against unaccountable, corrupt and abusive states. ‘Civil society’ in this sense is an artifactual knowledge-object, rather than an existing political phenomenon; 64

65 66 67

The governance agenda is one ‘in which human rights, democratic development, poverty alleviation, the environment, minorities empowerment, and ethnic cultures seem to combine harmoniously with privatization, commodiﬁcation of services and social relations, and the opening to the global marketplace’: Guilhot, The Democracy Makers, 221. Leftwich, ‘Governance, democracy and development in the Third World’, 605. Jenkins, ‘Mistaking “governance” for “politics”’, 254, 268. Rita Abrahamsen, Disciplining Democracy: Development discourse and good governance in Africa (London: Zed Books, 2001), 54. On the way in which this concept can misrepresent the boundary between ‘state’ and ‘society’ in any given national context, see Julia Elyachar, Markets of Dispossession: NGOs, economic development and the state in Cairo (Durham, NC: Duke University Press, 2005).

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it forms part of a set of expert claims about the process of effecting social, economic and political change in post-colonial societies. Seen as instrumental to the production of a liberal state and liberal politics, ‘civil society’ becomes something that donors try to ‘create’ by funding organised groups within developing countries. Such policies provide resources to those groups, and so affect domestic politics,68 but they do not and cannot engineer the ‘liberal public sphere’ that is the archetype for the governance agenda’s model of civil society.69 With a commitment to the belief that politics can be ‘ﬁxed’ by ‘getting institutions right’, it is no surprise that the governance agenda has become the central policy language of ‘state-building’.70 Its main proponents, such as UNDP, the World Bank and the development agencies of donor states, are also the principal donors and conduits of ‘capacitybuilding’ expertise in state-building projects. The governance agenda and its supporting intellectual claims provide a simple post hoc explanation of ‘state failure’, and a convenient a priori policy framework that reinforces the palliative ideals of ‘democracy as peace-engineering’. Within the good-governance analytic, non-democratic politics becomes one important dimension of a broader set of non- or anti-rational political phenomena (inadequate judicial systems, clientelistic bureaucracies and political practices, repressive state security agencies) that cause (or are synonymous with) ‘state failure’. Having stylised the causes of state failure in this manner, the solution immediately presents itself: the creation of institutions that will produce good governance, and so eliminate or resolve the pathological politics of the past. Blaming state collapse on failures of governance is readily accepted because it resonates with donor critiques that take for granted the relationship between governance and state failure. But as Doornbos observes, there is ‘no single recipe and no single set of determinants’ of state collapse: ‘The ease … with which the “good governance” discourse was embraced in donor circles has … been remarkable, yet it hardly offers a tool for a better understanding of different socio-political contexts to which state systems must relate, or why they might be failing at this.’71 68

69

70

71

These effects are not necessarily consistent with promoting ‘accountability’: see Rema Hammami, ‘NGOS: The professionalization of politics’, (1995) 37 Race and Class, 51–3. See Oliver P. Richmond and Jason Franks, ‘Liberal hubris? Virtual peace in Cambodia’ (2007) 38 Security Dialogue, 27–48, 39, for the failure of civil society promotion in Cambodia. See David Chandler, Empire in Denial: The politics of state-building (London: Pluto Press, 2006), ch. 3. Doornbos, Global Forces and State Restructuring, 106, 109.

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Mehta notes that in empire, liberal thought found a project. India was viewed as ‘the promised land of liberal ideas – a kind of test case laboratory’.72 Metcalf similarly comments that a conquered India could not easily protest measures introduced for its own beneﬁt; becoming a ‘laboratory for the creation of the liberal administrative state’.73 In state-building, good governance has found its own project: a laboratory for testing claims that institutions and practices deemed pathological and conﬂict-inducing can through technical expertise be remade, perhaps even made ab initio. From a donor discourse initially conceived as a language to frame aid conditionalities that might otherwise be denounced as ‘too political’, good governance as state-building now promises a comprehensive ‘recipe book’ of political, juridical and economic technologies for donors, and encourages them to anticipate wider and more intensive interventions to recreate political space in these territories. Pagden reminds us that the emergence of ‘good governance’ as an increasingly comprehensive idiom has strong afﬁnities with the way in which earlier empires framed their exercise of power over territory and peoples. Every imperial system articulated and disseminated claims of legitimation for its authority over others – whether in terms of universal monarchy, universal civilisation or cosmopolitan right – that took a parochial history and experience and turned it into the measure of all history and politics.74 None of this was inconsistent with claims of benevolence and tutelage, and as in the case of Britain’s imperial liberal reformers, such claims were often made with sincere conviction. But nor were they inconsistent with great inequalities in power, armed force and wealth and the ability to subordinate those deemed to be the proper objects of benevolent reform where necessary. Indeed, various ideologies of tutelage presupposed such profound asymmetries of power in the international order as the precondition for civilising reform. In its totalising claims to know what rational politics is and should be, good governance in the current conjuncture assumes the role of an ideology of tutelage, a new standard of civilisation that promises the means and methods to remake political orders that have fallen into disorder. It also presupposes a deeply unequal international order, segmented not only

72 74

Mehta, Liberalism and Empire, 9, 12. 73 Metcalf, Ideologies of the Raj, 29. Anthony Pagden, ‘The genesis of “governance” and enlightenment conceptions of cosmopolitan world order’ (1998) 155 International Social Science Journal, 7–15.

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by inequality of arms and ﬁnances, but also by inequalities of political virtue measured by the standard of the governance agenda.

III. From modernisation to transitology Przeworski has puzzled over a shift within American political science since the late 1970s. Whereas twenty-ﬁve years ago we read that ‘institutions … can at most organize power that lies elsewhere [and to be viable] they must reﬂect the distribution of this power’, today we read that ‘The problem with Ecuador is that it does not have [an] independent judiciary … The new passion of the US government and many international organizations is institutional engineering’; yet Przeworski is ‘struck by how little robust, reliable knowledge we have about the impact of institutions’.75 The emergence of a ‘new institutionalism’ in American political science and policy is an essential intellectual backdrop for the programmatic claims of ‘democracy-building’ and ‘good governance’. Despite variation in terms of methodology,76 the ‘new institutionalisms’, of which democratic transition theory is one expression, share two basic tenets: that political and legal institutions can explain different political outcomes in different contexts, and that certain institutional forms can produce desired social and political behaviours across nations.77 The new institutionalism was in part deﬁned in reaction to an earlier generation of policy sciences that can be clustered under the label ‘modernisation theories’. But what the two generations have in common is that each kind of theory became, in its time, the framework of prescriptions for reformist interventions in the politics of other societies. In this way, each generation of theories facilitated convergence between the strategic tenets of foreign-policy planners and the assumptions of reigning political science orthodoxy – a convergence made all the more possible by a shared but largely inarticulate belief in technical capacities to generate societal change. In the wake of the Second World War, territorial empires began a rapid collapse. When Soviet President Khrushchev reversed Stalin’s policy of indifference towards national liberation movements and newly 75

76

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Adam Przeworksi, ‘Institutions matter?’ (2004) 39 Government and Opposition, 527–40, 528–9. See Peter A. Hall and Rosemary C. R. Taylor, ‘Political science and the three new institutionalisms’ (1996) 44 Political Studies, 936–57. S. N. Sangmpam, ‘Politics rules: The false primacy of institutions in developing countries’ (2007) 55 Political Studies, 201–24.

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decolonised states, inﬂuence in the Third World became central to Soviet foreign policy.78 Similarly, American administrations since Eisenhower had already begun to regard decolonisation, nationalism and the erosion of Western empire as dangerous to American interests,79 posing an urgent challenge to develop policies that could manage the forces of change in a way that would ‘make these regions … more like “us” – and less like the Russians or the Chinese’.80 A science of politics adapted to diagnosing, predicting and intervening in the politics of these societies, in order to steer their development towards a liberal democratic politics, was a pressing need. This need was ﬁlled by modernisation theory, a cluster of theories and methods prominent in the ﬁrst two decades of post-war US social science.81 As Gilman explains, modernisation theory’s programme was to build a ‘comprehensive theory not only for understanding what was happening in postcolonial regions, but also for promoting change’82 along a path conducive to US interests. This attempt at a comprehensive theory, and its claim of scientiﬁc validity, constituted a ‘meta-language’ that supplied a framework of meaning for post-war geopolitical uncertainties, and a set of directives for how to effect positive change in that world.83 In the narrative of this meta-language, a research programme of systematic comparison between modern and traditional societies would demonstrate that the social processes and political institutions characteristic of European and American development could be abstracted from their original contexts and taken as objective indicators of what it meant to be modern.84 The concept of modernisation allowed its theorists to claim to have grasped an entire process of social change, encompassing both the past of the West and the present and future of the ‘developing’ world. The latter could be placed on a continuum of 78 79

80

81

82 84

Westad, The Global Cold War, 66–72. John Lewis Gaddis, Now We Know: Rethinking cold war history (Oxford: Oxford University Press, 1997), 154; Michael E. Latham, Modernization as Ideology: American social science and ‘nation-building’ in the Kennedy era (Chapel Hill: University of North Carolina Press, 2000), 27. Nils Gilman, Mandarins of The Future: Modernization theory in cold war America (Baltimore: Johns Hopkins University Press, 2003), 3. Piki Ish-Shalom, ‘Theory gets real, and the case for a normative ethic: Rostow, modernization theory, and the alliance for progress’ (2006) 50 International Studies Quarterly, 287–311. Gilman, Mandarins of the Future, 3. 83 Latham, Modernization as Ideology, 5. A paradigmatic example of this scholarship is Daniel Lerner, The Passing of Traditional Society: Modernizing the Middle East (New York, Macmillan, 1958).

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modernisation through analysis of their social and political institutions and psychological dispositions, and through this analysis, a technology of political intervention could be produced.85 Since the United States was the archetype of the ‘modern’ in this theory, a political form similar to the United States would be the sought-after endpoint: pluralistic, competitive party politics and a capitalist economic system would be the common telos into which traditional societies evolved. Modernisation theory sought to ‘transform a historically speciﬁc categorical scheme into a scientiﬁc theory of development applicable to any culture around the world’. The power of these ahistorical abstractions was that they ‘ﬁll[ed] the cognitive gap for social scientists struggling to understand what development might mean for countries utterly different from the United States or Europe’.86 Although the proponents of modernisation theory denied any association with the (explicitly racist) evolutionary schemes of nineteenth-century social science, they ultimately sought to rehabilitate a basic element of nineteenth-century methods: the attempt at a systematic comparison of other political environments along axes deﬁned by the characteristics of the political development of the West. Such an attempt at a generalised theory posited a homogeneous theoretical space inhabited by ‘variables’ and ‘parameters’, a conceptual move that allows ‘everything [to] be compared with everything else’87 and in which ‘in principle each unit is a congruent and translatable replica of any other unit’ along a historical continuum.88 This was a conceptual move shared by theories of liberal imperial reform. In the words of Rostow, social scientists were to ‘have a role equivalent to that of the physical scientists in the arms race’.89 Modernisation theory ultimately collapsed under a combination of internal critique and a changing external environment.90 Nevertheless, the theory did bequeath a certain methodological orientation to the new sub-discipline of ‘comparative politics’ in American political science: a commitment to systematic comparison, a vocabulary of scientiﬁcity, and an interest in functional prerequisites to political development. 85

86 88 90

See, e.g., Lucien Pye, Politics, Personality and Nation Building: Burma’s search for identity (New Haven: Yale University Press, 1962). Pye declared at the beginning of his study that ‘this is an era of nation building’. Gilman, Mandarins of the Future, 87. 87 Mehta, Liberalism and Empire, 96. Ibid., 127. 89 Quoted in Gilman, Mandarins of the Future, 160. Nicolas Guilhot, ‘“The transition to the human world of democracy”: Notes for a history of the concept of transition, from early Marxism to 1989’ (2002) 5 European Journal of Social Theory, 219–43.

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This somewhat heterogeneous ﬁeld of scholarship was the incubator for the ‘transition to democracy’ scholarship of the 1980s, which laid an essential intellectual foundation for the new policy expertise of statebuilding during the 1990s. One stream of the ‘new institutionalism’, emerging after modernisation theory, replaced the latter’s structural functionalism with an actor-based functionalism derived from rationalchoice and public-choice theories. Actor-based functionalism, with its game-theoretical premises of strategic interaction between actors, posited institutions as the outcomes of stabilising equilibriums achieved through the bargaining and strategic choices of political elites,91 rather than the products of agent-less macro-social processes. If successfully stabilised, institutions could then reproduce and entrench incentives to comply with the new ‘rules of the game’. In developing this analytical frame, the theories restored a role for agency in the shaping of political contexts and the production of institutions.92 Applied to cases of democratic transitions across Latin America and Eastern Europe between the early and late 1980s, these methodologies, and their focus on the role of institutional entrepreneurs and political elites, appeared to provide powerful analytical techniques for understanding the development of new political regimes. But as Guilhot notes, the focus on strategic actors with deﬁnable preferences and calculable interests opened a space for another transition in the concept of transition: from process-centred description to an institution-and-agent-centred prescription or technique for founding and stabilising new political regimes.93 This technological concept of transition implies that the formal political institutions of the state can generate the necessary moral, cultural and cognitive resources among the population to stabilise the newly minted political–legal institutions and produce compliant behaviours. After the cold war, the academic research programme of democratic transition held out the promise of a rationalised method of managing ‘transitions to democracy’. Not unlike modernisation theory before it, the newly consecrated discipline of ‘transitology’ ﬁlled a cognitive gap among policy intellectuals and donors facing a new period of uncertainty in the politics of the Third World. It became, in the words of one democracy-promotion insider, ‘a universal paradigm for understanding 91

92

See Adam Przeworski, Democracy and the Market: Political and economic reforms in Eastern Europe and Latin America (Cambridge: Cambridge University Press, 1991); Hall and Taylor, ‘Political science and the three new institutionalisms’, 945. Guilhot, ‘The transition to the human world of democracy’, 234. 93 Ibid., 234–5.

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democratization. [It was] ubiquitous in US policy circles as a way of talking about, thinking about, and designing interventions in processes of political change around the world.’94 Once a country was labelled ‘transitional’, its political life was ‘automatically analyzed in terms of [its] movement toward or away from democracy, and [it was] … held up to the implicit expectations of the paradigm’.95 In the convergence of foreign policy programmes and academic production that took place through transitology, we can observe a close family resemblance with the policy prescriptions of state-building and good governance: A whole generation of democracy aid is based on the transition paradigm, above all the typical emphasis on an institutional ‘checklist’ as a basis for creating programs, and the creation of nearly standard portfolios of aid projects … some judicial reform, parliamentary strengthening, civil society assistance, media work, political party development, civic education and electoral programs.96

Whatever the nuances and critical potential of the original research programme of comparative democratic transition studies, its institutionalisation as a policy expertise within the circuits of donor funding, international institutions and development agencies turned it into a component part of ‘emerging technologies for the global administration of political regimes’.97 Yesterday’s modernisation theories and today’s ‘transitology’ are both premised on a simplifying homogenisation of political and social space that renders the politics of other societies seemingly more tractable to a ‘policy science’ of governance. These techniques of thought, and the artifactual knowledge-objects they generate, underwrite and disseminate, are fundamental to the idea of ‘statebuilding’ as an intentionalist enterprise.

Conclusion This essay explores a series of conceptual afﬁnities between contemporary discourses of state-building, democratisation and good governance, and earlier generations of knowledge-claims that authorised and underwrote interventions in other societies. The claims of expertise and the conceptual infrastructure that have come to constitute the practices of state-building authorise a kind of claim to knowledge about heterogeneous social spaces – each with distinct local historical genealogies 94 96

Carothers, ‘The end of the transition paradigm’, 6. Ibid., 18. 97 Guilhot, The Democracy Makers, 223.

95

Ibid., 7.

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and political topographies – that places these spaces within a homogeneous plane, encoding them as ‘factors’, ‘variables’, ‘types’ or even ‘cultures’ which become instances of a schema or framework of characterising (knowing) politics. Not unlike the liberal reformism of empire, the urgent imperative of ‘bettering the world’ induces a tendency to see the world as ‘limitlessly malleable’ through political effort (or political power). But this tendency also seems to imply a conceptual move in which socio-political orders and practices that become the objects of reform are placed within a schema that is at once descriptive and evaluative. On the one hand, distinct political topographies are coded in terms (agrarian, industrial, tribal, authoritarian, etc.) which seem to describe and situate them within a homogeneous space encompassing all possible cognisable politics, thus allowing ‘everything to be compared with everything else’.98 On the other hand, the positing of such a homogeneous space of comparison at some level implies the ﬂattening out of heterogeneous and contingent local histories and genealogies into categories that stand in a relationship of inequality with one another relative to their normative desirability. Good governance is to be preferred to bad, and institutional and political forms, practices and repertoires that appear to correlate with good governance should thus be promoted, relative to those that correlate with bad governance. But what is elided in this conceptual move is that the apparently universal content of good governance and its associated institutions is in fact a highly particularised historical product – a fateful accident of a parochial regional history – which has been hypostasised into the telos of rational politics.99 MacIntyre makes the impolitic observation that the ‘claims of political science are closely linked to a claim about the political status of the political scientist, to a claim about the possession of political expertise’.100 The example he has in mind is that of liberal reformer Thomas Macaulay, whose claim to expertise concerning Indian society and the ‘laws’ of politics, was intimately connected with defending and promoting proposals 98 99

100

Mehta, Liberalism and Empire, 96. O’Donnell notes that ‘practically all deﬁnitions of democracy are a distillation of the historical trajectory and the present situation of the originating countries’. Even Schumpeter’s minimalist deﬁnition proves to be not as ‘procedural’ as sometimes claimed, presupposing a number of institutional and sociological prerequisites. See Guillermo A. O’Donnell, ‘Democracy, law, and comparative politics’ (2001) 36 Studies in Comparative International Development, 7–36, 8. Alasdair MacIntyre, Against the Self-Images of the Age: Essays on ideology and philosophy (London: Duckworth, 1971), 260–79.

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for imperial state-building. But the observation is equally applicable to modernisation theory, transitology and the governance agenda. MacIntyre does not deny that some kinds of comparative knowledge about political life in other societies are possible, but this knowledge is different to that claimed in the mode of political thinking and acting that I have stylised as ‘politics as technology’: ‘What we shall achieve if we study the projects springing from such intentions are two or more histories of these projects’ (emphasis added). The knowledge yielded by this comparative history is knowledge of antecedent but not sufﬁcient conditions for a particular outcome. The historical and sociological processes of state-formation in Western Europe and North America (the archetype for ‘good governance’ and ‘successful’ state forms) suggest that emphasis on contingency and non-intentionality is appropriate.101 Institutions such as bureaucratic autonomy and independent judiciaries emerged over generations and frequently as unintended by-products of intentional strategies of multiple generations of actors. Once established, institutions could sometimes generate self-reinforcing dynamics that deepened and broadened their capacity to shape politics. But the achievement of such self-reinforcing processes is not a matter of design or of tapping some ‘master process’ like modernisation. It reﬂects the ‘inter-currence’ of intersecting trajectories of different, but connected, long-term processes, conjunctural coincidences, and material endowments that were successfully mobilised at (what happened to be) the right time.102 Hence, as Poggi is led to ask: ‘how plausible is the notion of the state’s being “made” or being “built”?’103 The particular course taken by the making of the Western state was a ‘highly contingent affair’.104 The invasions of Afghanistan and Iraq – and their continuing instability – have entrenched the project of developing a technology of ‘statebuilding’ within the policy machinery of the United States government. As such, it seems likely that the intellectual and conceptual dynamics 101

102

103 104

See Thomas Ertman, Birth of the Leviathan: Building states and regimes in medieval and early modern Europe (Cambridge: Cambridge University Press, 1997); Gianfranco Poggi, The Development of the Modern State: A sociological introduction (Stanford: Stanford University Press, 1978); Otto Hintze, The Historical Essays of Otto Hintze (Felix Gilbert (ed.)) (Oxford: Oxford University Press, 1975); Gianfranco Poggi, The State: Its nature, development, and prospects (Stanford: Stanford University Press, 1990). Paul Pierson, Politics in Time: History, institutions, and social analysis (Princeton: Princeton University Press, 2004), 55–7. See also Ertman, Birth of the Leviathan, ch. 1. Poggi, The Development of the Modern State, 98–9. Ibid., 102, 105.

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associated with the production of a new expertise of transforming the politics of other societies that have been highlighted in this chapter will deepen and intensify.105 If this chapter has any ‘practical’ dimensions, they are two. First, the material reviewed suggests that the production, consecration and circulation of ‘expertise’ about how to intervene in the politics of other societies is deeply implicated in the structures of inequality and strategies of domination inherent in any world order. Indeed, this inequality and these possibilities of domination seem to be conditions precedent for the expertise to ‘come into its own in action’. If this is true, then there is a need to examine seriously and critically any demands that we intensify and perfect such technologies and knowledges of intervention. Human beings do not act ‘under circumstances chosen by themselves, but under circumstances directly encountered, given and transmitted from the past’.106 Professions of humanitarian intention, or the alleged nobility of the desired outcomes, cannot displace these encountered circumstances. Before we embrace a demand for more ‘knowing’ and more ‘expert’ state-building, it is necessary to situate the constellations of concepts and practices that inform this enterprise in the contexts that have generated and transmitted them to us, and to ask whether we are, despite ourselves, furthering a strategy of domination or entrenching and reproducing relations of inequality. Second, this chapter questions the claim that state-building is an intentional product of an applied technical knowledge. If we take such a claim to its logical conclusion, we are paving a way for an enterprise very similar to colonial state-building. Some might claim that in the long run, such colonial enterprises are the best way to consolidate successful states.107 Maintaining long-term domination of a territory – even with civilising aims – requires the subordination or acquiescence of its inhabitants. And if the latter cannot be secured, the former is achieved principally through the vicious cycle of insurgency and counterinsurgency. State-building strikes me as a tragic scenario, one in which the builders not only cannot live up to their claims of founding a new, good governing polity, but in which it might well be more dangerous 105

106

107

See, e.g., Stephen D. Krasner and Carlos Pascual, ‘Addressing state failure’ (2005) 84 Foreign Affairs, 153–63; Stuart E. Eizenstat, John Edward Porter and Jeremy M. Weinstein, ‘Rebuilding weak states’ (2005) 84 Foreign Affairs, 134–46. Karl Marx, The Eighteenth Brumaire of Louis Bonaparte (New York: International Publishers, 1963), 15. Niall Ferguson, Empire: The rise and fall of the British world order and lessons for global power (New York: Basic Books, 2003).

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to try to live up to those claims, if this closes off possibilities for temporising stability.108 Reﬂecting on the idea of foreign intervention to promote polyarchy, as the American failure in Vietnam was already apparent, Dahl cautioned that ‘the process of transformation is too complex and too poorly understood’ to hold high expectations that foreign assistance or intervention could transform regimes.109 The foreign power is ‘caught in a tough network of historical and cultural forces that frequently it can do very little to manipulate’. Recalling that the age of democratic revolutions in Europe and North America ended without any enduring democracies except in the US, the ‘safest bet’ about a country is ‘that it will be somewhat different, but not radically different, from what it is today’.110 As we face another decade of interventionism (whether multilateral or unilateral), in which intervention will likely be justiﬁed by greater expectations concerning the remaking of politics in those locales, Dahl’s observation stands as an appropriate caution against both hubris and imperial utopianism. 108 109

110

I take this to be one of the lessons of Maley’s chapter in this volume. Robert A. Dahl, Polyarchy: Participation and opposition (New Haven: Yale University Press, 1971), 214. Ibid., 209.

3 International law, human rights and the transformative occupation of Iraq peter g. danchin

Introduction This chapter examines the project of transformative occupation undertaken by the United States and its allies following the invasion of Iraq in 2003. More speciﬁcally, it considers the US occupation in light of two competing sensibilities in international legal argument. On one view, which I term ‘legal formalism’, the purpose of international law is eclectic, intersubjective and value-pluralist: to create the conditions for peaceful coexistence between different political orders and ways of life. This view is commonly associated with the liberalism of the United Nations (UN) Charter,1 which posits both the subject of international law and its liberty in formal terms as ‘the state’ and ‘sovereign equality’ respectively. On a rival view, which I term ‘instrumental anti-pluralism’, the purpose of international law is to project a universal regime based on a rationally reconstructed and universally authoritative morality. Here the identity of the sovereign as a subject of international law is understood in material terms as ‘the liberal democratic state’ and sovereignty is understood as the equal treatment of legal subjects so deﬁned.2 The deﬁning feature of the anti-pluralist view is the notion that the internal characteristics of a state determine its standing in the family of nations. Undemocratic, illiberal, or so-called ‘rogue’ states such as Iraq are not to be regarded as full members of international society and are

1

2

Charter of the United Nations, opened for signature 26 June 1945, preamble, Arts. 1, 55 (entered into force 24 October 1945) (‘UN Charter’). For general discussion of these two views, see Gerry Simpson, ‘Two liberalisms’ (2001) 12 European Journal of International Law, 537–72; John Gray, Two Faces of Liberalism (Cambridge: Polity Press, 2000); William A. Galston, ‘Two concepts of liberalism’ (1995) 105 Ethics, 516–34.

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seen to lie outside of the zone of law.3 Like colonialism by European nation states during the nineteenth century, the project of military occupation is intended to transform or civilise the internal identity of such states in order to bring them into the community of democratic nations. This is precisely the type of action that legal formalism, with its underlying rationale of liberal toleration and political inclusion, had hoped to prevent. As a normative matter, the justiﬁcation for transformative occupation is a purportedly universal body of international human-rights norms ﬁnding its origin in Enlightenment notions of individual autonomy and popular sovereignty.4 While such norms lie beyond consent, their legitimacy in practice depends on their formalism – their acceptability to, and apparent compatibility with, divergent cultural, religious and ideological ways of life. In this chapter, I argue that the attempt to transform the Iraqi constitutional structure via military occupation illustrates the complex dialectic between the formal and instrumental views, a dialectic that oscillates precariously between imperial imposition in the name of liberal democracy on the one hand, and a desperate attempt to secure internal legitimation for the new political order on the other.5 The role of international law in this process is ambiguous and paradoxical. On one hand, the law assumes an instrumentalist anti-formal guise facilitating the external project of imposing subjective material norms on a resistant political order. On the other hand, it provides a formal anti-instrumental site of deliberation, contestation and struggle critical to the internal project of the emergence of a distinctly Iraqi constitutionalism. The contradictions generated by this dialectic allow us to see how international law both constructs and mediates between certain ‘internal’ and ‘external’ forms of rationality. One consequence of this dialectic structure is that both sets of actors invoke both views in their struggle and interaction with each other. They do so from opposing starting points, before tacitly switching to the view 3

4

5

Harold Hongju Koh, ‘Why do nations obey international law?’ (1997) 106 Yale Law Journal, 2599–59, 2633; Anne-Marie Slaughter, ‘International law in a world of liberal states’ (1995) 6 European Journal of International Law, 503–38. See, e.g., Fernando R. Tesón, ‘The Kantian theory of international law’ (1992) 92 Columbia Law Review, 53–102, 54. For discussion of how the transformative model of military occupation in Iraq has created a ‘precarious dialectic between subordination and legitimation’, see Nehal Bhuta, ‘The antinomies of transformative occupation’ (2005) 16 European Journal of International Law, 721–40, 724.

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adopted initially by their opponent. Thus, the initial positions advocated by the US as its blueprint for constitutional transformation in Iraq were premised on notions of ‘liberal’ democracy, ‘individual’ rights, and ‘free’ markets – strongly instrumentalist values lying beyond the prescriptive normativity of contemporary international law. In response, Iraq invoked formal norms of sovereignty, self-determination and non-intervention – strongly anti-instrumental norms of international law. Facing intensifying resistance to its project of forced transformation, the US then sought to engage with Iraqi culture and values by positing formal conceptions of its objectives. Assertions of liberal rights became claims to human rights; assertions of liberal democracy became simply claims to democracy. Conversely, Iraqi political factions now assumed more instrumental and anti-pluralist positions as they asserted distinctive claims to Islamic democracy, Islamic human rights, and ultimately to Islamic international law. The argument proceeds in three parts. Part I sets out the general features of the rival formal and anti-formal guises of international legal argument. Part II considers how these two sensibilities have shaped the role and application of occupation law, occupatio bellica, in Iraq. Part III discusses how the relationship between religion and state has been contested and understood in the post-2003 constitutional-reform process. The chapter concludes with observations on the potential of international law to secure justice and democracy in societies subjected to ‘occupation as liberation’.

I. The gift of formalism in international law The modern structure of international law is liberal, eclectic and intersubjective. The subject of the law is the ‘state’ and the state’s liberty is based on the foundational norm of sovereign equality. The animating virtues of the modern view are notions of peace, toleration and valuepluralism. These notions are suspended precariously, however, between two other virtues that international law simultaneously seeks to incorporate and mediate: the seemingly opposing ideas of justice and consent. On their own, these two virtues appear to threaten the coherence of international law qua law: justice because it substitutes vague and subjective ideas about international morality for the rules actually obtaining between states;6 consent because it identiﬁes international law primarily 6

John Austin, Province of Jurisprudence Determined (Wilfred E. Rumble (ed.)) (Cambridge: Cambridge University Press, 1995).

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with state will, thus making it external municipal law.7 International law tries valiantly to maintain its autonomy qua law by seeking to reconcile these seeming opposites within a single form. It does so in two ways: ﬁrst, by positing a social ethics (formal positivism) expressing the freedom of each state as a function of community values and justice;8 second, by positing an individual morality (humanistic universalism) which expresses the international community as a function of each state’s unique identity and awareness.9 This dialectic structure creates the distinctive double bind of international legal argument. There are powerful historical reasons for the inherent tension within each strand of argument. Let us consider, for example, the latter idea of humanistic universalism. Early modern thought in international law was premised on a natural morality that asserted a universal law derived from reason that was applicable to all peoples. When in the late sixteenth century Francisco de Vitoria wrote about the rights of the Spanish and the Indians of the Americas, he regarded Indian and Spanish sovereignty as ‘coterminous with each other’ and the question to be determined ‘how God had given possession to the Indians and what conditions the Spanish must fulﬁll in order to gain possession rightfully’.10 Missing from the logic of Vitoria’s argument was the modern dialectic of the double bind. There was no initial assumption of either the Prince’s or Indians’ sphere of liberty or ‘sovereignty’ having an independent normative status in the form of ‘statehood’. Rather, sovereignty described the ‘powers and liberties which the Prince was endowed with by the normative code’.11 Thus, while international law was universal and the Spanish and the Indians its subjects alike, the pre-classical jurisprudence of the scholastics was 7 8

9

10

11

Georg Jellinek, Die Rechtliche Natur der Staatenverträge (Vienna: Hölder, 1880). Charter of the United Nations, opened for signature 26 June 1945, Art. 2(1) (entered into force 24 October 1945) (‘UN Charter’) provides that the United Nations ‘is based on the principle of the sovereign equality of all its [Member States]’. The Charter begins from a presumption of initial state freedom. But as soon as states are regarded as members of an international community, this initial state freedom is limited by the normative demands of the same ‘equal’ freedom of other states. Article 2(7) of the UN Charter provides that ‘Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state’. While international law is normatively universal and binding on all states, it is limited by the factual existence and unique ‘internal’ identity of and thus need for consent of each state. Francisco de Vitoria, De indis et de iure belli relectiones (Ernest Nys (ed.)) (Washington DC: Carnegie Institution of Washington, 1917), sect. I, 116, 120–8. Martti Koskenniemi, From Apology to Utopia: The structure of international legal argument (Helsinki: Lakimiesliton Kustannus, 1989), 192.

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expressed not as a function of each subject’s unique identity and awareness, but as a function solely of community values and justice. Being an exercise in deductive reasoning from a single comprehensive value system, this was necessarily subjective in two senses: ﬁrst, it was utopian in the form of European prejudice (the particular masquerading as the universal) and second, it was apologist in justifying imperial domination of other cultures. By contrast, consider the idea of formal positivism. Nineteenth-century international legal thought was premised on the notion that states, as the principal subjects of the law, were bound only by those rules to which they had consented. The long history of European imperialism was marked, however, by the refusal of European nation-states to recognise non-European states as having ‘sovereignty’ and thus possessing formal legal personality under international law. On this view, international law distinguished between civilised and non-civilised states and applied only as between the civilised ‘Family of Nations’.12 The duty of civilised nations was thus to civilise non-European states – by consent (acquiescence) or, if necessary, by force – in order to assimilate them into the nomos of European international law. Missing from this argument was the modern notion of formal subjecthood – of the ‘state’ as opposed to the ‘civilised state’ as the proper subject of international law. For nineteenth-century positivism the ‘State – and a set of rights associated with it – is the professional a priori, the transcendental condition from which discourse proceeds and which itself is not subject to discussion’.13 We see this in the writing of nineteenth-century international lawyers, such as James Lorimer and Robert Phillimore, who both equated Christianity with the highest form of civilisation and who, as Noyes observes: placed nations whose views they associated with Christianity in a superior position concerning their international legal rights and obligations vis-à-vis certain other nations. Their view of the superiority of this religious system helped them to justify a world in which it was difﬁcult for non-European States, entities and peoples to be entitled to participate fully in an international legal community.14 12

13 14

Antony Anghie, ‘Finding the peripheries: Sovereignty and colonialism in nineteenthcentury international law’ (1999) 40 Harvard International Law Journal, 1–80, 4. Koskenniemi, From Apology to Utopia, 107. John E. Noyes, ‘Christianity and late nineteenth-century British theories of international law’ in Mark W. Janis (ed.), The Inﬂuence of Religion on the Development of International Law (Dordrecht: Martinus Nijhoff Publishers, 1991), 85–106, 86.

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Both the naturalist universalism of the sixteenth and seventeenth centuries and the imperial positivism of the nineteenth century expressed one-sided unities. They reveal how the non-European periphery could become included in the European core in not one but two distinct ways: either by the erasure of the identity of the other in the name of a single societas humanae, or by forceful embrace such that the identity and subjectivity of the other would slowly take the form of the European state, that is as the single representative form of humanity.15 In the case of the former, community was deﬁned according to a one-sided, subjective account of autonomy; in the case of the latter, autonomy was deﬁned according to a one-sided, subjective account of community; and in both cases, the process of transformation was unidirectional: the nonEuropean was required to change in accordance with European projections of both the subject and its liberty. Modern international law seeks to overcome these two pathologies by describing social life among states in terms of both community and autonomy and by deﬁning each of these ideals in terms of the other. This, in turn, generates inherently conﬂicting demands for freedom and order. Thus: In the one case, community is interpreted as negative collectivism and autonomy (independence, self-determination) is presented as the normative goal. In the other, autonomy is interpreted as negative egoism and community (integration, solidarity) as what the law should aim at. Neither community nor autonomy can be exclusive goals. To think of community as the ultimate goal seems utopian: as there is no agreement on the character of a desirable community, attempts to impose it seem like imperialism in disguise. To think of autonomy as the normative aim seems apologist: it strengthens the absolutist claims of national powerelites and supports their pursuits at international dominance.16

In this way, each strand of argument generates its opposite within itself. The humanistic universalism of the communitarian argument is limited by implicit acknowledgement of the boundaries and ﬁnitude of deontological reasoning (whether arrived at from notions of God or Natural Reason) and thus by the unavoidability of pluralism and reasonable disagreement. The moral notion of universal right is thus premised on the idea of a social ethics; that is, the claim that all moral norms must 15

16

Martti Koskenniemi, ‘The civilizing mission: International law and the colonial encounter in the late 19th century’ (Paper presented at Rechtshistorikertag, Bonn, 12–17 September 2004), 6–8. Koskenniemi, From Apology to Utopia, 424.

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be intersubjectively contested and justiﬁed. In this way, communityoriented arguments contain within themselves the normative aims of self-determination and may be constructed without lapsing into totalitarianism. Conversely, the formal positivism (or legal formalism) of the autonomy argument is premised on a moral idea: the duty to respect the autonomy of others as ‘reason-giving’ and ‘reason-receiving’ subjects. This idea underlies the universal norm of inclusion and formal status as a legal subject in the ﬁrst place. In this way, autonomy-oriented arguments contain within them the normative aims of communal integration and solidarity and may be constructed without degenerating into unlimited egoism. The international legal project is driven by this dialectic which creates a dynamics of contradiction and constant oscillation between patterns of argument seeking to legitimate social order against individual freedom. In order to imagine the project as coherent, one ﬁrst needs to assume some kind of notion of a ‘harmony of interests’: the presence or attainability of ‘an underlying convergence between apparently conﬂicting State interests’.17 In a pluralistic world of different peoples, religions, cultures, languages, ideologies and ways of life, however, this assumption is questionable. What if, for example, the fundamental interests and ends of states are inherently incompatible? How is a political community deﬁned by the rule of law premised on some notion of shared interests and values beyond the state to be imagined or realised in such circumstances?

A. Formalism and instrumentalism The traditional response to this dilemma has been to employ the technique of legal formalism. International law is seen to provide the ‘“ﬂat substanceless surface” [which] expresses the universalist principle of inclusion at the outset and makes possible the regulative ideal of a pluralistic international world’. This is absolutely critical as the form of the law: constructs political adversaries as equals, entitled to express their subjectively felt injustices in terms of breaches of the rules of the community to which they belong no less than their adversaries – thus afﬁrming both that inclusion and the principle that the conditions applying to 17

Martti Koskenniemi, ‘What is international law for?’ in Malcolm D. Evans (ed.), International Law (Oxford: Oxford University Press, 2003), 89–114, 92.

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the treatment of any one member of the community must apply to every other member as well.18

In any decision to attach meaning to legal norms, sovereign equality means that states can articulate their interpretations on conditions of equal standing. They are thus included in the ‘normative universe as subjects of rights and duties or carriers of distinct identities’. It is only because the regime comprises non-instrumental rules (that is, ‘understood to be authoritative independent of particular beliefs or purposes’) that the freedom of its subjects to be different becomes possible.19 This has been described as the ‘gift of formalism’.20 On this view, international law is best understood as a project to reconcile the conﬂicting claims to freedom of differently situated subjects and the divergent assertions of right and justice to which they continually give rise. International law, in other words, is ineliminably intersubjective. If political power is to be employed in the name of some common social end – say, to protect international peace, or security or justice – such that the sovereignty of a particular state is to be limited, then that power must be exercised according to legal norms and thereby justiﬁed to the state so affected. This remains the case even though states may differ greatly in their comprehensive views about the good and true way of life. This is an attractive picture so far as it goes. The problem is that any argument for such a formal view is ambiguous. For one thing, no formal doctrine of sources of law will be able to exclude political considerations.21 For another, any notion of a ‘pure’ or ‘complete’ theory of law is vulnerable to familiar charges levelled against doctrinal utopianism and its disconnectedness from actual state interests, values and ends.22 What if, for example, a state asserts that its sovereignty derives not from some imagined, pre-social liberty but ultimately from God? Or, conversely, a state asserts that its sovereignty is subject to no external limit other than that to which it expressly consents?

18 19

20

21

Ibid., 102–3. See Terry Nardin, ‘Legal positivism as a theory of international society’ in David R. Mapel and Terry Nardin (eds.), International Society: Diverse ethical perspectives (Princeton: Princeton University Press, 1998), 17–35, 31, cited in Koskenniemi, ‘What is international law for?’, 102. Anne Orford, ‘The gift of formalism’ (2004) 15 European Journal of International Law, 179–95. Koskenniemi, From Apology to Utopia, 29. 22 Ibid. 28.

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These questions compel us to look behind the ‘formal validity’ or ‘binding force’ of legal norms and to consider the purpose of or reasons justifying such norms.23 This generates an ‘anti-formal’ mode of reasoning which deﬁnes itself in response to the criticisms of formalism. On this view, the traditional attributes of sovereignty – political independence, autonomy, dignity, territorial integrity – are merely legal forms. What really counts is whether they help or hinder certain (as-yet unspeciﬁed) objectives, values or ends. Do these formal rules, for example, stand in the way of protecting fundamental norms of democracy and human rights? Do they shield undemocratic states which lack a system of government based on free periodic elections and are unaccountable to their citizens? Do they shield illiberal states which fail to offer their citizens individual rights? These examples reveal, however, the dangers of instrumentalist reasoning. If international law is judged in terms of its instrumental effectiveness, it soon becomes an apology for the (contested) interests or ends of powerful states. Moreover, by emphasising concreteness the law risks losing its binding force and normativity altogether. International law may in this way legitimise force as ‘enforcement’ in a manner that conﬂicts directly with the target state’s self-understanding. To offset these dangers, instrumentalist reasoning tacitly resorts to naturalistic or ‘objective’ ideas of justice. The fundamental norms of democracy and human rights are not just American or Western but universal values arrived at by rational consensus and expressing ideals which either are, or should be, embedded in international law as an expression of ‘international right’. A useful articulation of this deep-seated vein of thought in American historical consciousness is Paine’s classic statement that ‘The cause of America is in a great measure the cause of all mankind’.24 In this way, anti-formalist reasoning returns to the problem it had sought to overcome as it tacitly invokes the basis on which it ﬁrst criticised formalism. There is no escape from the double bind of this argumentative structure. States are free and unfree at the same time. Like Odysseus self-bound to the mast of his ship, states are free to ﬁnd ways and reasons to live with the Sirens – despite their bad beliefs and the 23

24

Martti Koskenniemi, ‘The politics of international law’ (1990) 1 European Journal of International Law, 4–32, 10–11. Thomas Paine, Basic Writings of Thomas Paine: Common Sense, Rights of Man, Age of Reason (New York: Willey Book Co., 1942).

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dangers they pose to civilised seafarers. Conversely, states can break the double bind in one or both of two ways: by seeking to rule and dominate the Sirens on the basis of a universal law projected as an object of their own reﬂection and intentionality; or by seeking to transform, coerce, or otherwise civilise the Sirens into becoming members of the existing community of states.

II. The law of occupatio bellica Part I has suggested that the structure of international law reﬂects a theory of liberal toleration. At issue in the tension and oscillation between formal and anti-formal modes of reasoning is the scope of that regime of toleration. In the UN Charter era, the ‘ﬂat substanceless surface’ of Art. 2(1) of the Charter has been understood in strongly pluralistic terms. The sovereign equality of states has extended to republics, centrally planned socialist states, theocracies, kleptocracies, and modernising post-colonial territories. In more recent times, however, and especially since the end of the cold war, powerful Western states and the international institutions they control have advanced antipluralist arguments that seek to give greater moral substance to the criteria for recognition as independent and equal subjects of international society. The criteria of inclusion and exclusion turn not on the external behaviour of states (which would raise familiar issues concerning the scope of the attributes of sovereignty) but rather on their internal identity. The traditional law of belligerent occupation, however, does not allow for such an ambitious project of constitutional transformation. The formal rules of international law draw a clear distinction between occupatio bellica and debellatio: the former being a ‘temporary state of fact arising when an invader achieves military control of a territory and administers it on a provisional basis, but has no legal entitlement to exercise the rights of the absent sovereign’; the latter being: A legal category describing a condition of ‘subjugation’ in which the original sovereign is not merely temporarily incapacitated from exercising his powers due to the presence of the occupying military forces, but is completely defeated: his institutions of state destroyed, his international legal personality dissolved.25

25

Bhuta, ‘The antinomies of transformative occupation’, 725.

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Thus, unlike debellatio, occupatio bellica is a mediating concept. While recognising the factual reality of an occupying power’s military control of a territory, it imposes an obligation to maintain the continuity of the juridical and material constitution and to preserve the existing economic order of the state. It should be noted, of course, that the notion of belligerent occupation is somewhat anomalous in the modern era.26 Articles 2(4) and 51 of the UN Charter forbid the use of force between states other than in selfdefence against an armed attack. The only other permissible basis for the occupation of a territory is under Chapter VII’s collective security framework. Following the end of the cold war, the UN established transitional administrations to implement transformational state-building projects in territories such as Kosovo, East Timor and Cambodia. These cases are not necessarily inconsistent with occupation law’s proscription of coercive transformation of a political system, as each involved the UN Security Council as in effect the ‘occupying power’.27 The US project of ‘occupation as liberation’ in Iraq, however, presented a completely different situation. Whereas the UN Security Council had wholeheartedly supported, indeed created, those transitional UN administrations, here its role was unclear and bitterly contested. Far from authorising and legitimating the American transformative occupation, the relevant Security Council resolutions explicitly invoked occupatio bellica in designating the US and United Kingdom as occupying powers and requiring them to comply ‘fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907’.28 This not only resuscitated occupatio bellica and its preservationist ethos from its long desuetude 26

27

28

Ibid., 722 (noting that, prior to the invasion of Iraq, the category of belligerent occupation had fallen from use in the language of state practice). See also Adam Roberts, ‘What is a military occupation?’ (1985) 97 British Yearbook of International Law, 249–305. Simon Chesterman, ‘Occupation as liberation: International humanitarian law and regime change’ (2004) 18(3) Ethics and International Affairs, 51–64. SC Res. 1483 (22 May 2003), para. 5. See also SC Res. 1500 (14 August 2003). These Resolutions are sufﬁciently broad and ambiguous, however, to legitimate state-building activities well beyond occupatio bellica’s traditional order-preserving constraints, for example by calling for the establishment of ‘national and local institutions of representative government’, and the promotion of ‘economic reconstruction’ and ‘legal and judicial reform’: see SC Res. 1483 (22 May 2003), para. 8. For discussion of Resolution 1483’s ‘rather unstable merger of the traditional rules of occupation with Security Council peacemaking powers under Chapter VII’, see Hilary Charlesworth, ‘Law after war’ (2007) 8 Melbourne Journal of International Law, 233–47, 239–41.

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in international politics, but did so arguably to restrain the occupant’s authority unilaterally to transform Iraq’s political order.29 The US was thus confronted with obstacles established by formal legal rules on two fronts: on the one hand, transformative occupation was prohibited under the classical rules of occupatio bellica; on the other, it was permitted under modern international law but only according to the norms and procedures speciﬁed in the UN Charter. On both fronts instrumentalist arguments were needed to challenge the ‘excessive formalism’ of the existing legal framework. Thus, for McGurk the preservationist principle of occupatio bellica was a ‘state-centered, nineteenthcentury conception of European warfare … bear[ing] no relation to modern military conﬂict or the contemporary thrust of public international law’.30 Similarly, for Scheffer the series of UN-sponsored state-building projects since the 1990s showed that the scope of permissible action under occupation law should be expanded if the occupied society requires ‘revolutionary changes in its economy (including a leap into robust capitalism), rigorous implementation of international humanrights standards, a new constitution and judiciary, and a new political structure (most likely consistent with principles of democracy)’.31 As set out in the 2002 National Security Strategy of the United States, the basic values of freedom, democracy and free enterprise – and importantly the duty of protecting them – are ‘right and true for every person, in every society’.32 If this is the case, then the formal rules of occupatio bellica are an obstacle to the right and must be amended or abandoned. Through this chain of reasoning, the mediating tension of the double bind is broken: the ‘objective of instituting – even imposing – a democratic governance regime where previously there was none is [thus] asserted as the value relative to which positive legal rules should be adapted ’.33 In order to evaluate this argument, we need to explore the reasons behind the formalism of the classical occupatio bellica. How can we 29

30

31

32

33

See, e.g., Gregory H. Fox, ‘The occupation of Iraq’ (2005) 36 Georgetown Journal of International Law, 195–297. For a contrary view, see John Yoo, ‘Iraqi reconstruction and the law of occupation’ (2004) 11 University of California Davis Journal of International Law and Policy, 7–22. Brett H. McGurk, ‘Revisiting the law of nation-building: Iraq in transition’ (2005) 45 Virginia Journal of International Law, 451–65, 458. David J. Scheffer, ‘Beyond occupation law’ (2003) 97 American Journal of International Law, 842–60, 849. George W. Bush, National Security Strategy of the United States of America (Washington DC: United States White House, 2002), Preface. Bhuta, ‘The antinomies of transformative occupation’, 723 (emphasis added).

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explain the dual nature of this concept which legitimates the speciﬁed military aim of order-preservation while also imposing constraints in terms of order-constitutive authority enjoining the occupant’s right to effect fundamental constitutional change? The answer lies in the history of the law of belligerent occupation as a mediating concept of territorial and constitutional change in nineteenth-century European intersovereign warfare.34 First, occupatio bellica applied only to wars between European sovereigns. It did not apply in the case of colonial wars or ‘police actions’ against less civilised (that is, non-sovereign, non-European) peoples and territories.35 Thus, in speciﬁc cases, such as the British occupation of Egypt or the Russian acquisition of Bulgaria, the ‘very point of the war was to liberate a population from the antiquated and despotic constitutional system of the Ottoman Empire, and it would therefore be senseless to refrain from introducing a modern social and legal order’.36 Second, the speciﬁc functional characteristics of occupatio bellica evolved in direct response to the French Revolution and ensuing revolutionary and Napoleonic wars which threatened to destroy the legal basis of the eighteenth-century European political order. These wars ‘initiated constitutional change in place of conquest and … attempted to radically transform the nature of the state and the accepted bases for territorial control’.37 The critical point here is that the formal law of occupatio bellica can be seen to embody the two normative and epistemological components of international legal argument discussed in Part I. In the ﬁrst instance, struggles over the political principles that deﬁne international order cannot be mediated unless sovereign states recognise each other as legal subjects with a mutual ‘duty of justiﬁcation’. It is a common interest of all states that existing sovereign authority should not be capable of being overthrown either internally (by revolution) or externally (by regime change). In the second instance, there is no universally prescriptive norm regarding the ‘constitutional question’ of the permissible scope and limits of internal political order. This argues for a degree of political pluralism such that states remain free to develop domestically according to their own circumstances. Today, we interpret the refusal of the great powers to recognise non-European ‘uncivilised’ states as equal sovereigns as a moral failure 34 37

See generally ibid., 724–33. 35 Ibid., 729. 36 Ibid., 729–30. The critical challenge here was the assertion by the French revolutionary government that ‘rights based on popular sovereignty transcended those based on treaties’: see ibid., 730.

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vitiating the possibility of an inclusive international legal order. At the same time, we recognise colonialism as an imperial attempt to impose a Eurocentric standard of constitutional order on peoples and territories lying outside of the jus publicum Europaeum. In both instances, the double bind of occupatio bellica was broken: in the case of the former, as a one-sided, self-centered account lacking external orientation towards the subjectivity of differently situated societies; in the case of the latter, as a one-sided, other-centered account lacking sensitivity towards the material values and ways of life of these societies. A similar argumentative structure has shaped the positions taken under international law to justify the transformative occupation of Iraq. In the ﬁrst instance, legal rules constraining the use of force and limiting the rights and authority of an occupying power have been held to be inapplicable in the case of Iraq. As an outlaw or rogue state ruled by dictatorship and in violation of basic human rights, the very purpose of regime change and occupation was to transform Iraq’s political order to bring it from the zone of politics into the zone of law of civilised nations. This argument rests on an instrumentalist view of the identity of the legal subject now unilaterally deﬁned as the ‘liberal democratic state’. By this move, the question of the rights and attributes of sovereignty is never in fact reached as the legal status of the subject as a ‘sovereign state’ is denied a priori. In the second instance, to the extent occupatio bellica was held to be applicable, its interpretation and application was determined solely by the US as the occupying power. Thus, its substantive meaning was expanded or amended to meet the needs and objectives of occupation. Security Council Resolution 1483 (2003) is a contradictory bundle of formal and anti-formal provisions. On the one hand, it reafﬁrmed the ‘sovereignty and territorial integrity of Iraq’ and called for conditions to be established for Iraqis to ‘freely determine their own political future’; on the other hand, it contemplated an extensive role to be played by the Coalition Provisional Authority (CPA) with only subsidiary roles assigned for both the UN and an interim Iraqi administration.38 While the US accepted its status as an occupying power in Iraq, it rejected any political co-ordination with or oversight by the UN Security Council, and retained absolute discretion as to the allocation of competences and

38

See Charlesworth, ‘Law after war’, 239.

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functions in the transitional process.39 The CPA had virtually plenary governmental authority over the scope and terms of the remaking of the Iraqi economic and political order, and it acted accordingly.40 While the formal notion of occupatio bellica was thus revived, the US was able through a series of anti-formal moves to erase the basic distinction between sovereign power and occupant authority.41 The double bind of occupatio bellica was thus broken into two one-sided unities. From an anti-formal starting point, the US viewed the constraining function of the law of occupation as merely an unreal idealisation reﬂecting its own objectivity and immediacy. The reasons for orderpreservation make sense only if one ﬁrst assumes an order worth preserving, or that ‘bad … occupants are occupying a good country’.42 Occupatio bellica may well apply in cases of belligerent occupation of states objectively worthy of full sovereign recognition (for example, democratic or similarly decent states), but not otherwise. Albeit onesided, this is a tacitly naturalistic, formal position. Conversely, from a formal starting point, the US has viewed the legitimating function of occupation law as merely an object of its own reﬂection and intentionality, or that ‘good occupants [are] occupying a bad country’.43 The cause is the political order and ideology of the US itself as the directive controlling image and the effect has been to project a particular subjective conception of rationality onto the ﬂat, substanceless surface of the legal form of occupatio bellica. This is an anti-formal particular masquerading as a universal.

III. The law of international human rights The most striking reinterpretation of occupatio bellica’s preservationist ethos in the Iraqi occupation has been the suggested right of the occupier to institute sweeping reforms to the political order in accordance with fundamental human-rights norms. This assertion gets to the heart of the paradox of ‘occupation as liberation’. The belligerent occupant’s 39

40 41

42

43

See generally Thomas D. Grant, ‘The security council and Iraq: An incremental practice’ (2003) 97 American Journal of International Law, 823–42, 853. Bhuta, ‘The antinomies of transformative occupation’, 736–37. Ibid., 737. See also Melissa Patterson, ‘Who’s got the title? or, The remnants of debellatio in post-invasion Iraq’ (2006) 47 Harvard International Law Journal, 467–88, 474. Adam Roberts, ‘Transformative military occupation: Applying the laws of war and human rights’ (2006) 100 American Journal of International Law, 580–622, 601. Ibid.

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authority to create the new political order based on democracy and human rights derives from force, from its prior achievement of military control over a subject people. However, as Bhuta argues: The occupant’s ability to legitimate a new order in place of the old depends on his capacity to engender among the occupied population the belief, post facto, in the legitimacy of the occupant’s ‘naked power’ as a precondition for the new basic norm to which the occupied is subjected.44

The project of transformative occupation in this way turns on a precarious dialectic of subordination and legitimation: the military occupier has ‘to subordinate before it can legitimate effectively, and the more it tries to subordinate, the harder becomes the legitimation’.45 Force alone, though necessary, is not sufﬁcient for the new order to become ﬁrmly established. The subjects of occupation must cease their resistance and either acquiesce or consent to the basic norm that deﬁnes the new order. The desperate struggle for the occupier is to convince the occupied population not to resist its military dictatorship on the promise of the justice and legitimacy of the normative order being instantiated. Having initially used sweeping anti-formal reasoning to reinterpret occupatio bellica to justify transformative occupation, the occupier – in order to succeed in legitimating the norm of the new order – now switches to sweeping formalism. This is due to the danger that the human-rights norms sought to be legitimated will be challenged by the occupied population on anti-formalist grounds as ultimately subjective and thus illegitimate. Such an argument may proceed as follows: human rights, at least in the particular form they have assumed in international law, have tainted Western liberal origins; the West embodies an alien legal tradition premised on a stridently individualistic account of moral personality; and the ‘universal’ rights imposed by the occupier are thus merely another form of Western imperialism – universalising the tenets of a distinct tradition or ‘being illiberal about being liberal, forcing people to be free’.46 Such arguments challenging the formalism and claims to universality of international human-rights law raise difﬁcult questions. Kennedy points to the fact that human-rights ideas have a particular time and 44 46

Bhuta, ‘The antinomies of transformative occupation’, 738. 45 Ibid., 724, 739. H. Patrick Glenn, Legal Traditions of the World: Sustainable diversity in law (Oxford: Oxford University Press, 2000), 245; Bhikhu Parekh, ‘The cultural particularity of liberal democracy’ in David Held (ed.), Prospects for Democracy: North, South, East, West (Cambridge: Polity Press, 1993), 156–75.

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place of origin – ‘Post-enlightenment, rationalist, secular, Western, modern, capitalist’ – and he argues that, to the extent the international human-rights project is linked to liberal Western ideas about the relationship among law, politics, and economics, it is itself ‘part of the problem’.47 Kennedy’s critique has relevance to the transformative occupation of Iraq in at least two main areas. The ﬁrst concerns the particular form of secularism associated with Western liberalism and its relationship to religion. If you thought secularism was part of what is bad about the modern West, you might assert that human rights shares the secular spirit; that as a sentimental vocabulary of devotion it actively displaces religion, offering itself as a poor substitute. You might claim that the enforcement of human rights, including religious rights, downgrades religion to a matter of private and individual commitment, or otherwise advances the secular project.48 The second concerns the way that human rights positions itself as an ‘emancipatory political project’ that operates outside politics. The implicit logic here is that: emancipation means progress forward from the natural passions of politics into the civilized reason of law. The urgent need to develop a more vigorous human politics is sidelined … [and] [w]ork to develop law comes to be seen as an emancipatory end in itself, leaving the human rights movement too ready to articulate problems in political terms and solutions in legal terms. Precisely the reverse would be more useful.49

These challenges to the universality of human rights apply with special resonance in the case of Iraq, a non-Western society where Islam is dominant and collective identities and afﬁliations are engrained in all aspects of social and political life. Accordingly, we can appreciate how a formal human-rights norm – for example, the right to freedom of religion and belief – may be met with strong anti-formal claims to a distinct Islamic conception of that norm. The argument may go that the ‘universal’ norm is underpinned by a particular comprehensive conception of the good (for example, a liberal account of moral personality and personal autonomy) which generates an ultimately subjective and contested view of the relationship between the religious and the secular. However, international human-rights law is unable to provide a 47

48

David Kennedy, ‘The international human rights movement: Part of the problem?’ (2002) 15 Harvard Human Rights Journal, 101–25, 114–15. Ibid. 49 Ibid., 115.

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universal answer regarding the truth of the good and thus show that all other comprehensive beliefs are false. On this basis, human-rights norms themselves must be intersubjectively contested as opposed to uncritically accepted as a legal fait accompli beyond politics. The moral duty of justiﬁcation and the twin criteria of reciprocity and generality thus support Kennedy’s view that the human-rights dilemmas at issue in the new Iraqi constitutional order are better articulated in legal terms and their solutions in political terms than vice versa. In response to arguments of this kind, the occupier will insist that the norms that are to ground the new political order are not uniquely Western but are universal values embedded in (formal) international instruments such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).50 Indeed, any groups or individuals resisting these norms are to be viewed as enemies not just of America or the West, but of humanity.51 Conversely, those groups and individuals recognising and consenting to these norms are permitted to enter the community of civilised nations. A complex and conﬂicted response to this dialectic can be seen amongst the occupied population. For some, the imperial designs of the occupier remain evident and resistance by force is urged until the occupation is ended and national self-determination assured. But for those engaging in the transitional political process, two general sensibilities emerge. The ﬁrst is one of capitulation and consent: the constitutive coercion of the occupier and the new political order should be accepted precisely so as to accept the principles, laws and rules observed by international society. This is a formal ‘universalist’ sensibility. The second position, however, is more one of acquiescence: while it is necessary to follow the rules of international law and be part of the community of nations, the occupied population has its own unique identity, history, culture and legal consciousness. Thus, having initially insisted on the formalism of occupatio bellica (and other legal norms such as the prohibition on the use of force and self-determination), an anti-formal argument is now made on the basis of a regional, national or religious uniqueness and consciousness challenging the formalism and claims to universality of international law. This is an anti-formal ‘regionalist’ or ‘particularist’ disposition. 50 51

See McGurk, ‘Revisiting the law of nation-building’, 463. Recall Carl Schmitt’s statement that ‘He who invokes humanity wants to cheat’: Carl Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996), 54.

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This universalist-regionalist dialectic is a familiar phenomenon in the politics of international law. It is clearly seen, for example, in the nineteenth-century debate between Alejandro Álvarez and Manoel Álvaro de Souza Sá Vianna over the role of international law in Latin America (a debate itself spurred in response to US hegemony in the region). For Vianna, the ‘problems common to the countries of Latin America or the American continent did not and could not constitute a basis for an autonomous or separate sphere of international law’.52 This meant: favoring the universality of international law, deﬁned by a formalist legal sensibility that was skeptical of regional integration, unconvinced by the advantages of introducing regional fragmentation to the international system, and had an agenda to pursue within professional circles as opposed to regional political institutions.53

For Álvarez, however, appreciation of a unique ‘Creole legal consciousness’ led him to advocate a regional perspective in international law: a ‘socially conscious and practical universal international law which took into account regional differences’.54 This meant ‘endorsing an antiformalist legal sensibility coupled with positivist political ideas and integrationist aspirations’.55 Through the notion of Latin American international law, particularist international lawyers sought to develop an autonomous regional identity in international law while transposing and nationalising a ‘modernist liberal agenda’ in domestic politics seeking to overcome colonial legacies. For these lawyers, the binarism of the international legal double-bind thus operated in two directions: ﬁrst, as an external restraint in the form of a set of norms on the rights and duties of states shaped by European particularisms; second, and in response, as an internal enabling force legitimating the notion of a unique Creole identity and consciousness. Conversely, universalist international lawyers rejected any notion of a Latin American international law and sought full entry into the community of nations while supporting conservative policies at the domestic level. Here the double bind operated in the reverse direction: ﬁrst, as an external enabling force allowing the state 52

53

54

55

Liliana Obregón, ‘Between civilization and barbarism: Creole interventions in international law’ (2006) 27 Third World Quarterly, 815–32, 816. Arnulf Becker Lorca, ‘International law in Latin America or Latin American international law? Rise, fall, and retrieval of a tradition of legal thinking and political imagination’ (2006) 47 Harvard International Law Journal, 283–305, 301. See Liliana Obregón, ‘Noted for dissent: The international life of Alejandro Álvarez’ (2006) 19 Leiden Journal of International Law, 983–1016, 1015. Lorca, ‘International law in Latin America or Latin American international law?’, 301.

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to enter the sphere of law which ‘governs the relationship of civilized peoples [and] does not admit distinctions, nor supremacy of any sort’;56 and second, as an internal restraint on any emancipatory or progressive domestic political movements. The former sensibility starts from the anti-formal particular – from the situated or social self – and leads towards the universal reaching a ‘concrete universal’. The latter sensibility starts from the formal universal – from a set of abstract legal rules – and leads towards the particular reaching an ‘abstract particularism’.57 This same dialectic structure has emerged among the various political factions during the transitional political process in occupied Iraq. This can most clearly be seen in the struggles over the relationship between Islam (and religion more broadly) and the state under the new Iraqi constitutional order. The story begins on 13 July 2003 with the appointment of a twenty-ﬁve-member Iraqi Governing Council (IGC), which on 8 March 2004 signed a Transitional Administrative Law (TAL).58 The TAL was an exhortatory document with a distinctly liberal orientation. The preamble reasserted the sovereignty of the people of Iraq, expressed a commitment to international law, and stated that the TAL was being established to ‘govern the affairs of Iraq during the transitional period until a duly elected government, operating under a permanent and legitimate constitution achieving full democracy, shall come into being’. Article 2 of the TAL divided the transitional period into two phases, the ﬁrst vesting authority in a sovereign interim government appointed by the CPA in consultation with the UN; the second vesting authority in a transitional government to be established following elections in January 2005.59 Signiﬁcantly, Art. 4 declared that the ‘system of government in Iraq shall be republican, federal, democratic, and pluralist’.60 On the 56

57 58

59

60

Carlos Calvo, Polèmica Calvo-Alcorta [The Calvo-Alcorta Polemic] (1883) 8 Nueva Revista de Buenos Aires, 629, 631. Lorca, ‘International law in Latin America or Latin American international law?’, 288–93. Law of Administration for the State of Iraq for the Transitional Period (8 March 2004) available at www.globalsecurity.org/wmd/library/news/iraq/2004/03/iraq-transitionaladministration-law_8mar2004.htm. For al-Istrabadi, these two phases involved transfers of authority, not sovereignty: Feisal Amin al-Istrabadi, ‘Reviving constitutionalism in Iraq: Key provisions of the Transitional Administrative Law’ (2005–2006) 50 New York Law School Law Review, 269–302, 274. It is interesting to note that this wording closely tracks the 1992 Articles of Association of the Iraqi National Congress (the group of Iraqi exiles who lobbied in the West for the forced removal of the Saddam Hussein regime). See Noah Feldman and Roman Martinez, ‘Constitutional politics and text in the new Iraq: An experiment in Islamic democracy’ (2006) 75 Fordham Law Review 883–920, 889.

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contentious issue of the role of religion in the new Iraqi constitutional order, however, Art. 7(A) stated that ‘Islam is the ofﬁcial religion of the State and is to be considered a source of legislation’. The second part of this sentence represented a decisive change in Iraq’s constitutional history. While it had long been established that Islam was the ofﬁcial state religion, for the ﬁrst time Islam was here expressly declared to be a ‘source’ of law. Already evident in the TAL were signs of what would become a major site of disagreement. After the 2003 invasion and overthrow of Saddam Hussein, the former exiled members of the Iraqi National Congress (INC) and other members of a coalition61 formed the leadership of the IGC operating under the auspices of the CPA. Their vision of the constitutional foundations of the new Iraq was close to that of the occupying powers and thus, for the Americans, the TAL represented a vindication of their policy of regime change and democratic transformation. Indeed, the Bush administration strongly supported the secular Iraqis among the exile group who favoured a Kemalist-style constitution on the Turkish model – one which rejected a public role for Islam and posited instead a society of ‘science, knowledge, and civilization’. To the extent that Islam was to have a larger role, the US lobbied negotiators involved in the drafting process to ensure that this would not impinge upon religious freedom, women’s rights, or an independent Iraqi judiciary.62 On the other hand, these policy objectives were also complicated by the participation of two other (non-exile) Iraqi groups in the constitution-drafting project: Sunni Arabs and the Grand Ayatollah Ali al-Sistani.63 Sistani insisted that the constitution be drafted by a democratically elected body in order to avoid a constitution being imposed or overly inﬂuenced by the US, and to ensure that the drafting body reﬂected Iraq’s demographic make-up (which is majority Shia). He then issued a religious mandate ordering Iraqi men and women to vote. National elections were held on 31 January 2005, and the ﬁrst session of a 275-member Transitional National Assembly (TNA) replacing the interim government was convened on 16 March 2005. The TNA then produced a draft constitution which barely won approval via referendum at the end of 2005 in preparation for a permanent constitution, which in 61

62

This coalition was made up mainly of Kurdish factions (who advocated a secular political order fearing that Saddam’s secular tyranny would be replaced by a Shia Islamic dictatorship), Shia opposition groups such as the Da’wa Party founded in the late 1950s and the Supreme Council for the Islamic Revolution in Iraq (SCIRI); and other secular and independent political parties: see ibid., 888. Ibid., 898. 63 Ibid., 890–1.

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February 2008 remains in the ratiﬁcation process. There is no single text of the draft Iraqi constitution. As of 15 August 2005, there were two versions in existence: one, the Shia-driven TNA Constitutional Committee draft; the other, the leadership-summit document drafted by the Kurds and secular Shia and Sunnis. Article 2 of the 2005 constitution provides: First: Islam is the ofﬁcial religion of the State and it is a foundation source of legislation: (a) No law that contradicts the established provisions of Islam may be enacted. (b) No law that contradicts the principles of democracy may be enacted. (c) No law that contradicts the rights and basic freedoms stipulated in this Constitution may be established. Second: This Constitution guarantees the Islamic identity of the majority of the Iraqi people and protects the full religious rights to freedom of religious belief and practice of all individuals such as Christians, Yazidis and Mandean Sabeans.

While the decision to make Islam the ofﬁcial state religion was not controversial,64 what was intensely debated was the extent to which Islam should be recognised as a source of law. Certain Shia Islamists, particularly members of the Supreme Council for the Islamic Revolution in Iraq (SCIRI), argued that Islam should be ‘the basic or fundamental’ source of legislation. Other modiﬁers, such as ‘principal’ or ‘amongst other sources of legislation’, also found support from the Shia religious participants. The Kurdish representatives, however, advocated strongly that Islam should be only one of several sources and proposed following Art. 7(A) of the TAL: ‘Islam … is a source of legislation’. The ﬁnal formulation of Islam as a ‘foundation source’ is thus a compromise between the positions of the Shia and Kurdish groups.65 It appears to leave the issue of hierarchy of sources of law open and ambiguous, with Islam not necessarily superior to, but standing alongside, other fundamental sources of law (although no other fundamental sources are expressly recognised).66 64

65 66

Although a Shia proposal to describe Iraq as an ‘Islamic state’ was strongly opposed and subsequently rejected. See Ashley S. Deeks and Matthew D. Burton, ‘Iraq’s constitution: A drafting history’ (2007) 40 Cornell International Law Journal, 1–87, fn 13. Ibid., 3. There remains confusion regarding the two Iraqi words of ‘asasi’ and ‘asas’. The former is an adjective best translated as ‘fundamental’, whereas the latter is a noun best translated as ‘foundation’. In the UN printing of the text, the drafters changed asasi to asas, hence

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Clauses (a) to (c) of Art. 2 are referred to as the ‘repugnancy’ or ‘noncontradiction’ clauses. Shia negotiators supported the phrase ‘established provisions’ in clause (a) because it suggested a broader incorporation of Islam into the constitution. Non-Shia negotiators objected, however, because this connoted too wide-ranging a ﬁeld of Islamic jurisprudence against which Iraqi law could then be measured. Other secularists further feared that the language could incorporate fatwas, or rulings issued by religious scholars, as a type of legal ruling. From the other side, Sunni negotiators opposed the phrase ‘established provisions’, and supported a less Islamic formulation, as they believed that the ‘provisions’ or ‘rulings’ thus incorporated would derive only from Shia Islam. The phrases ‘principles of democracy’ and ‘rights and basic freedoms stipulated in this constitution’ in clauses (b) and (c) were proposed as an attempt to place a limit on the notion of Islam as a foundation source of law. The language also made clear that the constitution is the supreme law over ordinary federal or local statutes. Shia negotiators opposed this language but could not win over the combined Kurdish and secular negotiators who wanted non-contradiction clauses that counter-balanced the ‘established provisions of Islam’ language in clause (a). The idea was that the presence of these parallel non-contradiction clauses would operate to ‘equalise’ Islam with the principles of democracy and basic human rights. This, in other words, was an attempt to establish the constitutional framework for an ‘Islamic democracy’ in the new Iraq. There was also signiﬁcant political struggle in relation to the second part of Art. 2. Article 7(A) of the TAL had formerly provided that ‘This law respects the Islamic identity of the majority of the Iraqi people and guarantees the full religious rights of all individuals to freedom of religious belief and practice’. While earlier versions of the text provided that the constitution ‘respects’ the Islamic identity of the majority, Shia negotiators fought hard to have ‘respect’ replaced with ‘guarantees’. This raises the complex legal question of what it means to ‘guarantee the Islamic identity of the majority of Iraqis’ and whether this provision could lead to measures that limit the religious freedom of the current formulation of Islam as ‘a foundation source’. Whether this is merely symbolic or has juridical importance is an open question. See ibid., 10 (suggesting that the ‘latent ambiguity in this provision will prove to be a source of future sectarian dissension’).

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non-Muslims.67 In addition, earlier attempts to create an exclusive list of groups entitled to the religious rights at issue were ﬁnally superseded on 26 August 2005 with language that added a speciﬁc, non-exclusive list of ethno-religious groups to a generic reference ‘all individuals’.68 Much like Art. 27 of the ICCPR, this provision thus proposes an ambiguous combination of individual and group rights. The Kurds argued that it was important to include ‘others’ in the list of religious groups and that the list should not be exclusive. Others objected on the ground that using the phrase ‘and others’ would marginalise or stigmatise all minority groups in this ‘other’ category. In the end, the words ‘and others’ were rejected, though all negotiators seemed to share the view that the list remained non-exclusive.69 These struggles over the normative structure of the new Iraqi constitutional order represent a collision between two competing sets of positions and understandings of the basic norms deﬁning political order. Under basic precepts of liberal democratic theory, religion cannot be a formal ‘source’ of law; this is reserved to secular sources of constitutional and domestic legal norms. Consistent with the Enlightenment premises of individual freedom and personal autonomy, the rule of law is by deﬁnition a secular project in which religion is transferred from the sphere of public reason to the sphere of ‘private’ conscience and belief. For the occupiers, such ideas deﬁne not just liberal constitutionalism but international human-rights law itself: they are in this respect universal. For the INC and the leadership of the IGC, this formal universalist sensibility is to be embraced. Like Vianna and the universalist Latin American international lawyers of the nineteenth century, this is the means for Iraq to re-enter the sphere of the community of nations with the same rights and duties as the other advanced states of the world. If Islam is to be a source of law, it must be qualiﬁed by or at least stand equally with democratic principles and basic rights and freedoms. Starting from an initial position of formal universality, this is the form of ‘abstract particularism’ ﬁnally reached. 67

68

69

See, e.g., ibid., 17, citing Nina Shea and John F. Cullinan, ‘Constitutional concerns’, National Review Online (29 August 2005); United States Commission on International Religious Freedom, Iraq’s Permanent Constitution: Analysis and recommendations (Washington DC: United States Commission on International Religious Freedom, March 2006). The freedom to choose one’s religion or belief is not speciﬁed in Art. 2. Cf. International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, Art. 18 (entered into force 23 March 1976). Deeks and Burton, ‘Iraq’s constitution’, 17–18.

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However, for the other Iraqi factions these positions appear both antiformal and subjective. Like Álvarez and the particularist Latin American lawyers, international human-rights law is seen to be shaped by, and based on, Anglo-European precepts that must be contested in the quite different normative context of Iraqi conceptions of constitutional order and society. This means advancing a competing anti-formal legal sensibility based on a unique collective identity and legal consciousness. If for the occupiers religion must ﬁnd its place within a liberal democratic order, then for the Iraqis democratic and human-rights norms must ﬁnd their place within an Islamic legal order. The ultimate basis of sovereign authority is quite different. Starting from an initial position of the antiformal particular (as do the occupying powers themselves), this is the form of ‘concrete universal’ that is ﬁnally reached. We can see this most clearly in the struggle over the second part of Art. 2: it is not sufﬁcient for the constitution to ‘respect’ the Islamic identity of the majority of the Iraqi people, it must ‘guarantee’ it. This is the basis of the constitution itself. Within that normative framework, the ‘full rights’ to freedom of religion and belief of other groups and individuals must be protected. Unlike liberal theories of rights, however, this does not mean a ‘neutral’ state protecting a general right to ‘equal concern and respect’. Rather, it suggests a conception of a ‘socially conscious and practical universal international law which … [takes] into account regional differences’.70

Conclusion The transformative occupation of Iraq provides a powerful illustration of the two dominant critiques of formalism in international legal discourse today: one rejecting formal sovereign equality on moral grounds because it places democratic and rogue states on the same footing; the other rejecting the formal rules of state sovereignty on the basis of a particular ethical conception of the good. The discussion of occupatio bellica in Part II demonstrated how the former threatens international law’s underlying commitment to value pluralism and its denial of the legal right of any one state to impose a single model of political order. The discussion of human rights in Part III demonstrated how the latter project of imperial democratisation has precipitated a collision between two ultimately incommensurable positions: liberal anti-pluralism and national self-determination. The ensuing struggle within Iraq over these 70

See Obregón, ‘Noted for dissent’, 1015.

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competing bases of political legitimacy are the twin blades of the shears that are threatening to cut to shreds the future of the Iraqi constitutional order: one abstract but reaching for the particular; the other concrete but reaching for the universal. The role of international law in this fraught post-conﬂict dialectic has been shown to be at once ambiguous and paradoxical: both facilitating the external instrumentalist project of subordinating a resistant political order, while at the same time creating a formal site necessary for the internal deliberation, contestation and resistance to that project. While the justice of any position taken in the struggle will remain ﬁercely contested, the one thing of which we can be certain is the inevitability of transformation.

4 Deﬁning democracy in international institutions brett bowden and hilary charlesworth Introduction The theory and practice of democracy as a system of governing has had more critics than advocates; from the Ancient Greeks to the American Federalists (who both feared mob rule), to Hitler’s National Socialist Movement (which, although initially elected to power, advocated that those with the strongest personalities and ﬁnest minds govern their inferiors), to contemporary libertarians (who value individual liberty above all else). Despite this, over the last century or so the tide of thinking has turned towards favouring democratic forms of government. But it is only since the end of the cold war that attitudes to democracy have shifted to the point where it is possible to claim that democratic government is a universal value, perhaps even a right.1 The prevailing image in the twenty-ﬁrst century is that of inexorable progress towards a world full of democratic states.2 Some writers have gone so far as advocating a right to intervene in undemocratic countries to ensure that the march of democracy is complete, reaching even the darkest corners of the globe.3 1

2

3

Francis Fukuyama, ‘The end of history?’ (1989) 16 The National Interest, 3–18; Francis Fukuyama, The End of History and the Last Man (New York: Free Press, 1992); Thomas M. Franck, ‘The emerging right to democratic governance’ (1992) 86 American Journal of International Law, 46–91; Thomas M. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995); Amartya Sen, ‘Democracy as a universal value’ (1999) 10(3) Journal of Democracy, 3–17; Roland Rich, ‘Bringing democracy into international law’ (2001) 12(3) Journal of Democracy, 20–34. See, e.g., the reports of Freedom House, which are based on assessments of the level of the protection of political rights and civil liberties. Freedom House considers almost 60 per cent of states to be democratic today, while none would have qualiﬁed in 1900. See Freedom House’s annual Freedom in the World reports available at www.freedomhouse. org/template.cfm?page=15. W. Michael Reisman, ‘Sovereignty and human rights in contemporary international law’ in Gregory H. Fox and Brad R. Roth (eds.), Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000), 239–58.

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While there remains considerable controversy about the speciﬁc meaning and requirements of democracy, its signiﬁcance and status as an ideal mode of government are rarely questioned. This shift in attitudes extends beyond the domestic arena of the nation state to include calls for greater democratisation at the international level in intergovernmental institutions and non-government organisations. Democracy-building has become a popular international remedy for states that are emerging from conﬂict. It is typically presented as an antidote to the causes of conﬂict and its attainment as marking the end of the troubled period. As Nehal Bhuta’s chapter in this volume points out, the idea of democracy has been used both as a way of quietening internal conﬂict and also as a method of providing the international community with a graceful exit from a trouble spot. In Bhuta’s words, the concept of democracy has become ‘a political technology of peace engineering’. Since 11 September 2001, democracy promotion in nonWestern countries has also become seen as a technique to combat terrorism. Thus United States President, George W. Bush, used his second inaugural address in 2005 to proclaim the achievement of democracy across the globe as both a moral and strategic imperative. Our concern in this chapter is with the way that the concept of democracy has been understood in international institutions. Deﬁnitions of democracy developed at the international level affect international intervention in post-conﬂict societies, but the focus of this chapter is less with the peace-engineering process and more on the limits of the international deﬁnitional process. Other chapters in this book examine the way ideas of democracy have been invoked in various post-conﬂict settings. William Maley’s analysis of Afghanistan in particular investigates the problems facing the translation of democratic models in a speciﬁc historical and political context. The chapter charts the development of the ideal of democracy at the international level and considers whether the search for a comprehensive deﬁnition of the term can prove fruitful. We begin by surveying the formulations of democracy generated by various international institutions. The second part of this chapter argues that the deﬁnitions on offer are generally inadequate in most democratisation circumstances in that they offer only a limited procedural understanding of the concept without taking account of context and contingencies. We then consider whether international attempts to deﬁne democracy are doomed to failure, or whether it is possible to devise a substantive right to democracy that can respond to social, political and cultural differences.

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We conclude that an account of democracy that requires popular control over public decisions and decision-makers, and equality of respect and voice between citizens in the exercise of that control can be productive in the international context. On this model, democracy is less about institutions and formal processes and more about relationships between citizens, and what might be called decision-making by discussion, or the application of public reason. This more nuanced understanding of democracy is inevitably difﬁcult to ‘package’ for ready application by international institutions in post-conﬂict societies. Democracy will inevitably produce contestation and disappointments and expectations that cannot always be met.

I. The concept of democracy in international institutions Most international institutions have traditionally been wary of the notion of democracy, particularly in reference to their own governance practices. But in the last few years considerable attention has been paid to democracy within international institutions.4 This has inspired challenges such as those to the permanent membership of the UN Security Council and the associated veto power and proposals for global peoples’ assemblies that would give voice to civil society and transnational interest groups.5 Both types of reform are animated by an idea of democracy based on broader participation in decision-making. The term ‘democracy’ does not appear in the Charter of the United Nations and is not a prerequisite for membership; rather the organisation is open to all ‘peace-loving states’.6 This requirement was originally intended to disqualify governments with a fascist history from membership in the United Nations, particularly Spain.7 The San Francisco Conference of 1945 resolved that ‘peace-loving’ was not synonymous with democratic institutions, as this would amount to interference in the domestic affairs of sovereign states.8 In the mid 1950s Western powers, 4

5

6

7

8

For proposals to encourage democratic governance within international institutions, see Richard Falk, ‘What comes after Westphalia: The democratic challenge’ (2007) 13 Widener Law Review, 243–53. See, e.g., the symposium entitled ‘Envisioning a more democratic global system’ in (2007) 13 Widener Law Review, 243–446. Charter of the United Nations, opened for signature 26 June 1945, Art. 4 (entered into force 24 October 1945) (‘UN Charter’). Bruno Simma (ed.), The Charter of the United Nations: A commentary (Oxford: Oxford University Press, 1994), 163. Ibid.

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including the United States and the United Kingdom, invoked (unsuccessfully) the ‘peace-loving’ conditionality to oppose the admission of Bulgaria, Hungary and Romania on the grounds that they were not democratic governments.9 The drafting of the Universal Declaration of Human Rights in 1947– 1948 prompted a more explicit discussion of democracy, with much contention about the best form of governance for the protection of human rights.10 The ﬁnal outcome of this debate was Art. 21 which presents an election-focused notion of democracy, although the actual term ‘democracy’ is not used anywhere in the Declaration:11 1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. 2. Everyone has the right of equal access to public service in his country. 3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Article 25 of the International Covenant on Civil and Political Rights incorporates Art. 21. of the Declaration in an amended form: Every citizen shall have the right and the opportunity, without [discrimination] and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

The UN Human Rights Committee’s 1996 General Comment on Art. 25 described the treaty provision as lying ‘at the core of democratic government’. The General Comment was mainly concerned with the details of electoral practices, but it also noted the signiﬁcance of citizen participation in the conduct of public affairs through ‘public debate and

9 10

11

Ibid. See the discussion in Johannes Morsink, The Universal Declaration of Human Rights: Origins, drafting and intent (Philadelphia: University of Pennsylvania Press, 1999), 59–61. Universal Declaration of Human Rights, Art. 29 refers to ‘the general welfare in a democratic society’ as a possible limitation on the exercise of rights. Morsink describes the debates surrounding the drafting of this phrase at ibid., 63–5.

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dialogue with [political] representatives or through their capacity to organize themselves’.12 While cold war tensions restrained the development of the notion of democracy in the early days of the United Nations, decolonisation from the 1960s on prompted a thoroughgoing critique of the concept on the basis that it was fundamentally a Western political tool. The argument has been that democracy is a product of Western thought and one that has been inappropriately imposed in non-Western contexts. A good example of such a critique is Singaporean Prime Minister Lee Kuan Yew’s declaration in 1994 that he was ‘not intellectually convinced that one-man, one-vote is the best’ system. Nor did he believe the fundamental democratic principle ‘that all men are equal … They are not.’13 The notion that democracy is an exclusively Western concept has also been echoed by scholars who contend that it might be dangerous to introduce democracy into non-Western societies that are ‘not yet ready’ for it. Amy Chua, for instance, suggests that the spread of democracy and market capitalism to the non-Western world results more in violence and instability than in peace and development.14 Similarly, Francis Fukuyama argues that the extension of human rights to the non-Western world can be counterproductive. He insists that human rights are ‘universal only in a developmental sense: they become explicit aspirations primarily of societies that are both economically and politically developed’.15 Other scholars have paid attention to the democracy-promotion industry, arguing that it has become a neo-colonial project, an inculcation of speciﬁc Western values in the name of universalism.16 Some leaders have questioned the priority of democracy over more immediate concerns, claiming that democratisation is an unnecessary distraction that diverts attention and resources away from essential economic development and infrastructure projects.

12

13

14

15

16

UN Doc. CCPR/C/21/Rev.1/Add.7 (27 August 1996) General comment adopted by the Human Rights Committee under Article 40, Paragraph 4, of the International Covenant on Civil and Political Rights: General comment No. 25, para. 8. Fareed Zakaria, ‘Culture is destiny: A conversation with Lee Kuan Yew’ (1994) 73(2) Foreign Affairs, 109–26, 117. Amy Chua, World on Fire: How exporting market democracy breeds ethnic hatred and global instability (New York: Doubleday, 2003). Francis Fukuyama, ‘Natural rights and human history’ (2001) 64 The National Interest, 19–30, 29–30. See, e.g. Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005).

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There have been Third World responses to this critique. For example, Anwar Ibrahim, the former deputy prime minister of Malaysia, has rejected the suggestion that ‘Asian values’ based on Confucian ethics – which emphasise ‘ﬁlial piety, and, by extension, submission to state authority’ – run counter to the essence of democracy. He insists that this account ‘completely ignores another central precept of Confucian ethics, which … also emphasizes the primacy of the self and the importance of self-cultivation in realizing human potential and guarding against exploitation by the powers that be’. Anwar further argues that ‘Islam has always expressed the primacy of adl, or justice’, a concept he identiﬁes as ‘a close approximation’ to the idea of freedom as deﬁned in the West. Moreover, in this particular conception ‘Justice entails ruling according to the dictates of Islamic law, which emphasize consultation and condemn despotism and tyranny’.17 The critique of democracy as a Western concept has inﬂuenced the willingness of the United Nations to develop a substantive notion of democracy. The approach has been to endorse democracy as a principle, but to remain vague about its content and meaning. This is evident in the ﬁrst full discussion of democratisation by the United Nations in SecretaryGeneral Boutros Boutros-Ghali’s An Agenda for Democratization. The Agenda did not give the idea of democracy any real substance, noting that the ‘Imposition of foreign models … contravenes the [UN] Charter principle of non-intervention in internal affairs’. The Agenda referred to the ‘undeniable fact there is no one model of democratization or democracy suitable to all societies’ and claimed that ‘it is not for the United Nations to offer a model of democratization or democracy or to promote democracy in a speciﬁc case’. The role of the UN was simply to offer only ‘assistance and advice’ and allow each member state ‘to choose the form, pace and character of its democratization process’. In practical terms, UN assistance would generally include help with drafting constitutions, establishment of justice systems and police forces that abide by the rule of law, the depoliticisation of the military, the creation of institutions to promote and protect human rights, and the fostering of civil society and an independent media.18 17

18

Anwar Ibrahim, ‘Universal values and Muslim democracy’ (2006) 17(3) Journal of Democracy, 5–12, 6–7. See also Kim Dae Jung, ‘Is culture destiny?: The myth of Asia’s anti-democratic values’ (1994) 73(6) Foreign Affairs, 189–94. Boutros Boutros-Ghali, An Agenda for Democratization (New York: United Nations, 1996), 1–4. For a report on the implementation of the Agenda, see UN Doc. A/52/513

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The elaboration of the notion of democracy occurred primarily in the (now defunct) UN Commission on Human Rights. The Commission adopted a series of resolutions on democracy from 1997 onwards, which illustrated North-South divergence on the concept. Some of the resolutions endorsed the process of democratisation of states and presented ‘free and fair elections [as] an essential feature of democracy’.19 These resolutions were typically supported by the United States, the United Kingdom and Canada as well as some developing states, while China, Cuba, Saudi Arabia and Syria abstained from voting. Another strand of resolutions countered this understanding by endorsing the ‘promotion of a democratic and equitable international order’.20 These resolutions avoided any reference to elections and emphasised the economic and social dimensions of democracy. In deﬁning democracy, they invoked many Third World-favoured concepts such as self-determination, permanent sovereignty over natural wealth and resources, the right to development, the principle of solidarity (which calls for the distribution of the costs of global challenges ‘in accordance with basic principles of equity and social justice’), and the right to a healthy environment. Unsurprisingly, these resolutions attracted support from the abstainers on the ‘North’ resolution and negative votes from all Western states on the Commission. In 2005, on a United States initiative, the UN established the United Nations Democracy Fund to ‘support democratization throughout the world’. The mandate of the Fund does not deﬁne the idea of democracy and it eschews the promotion of ‘any single model of democracy’.21 The 2005 Summit Outcome document agreed to by heads of state of UN members on the UN’s sixtieth anniversary offered a slightly more detailed account of democracy, stating that ‘democracy is a universal value based on the expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all

19

20

21

(21 October 1997) Support by the United Nations system of the efforts of governments to promote and consolidate new or restored democracies. See, e.g. Commission on Human Rights Res. 2001/41 (23 April 2001) Continuing Dialogue on Measures to Promote and Consolidate Democracy (contained UN Doc. E/CN.4/2001/167 (27 April 2001) Report on the ﬁfty-seventh session: Economic and Social Council), para. 4. See, e.g., Commission on Human Rights Res. 2001/65 (25 April 2001) Promotion of a Democratic and Equitable International Order (contained UN Doc. E/CN.4/2001/167 (27 April 2001) Report on the ﬁfty-seventh session: Economic and Social Council). The United Nations Democracy Fund was established by the secretary-general in July 2005. See www.un.org/democracyfund.

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aspects of their lives’.22 It noted that ‘democracies share common features’, but did not identify any. The Summit Outcome also repeated the rejection of a ‘single model of democracy’, observing that ‘democracy does not belong to a single country or region’. The document shows the inﬂuence of Southern states’ scepticism about the Northern democracy agenda by reafﬁrming ‘the necessity of due respect for sovereignty and the right of self-determination’ and emphasising that ‘democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing’. Regional institutions have made more speciﬁc commitments to the idea of democracy. The strongest regional statements have come from Europe. Thus the Statute of the Council of Europe refers to the ‘basis of all genuine democracy’ as ‘devotion to the spiritual and moral values which are common heritage of [European] people and the true source of individual freedom, political liberty and the rule of law’. The Council adopted the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1950.23 While the Convention makes no reference to democracy, its First Protocol requires member states to ‘hold free elections at reasonable intervals by secret ballot’.24 At the end of the cold war the European Community adopted the 1990 Charter of Paris for a New Europe, heralding ‘a new era of democracy, peace and unity in Europe’. The Charter required EU members ‘to build, consolidate and strengthen democracy as the only system of government of our nations’. It further stipulated that ‘Democratic government is based on the will of the people, expressed regularly through free and fair elections’. Europe’s embrace of democracy rests on ‘respect for the human person and the rule of law’ and democracy is presented as ‘the best safeguard of freedom of expression, tolerance of all groups of society, and equality of opportunity for each person’. With its ‘representative and pluralist character’, democracy ‘entails accountability to the electorate, the obligation of public authorities to comply with the law and justice administered impartially’ as well as the rule of law.25 The 1992 Treaty on European Union presented the EU as founded ‘on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of 22 23

24 25

GA Res. 60/1 (24 October 2005) 2005 World Summit Outcome, para. 135. Opened for signature 4 November 1950, CETS No. 005 (entered into force 3 September 1953). Ibid., Protocol 1, Art. 3. Organization for Security and Co-operation in Europe, Charter of Paris for a New Europe, (Paris, 19–21 November 1990).

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law’.26 As some of the newly created or newly independent states of Central and Eastern Europe are discovering, greater Europe gives these human rights and democratic standards priority when considering European expansion. The Americas have also accepted a strong commitment to democracy, but with less speciﬁcity than Europe. The preamble of the Charter of the Organization of American States (OAS) asserts that ‘representative democracy is an indispensable condition for the stability, peace and development of the region’. It also refers to a ‘system of individual liberty and social justice’ within ‘the framework of democratic institutions’. OAS members pledge to ‘promote and consolidate representative democracy, with due respect for the principle of nonintervention’.27 In 2001, the OAS General Assembly adopted the Inter-American Democratic Charter,28 which asserts the power to suspend members whose democratic government has been overturned. The Charter refers simply to ‘representative democracy’, without further elaboration. The Charter also proclaims that ‘Every State has the right to choose, without external interference, its political, economic, and social system and to organize itself in the way best suited to it’. The message coming from the OAS is thus somewhat mixed, or at least ambiguous; unsurprising given the mixed NorthSouth nature of its membership and the politically turbulent history of the region. By contrast, the Charter of the Organisation of African Unity (OAU), the African Union’s (AU) predecessor, contained no reference to democracy and emphasised the principle of non-interference in other states.29 In 1990, however, the OAU heads of state made a commitment to ‘further democratisation’ and ‘consolidation of democratic institutions’. The successor to the OAU, the 2000 Constitutive Act of the African Union includes the objective of promoting ‘democratic principles and institutions, popular participation and good governance’.30 It also excludes from AU activities those governments which have ‘come to 26

27

28

29

30

Consolidated Version of the Treaty on European Union (Ofﬁcial Journal of the European Communities, C 325/7), Art. 6(1). Charter of the Organization of American States, opened for signature 30 April 1948 119 UNTS 48, preambular para. 4, Art. 2(b) (entered into force 13 December 1951). Adopted by the OAS General Assembly at its special session held in Lima, Peru, on 11 September 2001. See Charter of the Organization of African Unity, opened for signature 25 May 1963, 479 UNTS 39 (entered into force 13 September 1963). Constitutive Act of the African Union, signed 11 July 2000, Art. 3.

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power through unconstitutional means’.31 The AU has been reluctant, however, to enforce such objectives too stringently. In 2000, the Paciﬁc Island Forum adopted the Biketawa Declaration in the face of unrest in both Fiji and the Solomon Islands. The Declaration sets out ‘guiding principles’ such as a commitment to good governance and to uphold democratic processes ‘which reﬂect national and local circumstances, including the peaceful transfer of power, the rule of law and the independence of the judiciary, [and] just and honest government’.32 It has made possible interventions such as the Regional Assistance Mission to the Solomon Islands (RAMSI), which is described as ‘a partnership between the people and Government of Solomon Islands and ﬁfteen contributing countries of the Paciﬁc region’. The mission aims to help ‘the Solomon Islands to lay the foundations for long-term stability, security and prosperity – through support for improved law, justice and security; for more effective, accountable and democratic government; for stronger, broad-based economic growth; and for enhanced service delivery’.33 Other international statements on democracy include the Commonwealth’s Harare Declaration in 1991, which commits its members to democratic government. The Declaration acknowledges that democratic institutions must ‘reﬂect national circumstances’ but lists some indispensable features of democracy in Art. 9: ‘the rule of law and the independence of the judiciary, just and honest government; fundamental human rights, including equal rights and opportunities for all citizens regardless of race, colour, creed or political belief’.34 The various international organisations’ level of commitment to such principles is measurable by looking to cases such as Zimbabwe, a member of both the African Union and the Commonwealth. While the former has been reluctant to criticise or act against the government of Zimbabwe, the latter has been more active in suspending Zimbabwe’s membership on a number of occasions because of severe breaches of democratic principles. A United States-sponsored forum, known as the ‘Community of Democracies’, met ﬁrst in Warsaw in June 2002, out of which emerged 31 32 33 34

Ibid., Art. 30. Biketawa Declaration, signed October 2000, Art. 1(iii). See RAMSI’s website at www.ramsi.org/. Commonwealth Secretariat, Harare Commonwealth Declaration, 1991 (Harare, 20 October 1991).

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the Warsaw Declaration.35 Three years later 110 states were represented in Seoul for the Second Ministerial Conference of the Community of Democracies. That conference produced the Seoul Plan of Action, which outlined in some detail the Community of Democracies’ account of the central elements of democracy and, hence, the key criteria for membership. These were: respect for human rights – civil, political, economic, social and cultural – including freedom of expression, freedom of the press, and freedom of religion and conscience; access to and free exercise of power in accordance with the rule of law; the holding of periodic free and fair elections based on secret balloting and universal suffrage monitored by independent election authorities; freedom of association including the right to form independent political parties; separation of powers, especially an independent judiciary; and constitutional subordination of all state institutions, including the military, to the legally-constituted civilian authority.36

This survey of international deﬁnitions indicates a range of possible components of democracy – from participation in elections, to civil and political rights, to economic and social rights. Understandings of democracy developed in international institutions exhibit a degree of polarisation, with emphasis on elections the hallmark of Western deﬁnitions, and emphasis on development and social and economic rights a feature of non-Western accounts.

II. How adequate are the international deﬁnitions of democracy? The language of democracy is now widely accepted by international institutions. Yet our survey of institutional endorsements of the value of democracy highlights the tendency for sweeping statements that are long on rhetoric and short on the substance of democracy. To some extent, this vagueness is a product of resistance, due to the perception that democracy is a Western concept and therefore democracy promotion is a Western-driven agenda. The exceptions to the general endorsements are the more speciﬁc deﬁnitions adopted by the EU and the ‘Community 35

36

Toward a Community of Democracies: Ministerial Conference, Final Warsaw Declaration (Warsaw, 27 June 27 2000). Second Ministerial Conference of the Community of Democracies, Seoul Plan of Action – Democracy: Investing for peace and prosperity (Seoul, 12 November 2002). The third meeting of the Community was held in Santiago in 2005 and the fourth in Bamako, Mali in 2007.

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of Democracies’ which endorse certain fundamental principles, procedures and institutional building blocks of democracy. Most democracy-promotion and democracy-building projects take place in the non-Western world under the supervision of Western states or Western-dominated institutions. When democratisation is on the agenda, the international organisations surveyed in the previous section tend to translate democracy into a checklist of processes and institutions; such as elections, political parties, human rights, rule of law, legislative and judicial institutions, and free markets. Similarly, conceptions of democracy advanced internationally tend to mimic the governance structures of the proposers. They are generally technical and procedural and lack nuance or understanding of local contexts. The version of democracy promoted by the administration of US President George W. Bush in Afghanistan and Iraq, for example, with its checklist of the ‘pillars of democracy’, is all about processes and institutions with little consideration given to the results they deliver.37 Even within the Western liberal democratic tradition, there is much debate and division over precisely what democracy is and how it is best deﬁned. Some generally accepted characteristics of modern liberaldemocracies are popular participation – that is, the right to elect a government through free and fair elections; a right and space for political opposition to organise; adherence to the rule of law; an independent judiciary to safeguard citizens’ rights and protect both majority and minority groups; a commitment on the part of the people and the government to preserve freedom and equality; civilian control of the military and police; and the guarantee of human rights, including civil and political rights, freedom of assembly, freedom from discrimination, and freedom of speech, including a free press. But even if there is some agreement on these key principles or procedures, there is contention over the appropriate balance and priorities and the explicit content and context of the various constitutive elements of democracy; from the most appropriate electoral models to hierarchies of rights. Even among functioning Western liberal democracies, no two systems are alike: Australian democracy at work differs from British democracy, which 37

The ‘pillars of democracy’ include: sovereignty of the people; government based upon consent of the governed; majority rule; minority rights; guarantee of basic human rights; free and fair elections; equality before the law; due process of law; constitutional limits on government; social, economic, and political pluralism; and values of tolerance, pragmatism, co-operation, and compromise. See United States Government, ‘Deﬁning democracy’, available at www.usinfo.state.gov/products/pubs/whatsdem/whatdm2.htm.

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differs from American democracy, which is different again to German democracy, and so on.38 Some of the key points of contention among democrats are evident in Joseph Schumpeter’s distinction between direct and indirect democracy. He associates the former with Ancient Greece where all eligible constituents would gather to debate and decide on the issue of the day. The latter, which he regards as the only realistic model of democracy, rests on an ‘institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote’.39 Once they have won that vote they are free to act on the basis of self-interest or party interest until the next competitive struggle for the people’s vote. This approach to democracy is reﬂected in claims such as Huntington’s assertion that ‘Elections, open, free and fair, are the essence of democracy, the inescapable sine qua non’.40 Huntington also acknowledges, however, that ‘Governments produced by elections may be inefﬁcient, corrupt, short-sighted, irresponsible, dominated by special interests, and incapable of adopting policies demanded by the public good’. In this respect, he notes that democracy is but ‘one public virtue, not the only one, and the relation of democracy to other public virtues and vices can only be understood if democracy is clearly distinguished from the other characteristics of political systems’.41 A preoccupation with elections has become a feature of the international democracy-promotion industry in post-conﬂict societies. Its attractions are easy to understand: elections pass political and ﬁnancial responsibility from an international intervener to local groups and allow a respectable exit; elections can also legitimise a problematic international intervention.42 The evidence of the centrality of elections to democracy can be challenged, however, when viewed in the context of speciﬁc democracy-building exercises. For example, in Timor-Leste, the focus of the UN’s Transitional Administration’s (UNTAET) work was the ﬁrst multi-party election in 2002. The election quickly became 38 39

40

41 42

See Helena Catt, Democracy in Practice (London: Routledge, 1999). Joseph Schumpeter, Capitalism, Socialism, and Democracy (London: Allen & Unwin, 1943), 269. Samuel P. Huntington, Third Wave: Democratization in the late twentieth century (Norman: University of Oklahoma Press, 1991), 9–10. Ibid. Outi Korhonen, ‘“Post” as justiﬁcation: International law and democracy-building after Iraq’ (2003) 4 German Law Journal, 709–23, 723.

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the dominant symbol of democracy, although in Timor-Leste an election was an alien concept because of the local unitary and hierarchical idea of political power.43 As the anthropologist Tanja Hohe points out, in traditional Timorese culture ‘peaceful political opposition is logically impossible’.44 So too, UNTAET’s mission to establish Western political institutions did not take into account existing local structures, nor how they might interact with the new constitutional ediﬁce. The UN failed to grapple sufﬁciently with speciﬁc Timorese social networks that did not map readily on to the Western model of citizen–state relations where formal institutions such as the judiciary, the legislature and the executive structure political life.45 The result has been what Hohe terms ‘feudal democracy’.46 The association of elections with democratic transition in Iraq has also proved problematic. Although there has been a high voter turnout in elections, the electoral process has obscured the signiﬁcance of creating the conditions of equality between citizens and equality of access to public life and decision-making. James Dobbins has observed of Iraq that ‘Elections in conditions of insecurity tend to polarize rather than unite societies … The winners typically are not centrist ﬁgures or moderate reformers but militant leaders who appeal to their constituents’ most basic religious, ethnic and tribal identities.’47 The consequences in Iraq of such divisiveness have been particularly brutal. This type of criticism of electoral democracy has a long history. Traditionally, the purpose of democracy has been to prevent tyranny; the accumulation of too much authority in the hands of one or a few people. In other words, democracy was not necessarily intended to deliver ‘good government’, but to impose some limits on the abuse of power. One of the primary criticisms levelled against democracy is that some, usually the ‘winners’, have interpreted democracy as implying that if a majority is in agreement, it is legitimate to oppress or mistreat a minority. This is what John Stuart Mill famously referred to as the ‘tyranny of the majority’. Majority support for a course of action in itself does not make it right or just; other critical aspects of democracy, such as questions of equality, toleration, individual and minority rights, and 43

44 47

Tanja Hohe, ‘Delivering feudal democracy in East Timor’ in Edward Newman and Roland Rich (eds.), The UN Role in Promoting Democracy: Between ideals and reality (Tokyo: United Nations University Press, 2004), 302–19, 306. Ibid. 45 Ibid., 303. 46 Ibid., 302. James Dobbins, ‘A perilous journey from sovereignty to the polls’, Financial Times (18 March 2004), 43.

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so on come into play. Bills of rights are often employed as an extra level of insurance to safeguard particular issues from majoritarian decisionmaking. The preoccupation with elections at the heart of democracy is shortsighted, especially in the wake of conﬂict. Elections might add the sheen of legitimacy to unilateral or international interventions, but they will do little for domestic legitimacy if there is no local consultation and involvement in the democratic process apart from casting a ballot. John Keane suggests that there is ‘the need to rethink some fundamental features of democracy, beginning with deﬁnitions of the term’.48 This rethinking needs to look beyond the Western tradition of liberal electoral democracy if it is to have universal appeal. Amartya Sen has proposed that we should conceptualise democracy less in terms of public ballots and more in terms of what John Rawls called ‘the exercise of public reason’. Sen believes that this ‘more capacious concept includes the opportunity for citizens to participate in political discussions and so to be in a position to inﬂuence public choice’.49 This requires citizens to have a real voice in the design of the institutions or forums where this dialogue takes place. According to the Institute for Democracy and Electoral Assistance (IDEA), a democratic political system is ‘inclusive, participatory, representative, accountable, transparent and responsive to citizens’ aspirations and expectations’.50 To date, the international democracy-promotion industry has fallen short of this mark. The form of democracy-building promoted by international institutions, as outlined above, fails to meet IDEA’s tests of inclusivity, participation and responsiveness because of the inﬂexible Western liberal-democratic template used. As William Maley also notes in his chapter in this volume, Robert Dahl contends that no modern country meets the ideals of democracy; almost nowhere is there signiﬁcant citizen participation in formulating policy or the decision-making process. Dahl insists that politically advanced countries are more accurately understood as ‘polyarchies’ than democracies.51 In response to such criticisms, alternative accounts of democracy draw 48

49

50

51

John Keane, The Life and Death of Democracy (London: The Free Press, 2009), forthcoming. Amartya Sen, ‘Democracy and its global roots’ (2003) 229 (14) The New Republic, 28–31. For Rawls on public reason, see John Rawls, The Law of Peoples: with, The Idea of Public Reason Revisited (Cambridge, MA: Harvard University Press, 1999). International Institute for Democracy and Electoral Assistance, ‘Citizens assessment of democracy’ (2007) available at www.idea.int/democracy. Robert A. Dahl, Democracy and its Critics (New Haven: Yale University Press, 1989).

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on ancient practices of direct democracy to propose concepts and practices such as deliberative or discursive democracy. These concepts involve less emphasis on irregular voting as the key to democracy and more on creating methods for public deliberations through means such as consultative citizens’ juries in which members of the public have an opportunity for real input into policy formulation and decisionmaking.52 The essentials of deliberative democracy entail: 1. citizens’ expectation of an ongoing independent association with fellow citizens in the process; 2. structuring of institutions such that the ongoing capacity for deliberation is an essential consideration in their design and implementation; 3. a ﬁrm commitment and respect for a plurality of values, beliefs or differing accounts of the ‘good life’ within the polity; 4. deliberation being regarded as the source of legitimacy, such that all decision-making has a readily traceable history back to a deliberative process; 5. citizens recognise and respect their fellow citizens’ capacity for deliberation.53 Pushing the boundaries of democracy even further, radical democrats call for an ‘agonistic pluralism’ in which all antagonisms can be expressed and peacefully played out; that is, a deeper and more extensive democratic revolution – a democratic matrix of sorts – which cuts across a wide range of social relations.54 One way of rethinking international deﬁnitions of democracy would be to encourage the development of indigenous governance structures rather than the creation of the standard suite of Western institutions. This would require including local people’s participation in public 52

53

54

See, e.g., John Parkinson, Deliberating in the Real World: Problems of legitimacy in deliberative democracy (Oxford: Oxford University Press, 2006). On 11 July 2007, UK Prime Minister Gordon Brown declared that citizens’ juries were his government’s ‘big idea’ in giving citizens more input into policy: ‘I’d like to have what are called citizens’ juries, where we say to people, “look, here is a problem that we are dealing with – today it’s housing, it could be drugs or youth services, it could be anti-social behaviour – here’s a problem, this is what we are thinking about it, but tell us what you think”’: see Nick Assinder, ‘Brown aims to set political pace’, BBC News (11 July 2007). Joshua Cohen, ‘Deliberative democracy and democratic legitimacy’ in Alan Hamlin and Philip Pettit (eds.), The Good Polity (Oxford: Blackwell, 1989), 17–34. See Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a radical democratic politics, trs. Winston Moore and Paul Cammack (London: Verso, 1985).

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deliberations that affect them. International democracy-builders usually do not have the capacity to identify local systems of government; they tend to be regarded as part of the problem of ‘culture’ that needs to be quarantined; the importation of Western accounts of democracy by contrast is regarded as both modern and efﬁcient, or logical. To overcome such blind spots and general short-sightedness, anthropological and local expertise should be given much greater priority in democratisation processes. This would allow indigenous structures to be both better understood and developed where and when appropriate. But what if indigenous systems of governance are built on the exclusion of particular groups, such as women? Is it appropriate, for example, to measure these institutions against international human-rights standards relating to non-discrimination? Noah Feldman, an American constitutional lawyer who worked with the Coalition Provisional Authority in Iraq, has concluded that international standards should not be imposed on or even inﬂuence the birth process of new democracies.55 New constitutions, he has argued, should ‘get off the ground through a process of adoption by localized self-interest, not out of episodic external pressure that will soon be lifted’.56 Feldman’s prescription of deference to ‘localised self-interest’ in the context of women’s rights, however, allows particular local male elites to deﬁne the substance of governance. Women’s rights are unlikely to appeal to the self-interest of such elites. Feldman’s argument also assumes that there is one set of ‘local’ views that should be respected and ignores the role and aspirations of ‘internal reformers’ within state-building societies.57 Ideas of local culture are easily manipulable and the choice of what cultures to emphasise and preserve is dependent on power relations within the society. The respect states’ assertions of culture generally attracts from the international community tends to be based on a monolithic view of ‘culture’, which underplays the possibility of internal diversity or contestation. We often see such an assumption made in the context of religious culture, as if religions cannot sustain criticism or the notion of individual rights.58 It is thus important to be alert to the politics of the culture being invoked as part of democratisation. For example, whose culture is being invoked? 55

56 57

58

Noah Feldman, After Jihad: America and the struggle for Islamic democracy (New York: Farrar, Straus and Giroux, 2003), 29–33. Ibid., 29–30. Madhavi Sunder, ‘Enlightened constitutionalism’ (2005) 37 Connecticut Law Review, 891–905, 892. Ibid., 895.

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What is the status of the interpreter of culture? In whose name is the argument being advanced? And, who are the primary beneﬁciaries of the claim?59 The challenge is to build on existing pluralist structures in a manner that is consistent with a broader human-rights framework.

III. Can we deﬁne democracy at the international level? Is there any value in the deﬁnition enterprise at an international level? How is a domestic concept such as democracy translated internationally? Does democracy have any real substantive value as an instrument of international law? Only the most general accounts of democracy seem to survive international politics and simpliﬁcation and vagueness are inevitable. Deﬁnitions of democracy at the international level are either too broad to offer any real guidance or too reﬂective of Western practice to be acceptable and adaptable to very different socio-cultural settings. The deﬁnitional project is also shaped by the inconsistency of Western governments’ enthusiasm for democracy; they have promoted it when it coincides with economic and security interests but otherwise tolerated autocratic governments, and indeed supported them, because of the apparent stability they engender.60 The case of Afghanistan, discussed in this volume by William Maley, illustrates this inconsistency. At the international level, the focus has been institutional and there has been little attempt to distil the less tangible elements or qualities of democracy, or what the Europeans have referred to in their guiding charter as the ‘spiritual or moral values’ that underpin democracy.61 While it is no simple task, identifying an abstract essence of democracy – with elements such as dignity, respect and equality – would allow more ready translation into existing or revived indigenous governance structures and value systems in post-conﬂict societies. For instance, while it is not referred to in any of the deﬁnitions outlined above, the ‘golden rule’ or the ethic of reciprocity – the essence of which is captured in the phrase, ‘treat others as you would like to be treated’ – is integral to the democratic schema. The ethic of reciprocity is a fundamental moral 59

60 61

Arati Rao, ‘The politics of gender and culture in international human rights discourse’ in Julie Peters and Andrea Wolper (eds.), Women’s Rights, Human Rights: International feminist perspectives (New York: Routledge, 1995), 167–75. Thomas Carothers, ‘The “sequencing” fallacy’ (2007) 18(1) Journal of Democracy, 12–27, 21. Statute of the Council of Europe, opened for signature 5 May 1949, CETS No. 001, preambular para. 2 (entered into force 3 August 1949).

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principle common to most major religious or cultural groups.62 A similar point can be made about the centrality of the idea of human dignity and the principle of toleration.63 Susan Marks’ idea of democracy as self-rule on the basis of equality between citizens, resting on principles of popular control and political equality offers a substantive yet ﬂexible account of democracy that could assist the rebuilding of states emerging from conﬂict.64 This requires popular control over public decisions, and equality of respect and voice between citizens in the exercise of that control. Marks’ account of democracy makes central the notion of self-government, rather than the legitimation of government by others. What might this mean on the international plane? Such a conception of democracy emphasises decision-making by discussion, or the application of public reason, and is not so concerned with formal institutions and formal processes. It suggests the inutility of devising formulae for democracy, or associating democracy with a ﬁxed set of institutions. It gives prominence to identifying and strengthening local institutions that enhance self-government and responding to social and economic inequalities as they affect the capacity to have access to political power.65 How does the idea of self-rule on the basis of equality between citizens affect the international consensus about the centrality of elections for the creation of democracy? Elections are also often given priority by local people when an autocratic government has collapsed, although the legitimacy they bring has been uncertain and inconsistent.66 The concept of democracy as self-rule on the basis of equality between citizens suggests that elections should not necessarily be rushed, particularly following a period of violent conﬂict, and that energy might equally be devoted to encouraging public conversations about major social issues. Such a gradualist approach marked, for example, the South African transition in the 1990s.67 It is also important to understand that international actors generally play a circumscribed role in promoting democracy; despite 62 63

64

65

See Jeffrey Wattles, The Golden Rule (New York: Oxford University Press, 1996). Perez Zagorin, How the Idea of Religious Toleration Came to the West (Princeton: Princeton University Press, 2003); cf. John Christian Laursen (ed.), Religious Toleration: The ‘variety of rites’ from Cyrus to Defoe (New York: St. Martin’s Press, 1999); Mehdi Amin Razavi and David Ambuel (eds.), Philosophy, Religion, and the Question of Intolerance (Albany: State University of New York Press, 1997). Susan Marks, The Riddle of all Constitutions: International law, democracy, and the critique of ideology (Oxford: Oxford University Press, 2000). Ibid., 64–5. 66 Carothers, ‘The “sequencing” fallacy’, 21, 23. 67 Ibid., 25.

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the size of the democracy-promotion industry, it can usually only support, rather than shape, domestic democratic change.68 Some observers have promoted the notion of a ‘two-track’ deﬁnition of democracy in states affected by conﬂict. The idea is that in especially fractured states, governance should aim at simply achieving stability; a fuller democratic structure is presented as a luxury available only to more stable states. Thomas Carothers has criticised this ‘democratic sequencing’ approach on empirical grounds.69 He points out that it assumes that autocratic stabilisers will have an interest in developing the conditions for the less orderly atmosphere of democracy. The cases of China and Vietnam show that economic success is possible without the nurturing of democratic elements such as the rule of law.70 An independent judiciary, for example, will be perceived as a threat to an autocratic government; as has been exposed in Pakistan during its troubled period of transition in 2007–2008. In cases of state-building also, autocratic forms of governance or newly elected governments will typically resist public accountability.71 More fundamentally, a ‘two-track’ approach implies that some peoples and their governments (those on the advanced track) embody the successful achievement of democracy, without recognising that all democracies are imperfect; that they are, in Marks’ words, always journeys rather than destinations.72 In essence, the very nature of democracy is contestation. As Guillermo O’Donnell reminds us, democracy: is and always will be in some kind of crisis: It is constantly redirecting its citizens’ gaze from a more or less unsatisfactory present toward a future of still unfulﬁlled possibilities … [to] an always pending agenda that calls for the redress of social ills and further advances in the manifold matters which … most concern human welfare and dignity.73

As democracy is inevitably built on broken promises,74 the distinction between ‘established’ and ‘new’ or ‘emerging’ democracies is rather hollow. Few stable transitions in social orders are achieved solely through external intervention. While they might be painful and laborious processes, internally generated transitions have greater legitimacy and longevity. 68 72 73

74

Ibid., 22. 69 Ibid. 70 Ibid., 15–16. 71 Ibid., 19–20. Marks, The Riddle of all Constitutions, 66. Guillermo O’Donnell, ‘The perpetual crises of democracy’ (2007) 18(1) Journal of Democracy, 5–11, 9. Norberto Bobbio, The Future of Democracy: A defence of the rules of the game, tr. Robert Grifﬁn (Minneapolis: University of Minnesota Press, 1987), 23–42.

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Most parts of the world have histories of reasonably well-organised and stable governments that relied at the local level at least on some form of quasi-democratic decision-making and choice of leadership.75 In most post-conﬂict societies, there are intense local aspirations for self-rule.76 Deﬁning democracy in international institutions can generate great expectations, but the task should be conceived of modestly. The concept of a ‘right to democracy’ can support external intervention, although this is incapable of achieving a sustained and democratic change in government. It can also promote a checklist approach to the relationship of individuals to government, without providing space for the more organic and chaotic development of self-rule between an equal citizenry. 75

76

Steven Muhlberger and Phil Paine, ‘Democracy’s place in world history’ (1993) 4 Journal of World History, 23–45, 27. Carothers, ‘The “sequencing” fallacy’, 23.

5 Democracy and legitimation: Challenges in the reconstitution of political processes in Afghanistan william maley

Introduction From December 2001 to December 2005, Afghanistan underwent a process of political transition. The path to be followed was established at a conference in Bonn from 27 November to 5 December 2001 under the auspices of the United Nations which brought together ‘nonTaliban’ Afghan political actors. The conference led to the signing of an ‘Agreement on Provisional Arrangements in Afghanistan Pending the Re-establishment of Permanent Government Institutions’, which was subsequently endorsed by the UN Security Council in Resolution 1383 (2001). A number of key landmarks on this pathway formed essential elements of the transition. On 22 December 2001, an interim authority took ofﬁce at a ceremony in Kabul, headed by Hamed Karzai and comprising a chairman, ﬁve vice chairmen and twenty-four other members. From 11 to 19 June 2002, a so-called ‘Emergency Loya Jirga’ (Great Assembly) was held to transform the interim authority into a more broadly based transitional administration. In order to equip Afghanistan with a new constitution, a ‘Constitutional Loya Jirga’ was held between 14 December 2003 and 4 January 2004 with 502 members, most of them elected through an indirect but lively process, but some appointed by Karzai, which led to the adoption of the new constitution (Qanun-e Asasi-i Afghanistan). Following this, a presidential election was held on 9 October 2004 which resulted in the election of Karzai as president for a ﬁve-year term with 55.4 per cent of the popular vote; and on 18 September 2005, further elections were held for provincial councils and for the Wolesi Jirga, the lower house of a new bicameral Parliament, which met for the ﬁrst time 111

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on 19 December 2005, almost four years to the day since the interim authority had been constituted.1 Viewed in this light, it might seem that Afghanistan offers a model example of democratic transition following years of turmoil, with new institutions conceived, designed and established. Yet such a conclusion is belied by signiﬁcant ongoing problems that have afﬂicted Afghanistan’s transition. Much of the country remains blighted by serious problems of insecurity, and the new state is unable to control the use of violence. The Afghan political elite is deeply divided, and instrumentalities of the new state display alarming pathologies, including ferocious hostility between different agencies. Furthermore, survey evidence points to a signiﬁcant fall in the number of Afghans who believe that the country is moving in the right direction, and more broadly there is a fear that the momentum of transition has been lost and that the entire process of building a new state might stall. While Afghanistan is not in any sense another Iraq, it is also not the success story that it has sometimes been proclaimed. My aim in this chapter is to explore some of the reasons why Afghanistan’s transition has run into difﬁculty, and my central argument is that it reﬂects a general failure to appreciate the limits of democratic choice mechanisms as devices for generating political legitimacy in certain kinds of situations. The chapter is divided into six sections. In the ﬁrst section, I brieﬂy discuss the concept of democracy. In the second, I turn to the idea of state-building, and argue that legitimation of institutions is a key element of such activity. In the third, I outline how the development of the idea of a ‘right to democratic governance’ has subtly pushed ‘state-building’ exercises, especially under UN auspices or with UN backing, in the direction of electoral politics, and in the fourth, I set out some reasons why this may be less than desirable, given both the divisive character of elections, and the need to nest electoral processes in a framework of norms and structures that deliver security and accountability. The ﬁfth section discusses a number of consequent imbalances in the Afghan transition, especially arising from the ways in which the shape and scope of the new state were determined, from the marginalisation of some key social actors, and from an overestimation of the force of electoral success as a source of political legitimacy in Afghanistan. The ﬁnal section offers some brief conclusions. 1

For more detailed discussion of these events, see William Maley, Rescuing Afghanistan (London: Hurst & Co., 2006).

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I. Concepts of democracy So much has been written about democracy that it seems almost pointless to add to the volume of output. Nonetheless, it is useful to begin by drawing some distinctions that can help to locate the discussion which follows in a wider context. ‘Democratic theory’ – actually a cluster of related theories – addresses a range of different matters. Some elements of democratic theory are concerned with the deﬁnition of ‘democracy’; some are concerned with the attributes that might make a democratic system either politically or morally desirable; some are concerned with the ways in which democracies might emerge; and some are concerned with identifying the social, cultural and institutional factors that might consolidate or entrench democracy. Some are concerned with the distinction between processes and outcomes, and some address the question of the relationship of democracy to political values such as liberty, equality or justice. The more abstract contributions to democratic theory are augmented or complemented by a vast array of empirical studies that analyse the operations of political systems that have been labelled ‘democratic’. In Western ‘democratic systems’, the popular discussion of democracy is often dominated by a focus on institutional options that allow to ‘citizens’ some choice of who their rulers might be. In a characterisation which retains its punch, Sir Karl Popper described a democracy as a set of political institutions ‘which permit public control of the rulers and their dismissal by the ruled’.2 A more elaborate deﬁnition, albeit along the same lines, was offered by Joseph Schumpeter in his famous book Capitalism, Socialism, and Democracy. There, Schumpeter argued that the democratic model was ‘that institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people’s vote’.3 This approach, sometimes labelled ‘realist’ or ‘elitist’, captures certain key features of modern ‘Western’ democracies. However, subsequent theorists have added to this picture. Sometimes this has taken the form of a quest for more reﬁned terminology. Thus the American theorist Robert A. Dahl has argued that the term ‘democracy’ deﬁnes an ideal that can 2

3

See Karl Popper, The Open Society and Its Enemies (London: Routledge & Kegan Paul, 1966), vol. II, 151. Joseph Schumpeter, Capitalism, Socialism, and Democracy (London: Allen & Unwin, 1976), 269.

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be asymptotically approached but never fully realised. The ‘real-world’ equivalent of ‘democracy’ is what Dahl calls ‘polyarchy’, marked by high levels of participation and contestation.4 Other scholars have sought to outline the different kinds of choice mechanisms that might be used to select ofﬁceholders,5 to explore their political consequences6 and even to investigate whether the political outcomes which they generate are meaningful, or contaminated by paradoxes.7 Many scholars, however, have found such focus on electoral processes to be, at the very least, somewhat limiting. In many systems, with the ostensible objective of allowing leaderships to make difﬁcult decisions, ofﬁceholders are elected for lengthy periods of time. The Afghan president, for example, serves a ﬁve-year term. A question that obviously can arise is what constraints might be imposed on the exercise of political power during the periods between elections, and one need not conjure up fearful scenarios of ‘elected dictatorship’ in order to concede that this is a serious problem. One approach is to be found in the liberal idea of constitutionalism, which posits that constraints in the form of the political ideal of the rule of law, the institutional doctrine of the separation of powers and formal constitutional constraints on what even a democratically elected government might do, are necessary to prevent the misuse of power between elections.8 Another approach emphasises the need to invigorate participation, through the development of means of political engagement which accord to citizens a continuous, rather than sporadic or peripheral, role in the governing of their lives.9 A related 4

5

6

7 8 9

See Robert A. Dahl, Polyarchy: Participation and opposition (New Haven: Yale University Press, 1971). See also the discussion of Dahl’s ideas by Bhuta and Bowden and Charlesworth in this volume. See Andrew Reynolds and Ben Reilly (eds.), The International IDEA Handbook of Electoral System Design (Stockholm: International Institute of Democracy and Electoral Assistance, 1997). See Douglas W. Rae, The Political Consequences of Electoral Laws (New Haven: Yale University Press, 1967); G. Bingham Powell Jr, Elections as Instruments of Democracy: Majoritarian and proportional visions (New Haven: Yale University Press, 2000); Benjamin Reilly, Democracy in Divided Societies: Electoral engineering for conﬂict management (Cambridge: Cambridge University Press, 2001); Pippa Norris, Electoral Engineering: Voting rules and political behavior (Cambridge: Cambridge University Press, 2004); Benjamin Reilly, Democracy and Diversity: Political engineering in the Asia-Paciﬁc (Oxford: Oxford University Press, 2006). Gerry Mackie, Democracy Defended (Cambridge: Cambridge University Press, 2003). See Grenfell and Farrall’s chapters in this volume. See Bowden and Charlesworth’s chapter in this volume; John Burnheim, Is Democracy Possible? The alternative to electoral politics (Berkeley: University of California Press, 1985).

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strand of thinking, albeit with diverse internal elements, defends what its proponents call ‘deliberative democracy’, premised on the view that particular institutional structures can provide opportunities for questions to be elaborated and explored between elections10 – and implicitly, for the potentially malign effects of the inﬂuence of sectional interests to be offset. The complexity of the relationships between different values is perhaps worth highlighting at this point, since the expression ‘liberal democracy’ is now a commonly used one. It is an expression, however, with the potential to blur important distinctions between democracy and liberalism. Liberalism is concerned with the protection of liberty, primarily individual liberty, whereas democracy is concerned with the question of who will exercise power, rather than how it will be exercised. A credible argument can be developed that democratic systems are likely to be much better than undemocratic systems in preventing power from being abused, but freedoms can be eroded in democratic systems. David Hume’s warning in his essay Of the Liberty of the Press that it is seldom that liberty of any kind is lost all at once is a sobering one, and in the name of effective counter-terrorism since 2001, some precious rights have been sacriﬁced at elite instigation, notably those that the ancient writ of habeas corpus was designed to protect.11 One theme that ﬁgures prominently in a number of works about modern democracy is just how historically unusual democratic forms of government have been.12 In its post-2004 form, it is certainly a novelty for twenty-ﬁrst-century Afghanistan. While it is commonplace to trace the roots of democracy to ancient Athens, often with reference to the great funeral oration of Pericles recorded in Thucydides’ History of the 10

11

12

See Amy Gutmann and Dennis Thompson, Democracy and Disagreement (Cambridge: Belknap Press, 1996); Stephen Macedo (ed.), Deliberative Politics: Essays on democracy and disagreement (New York: Oxford University Press, 1999); John S. Dryzek, Deliberative Democracy and Beyond: Liberals, critics, contestations (Oxford: Oxford University Press, 2000); Amy Gutmann and Dennis Thompson, Why Deliberative Democracy? (Princeton: Princeton University Press, 2004). For discussion of various manifestations of this phenomenon, see Helen Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge: Cambridge University Press, 2005), 379–442; Joseph Margulies, Guantanamo and the Abuse of Presidential Power (New York: Simon & Schuster, 2006); Stephen Grey, Ghost Plane: The untold story of the CIA’s secret rendition programme (London: Hurst & Co., 2006); Jack L. Goldsmith, The Terror Presidency: Law and judgment inside the Bush administration (New York: W. W. Norton, 2007). See Bowden and Charlesworth’s chapter in this volume.

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Peloponnesian War,13 the speciﬁcs of that system would hardly pass muster as ‘democratic’ according to modern criteria of participation, and for nearly two millennia thereafter, democratic thinking was distinctly in abeyance. It is often forgotten that much of ancient Greek political thought, notably that of Plato, was anti-democratic in character, and various forms of autocracy, ranging from the patrimonial to the sultanistic to the totalitarian, were to prove robust to varying degrees.14 ‘Modern’ democracies are very much the products of particular historical paths in which intellectual developments such as the Reformation and the Enlightenment were paralleled by dramatic social change generated by events such as the Industrial Revolution. But these were by no means universal. Even in Europe, the progressive thinkers of the Enlightenment were challenged by the Romantic movement, and some parts of Europe, notably Russia, were substantially cut off from developments elsewhere on the continent.15 The fact that democratic governance has historically been the exception rather than the rule is one of the factors that at various times has triggered discussion of what social requisites might be required for democracy to emerge and be sustained. Developing a simple checklist is not easy, for democracies come in different shapes and sizes. Finding social factors common to such democracies as the United States and India is a major challenge, just as ﬁnding shared social attributes between India and Pakistan – one a democracy, the other a militarised regime – is not. Factors such as forms of economic development, extent of inequality, patterns of income distribution, and levels of educational attainment have all been investigated, as have more directly political matters such as elite structures and orientations. But these do not add up to any simple recipe for the establishment or consolidation of democracy. Nearly forty years ago, the political scientist Richard Rose warned that the stew might need to simmer for centuries. This is a warning that has been forgotten

13

14

15

Thucydides, History of the Peloponnesian War, tr. Rex Warner (Harmondsworth: Penguin, 1972). Cf. John Keane, The Life and Death of Democracy (London: The Free Press, 2009). See Juan J. Linz, Totalitarian and Authoritarian Regimes (Boulder: Lynne Rienner, 2000); H. E. Chehabi and Juan J. Linz (eds.), Sultanistic Regimes (Baltimore: Johns Hopkins University Press, 1998). See Isaiah Berlin, Political Ideas in the Romantic Age: Their rise and inﬂuence on modern thought (Princeton: Princeton University Press, 2006); Andrzej Walicki, A History of Russian Thought from the Enlightenment to Marxism, tr. Hilda Andrews-Rusiecka (Stanford: Stanford University Press, 1979), 71–114.

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in more recent times,16 partly because the need to reconstitute the political systems of severely disrupted states has seemed so urgent.

II. State-building and legitimation When one examines the processes of democratisation in Western countries, it is immediately striking that the establishment and consolidation of the modern state came ﬁrst. By ‘state’, I mean not so much the distinct territorial units which, following the Peace of Westphalia of 1648, emerged as the principal building blocks of international society, but rather the administrative structures within those units that endowed them with empirical as well as juridical sovereignty, and helped qualify them to be states in accordance with the criterion of ‘government’ set out in the 1933 Montevideo Convention on the Rights and Duties of States.17 The state in this sense is ‘a complex set of institutional arrangements for rule’ which ‘reserves to itself the business of rule over a territorially bounded society’.18 The core capacities of the state have been identiﬁed by Joel S. Migdal as including ‘the capacities to penetrate society, regulate social relationships, extract resources, and appropriate or use resources in determined ways’.19 Migdal has also distinguished four different elements of any functioning state. First are the trenches, consisting of ‘the ofﬁcials who must execute state directives directly in the face of possibly strong societal resistance’. Second are the dispersed ﬁeld ofﬁces, the ‘regional and local bodies that rework and organize state policies and directives for local consumption, or even formulate and implement wholly local policies’. Third are the agency’s central ofﬁces, the ‘nerve centers where national policies are formulated and enacted and where resources for implementation are marshaled’. And fourth are the commanding heights, the ‘pinnacle of the state’ where the ‘top executive leadership’ is to be found.20 16

17

18

19

20

Richard Rose, ‘Dynamic tendencies in the authority of regimes’ (1969) 21 World Politics, 602–28, 627. See also Korhonen’s chapter in this volume. Opened for signature 26 December 1933 (entered into force 26 December 1934). See James Crawford, The Creation of States in International Law, 2nd edn (Oxford: Clarendon Press, 2006), 55–61. Gianfranco Poggi, The Development of the Modern State: A sociological introduction (London: Hutchinson, 1978), 1. Joel S. Migdal, Strong Societies and Weak States: State-society relations and state capabilities in the Third World (Princeton: Princeton University Press, 1988), 4 (emphasis in original). Joel S. Migdal, ‘The state in society: An approach to struggles for domination’ in Joel S. Migdal, Atul Kohli and Vivienne Shue (eds.), State Power and Social Forces: Domination

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It was a fundamental insight of the great German sociologist Max Weber that the powers of the state could be exercised on a number of different bases. One such basis is coercion, where the capacity of the state to coerce its subjects is so great that the fear instilled in them is sufﬁcient to secure their compliance with the rulers’ wishes. This has been well known to virtually every despot in history, and the twentieth century was over-endowed with ghastly rulers who used their coercive capacity very effectively. The Afghan communists who seized power in the bloody coup of April 1978 were much enamoured of this approach, captured in the chilling observation of one leader, Nur Muhammad Taraki, that ‘Those who plot against us in the dark will vanish in the dark’.21 Another basis for the exercise of the powers of the state is what one might call prudential exchange, where the loyalty to the state of key segments is purchased with a ﬂow of resources from the state into their hands. This was attempted by another Afghan communist leader, Dr Najibullah, using Soviet-supplied resources between 1989 and 1992. However, each of these approaches on its own has serious limitations. Coercion requires resources to fund the coercive instrumentalities of the state, and in any case, there is always a risk that regime brutality will prompt more ferocious opposition, rather than passivity and compliance. This is what happened in Afghanistan in 1978–9, triggering a Soviet invasion, and it was also what made the Soviets’ own post-invasion experiences so shattering.22 Prudential exchange also requires a steady supply of resources to the state. When the ﬂow of resources from the Soviet Union to Kabul stopped at the end of 1991, it sounded the death-knell of Najibullah’s regime, which disintegrated within less than four months. For these reasons, it is potentially cheaper, and almost certainly safer, if a regime manages to survive on the basis of legitimacy, by which I mean generalised, normative support. This has long been recognised by political theorists of diverse provenance, and the concepts of legitimacy and of legitimation – the process by which legitimacy is developed – remain major topics for discussion to this day.23 While it was again Weber who

21 22

23

and transformation in the Third World (Cambridge: Cambridge University Press, 1994), 7–34, 16. ‘Our revolution is secure’, Asiaweek (17 November 1978), 40–1, 40. See William Maley, ‘Social dynamics and the disutility of terror: Afghanistan, 1978– 1989’ in P. Timothy Bushnell et al. (eds.), State Organized Terror: The case of violent internal repression (Boulder: Westview Press, 1991), 113–31. See, e.g., Rodney Barker, Political Legitimacy and the State (Oxford: Clarendon Press, 1990); David Beetham, The Legitimation of Power (London: Macmillan, 1991); Rodney Barker, Legitimating Identities: The self-presentations of rulers and subjects (Cambridge:

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provided the ﬁrst elaborated discussion of the nature of ‘legitimate domination’ (legitime Herrschaft), its signiﬁcance had long been noted. As early as 1762 in The Social Contract, Jean-Jacques Rousseau had written that the ‘strongest is never strong enough to be always master, unless he transforms strength into right, and obedience into duty’.24 Edmund Burke made a similar point in his 1775 Speech on Moving Resolutions for Conciliation with the Colonies: ‘the use of force alone is but temporary. It may subdue for a moment; but it does not remove the necessity of subduing again: and a nation is not governed, which is perpetually to be conquered.’25 Of course, multiple further complexities ﬂow from these insights. A ﬁrst question is exactly whose legitimacy is under discussion. In principle, a distinction can be drawn between the legitimacy of the state and the legitimacy of a government; namely, that group of individuals who for the moment control and exercise the powers of the state. In some circumstances, the government can lose its legitimacy without destroying the legitimacy of the state: arguably, this was what happened with the overthrow of Ferdinand Marcos in the Philippines in 1986. In other cases, the state has collapsed along with the government: arguably, this happened in Iraq in March 2003. The latter situation can be very dangerous, resulting in an anarchical struggle between antagonistic non-state actors that militates against the prospect of successfully reconstituting state power. A second question is what the bases of legitimacy might be. Weber identiﬁed three main bases, which he called traditional, charismatic and rational. Traditional grounds were those ‘resting on an established belief in the sanctity of immemorial traditions and the legitimacy of those exercising authority under them’. Charismatic grounds were those ‘resting on devotion to the exceptional sanctity, heroism or exemplary character of an individual person, and of the normative pattern or order revealed or ordained by him’. Rational grounds were those ‘resting on a belief in the legality of enacted rules and the right of those elevated to authority under such rules to issue commands’.26

24

25

26

Cambridge University Press, 2001); Ian Clark, Legitimacy in International Society (Oxford: Oxford University Press, 2005). Jean-Jacques Rousseau, The Social Contract and Discourses, tr. G. D. H. Cole (London: Dent, 1973), 168. See also the discussion of Rousseau in Bhuta’s chapter in this volume. E. J. Payne (ed.), Select Works of Edmund Burke (Indianapolis: Liberty Fund, 1999), vol. I, 236. Max Weber, Economy and Society: An outline of interpretive sociology (New York: Bedminster Press, 1968), vol. 1, 215.

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Later scholars, seeking to characterise legitimation strategies in quite diverse contexts, have suggested additional bases, such as goal-rational and social-eudaemonic legitimation. Of course, it is exceedingly unlikely that any real-world regime would be wholly dependent on only one basis of legitimacy or one legitimation strategy. Rather, one would normally expect a range of strategies to be used, and for a search for legitimate domination to be complemented by some non-legitimacy-based means of regime maintenance such as coercion or prudential exchange. Thus in Nazi Germany, Hitler’s charisma was used to bolster the regime (Ein Volk, Ein Reich, Ein Führer), and in the Soviet Union under Stalin, a monstrous cult of personality was deployed to synthesise a charismatic basis for his power, and to compensate for the weakness of party structures.27 Finally, it is important to note that not everyone need be actively involved in according support to a state or government: as Agnes Heller has argued, ‘The relative number of those legitimating a system may be irrelevant if the non-legitimating masses are merely dissatisﬁed’.28 However, changes in circumstance may see mere dissatisfaction morph into active, robust opposition,29 and while in some circumstances this may be an indicator of the polity’s health, especially if there are effective institutions in place to manage political conﬂict, in others it may be the precursor to regime collapse. Where state-building is a central objective of a transition process, it is essential not to overlook the importance of legitimation. In principle, state-building has at least three important dimensions. The ﬁrst is institutional design, determining what kind of state a country is to have. This is not simply a matter of the formal structure of institutions, but also requires attention to what their scope and strength should be.30 The second is the establishment of new institutions; that is, the establishment of rules and procedures of operation, the recruitment and training of personnel to apply those rules and procedures, and the development of a resource ﬂow to sustain those institutions. But the 27

28

29

30

See Graeme Gill, ‘Personality cult, political culture and party structure’ (1984) 17 Studies in Comparative Communism, 111–21. Agnes Heller, ‘Phases of legitimation in soviet-type societies’ in T. H. Rigby and Ferenc Fehér (eds.), Political Legitimation in Communist States (London: Macmillan, 1982), 45–63, 45. See Jan Pakulski, ‘Legitimacy and mass compliance: Reﬂections on Max Weber and soviet-type societies’ (1986) 16 British Journal of Political Science, 35–56. See Francis Fukuyama, State-Building: Governance and world order in the 21st century (Ithaca: Cornell University Press, 2004), 6–14.

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third is the legitimation of new institutions. If institutions lack generalised, normative support, it may prove quite difﬁcult for them to function in the fraught environment that typically marks complex political transitions.

III. The right to democratic governance The preceding section, while deﬁning legitimacy as ‘generalised, normative support’, leaves one further matter unaddressed: whose support? This is a more pressing question than one might think. Transition processes may be Janus-faced: a particular act or set of acts may be successful in legitimating either a state or its rulers in the eyes of one relevant constituency, but not another. The key distinction, of course, is between external and internal constituencies.31 Acquiring legitimacy in the eyes of the wider world is no trivial achievement. It may offer a pathway to recognition by other states, membership of international organisations, and engagement in the activities of what is loosely called the ‘international community’. However, if it is not matched by legitimacy in the eyes of an internal constituency, then the apparent stability that may seem to mark a state during an election period can prove transitory at best. There is also a risk that external actors may prove to be more interested in the integration of a state into wider regional or international relations than in the delivery of ‘democracy’ to an internal constituency. Thus, with hindsight, it is rather clear that for all the money that was spent in holding an election in Cambodia in 1993 – the largest and costliest exercise in the history of UN peace operations to that date – the core interest of the backers of the process was not so much the democratisation of Cambodia as its return to membership of international society.32 The involvement of international organisations has long seen voting given a special place as a mechanism for legitimating political outcomes. The League of Nations was a pioneer in this respect, a notable example 31

32

For further discussion of this distinction, see Thomas M. Franck, ‘Legitimacy and the democratic entitlement’ in Gregory H. Fox and Brad R. Roth (eds.), Democratic Governance and International Law (Cambridge: Cambridge University Press, 2000), 25–47, 29–31. See John M. Sanderson and Michael Maley, ‘Elections and liberal democracy in Cambodia’ (1998) 52 Australian Journal of International Affairs, 241–53; William Maley, ‘Democratic governance and post-conﬂict transitions’ (2006) 6 Chicago Journal of International Law, 683–701.

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being the Saarland plebiscite of 1935.33 Electoral assistance became a matter of signiﬁcant concern for the United Nations in the 1990s. While it is tempting to associate this with the climate created by the publication by Secretary-General Boutros Boutros-Ghali of the report entitled An Agenda for Peace, in fact it had been a preoccupation of the UN for somewhat longer. In a report in November 1991, then Secretary-General Javier Pérez de Cuéllar noted that in Trust and Non-Self-Governing Territories, the UN: has always insisted on either observing or, in the case of supervision, being closely associated with all phases of the organization and conduct of popular consultations, which involved: deﬁnition of a calendar for the various phases of the electoral process; setting up the system of voting; establishing the conditions for registration and registering voters; maintenance of law and order; implementation of a political education programme; monitoring of the political campaign; arrangements for polling day; provision of penalties for offences in connection with the vote; counting and tabulation of the vote; declaration of the results; and arrangements for appeals and review.34

Given this history, it is perhaps not surprising that the UN in its approach to assisting transitions has often had electoral processes in mind.35 Indeed, the holding of elections, either to draft a new constitution or ﬁll key ofﬁces, seems to be the standard telos of transition processes. What one does not see, unfortunately, is as much emphasis on the need for nuanced diagnoses of the politics and societies of particular states. For example, on 21 May 1991, UN Secretary-General Pérez de Cuéllar issued a new set of proposals for transition in Afghanistan which had referred to the need to provide to the people of that country ‘the necessary assurances to participate in free and fair elections, taking into account Afghan traditions, for the establishment of a broad-based government’.36 The problem with this was that criteria for ‘freedom and fairness’ were becoming increasingly concrete,37 while the notion of ‘Afghan traditions’ remained extremely vague and ill-deﬁned. In this case, the matter proved 33

34

35 36

37

See Lawrence T. Farley, Plebiscites and Sovereignty: The crisis of political illegitimacy (Boulder: Westview Press, 1986). UN Doc. A/46/609 (19 November 1991) Enhancing the effectiveness of the principle of periodic and genuine elections: Report of the secretary-general, 6. See Bowden and Charlesworth’s chapter in this volume. Javier Pérez de Cuéllar, Statement by Secretary-General Javier Pérez de Cuéllar (New York: United Nations Department of Public Information, 21 May 1991). See Jørgen Elklit and Palle Svensson, ‘What makes elections free and fair?’ (1997) 8 Journal of Democracy, 32–46.

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to be moot: the collapse of the communist regime in April 1992 saw regime-formation pursued along a quite different path. In 2001, senior UN ofﬁcials, notably Under Secretary-General Lakhdar Brahimi, sought to adopt the nuanced approaches that Afghanistan’s complexities required; but the barriers to acting with the necessary degree of subtlety proved to be considerable. The focus on electoral processes is at one level a relatively straightforward application of a renewed emphasis in international circles on popular sovereignty,38 and of the idea that a ‘norm of democratic governance’ should be taken into account in crafting transition processes. However, it is important to note that, amongst those engaged in giving explicit form to this norm, there is a broad recognition that electoral processes are at best one element with which such a norm is concerned. In April 1999, the UN Commission on Human Rights adopted a resolution on Promotion of the Right to Democracy which identiﬁed a wide range of objectives to be pursued beyond the strictly electoral, such as freedom of expression, the rule of law, and governmental accountability.39 This approach has been complemented by experienced practitioners. Reﬂecting on a range of cases, Professor Reginald Austin, who was chief electoral ofﬁcer of the United Nations transitional authority in Cambodia in 1993 and subsequently chief advisor to the Afghan Joint Electoral Management Body which conducted the 2004 presidential election, observed that ‘We should avoid being deluded by the neatness or the drama of an election into believing that it is or must always be the ﬁrst or the most important step in the process’.40 If there is a criticism to be made of the way in which the idea of democratic governance has contributed to post-conﬂict transitions, it is that the complexity of the idea has on occasion been lost. Electoral processes are potentially valuable as a means of legitimating political power, but if political power is either likely to be abused, or unlikely to be used effectively, then an electoral process may fall well short of delivering this outcome. And in some societies, generalised, normative support may be accorded not on the basis of electoral victory, but on the basis of new rulers’ achievements 38 39

40

Koﬁ Annan, ‘Two concepts of sovereignty’, The Economist (18 September 1999), 49–50. UN Doc. E/CN.4/RES/1999/57 (27 April 1999) Promotion of the right to democracy. See also the discussion of this resolution in Bowden and Charlesworth’s chapter in this volume. Reginald Austin, ‘Democracy and democratisation’ in William Maley, Charles Sampford and Ramesh Thakur (eds.), From Civil Strife to Civil Society: Civil and military responsibilities in disrupted states (Tokyo: United Nations University Press, 2003), 180–204, 201.

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in a post-election phase. This is especially likely in societies in transition from conditions of severe disruption, where security in everyday life is a central preoccupation of citizens.41

IV. Limits of electoral processes Elections, like any human activity, have their strengths and their weaknesses. The strengths are well known; in order to appreciate why other mechanisms of legitimation may also be important, it is useful to offer some observations about their limitations; about what it is that they are unable to deliver on their own. Elections do not on their own guarantee a democratic political culture, based on a shared commitment to compromise for the wider good of the polity. They do not guarantee a consensually uniﬁed political elite, free of the antagonisms and distrust that can so easily contaminate transitional politics. Furthermore, they do not guarantee that new institutions that an elected assembly may construct will be well designed, and they certainly do not guarantee that such institutions, even if they are well designed, will ultimately be institutionalised or consolidated.42 But perhaps the most important point of all to recognise is that elections are ultimately divisive activities.43 They create winners, but they also create losers, and in certain circumstances it is no good thing to have disgruntled losers wandering the political landscape with the potential to become high-level spoilers.44 Managing this is a very complex challenge. On the one hand, fear of spoilers can compromise an election outcome. Thus in Cambodia in 1993, the Cambodian People’s Party won only 38.2 per cent of the vote, but nonetheless managed through post-election elite bargaining (in which it was negotiating from a position of strength by virtue of its penetration of the coercive instruments of the state) to obtain key ofﬁces with some support from 41

42

43

44

See William Maley, ‘Building state and security’ in Wolfgang Danspeckgruber with Robert P. Finn (eds.), Building State and Security in Afghanistan (Princeton: Liechtenstein Institute on Self-Determination, Princeton University, 2007), 3–18. For more detailed discussion of the points which follow, see William Maley, ‘Peacekeeping and peacemaking’ in Ramesh Thakur and Carlyle A. Thayer (eds.), A Crisis of Expectations: UN peacekeeping in the 1990s (Boulder: Westview Press, 1995), 237–50. Jack Snyder, From Voting to Violence: Democratization and nationalist conﬂict (New York: W. W. Norton, 2000). Stephen John Stedman, ‘Spoiler problems in peace processes’ (1997) 22 International Security, 5–53.

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UN circles, ofﬁces which it then exploited ruthlessly, leading to a coup in 1997. The 61.8 per cent of Cambodians who voted for a party other than the Cambodian People’s Party had every reason to feel very disappointed with the outcome. Elections, if they are to be meaningful, have to be devices that at least offer the potential for changing the status quo. But on the other hand, if adequate precautions are not taken, the voters can be left fatally exposed in the aftermath of an election. This was dramatically exposed by the popular consultation on the future for East Timor that was held in August 1999. UN Secretary-General Koﬁ Annan, when announcing on 3 September 1999 that 78.5 per cent of those who had voted had supported independence, stated that there were no winners and losers. This was manifestly preposterous, and the rampages of militias in the following days conﬁrmed its absurdity.45 None of this amounts to an argument against holding elections at some point in a transition process. But it decidedly does suggest caution in any front-end-loading of elections, and in approaching elections with too many stars in one’s eyes. Elections should be held at the point when their propensity to divide can be constrained, managed, and turned in a positive direction. The lessons of recent experience suggest that it is vital that elections be seen as one part of a set of broader processes of political development, so that they are likely to prove a durable device for triggering a transfer of power from one part of an elite to another.46 If this is ignored, the casual observer is likely to attach more weight to elections as devices for regime legitimation than they deserve. Afghanistan has unfortunately been a victim of this kind of misreading.

V. Transition challenges in Afghanistan This brings us more directly to Afghanistan’s political transition. The complexities of building legitimacy for state and government in Afghanistan have long been a matter of concern to scholars,47 but perhaps less directly to policymakers. Nonetheless, legitimacy remains at 45 46

47

William Maley, ‘The UN and East Timor’ (2000) 12 Paciﬁca Review, 63–76. See Roland Paris, At War’s End: Building peace after civil conﬂict (Cambridge: Cambridge University Press, 2004); Michael W. Doyle and Nicholas Sambanis, Making War and Building Peace: United Nations peace operations (Princeton: Princeton University Press, 2006), 314–15. See William Maley, ‘Political legitimation in contemporary Afghanistan’ (1987) 27 Asian Survey, 705–25; Amin Saikal and William Maley, Regime Change in Afghanistan: Foreign intervention and the politics of legitimacy (Boulder: Westview Press, 1991).

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the heart of the challenges facing Afghanistan, and without an appreciation of its complexities, the country’s political transition is unlikely to proceed smoothly. None of this, of course, implies that Afghanistan’s transition ever had much chance of proceeding in a smooth or linear fashion. With conﬂict on the ground persisting, Afghanistan at best offers an example of what Astri Suhrke and Arne Strand have called ‘conﬂictual peacebuilding’.48 This was something that key UN participants at the Bonn conference understood very well. Ambassador Brahimi, who was exceptionally attuned to the complexities of Afghan politics, approached his mediation with a view to minimising dependence on any single legitimation strategy. He was well aware that, after decades of conﬂict and years of state decay, there was no single strategy of legitimation that would be effective with all the different micro-societal segments of Afghanistan’s population. Thus, his approach was one of weaving together different mechanisms of legitimation in the hope that in the aggregate they would provide a ﬁrm basis for new state structures. It was for this reason that the transition plan blended such options as the holding of Loya Jirgas and the return to Afghanistan of former King Zahir Shah (designed to endow the transition with traditional legitimacy), the choice of the popular Hamed Karzai as a leader (designed to endow the transition with charismatic legitimacy), and the drafting of a new constitution and the eventual holding of elections (designed to endow the transition with rational legitimacy). But in this context, it is important to correct some misunderstandings of the Bonn process that have been put into circulation. The US commentator S. Frederick Starr has claimed that the international community ‘believed that the main and essential measure needed to establish legitimacy was the holding of national elections’, that the participants at Bonn ‘sacriﬁced the legitimacy of their new construct to what they wrongly conceived as the higher value of sovereignty’, and that 2003–4 witnessed a ‘breakthrough for legitimacy’ through the restoration of ‘balances within the government’.49 This seriously oversimpliﬁes a much more complicated picture. Given the increasingly stressed situation that Afghanistan has faced security-wise since 2003–4, and the 48

49

Astri Suhrke and Arne Strand, ‘The logic of conﬂictual peacebuilding’ in Sultan Barakat (ed.), After the Conﬂict: Reconstruction and development in the aftermath of war (London: I. B. Tauris, 2005), 141–54. S. Frederick Starr, ‘Sovereignty and legitimacy in Afghan nation-building’ in Francis Fukuyama (ed.), Nation-Building: Beyond Afghanistan and Iraq (Baltimore: Johns Hopkins University Press, 2006), 107–24, 109, 112, 118–22, 124.

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decline between 2004 and 2006 in the proportion of Afghans who believe that the country is going in the right direction,50 it is difﬁcult to accept that this period indeed marked a ‘breakthrough for legitimacy’. In reality the ‘international community’ at Bonn was very cautious about promoting early elections. The idea of democracy was injected into the discussions by the representatives of Iran,51 and then grasped with enthusiasm by some of the Afghan participants, giving it a momentum that proved unstoppable. Given that elections were held successfully in 2004 and 2005, it is important to reﬂect on what developments since then might have militated against the achievement of broader generalised normative support for state and government; and one, largely beyond the control of the Afghan government, should be noted at the outset: the availability to its Taliban opponents of havens in Pakistan from which to operate.52 Even President Musharraf of Pakistan, speaking in Kabul in August 2007, felt obliged to concede that ‘The problem that you have in your region is because support is provided from our side’.53 Other factors are substantially internal in origin, and a number reﬂect a failure to recognise the potential for building legitimacy in ways other than through the holding of democratic elections. One problem has been that decisions relating to the administrative structure of the Afghan state were taken at the Bonn conference without adequate appreciation of some of their implications. Most fundamentally, there was no root-and-branch re-evaluation of what kind of state Afghanistan might need for the future. Instead, the old ministerial structure of the previously dysfunctional Afghan state was taken as a point of departure, and ministerial ofﬁces were then distributed to representatives of different political groups with a view to ensuring that different ethnic and sectarian groups were included in the interim authority. The long-term consequence of this was to encourage nepotism within ministries, and intense rivalry between ministries whose formal 50

51

52

53

See Asia Foundation, Democracy in Afghanistan 2004: A survey of the Afghanistan electorate (Kabul: Asia Foundation, 2004), 21; Asia Foundation, Afghanistan in 2006: A survey of the Afghan people (Kabul: Asia Foundation, 2006), 9. See James Dobbins, ‘How to talk to Iran’, The Washington Post (22 July 2007), B07; Trita Parsi, Treacherous Alliance: The secret dealings of Israel, Iran, and the United States (New Haven: Yale University Press, 2007), 229. See Frédéric Grare, Rethinking Western Strategies Towards Pakistan: An action agenda for the United States and Europe (Washington DC: Carnegie Endowment for International Peace, 2007), 20–1. Quoted in William Maley, ‘Talking to the Taliban’ (2007) 63(11) The World Today, 4–6, 5.

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responsibilities were far from clear. By compromising the bureaucratic and administrative capacities of the new state structures, the treatment of public ofﬁces as ‘positional goods’ has weakened the ability of the state to secure legitimacy on the basis of effective performance. A second problem that afﬂicted the Bonn process was that it was not capable of offering any immediate solution to the threats of insecurity that haunted ordinary Afghans. The delegates to the Bonn conference did anticipate, in the Bonn agreement, the establishment of an International Security Assistance Force (ISAF), designed to bridge the ‘security gap’ that was certain to open between the collapse of the Taliban regime, and the constitution of a new Afghan National Army (ANA) and Afghan National Police (ANP). While as a long-term objective it is very important to focus on re-establishing the instrumentalities of the security sector, this is not something that can be done swiftly. Rebuilding armies and police forces is not simply a matter of putting recruits through basic training; it equally requires the establishment of middle-management structures, the development of credible, ﬁscally sustainable funding mechanisms for such institutions, and, most importantly, the building of an ethos of loyalty to the civil power, which historically has not been present in Afghanistan, and in the absence of which one can only expect mayhem to result.54 But most unfortunately, the expansion of the ISAF did not go ahead in the way that was anticipated. In early 2002, it was blocked by the Bush administration, elements of which were keen to conserve assets for use in Iraq.55 On 13 October 2003, the United Nations Security Council did ﬁnally adopt Resolution 1510 which permitted the expansion of ISAF beyond Kabul, but by that stage a great deal of the momentum of the transition had been lost. It is important to realise that large numbers of ordinary people in transitional societies may have suffered in the past as a result of committing themselves prematurely to a political cause, and may thus be reluctant to commit themselves in the present unless they receive signals sent by both word and deed that there is no going back, and that the wider world will strongly support an effective transition. This was precisely what the 2002 blocking of ISAF expansion thwarted. 54

55

William Maley, ‘International force and political reconstruction: Cambodia, East Timor and Afghanistan’ in Albrecht Schnabel and Hans-Georg Ehrhart (eds.), Security Sector Reform and Post-Conﬂict Peacebuilding (Tokyo: United Nations University Press, 2005), 297–312. Alan Sipress, ‘Peacekeepers won’t go beyond Kabul, Cheney says’, The Washington Post (20 March 2002), 16.

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Third, there has also been a problem of under-resourcing the transition in Afghanistan, compared to theatres of international activity such as East Timor and Kosovo. Far fewer resources per capita have gone into Afghanistan. In materials assembled for a major conference in London on 31 January–1 February 2006, the Afghan government argued that, over a period of ﬁve years, Afghanistan needed US$18.865 billion to cover development needs; domestic revenue was predicted to total only US$4.489 billion, less even than anticipated non-development recurrent costs of US$5.453 billion. Consequently, US$19.829 billion, or approximately US$4 billion per annum over ﬁve years, would be required in the form of international assistance.56 The London conference failed to produce such pledges. Future donor commitments from March 2006 amounted to US$10.5 billion, little more than half the ﬁgure Afghanistan required.57 This is not to say that, had the full sum been pledged and supplied, it would necessarily have been well spent. Serious questions can be raised about the absorptive capacity of the Afghan state, and about the wisdom of requiring a new state to attempt as much as the Afghan state has taken on.58 However, the widely publicised failure of the ‘international community’ to match its rhetoric over Afghanistan with concrete pledges of support again serves to compromise the momentum of transition, and in the longer run undermines a quest for social-eudaemonic legitimacy based on the ability of the state to meet the expectations of the public. A fourth problem that has affected the transition has been the prevalence within the Afghan state of what might be called ‘Peshawar politics’, based on intra-elite alliances and the exploitation of clientelist ties. Many people who became members of the Afghan political elite after 2001 had cut their teeth politically with the Afghan resistance in the 1980s in a political environment in the Pakistani city of Peshawar, which was notably free of the state and of policymaking. A particularly worrying manifestation of this came early in the transition period. In the aftermath of the blocking of the expansion of ISAF, President Karzai, 56

57

58

Islamic Republic of Afghanistan, Afghanistan National Development Strategy: An interim strategy for security, governance, economic growth and poverty reduction (Kabul: Islamic Republic of Afghanistan, 2006), vol. I, 175. Beth Gardiner, ‘World pledges $10.5B for Afghanistan aid’, The Washington Post (1 February 2006). See Astri Suhrke, When More is Less: Aiding statebuilding in Afghanistan (Madrid: Fundación para las Relaciones Internacionales y el Diálogo Exterior, Working Paper No. 26, 2006).

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almost for want of any other measures to provide stability in outlying areas, found himself increasingly offering positions in provincial and district state structures to unappetising potential spoilers. Unsurprisingly, a number of state ofﬁcers at local levels have contaminated rather than enhanced the reputation of the state, and, again, opened the door for other kinds of forces to market their causes. A ﬁfth problem arose from the character of the new institutions that were established by the 2004 constitution. The constitution created on paper a strongly presidential system in which the ofﬁce of the president is accorded a great deal of responsibility for policy innovation and implementation. This is potentially dangerous, since such a system in a divided society is likely to create one winner and many losers, who may resent the winner’s power.59 But if the occupant of the presidency is a person whose skills are not in the realm of policy, the risk then is that, at best, there will be a degree of stasis in policymaking and, at worst, there could be something approaching total paralysis. The combination of this policy paralysis and the strength of the presidency on paper has meant that a great deal of politics in Kabul is focused on competition for the president’s ear, or competition to deny one’s opponents access to the president. This has created a poisonous political climate within the Kabul elite. A consequence is that some of the best ofﬁcials of the Afghan government, the most skilled and the most idealistic, are now working elsewhere; they have abandoned positions in the Afghan state on the realistic basis that they are no longer in a position to add value to its operations. Just as problems have afﬂicted the operations of the presidency, so too have they affected the new Parliament. The lower house of the Parliament, the Wolesi Jirga, which, because of the electoral system, is virtually a chamber of independents,60 has increasingly been a theatre for the ethnicisation of Afghan politics: when one lacks strong party 59

60

For different perspectives on the presidential and parliamentary systems, see Matthew Soberg Shugart and John M. Carey, Presidents and Assemblies: Constitutional design and electoral dynamics (Cambridge: Cambridge University Press, 1992); José Antonio Cheibub, Presidentialism, Parliamentarism, and Democracy (Cambridge: Cambridge University Press, 2007). See also Amin Saikal and William Maley, ‘The president who would be king’, New York Times (6 February 2008), A19. See Andrew Wilder, A House Divided? Analysing the 2005 Afghan elections (Kabul: Afghanistan Research and Evaluation Unit, 2005); Andrew Reynolds, ‘The curious case of Afghanistan’ (2006) 17 Journal of Democracy, 104–17. For some evidence that this may have reﬂected a conscious policy preference on the part of the Bush administration, see Astri Suhrke, Democratization of a Dependent State: The case of Afghanistan (Bergen: Chr. Michelsen Institute, Working Paper No. 10, 2007).

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structures in a legislature around which it is possible to build cohesive blocs to secure support for budgets and the selection of ministers, there is a risk in a society such as Afghanistan that ethnicity will be the obvious basis for mobilising a bloc within Parliament in order to secure a legislative majority.61 A sixth source of instability is a consequence of some of these factors, but one that almost becomes a problem in its own right: the multiple disenfranchisement of traditional tribal leaders in Afghanistan. Such dignitaries and notables are disenfranchised at the level of the central state because its focus is very signiﬁcantly upon managing relations with a donor community using technical skills that tribal leaders lack; and they are disenfranchised at the local level as a result of the allocation of state ofﬁces in rural areas to potential spoilers. This has created a great deal of frustration and even anger amongst people in that sphere of social life. Yet these are the very ﬁgures whose active support could critically tip the balance in favour of the more effective consolidation of state structures. Finally, President Karzai’s apparently strong mandate in 2004 did not mean quite what such a victory would have meant in a country such as the United States or the United Kingdom, where there is a consolidated democratic order with a strong commitment to process. As noted earlier, in transitional societies even a robust victory of this sort often amounts to little more than a mandate to attempt to rule the country, but with the real risk that the legitimacy of a ruler will erode rapidly if delivering the goods proves to be a difﬁcult challenge. Yet President Karzai used this equivocal mandate to move against some signiﬁcant political forces that had been included in the interim authority and transitional administration. By 2007, virtually all the key ﬁgures who had been involved at a high level in actively opposing the Taliban before 2001 – ﬁgures such as Defence Minister Fahim, Interior Minister Younus Qanuni and Foreign Minister Dr Abdullah – had been squeezed out of the government, and Karzai’s circle was increasingly dominated by members of the Pushtun ethnic group. The Pushtuns who ﬁlled these ofﬁces were rarely those with signiﬁcant, large-scale support bases in Afghanistan, and, as a result, the restructuring of the elite created new opponents for Karzai without winning him meaningful new support. As an exercise in legitimation it left a great deal to be desired. 61

See Thomas Ruttig, Islamists, Leftists – and a Void in the Center: Afghanistan’s political parties and where they come from (1902–2006) (Kabul: Konrad Adenauer Stiftung, 2006), 43.

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Conclusion While it is risky to generalise too widely from a single country’s experience, some aspects of Afghanistan’s experience seem to be relevant to other states in transition. Four lessons in particular are worth noting. First, there is much more to democracy than just elections. Democratic choice mechanisms are meaningful when they are nested in a wider network of norms and understandings that endow the victors with legitimacy and thus empower them to govern for the period that is constitutionally speciﬁed. It is from these norms and understandings, rather than from the holding of an election per se, that legitimacy ﬂows, and without such norms and understandings, there is no particular guarantee that the outcome of an election will stick. International law can reinforce such norms and understandings, but is not well positioned to generate them, since to be effective, they must be grounded in the attitudes, orientations, and Weltanschauungen of actors within the boundaries of the state. The reconstitution of intra-elite trust may be more important for long-run stability than the rapid holding of elections. Second, where the state has collapsed or been severely disrupted, some degree of state-building must precede democratisation if the latter is to be meaningful. When one advocates democratisation, one must be ready to explain what it is that is to be democratised. Without some basic structures of the state in place, a push for democratisation will create a disembodied polity – in Lewis Carroll’s terms, a smile without a Cheshire cat to match.62 This is not an abstract concern. It goes to the heart of the problem of legitimacy, for if rulers are confronted with pressure to meet popular demands before they have the instruments available to satisfy them, their legitimacy, and that of the state, may begin to decline. Third, the relationship between democracy and legitimacy is complex. Sources of legitimacy other than those that are grounded in modern electoral processes may be just as important, or even more important, in providing secure foundations upon which a new and inclusive order can be built. This is not to decry the vital role of democratic choice mechanisms – in war-torn societies, ordinary people often grasp with great courage the opportunity to cast a vote – but rather to recognise that more may be required to hold a delicate transition together. Ultimately, 62

Lewis Carroll, ‘Alice’s Adventures in Wonderland’ in Roy Gasson (ed.), The Illustrated Lewis Carroll (London: Jupiter Books, 1978), 1–102, 55.

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the real world is complex, and solutions to any given country’s problems must take this into account. Fourth, and ﬁnally, international law is but one of a range of factors impinging on transitions of this sort. The gulf between consolidated democracies and collapsed states is typically both wide and deep, and bridging it is not a matter of applying mechanistic formulae. Norms of democratic governance, if they recognise the complexity of statebuilding processes, can be very valuable in depicting a desirable objective, and in many cases it is the downtrodden public who most clearly realise what they stand to gain from adopting democratic ways of doing things. ‘Afghans’, wrote Barnett R. Rubin in 1992, ‘know the world is passing them by. Tired of being told by everyone but asked by no one who their leaders are, they long for elections.’63 Afghanistan’s more recent experience shows, however, that it will likely be domestic politics more than international law that will determine whether it is possible to vindicate the understandable desires of ordinary people for some say in how they will be governed. 63

Barnett R. Rubin, ‘Healing Afghanistan, the heart of Asia’, The Asian Wall Street Journal (24–5 January 1992), 6.

6 Impossible expectations? The UN Security Council’s promotion of the rule of law after conﬂict jeremy farrall

Introduction Post-conﬂict interveners tend to invoke big, abstract, idealistic, intertwined, self-evidently good ideas to justify their interventions in foreign societies. Democracy, justice, liberty, human rights and security are just some of these concepts. Another is the rule of law. As with each of these ideas, it is difﬁcult to argue in the abstract that efforts to build the rule of law could be anything other than a good thing. But the devil is in the detail. Just what is meant by the rule of law and whose law does it imply? As Grenfell explores elsewhere in this volume, is it a principle of international law or domestic law, or both? Is it Western, state-based law or indigenous customary law, or both? Over the last decade, the United Nations Security Council has increasingly sought to promote the rule of law in post-conﬂict environments by including the task of strengthening the rule of law in the mandates of UN peacekeeping operations. The combined approach of the Council, the UN’s Department of Peacekeeping Operations and speciﬁc UN peacekeeping operations suggests that the rule of law is something that is commonly understood and can easily be (re)produced, (re)created or (re)constructed in any post-conﬂict situation. The implication is that the challenge is simply to get the strategy right: to identify a good blueprint, to adapt it to the particular circumstances of each situation and then to access and allocate sufﬁcient human and ﬁnancial resources to bring success. When approached and understood in this way, strengthening the rule of law is a technical, practically scientiﬁc, task.1 This approach 1

For the argument that state-building amounts to ‘politics as technology’, see Bhuta’s chapter in this volume.

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belies the complexities and unquantiﬁable qualities of the rule of law. Even in the most peaceful, stable societies it is extraordinarily difﬁcult to translate the rule of law from abstract, idealistic notions into concrete, practical outcomes. The degree of difﬁculty is even higher in post-conﬂict environments. This chapter explores the UN Security Council’s promotion of the rule of law after conﬂict. It describes the process through which the rule of law is transformed from a complex and slippery concept into a series of concrete institutional markers for implementation on peacekeeping front lines. This process begins in the Security Council chamber, where the Council includes the task of strengthening the rule of law in its resolutions outlining the mandates of UN peacekeeping operations. These mandates are then given concrete shape by the UN Secretariat and peacekeeping operations themselves, which interpret and implement their mandates on the ground. Through this process the rule of law, which remains quite a vague and fuzzy concept in the Security Council’s decisions, gains remarkably concrete form by the time it reaches the ﬁeld. The irony is that ultimately the rule of law is even less satisfying in concrete form than it was as an abstract notion. The rule of law seems to lose its power as a political ideal when it sheds its fuzziness and begins to take shape. This chapter proceeds in four parts. Part I examines the contested nature of the rule of law, its enduring appeal and its attractiveness in post-conﬂict environments. Part II traces the rise of the rule of law in the UN Security Council and its peacekeeping practice. Part III explores the process through which the rule of law has been transformed from a general abstract political idea into a framework of institutions and mechanisms for implementation on peacekeeping front lines. Part IV considers whether efforts to pursue the rule of law after conﬂict are doomed to raise expectations they cannot meet.

I. The contested nature of the rule of law, its enduring appeal, and its attractiveness after conﬂict The rule of law has been described as ‘an unqualiﬁed human good’2 and ‘the most important political concept today’.3 Its promise has been 2

3

E. P. Thompson, Whigs and Hunters: The origin of the Black Act (London: Allen Lane, 1975), 266. Brian Z. Tamanaha, On the Rule of Law: History, politics, theory (Cambridge: Cambridge University Press, 2004), back cover.

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trumpeted by presidents of countries with vastly different political, economic, religious and cultural traditions, such as China, Indonesia, Iran, Mexico, Russia, the United States and Zimbabwe.4 It is ‘widely prescribed as the elixir for many economic and political ails’,5 and frequently used as a trump card in contentious discussions. As the aftermath of the 2000 US presidential elections graphically illustrated, this trump card can even be played by opposing parties to the same dispute.6 The rule of law appears to possess a ‘power or force of its own’.7 It seems so self-evidently good that it cannot be challenged.

A. The contested nature of the rule of law Yet despite its apparent magnetism as a political ideal, the rule of law is an extremely slippery concept.8 Even theorists who tenaciously defend and promote the merits of the rule of law, acknowledge that the term is ‘remarkably elusive’,9 ‘essentially contested’10 and susceptible to ‘promiscuous use’.11 Philosophers and theorists have pondered the notion of the rule of law since at least the days of the ancient Greek philosophers.12 It is not surprising, therefore, that there should be multiple interpretations of what the rule of law means. Like other political philosophical constructs, such as democracy, liberalism and socialism, the rule of law has inspired and perplexed countless scholars. The multiplicity of possible interpretations of the rule of law has led one commentator to bemoan that ‘There are almost as many conceptions of the rule of law as there are people defending it … The effect is that defenders and opponents alike end up talking at cross purposes.’13 4 6

7

8

9

10 11 12

13

5 Ibid., 1–2. Ibid., 60. Jeremy Waldron, ‘Is the rule of law an essentially contested concept (in Florida)?’ (2002) 21 Law and Philosophy, 137–64, 137–8. Paul P. Craig, ‘Formal and substantive conceptions of the rule of law: An analytical framework’ [1997] Public Law, 467–87, 487. Sir Arthur Watts, ‘The international rule of law’ (1993) 36 German Yearbook of International Law, 15–45, 15. Cheryl Saunders and Katherine Le Roy, ‘Perspectives on the rule of law’ in Cheryl Saunders and Katherine Le Roy (eds.), The Rule of Law (Sydney: Federation Press, 2003), 1–20, 3. Waldron, ‘Is the rule of law an essentially contested concept (in Florida)?’. Joseph Raz, ‘The rule of law and its virtue’ (1977) 93 Law Quarterly Review, 195–211, 196. For a useful survey of the history of the rule of law see: Tamanaha, On the Rule of Law, 7–90. Olufemi Taiwo, ‘The rule of law: The new leviathan?’ (1999) 12 Canadian Journal of Law and Jurisprudence, 151–68, 154.

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Efforts to identify the essence of the rule of law are complicated by the fact that the rule of law cannot be detached from its social and political environment.14 Indeed, no two politico-legal contexts are the same. This is as true of stable societies as it is of post-conﬂict environments. Yet ruleof-law commentators tend to advance six, seven or eight characteristics that they consider essential to the rule of law. These commentators generally write with a particular, functioning politico-legal system in mind. Consciously or unconsciously, the essential characteristics of the rule of law they identify are those which exist in – indeed are peculiar to – the politico-legal system with which they are most familiar. These commentators then typically criticise other politico-legal systems with reference to whether they possess or lack those essential characteristics. This pattern is evident in the rule-of-law models proposed by legal theorists such as Dicey, Hayek, Fuller, Raz, Finnis and Radin.15 Although the efforts of these commentators to identify the core characteristics of the rule of law in their own systems are useful, when they take the step of criticising other politico-legal systems with reference to the elements that are alleged to be essential to the rule of law, they are effectively comparing apples with oranges.

B. The rule of law’s enduring appeal The notion at the heart of the ideal of the rule of law is that nobody is above the law. This means that the process for determining the content of law should be widely agreed within a given society and political power should be exercised in accordance with that law. Key principles inherent in the ideal of the rule of law are that all people should be equal before the law, all laws should be applied equally rather than arbitrarily and that political power should be exercised responsibly and in accordance with constitutive laws that lay down the scope and limitations of that power. 14

15

Frank Upham, ‘Mythmaking in the rule-of-law orthodoxy’ in Thomas Carothers (ed.), Promoting the Rule of Law Abroad: In search of knowledge (Washington DC: Carnegie Endowment for International Peace, 2006), 75–104, 75. A. V. Dicey, Introduction to the Study of the Law of the Constitution, 10th edn (London: Macmillan, 1959), 187–203; F. A. Hayek, The Road to Serfdom (London: Routledge, 1944), 80–96; Lon L. Fuller, The Morality of Law, 2nd edn (New Haven: Yale University Press, 1969), 39; Raz, ‘The rule of law and its virtue’, 198–202; John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 270–1; Margaret Jane Radin, ‘Reconsidering the rule of law’ (1989) 69 Boston University Law Review, 781–819, 785. For a useful summary of the models elaborated by these theorists, see: Waldron, ‘Is the rule of law an essentially contested concept (in Florida)?’, 154.

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In a domestic context, these laws are usually outlined in a constitution. Beyond these basic principles, it can be unhelpful to be too prescriptive about how to put ﬂesh on these bones. Yet even if most rule-of-law commentators would agree at a general level that these basic principles should form part of any rule-of-law system, the real challenge of the rule of law remains to be addressed. This challenge is to transform these compelling abstract principles into a practical framework in which they can bring about concrete outcomes that improve the lives of people. The rule of law must be given sufﬁciently tangible content to enable it to serve as the basis for and regulate concrete action by the government and citizens of a particular society. The promise of the rule of law is thus difﬁcult to fulﬁl. But the rule of law should not necessarily be discarded as a potentially transformative ideal in post-conﬂict environments simply because it is difﬁcult to distil and can take different forms in different contexts. Complexity and slipperiness are deﬁning features of almost every big, meaningful, abstract political idea. Indeed, the elusive, chameleon-like nature of big ideas can be as much a strength as a weakness, as it allows them to appeal to people from different societies with different backgrounds. The slippery nature of the rule of law actually strengthens its ability to endure as a political ideal. For an idea that can constantly be reconceived,16 recrafted,17 reconsidered,18 revived19 or revisited20 is unlikely to be condemned to history’s dustbin for long.

C. The attractiveness of the rule of law after conﬂict Societies emerging from conﬂict face innumerable challenges. After prolonged conﬂict almost every aspect of society may require painstaking reconstruction. Much of this reconstruction is material. Schools, hospitals, housing and roads must be rebuilt, clean water and electricity provided and government services re-established. But the most difﬁcult reconstruction is not material. It lies in rebuilding the trust and conﬁdence 16

17

18 20

Charles Sampford, ‘Reconceiving the rule of law for a globalizing world’ in Spencer Zifcak (ed.), Globalisation and the Rule of Law (London: Routledge, 2005), 9–31. David Dyzenhaus (ed.), Recrafting the Rule of Law: The limits of legal order (Oxford: Hart Publishing, 1999). Radin, ‘Reconsidering the rule of law’. 19 Carothers, ‘The rule-of-law revival’. Allan C. Hutchinson, ‘The rule of law revisited: Democracy and courts’ in David Dyzenhaus (ed.), Recrafting the Rule of Law: The limits of legal order (Oxford: Hart Publishing, 1999), 196–224.

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of people in their own society. The presence of an impartial security force can play an important role in preventing conﬂict from reigniting. But it is also important to provide a framework in which people can regain trust and conﬁdence in others in their society, from the neighbours who live next door, to traders at the local market and business-people in the national capital; from public ofﬁcials in the local post ofﬁce right up to the head of state. The notion of the rule of law has understandable appeal in postconﬂict environments. Conﬂict is often characterised by the misuse or abuse of power, accompanied by the use of forceful and deadly means to impose one’s views upon others. Civilians living through conﬂict are endangered by the arbitrary, life-threatening and violent actions of military forces. They can be deprived of any certainty concerning the basic necessities of day-to-day life, such as maintaining a roof over their head, earning a livelihood and being able to feed members of their family. In this context the rule of law offers the hope of a new era in which power is exercised in a principled and accountable, rather than arbitrary or malicious, manner. It promises predictability, safety and certainty. It also promises the possibility of being in control of one’s destiny, or at least of ensuring that one’s destiny is not controlled arbitrarily or unfairly by others by virtue of the possession of political power or an instrument of war.

II. The rise of the rule of law in the UN Security Council and UN peacekeeping Since the end of the cold war, the rule of law has assumed a prominent place in the UN Security Council’s debates and resolutions. There are two main reasons for the rule of law’s lack of inﬂuence over the Security Council during the cold war. First, the phrase ‘rule of law’ does not feature at all in the UN Charter, let alone in the provisions of the Charter that apply to the Security Council. This is despite concerted efforts at the San Francisco Conference, where the UN was born, to ensure that the principles of justice and the rule of law would guide the action of the UN Security Council.21 Second, during the cold war the rule 21

Herbert Vere Evatt, The United Nations (Cambridge: Harvard University Press, 1948), 36. See also United Nations Information Organizations, Documents of the United Nations Conference on International Organization (New York: United Nations Information Organizations, 1945), vol. 1, 129–30 (statement by the Chinese delegate).

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of law carried ideological baggage. As Carothers notes, there is a close relationship between the rule of law and liberal democracy.22 Countries of the West thus criticised the East for violating the rule of law by being undemocratic and failing to provide their citizens with fundamental rights and freedoms. Countries of the East, for their part, criticised the notion of the rule of law for promoting and reinforcing the domination of the working class by the bourgeois, property-owning class, and for failing to prevent the inequitable distribution of property and wealth among their citizens.23 There is just one prominent reference to the rule of law in Security Council resolutions dating from the cold-war period. On 21 February 1961, in Resolution 161 on the situation in the Congo, the Security Council noted ‘with deep regret and concern the systematic violations of human rights and fundamental freedoms and the general absence of the rule of law’.24 All but two members of the Security Council voted in favour of that resolution. The Soviet Union, one of those two, abstained.25 The rule of law began its meteoric rise in the Security Council’s rhetoric and practice in January 1992, when world leaders gathered in New York for the ﬁrst ever Security Council meeting held at the summit level. At that landmark meeting on the theme ‘The Responsibility of the Security Council in the Maintenance of International Peace and Security’, leaders from countries with a broad range of political and socio-economic traditions underlined the importance of strengthening the rule of law in international affairs.26 Among them, US President George H. W. Bush urged the Security Council to ‘advance the momentous movement towards democracy and freedom … and expand the circle of nations committed to human rights and the rule of law’.27 22 23

24 25

26

27

Carothers, ‘The rule-of-law revival’, 4. Martin Krygier, ‘Marxism and the rule of law: Reﬂections after the collapse of communism’ (1990) 15 Law and Social Inquiry, 633–63, 651. SC Res. 161 (21 February 1961), Section B, preambular para. 2 (emphasis added). UN Doc. S/PV.942 (21 February 1961) Security Council ofﬁcial records for January, February and March 1961, para. 175. UN Doc. S/PV.3046 (31 January 1992) Provisional verbatim record of the 3046th meeting, held at headquarters, New York, on Friday, 31 January 1992: Security Council, 8–9 (UN Secretary-General Boutros-Boutros Ghali), 18 (President Mitterand, France), 23 (President Borja, Ecuador), 36 (King Hassan II, Morocco), 47 (President Yeltsin, Russian Federation), 50, 50 (a-z) (President Bush, United States), 59–60 (President Perez, Venezuela), 67 (Chancellor Vranitsky, Austria), 78–79 (Prime Minister Veiga, Cape Verde), 97 (Prime Minister Rao, India), 107 (Prime Minister Miyazawa, Japan). Ibid., 50.

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The importance of the rule of law was subsequently reinforced at multiple high-level UN meetings. The Millennium Declaration, adopted by world leaders in September 2000,28 listed the goal of strengthening respect for the rule of law in international affairs as the very ﬁrst of its objectives of ‘special signiﬁcance’.29 In the 2005 World Summit Outcome document, world leaders agreed that ‘good governance and the rule of law at the national and international levels’ were ‘essential for sustained economic growth’.30 They also recognised that the rule of law belonged to ‘the universal and indivisible core values and principles of the United Nations’.31 Within the Security Council itself, growing interest in the rule of law led to the establishment in September 2003 of a thematic agenda item entitled ‘Justice and the Rule of Law’.32 The Council has since adopted many presidential statements devoted to justice and the rule of law.33 But the most striking illustration of the transformation of the rule of law from curiosity to familiar friend lies in the term’s increasing appearance in the Council’s resolutions. As noted, during the cold war, the rule of law featured in Security Council resolutions less than a handful of times.34 By contrast, in the nine years from the beginning of 1998 until the end of 2006, the phrase ‘rule of law’ appeared in no fewer than sixty-nine Council resolutions.35 As outgoing UN Secretary-General Koﬁ Annan put it in one of his ﬁnal reports, submitted to the General Assembly and Security Council on 14 December 2006 and entitled ‘Uniting Our Strengths: Enhancing UN support for the rule of law’, the rule of law had become central to the work of the UN.36 28 29 30 31 32

33

34 35

36

GA Res. 55/2 (18 September 2000) United Nations Millennium Declaration. Ibid., para. 9. GA Res. 60/1 (24 October 2005) 2005 World Summit Outcome, para. 11. Ibid., para. 119. For meetings held under this new agenda item, see: UN Doc. S/PV.4833 (24 September 2003) Security Council: Fifty-eighth year, 4833rd meeting, Wednesday, 24 September 2003, New York; UN Doc. S/PV.4835 (30 September 2003) Security Council: Fifty-eighth year, 4835th meeting, Thursday, 30 September 2003, New York; UN Doc. S/PV.5052 (6 October 2004) Security Council: Fifty-ninth year, 5052nd meeting, Wednesday, 6 October 2004, New York. UN Doc. S/PRST/2003/15 (24 September 2003) Statement made by the president of the Security Council; UN Doc. S/PRST/2004/34 (6 October 2004) Statement made by the president of the Security Council; UN Doc. S/PRST/2006/28 (22 June 2006) Statement made by the president of the Security Council. See, e.g., SC Res. 161 (21 February 1961). See Jeremy Farrall, United Nations Sanctions and the Rule of Law (Cambridge: Cambridge University Press, 2007), 465–7 (Appendix 3, Table A). UN Doc. A/61/636–S/2006/980 (14 December 2006) Uniting our strengths: Enhancing United Nations support for the rule of law, 1.

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The Security Council’s new-found interest in the rule of law coincided with a dramatic expansion in peacekeeping and a rapid evolution in the scope of activities undertaken by UN peacekeeping operations. In more than four decades from 1945 to 1988, the UN established a total of just thirteen peacekeeping operations. These early UN peacekeeping operations were generally tasked with the basic responsibility of monitoring ceaseﬁre lines. By contrast, in the two decades since 1988 the UN Security Council has created ﬁfty new peacekeeping operations. A total of sixtythree UN peacekeeping operations have thus been deployed around the globe, from Haiti to East Timor and from the Balkans to Mozambique.37 UN peacekeeping operations no longer simply monitor ceaseﬁre lines. Indeed, they have at times assumed responsibility for practically all the tasks normally carried out by state institutions, as in the case of UN ‘transitional administrations’ in Kosovo and Timor-Leste. In between the extremes of basic ceaseﬁre monitoring and complete transitional administration, there are almost limitless permutations. Peacekeeping operations commonly support local authorities in, or assume outright responsibility for: the implementation of a peace agreement; the maintenance of stability through military and police interventions; the disarmament, demobilisation and reintegration of former combatants; the return of refugees and internally displaced persons to their homes; the delivery of humanitarian services to those in need; the restructuring and reform of local armed forces and police; the strengthening of court and judicial systems and prison facilities; the promotion and protection of human rights; the conduct and monitoring of elections; and the promotion of development and economic reconstruction. The 2000 Report of the Panel on UN Peace Operations (the Brahimi Report), which sought to establish a platform for more strategic peacekeeping interventions that would build genuine and sustainable peace, identiﬁed strengthening the rule of law as a key thematic peacekeeping goal that deserved greater strategic attention.38 Brahimi recommended ‘a doctrinal shift in the use of civilian police, other rule-of-law elements and human-rights experts in complex peace operations to reﬂect an increased focus on strengthening rule-of-law institutions and improving respect 37

38

For a list of every UN peacekeeping operation, see United Nations Peackeeping: List of operations 1948–2008 (2008) United Nations, available at www.un.org/Depts/dpko/list/ list.pdf. UN Doc. A/55/305–S/2000/809 (21 August 2000) Report of the Panel on United Nations Peace Operations, paras. 39–40.

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for human rights in post-conﬂict environments’.39 The task of strengthening the rule of law is now routinely included in the mandates of contemporary peacekeeping operations.

III. Transforming the rule of law from political ideal into concrete outcomes The decision to create a new UN peacekeeping operation is made by the UN Security Council, as conveyed in a Security Council resolution. Security Council resolutions establishing a peacekeeping operation generally articulate a detailed mandate for any new peacekeeping operation, including its size in terms of military and civilian personnel, the interim period for which the operation is authorised, and the responsibilities to be assumed by the operation. While these details are ultimately endorsed by the Security Council, by the time they gain the Council’s approval they will have already been vigorously negotiated by relevant stakeholders. Indeed, the ﬁner details are threshed out in various forums as members of the Security Council, potential troop-contributing countries, and the sections of the UN Secretariat that oversee and support peacekeeping activities, namely the Department of Peacekeeping Operations (DPKO) and the Department of Field Support (DFS), consult to determine the contours of the new operation. Peacekeeping mandates are a creative combination of speciﬁcity and ﬂexibility. Ideally the Security Council should be as speciﬁc as possible about the particular responsibilities a peacekeeping operation is expected to assume, so that peacekeepers on the ground have clear marching orders. But two factors undermine the search for speciﬁcity. The ﬁrst is the negotiating process within the Security Council. In the to and fro of the diplomatic tug-of-war that characterises negotiations on a draft Security Council resolution, the national positions and interests of Security Council members will dictate that certain phrases must be redrafted or deleted from the text and other new ones added. In this negotiating process certain members might seek more speciﬁcity of mandate tasks, whereas others might aim to water the tasks down. The second factor is the need to provide a certain degree of ﬂexibility so that those on the ground are not forced to undertake tasks that may seem logical or desirable from a New York vantage point, but might prove

39

Ibid., para. 47(b).

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unhelpful or counterproductive in the particular conditions that apply in a peacekeeping environment. This balance between speciﬁcity and ﬂexibility, sometimes referred to as ‘constructive ambiguity’, means that in practice peacekeeping mandates often embark on a journey of ﬁltration and interpretation before eventually being implemented by UN peacekeeping staff in the ﬁeld. This section tracks the rule of law’s journey from the rareﬁed air of the UN Security Council chamber in New York to the rough-edged reality of post-conﬂict life in far-ﬂung parts of the world.

A. The UN Security Council’s conception of the rule of law The Security Council itself has not embraced a particular deﬁnition or model of the rule of law. While it always casts the rule of law in a positive light, it tends to avoid describing the concept in concrete terms. Nevertheless, analysis of the Council’s use of the concept in its resolutions suggests that the Council attributes ﬁve basic clusters of meaning to the rule of law.

i. Law and order The Security Council has regularly used the rule of law when emphasising the need to re-establish law and order in war-ravaged post-conﬂict environments.40 It has employed the term when mandating UN peace operations to support the (re)establishment of law and order institutions, including security agencies and police forces, in the Central African Republic,41 Angola,42 Timor-Leste,43 the Democratic Republic of the Congo (DRC),44 Côte d’Ivoire45 and Haiti.46 ii. Ending impunity for crimes The Security Council has referred to the rule of law when stressing the need to end impunity for war crimes and human-rights atrocities in 40

41 42 43 44 45 46

SC Res. 1040 (29 January 1996), para. 2 (on Burundi); SC Res. 1168 (21 May 1998), para. 4 (on Bosnia and Herzegovina); SC Res. 1327 (13 November 2000), ss. V, VI (on strengthening peace operations). SC Res. 1159 (27 March 1998), para. 14(e). SC Res. 1433 (15 August 2002), para. 3B(1). SC Res. 1473 (4 April 2003), para. 1(iii). SC Res. 1493 (28 July 2003), paras. 5, 11. SC Res. 1528 (27 February 2004), para. 6(q). SC Res. 1542 (30 April 2004), para. 7(I)(d).

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Sierra Leone,47 Haiti,48 Burundi,49 Guinea-Bissau50 and Darfur.51 The Council has also used the term when emphasising the need to strengthen national judicial institutions and systems in Rwanda, the former Yugoslavia,52 Afghanistan,53 Côte d’Ivoire,54 Burundi,55 GuineaBissau56 and the Sudan.57

iii. Resolving conﬂict through law Addressing the dispute between the Former Yugoslav Republic of Macedonia and the Federal Republic of Yugoslavia, the Council invoked the rule of law to encourage the principled resolution of conﬂict in accordance with international law.58 iv. Protecting and promoting human rights The Security Council has used the phrase to stress the urgency of protecting vulnerable citizens and respecting human rights in Angola59 and the DRC.60 It has employed the term to denote government that respects human rights in resolutions on Liberia,61 Iraq62 and GuineaBissau.63 v. Principled governance In a 1998 resolution addressing the situation in Africa in general, the Security Council employed the phrase to underscore the importance of improving governance and eradicating corruption.64 In a 2005 47 48 49 50 51 52

53 54 55 56 57 58 60 61 62 63 64

SC Res. 1315 (14 August 2000), preambular para. 4. SC Res. 1542 (30 April 2004), preambular para. 4. SC Res. 1545 (21 May 2004), preambular para. 9. SC Res. 1580 (22 December 2004), preambular para. 5 SC Res. 1593 (31 March 2005), para. 4. SC Res. 1503 (28 August 2003), preambular para. 10 (on the International Criminal Tribunal for the Former Yugoslavia and International Criminal Tribunal for Rwanda completion strategies). SC Res. 1536 (26 March 2004), para. 10; SC Res. 1589 (24 March 2005), para. 9. SC Res. 1609 (24 June 2005), para. 2(x). SC Res. 1577 (1 December 2004), preambular para. 9. SC Res. 1580 (22 December 2004), para. 2(h). SC Res. 1590 (24 March 2005), para. 4(a)(viii). SC Res. 1345 (21 March 2001), para. 5. 59 SC Res. 1149 (27 January 1998), para. 4. SC Res. 1417 (14 June 2002), para. 5. SC Res. 1509 (19 September 2003), preambular para. 7. SC Res. 1546 (8 June 2004), preambular para. 10, para. 7(b)(iii). SC Res. 1580 (22 December 2004), para. 2(a). SC Res. 1170 (28 May 1998), preambular para. 13.

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resolution it used the term when mandating the UN Ofﬁce in TimorLeste to support initiatives to improve governance and eradicate corruption.65 In a 2003 resolution on Iraq, the Council used the rule of law as a metaphor for democratic, principled government.66 In a 2005 resolution on Burundi the Council also used the rule of law to denote government that was not above the law.67 Drawing upon these ﬁve clusters of meaning, it can be deduced that the Security Council subscribes to a general model of the rule of law that requires: (i) the maintenance of law and order; (ii) an end to impunity for crimes; (iii) the resolution of conﬂict through legal avenues; (iv) the protection and promotion of human rights; and (v) government which is principled and democratic.

B. The UN Secretariat’s approach to the rule of law Once the Security Council has created a peacekeeping operation, it becomes the responsibility of the UN Secretariat to take the necessary steps to ensure that the peacekeeping operation can be dispatched. This involves a complex series of steps that range from determining the budget that will be necessary to sustain the new operation’s activities, to securing troops from states which are willing to contribute their nationals to the new peacekeeping force, to articulating the policies and principles that will guide the operation’s activities and its relationship with its host state, and to recruiting and deploying the civilian staff who will implement the civilian tasks outlined in the operation’s mandate. The UN Secretariat is headed by the UN secretary-general and consists of a variety of departments and ofﬁces that are tasked with overseeing and implementing the UN’s activities across the full range of the UN’s responsibilities as articulated in the UN Charter. Peacekeeping policy is generated through a process that involves consultation between the secretary-general’s ofﬁce and the two Secretariat departments that have responsibility for overseeing and implementing the UN’s peacekeeping activities: DPKO and DFS. The former is responsible for devising peacekeeping policy, while the latter is in charge of taking the practical steps

65 66 67

SC Res. 1599 (28 April 2005), para. 3. SC Res. 1483 (22 May 2003), preambular para. 5 (on Iraq). SC Res. 1606 (20 June 2005), preambular para. 3 (on Burundi).

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necessary to put that policy into practice. Within DPKO an ofﬁce called ‘Rule of Law and Security Institutions’ is nominally responsible for generating the department’s rule-of-law policy.68 It contains two ruleof-law-speciﬁc divisions: the ‘Police Division’ and the ‘Criminal Law and Judicial Advisory Division’.69

i. The secretary-general’s conception of the rule of law The UN secretary-general has taken the step of proposing a deﬁnition of the rule of law. In his August 2004 report to the Council on the rule of law and transitional justice in conﬂict and post-conﬂict societies,70 then Secretary-General Koﬁ Annan described the rule of law as: 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 norms and standards.71

ii. DPKO’s conception of the rule of law In order to operationalise the goal of strengthening the rule of law, DPKO has boiled the rule of law down into four basic areas: police, prisons, courts and human rights.72 DPKO thus recommends the creation of units dedicated to each of these areas in new peacekeeping operations. The civilian-police component undertakes a range of transitional policing responsibilities and plays a major role in supporting efforts to restructure and retrain national police forces. The corrections component provides assistance with the reconstruction of prisons and the training and resourcing of national corrections ofﬁcers. The legal and judicial-system support component facilitates the rebuilding, reopening and effective functioning of the national court system. The human-rights and protection component promotes the protection of human rights and the creation and functioning of mechanisms that seek to provide transitional justice. 68

69 70

71 72

See the DPKO organisational chart at Department of Peacekeeping Operations (2007) United Nations, available at www.un.org/Depts/dpko/DPKOchart.pdf. Ibid. UN Doc. S/2004/616 (23 August 2004) The rule of law and transitional justice in conﬂict and post-conﬂict societies: Report of the secretary-general. Ibid., para. 6. UN Doc. A/61/636–S/2006/980 (14 December 2006) Uniting our strengths: Enhancing United Nations support for the rule of law, para. 7.

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C. Haiti and Liberia: A tale of two peacekeeping operations and the rule of law DPKO’s four-pillar approach to the rule of law can be seen in the mandates bestowed by the Security Council upon peacekeeping operations in Haiti (2004) and Liberia (2003). This section identiﬁes the mandates for each of these operations. It also explores the chequered record of these operations in implementing their rule-of-law mandates.

i. The United Nations Stabilization Mission in Haiti The Security Council established the United Nations Stabilization Mission in Haiti (MINUSTAH) in April 2004.73 MINUSTAH was not the ﬁrst UN peacekeeping operation to be deployed in Haiti. A decade earlier the United Nations Mission in Haiti (UNMIH) had been dispatched in an effort to provide stability in Haiti following the return to the country of President Jean-Bertrand Aristide, who had been forced into exile by a military coup. In 2004, the deployment of a UN peace operation was also tied to President Aristide’s movements, but this time it was his departure rather than his return that triggered UN engagement.74 In his April 2004 report proposing the establishment of MINUSTAH, the UN secretary-general painted a gloomy picture of the rule of law in Haiti. The Haitian National Police (HNP) were described as underresourced and ‘plagued by heavy politicization, corruption and mismanagement’.75 The judicial sector lacked institutional capacity and ‘suffered from limited territorial coverage and endemic corruption’.76 The corrections sector had been decimated during the Haitian insurgency of February 2004, when all prison inmates were set free and all prison facilities, equipment and records destroyed, looted or severely damaged.77 The human-rights environment was also dire, with a climate of lawlessness and impunity prevailing, leading to increasing human-rights abuses, extrajudicial killings, arbitrary arrests, wrongful detentions, human trafﬁcking, sexual violence against women and girls and the use of child soldiers.78

73 74

75

SC Res. 1542 (30 April 2004), para. 1. For further discussion of events leading to the deployment of MINUSTAH, see UN Doc. S/2004/300 (16 April 2004) Report of the secretary-general on Haiti, paras. 8–16. Ibid., para. 31. 76. Ibid., para. 35. 77 Ibid., para. 39. 78 Ibid., para. 41.

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a. MINUSTAH’s rule-of-law mandate When the Security Council established MINUSTAH it provided for components under each of the four rule-of-law pillars of police, corrections, courts and human rights. MINUSTAH was to assist the Haitian transitional government in monitoring, restructuring and reforming the HNP, as well as mentoring the HNP’s members.79 The mission was also to help re-establish the Haitian corrections system.80 With respect to the legal system, the mission was to assist with the development of a strategy for reform and institutional strengthening of the judiciary.81 In the area of human rights, MINUSTAH was to provide advice and assistance to the transitional government in the investigation of human-rights violations and violations of international humanitarian law,82 and to support the transitional government and Haitian human-rights institutions and groups in their efforts to promote and protect human rights.83 b. Progress in implementing MINUSTAH’s rule-of-law mandate The 2006 presidential and legislative elections gave renewed impetus to efforts to strengthen the rule of law in Haiti.84 By late 2006 the major achievement in the police sector had been the conclusion of a reform plan for the HNP.85 In the legal system, MINUSTAH had provided training for members of the judiciary, justices of the peace and public prosecutors, and supported efforts to draft legislation to strengthen judicial independence.86 MINUSTAH strengthened prison management through supporting efforts to reform budget control and expenditure procedures, and collaborated with the National Prison Administration and the International Committee of the Red Cross (ICRC) to develop a comprehensive approach towards prison health and nutrition.87 In the area of 79 81 84

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SC Res. 1542 (30 April 2004), para. 7(I)(b). 80 Ibid., para. 7(I)(d). Ibid., para. 8(b). 82 Ibid., para. 8(a). 83 Ibid., para. 7(III)(a). For discussion of the Haitian elections process, which was generally considered to have been free and fair, see UN Doc. S/2006/592 (28 July 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, paras. 2–11; UN Doc. S/2006/1003 (19 December 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 2. UN Doc. S/2006/726 (12 September 2006) Letter dated 31 August 2006 from the secretary-general addressed to the president of the Security Council, Annex. UN Doc. S/2006/592 (28 July 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 24; UN Doc. S/2006/1003 (19 December 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 32. UN Doc. S/2006/1003 (19 December 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 33.

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human rights, MINUSTAH had provided human-rights training to a range of Haitian authorities, including police stations, prosecutors’ ofﬁces, and courts and prison personnel.88 Nevertheless, more than three years after MINUSTAH’s initial deployment, Haiti’s rule-of-law challenges remained substantial. The International Crisis Group (ICG) has stressed the continuing urgency of conducting a ‘clean-up’ of the HNP.89 Meanwhile, as the secretarygeneral pointed out in December 2006, the criminal justice system remained dysfunctional and there was a continued lack of co-operation between the police and justice systems.90 According to the ICG, the absence of formal justice had encouraged ‘vigilante vengeance’.91 Moreover, prisons were still overcrowded and pre-trial detention was often prolonged.92 Haiti’s prisons were described as ‘powder kegs awaiting a spark’,93 and widespread violence and extrajudicial killings were undermining the average citizen’s enjoyment of human rights.94 Indeed, the UN High Commissioner for Human Rights expressed concern at shortcomings in Haiti with respect to the whole gamut of human rights, including civil, political, social and economic rights.95 The UN’s independent expert on human rights in Haiti also reported serious humanrights shortcomings in the operation of the Haitian police force, judiciary and prison system.96

ii. The United Nations Mission in Liberia The UN Security Council established the United Nations Mission in Liberia (UNMIL) in September 2003.97 As with MINUSTAH, UNMIL 88

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UN Doc. S/2006/1003 (19 December 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 38. International Crisis Group, Consolidating Stability in Haiti (Brussels: International Crisis Group, 2007), 3. UN Doc. S/2006/1003 (19 December 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 29. International Crisis Group, Consolidating Stability in Haiti, 4. UN Doc. S/2006/1003 (19 December 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 29. International Crisis Group, Haiti: Prison reform and the rule of law (Brussels: International Crisis Group, 2007), 1. UN Doc. S/2006/1003 (19 December 2006) Report of the secretary-general on the United Nations stabilization mission in Haiti, para. 35. Ibid., para. 37. UN Doc. A/HRC/4/3 (2 February 2007) Implementation of General Assembly Resolution 60/251 of 15 March 2006 entitled ‘Human Rights Council’: Situation of human rights in Haiti. SC Res. 1509 (19 September 2003).

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was not the ﬁrst UN peacekeeping operation to be deployed to its destination. A decade earlier the Security Council had deployed the United Nations Observer Mission in Liberia (UNOMIL) to provide security in the lead-up to Liberian elections in the mid 1990s. UNMIL was created as a multidimensional peacekeeping operation with a mandate to provide security and stability in Liberia, as well as wide-ranging support to the Liberian peace process and the transitional government’s efforts to consolidate peace. In his report proposing the establishment of UNMIL, the secretarygeneral noted that Liberian judicial institutions had suffered ‘an almost complete breakdown as a result of years of conﬂict and the disregard of the Taylor Government for the rule of law.’98 The Liberian police force had functioned as ‘an instrument of repression’, with corruption endemic.99 The judiciary had also suffered from corruption and political interference, and had lost public conﬁdence; courts were not functioning as court infrastructure had been destroyed or looted; and prisons throughout the country were empty and/or dilapidated.100 The armed conﬂict in Liberia had also resulted in serious violations of human rights, including deliberate and arbitrary killings, disappearances, torture, widespread rape and sexual violence against women, girls and boys, arbitrary arrests and detention and the use of child soldiers.101 a. UNMIL’s rule-of-law mandate The UN secretary-general proposed the creation of a criminal justice component, consisting of civilian police, judicial and corrections elements, as well as a human-rights protection section. The Security Council endorsed this general approach.102 UNMIL was to assist the transitional government of Liberia in monitoring and restructuring the police force of Liberia and to develop a civilian police training programme.103 It was to help the transitional government to develop a strategy to consolidate governmental institutions, including a national legal framework and judicial and correctional institutions.104 It was also to contribute towards international efforts to protect and promote human rights in Liberia,105 and to carry out human-rights promotion, protection and monitoring activities.106 98

99 102 104

UN Doc. S/2003/875 (11 September 2003) Report of the secretary-general to the Security Council on Liberia, para. 24. Ibid. 100 Ibid. 101 Ibid., para. 26. SC Res. 1509 (19 September 2003), paras. 1–3. 103 Ibid., para. 3(n). Ibid., para. 3(q). 105 Ibid., para. 3(l). 106 Ibid., para. 3(m).

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b. Progress in implementing UNMIL’s rule-of-law mandate By late 2006, the secretary-general reported that there had been substantial progress in restructuring the Liberian police force. UNMIL had helped to train more than 2,500 new Liberian police recruits and assisted with planning for the full restructuring of the Liberian police.107 With respect to the judicial system, UNMIL had supported reform of the vetting and appointment process for judges, assisted the Liberian government to draft and enact laws relating to rape, jury and judicial independence and conducted comprehensive legal training for members of the legal and judicial system.108 The mission had also supported efforts to develop a Law Reform Commission.109 In the corrections sector, UNMIL facilitated the opening of eight prisons and the recruitment and training of dozens of corrections ofﬁcers.110 In the ﬁeld of human rights, major achievements included the establishment of the Liberian Truth and Reconciliation Commission and the Independent National Human Rights Commission.111 Yet despite these achievements, Liberia’s rule-of-law institutions and mechanisms remained ‘fragile and underdeveloped’.112 While there had been progress in training new police recruits, the overall restructuring programme was delayed due to difﬁculties in demobilising and reintegrating members of the old Liberian police force. The deployment of police outside the capital was being hampered by a lack of basic infrastructure and equipment.113 There were still few prisons across Liberia and a dearth of qualiﬁed and well-trained corrections ofﬁcers, resulting in prolonged pre-trial detention periods in overcrowded, substandard prisons.114 It was also proving difﬁcult to retain trained corrections ofﬁcers, who could earn higher salaries in the police and armed forces.115 107

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UN Doc. S/2007/151 (15 March 2007) Fourteenth progress report of the secretarygeneral on the United Nations mission in Liberia, para. 17. UN Doc. S/2006/159 (14 March 2006) Tenth progress report of the secretary-general on the United Nations mission in Liberia, para. 29. UN Doc. S/2006/958 (11 December 2006) Thirteenth progress report of the secretarygeneral on the United Nations mission in Liberia, para. 39. UN Doc. S/2006/159 (14 March 2006) Tenth progress report of the secretary-general on the United Nations mission in Liberia, para. 29. Ibid., para. 28. 112 Ibid., para. 30. UN Doc. S/2007/151 (15 March 2007) Fourteenth progress report of the secretarygeneral on the United Nations mission in Liberia, para. 21. UN Doc. S/2006/958 (11 December 2006) Thirteenth progress report of the secretarygeneral on the United Nations mission in Liberia, para. 28. Ibid., para. 42.

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In terms of the legal system, there was still a severe shortage throughout the country of court facilities, and trained judges and magistrates.116 As a result, traditional forms of justice, including both state-sponsored and non-state-sponsored varieties, tended to predominate outside the capital.117 External rule-of-law interventions had tended either to be ignorant of, or pay little attention to, these customary forms of justice.118 Although the customary justice systems themselves were susceptible to corrupt and inequitable practices, they had provided a viable shortterm mechanism through which to resolve conﬂict in remote areas.119 Low-level judicial corruption and inefﬁciency were also undermining the delivery of the formal justice system,120 and these shortcomings were in turn undermining the enjoyment of human rights.121 Efforts to address human-rights concerns through transitional-justice institutions had stalled. Although both a Truth and Reconciliation Commission and an Independent National Human Rights Commission had been formally established, both had been plagued by disagreements over appointments, and undermined by a lack of ﬁnancial and human resources.122 As a consequence, neither body was functioning as planned.

IV. Between ideal and reality The previous section illustrates the complex journey of the rule of law from a powerful abstract political ideal in the Security Council chamber to the tentative, concrete, institution-focused measures that struggle to gain traction in peacekeeping theatres. MINUSTAH and UNMIL have both followed broadly similar rule-of-law trajectories. In each instance the rule-of-law sector, interpreted by the UN Secretariat to mean the police, the judicial system and prisons, along with the overall humanrights situation, was devastated prior to the UN’s intervention by maladministration and lawlessness in Haiti, and by protracted conﬂict and oppressive government in Liberia. In each case the situation was 116 117

118 119

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Ibid., para. 36. See International Crisis Group, Liberia: Resurrecting the justice system (Brussels: International Crisis Group, 2006), 6–10. Ibid., 6. Ibid., 10. See the discussion of customary legal systems in Grenfell’s chapter in this volume. Grenfell argues for greater attention to the contribution of customary law to the rule of law. UN Doc. S/2007/151 (15 March 2007) Fourteenth progress report of the secretarygeneral on the United Nations mission in Liberia, para. 33. Ibid. 122 Ibid., paras. 38–9.

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compounded by the widespread destruction of infrastructure and a paucity of qualiﬁed personnel and material resources. MINUSTAH and UNMIL each employed an institution-focused strategy, centred upon reforming the police, reconstructing prisons and courts, building corrections and judicial capacity, and supporting human-rights and transitionaljustice mechanisms. Yet each operation has made chequered progress in creating or supporting effective mechanisms in each of these rule-of-law sectors. Two conclusions might be drawn from the Security Council’s efforts to promote the rule of law in Haiti and Liberia. First, it is possible that the rule of law raises expectations that are impossible to meet. Given the concept’s highly contested nature, this would not be a surprising conclusion. Indeed, the scholarly crisis surrounding the rule of law in politico-legal systems that are widely considered to adhere to the rule of law suggests that even in the best of circumstances the rule of law may not be able to deliver on its promise. The second, related, conclusion is that the rule of law is most powerful when it remains an abstract political ideal capable of inspiring people from a wide array of backgrounds. The closer one gets to identifying the practical contours of the rule of law, the more elusive its essence appears to become. Once the rule of law gains concrete form, it becomes fallible. It seems that no incarnation of the rule of law can reach the high standards implied by the ideal of the rule of law. These conclusions suggest that the rule of law is doomed to disappoint, whether it is being pursued in a stable, peaceful state or in a post-conﬂict environment. One response would be to advocate that the UN Security Council should abandon its efforts to promote the rule of law after conﬂict and instead devote its peacekeeping energy and resources to other, less ambitious tasks. But this impulse would leave much of the current agenda of peace-building off-limits. Indeed, as noted in Part I, no matter how enormous the task of material reconstruction may be, the most important reconstruction lies in the non-material area of reconstructing human relations and governance. When seeking to restore trust and conﬁdence in the national community, it is necessary to grapple with big political ideals such as democracy, justice and the rule of law, regardless of the expectations they create. As long as UN peacekeeping operations continue to engage in complex post-conﬂict peace-building activities beyond the (relatively) simple task of monitoring ceaseﬁre lines, the Security Council will remain dutybound to navigate the treacherous strait between the impossibility and the necessity of the rule of law. There are a number of strategies that the

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Security Council might employ in an attempt to make this journey less difﬁcult. First, the Council, DPKO and UN peacekeeping operations could be more honest about the limitations of the concept of the rule of law. This would entail acknowledging that there is no one-size-ﬁts-all, perfect model of the rule of law, and that not even in the most peaceful and stable societies does the rule of law exist in a complete form. It would mean acknowledging that law and the rule of law are human constructs and as a consequence can be as fallible as humans themselves. As Krygier has noted, the goal of the rule of law should be ‘to mediate between power and people’.123 The objective of any society seeking to adhere to the rule of law should thus be to continue to reﬁne the balance between the exercise of political power and the impact of that power upon citizens. Second, there could be less emphasis upon the concrete form that ruleof-law systems take and more emphasis upon the general goals that should be pursued by any rule-of-law system. Rather than pre-empting the ﬁnal shape of rule-of-law mechanisms, UN peacekeeping operations could support a process of genuine consultation, in which local stakeholders determine their own rule-of-law priorities and strategies. The goal of rule-of-law interventions could thus be subtly shifted away from (re)creating perfect rule-of-law systems and towards harnessing and, if necessary, (re)creating politico-legal processes that seek to minimise conﬂict in society. As Laura Grenfell points out in the next chapter, it is also important to understand the limitations of international legal principles in contributing to the rule of law.

Conclusion The UN Security Council creates high expectations when it asks UN peacekeeping operations to strengthen the rule of law. Yet on both a practical and a political level, there is little the Council can do to avoid this. In post-conﬂict environments where a peacekeeping effort is welcomed by the local community, it is appropriate for the UN to do more than simply keep the peace. The stabilising presence of thousands of UN peacekeepers provides a ﬂeeting window of opportunity in which both local and external actors can pursue peace-building activities that aim to prevent the reignition of conﬂict after the peacekeepers depart. If the main goal of these UN peace-building interventions is to enable the emergence of a peaceful, stable society, then it is entirely appropriate 123

Krygier, ‘Marxism and the rule of law’, 645.

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for the Security Council to support the (re)construction of a system of the rule of law that provides mechanisms to maintain law and order, resolve conﬂicts peacefully, promote and protect human rights, and prevent the excessive, abusive or corrupt use of political power. Nevertheless, when the Security Council decides to give its peacekeeping operations a mandate to strengthen the rule of law, it should be more circumspect about what this entails. It should acknowledge that there is no single recipe for (re)building the rule of law that is readily applicable to every post-conﬂict environment. It should avoid promoting idealised, resource-intensive, Western models of the rule-of-law system that are so foreign to the local community that they will almost certainly collapse once the peacekeeping effort ends and the international community turns its attention elsewhere. Instead, the Council should employ a more ﬂexible approach to the rule of law which fosters local adaptation of governance institutions, mechanisms and strategies for pursuing the political ideal of the rule of law.

7 Legal pluralism and the challenge of building the rule of law in post-conﬂict states: A case study of Timor-Leste laura grenfell

Introduction The international community currently champions the concept of the rule of law as the key to securing ongoing peace and stability in postconﬂict states.1 Within this framework, state institutions, particularly state legal institutions, have an ostensibly central role in providing the local population with a non-violent and accessible path to resolving disputes. Application of the rule of law becomes complicated, however, where there is legal pluralism: a number of legal systems operating in the same geographical space.2 In many post-conﬂict states the local population often prefers to use local law and local institutions rather than state law and state institutions because they may consider the latter to be obscure, inaccessible or irrelevant. At a broad level the rule of law aims to prevent abuse of power, but the means of achieving this depends on the particular context.3 The rule of law might be pursued and institutionalised in a variety of ways depending on the situation; there is no particular set of institutions that must be established for its existence.4 Regardless of the speciﬁc context, however, state law and state institutions remain at the forefront of the rule-oflaw enterprise because the concept is focused on the delimitation of state power. 1 2 3

4

See Farrall’s chapter in this volume. Sally Engle Merry, ‘Legal pluralism’ (1988) 22 Law and Society Review, 869–96. See generally Martin Krygier, ‘False dichotomies, real perplexities, and the rule of law’ in Andras Sajo (ed.), Human Rights with Modesty: The problem of universalism (Leiden: Martinus Nijhoff Publishers, 2004), 251–77. Ibid., 261.

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Establishing state law and state institutions as providing the best and natural path to justice is a tall order in many parts of the Asia-Paciﬁc region due to strong legal pluralism. The strength of legal pluralism can be largely attributed to the embryonic nature of state legal systems and the concept of the state in this region. Even in times of peace, state law is not always the preferred path for a sizeable portion of the population; instead people often opt to use local customary law. Conﬂict can intensify this preference for non-state law because it frequently results in the collapse of state institutions, forcing even greater reliance on various forms of non-state law. In this situation, state law alone is generally too weak to generate public conﬁdence and respect, and thus it needs to work strategically with other forms of law to avoid a judicial vacuum. ‘State law pluralism’ refers to situations where the state succeeds in harnessing forms of non-state law. Where systems operate in parallel it is a case of ‘deep legal pluralism’.5 The United Nations and elements of civil society have called for international law to assist post-conﬂict states to strengthen state law and state institutions. Indeed, in its two experiments in territorial administration, Kosovo and East Timor (renamed Timor-Leste in 2005), the UN acted upon the assumption that international law boosts the process of building the rule of law by prescribing its use. In contrast, the role of customary law has been neglected; it has generally been considered to be in tension with international norms and hence it has not been fostered. Only in 2004 did the UN begin to acknowledge such law as a site of positive potential, rather than a liability to be tolerated temporarily or completely eliminated.6 This acknowledgement has perhaps arisen from the partial success of grass-roots initiatives in post-conﬂict countries such as Rwanda and Timor-Leste that have drawn on customary law. These initiatives have illuminated the dynamic of legal pluralism in the process of building the rule of law. This chapter argues that fostering legal pluralism may aid the enterprise of building the rule of law in many post-conﬂict states. Using TimorLeste as a case study, the chapter traces the roles of both international law and customary law in building the rule of law in a post-conﬂict country. Part I sets out the weak position of state law in Timor-Leste and 5

6

See Gordon R. Woodman, ‘Legal pluralism and the search for justice’ (1996) 40 Journal of African Law, 152–67. UN Doc. S/2004/616 (23 August 2004) The Rule of law and transitional justice in conﬂict and post-conﬂict societies: Report of the secretary-general, para. 36.

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examines one of its challenges. Parts II and III evaluate the contributions made by international law and customary law to boosting state law and the rule of law. Part II analyses the ambivalent role international law has played thus far, while Part III explores the often neglected potential of customary law.

I. State institutions and state law A. History and key problems When the UN arrived in Timor-Leste in 1999, there was a deep legacy of distrust of the state. This had developed during the 500 years of Portuguese colonisation, beginning in the sixteenth century, but intensiﬁed during the twenty-four years of Indonesian occupation. The law imposed by Indonesia was seen as the tool of the oppressor, or as irrelevant.7 State courts were viewed as partial and political, as they condoned impunity for perpetrators of serious crimes against the local population.8 There was no separation of powers as the Indonesian executive controlled the actions of the judiciary.9 During this time there may have been rule by law, but not rule of law in the sense that there were no effective mechanisms for constraining and disciplining abuses of public power. Given these circumstances, there was minimal public respect for state law: local people preferred to use the path of customary law wherever possible in order to avoid contact with the state.10 Contrary to some expectations, UN administration and independence have not ensured a smooth passage for state law. The new state of TimorLeste stated its commitment to the rule of law in its constitution.11 But the post-independence era has not increased public conﬁdence 7

8

9

10

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See Commission for Reception, Truth and Reconciliation Timor-Leste, Chega! (Dili: Commission for Reception, Truth and Reconciliation Timor-Leste, 2005) Part 9, para. 143. Amnesty International, East Timor: Justice past, present and future (London: Amnesty International, 2001), 13. International Commission of Jurists and the Netherlands Institute of Human Rights, Indonesia and the Rule of Law: Twenty years of ‘new order’ government (London: Frances Pinter, 1987), 61ff; International Commission of Jurists, Ruler’s Law: The report of the International Commission of Jurists Mission to Indonesia (Geneva: International Commission of Jurists, 1999), 42–50. Tanja Hohe and Rod Nixon, Reconciling Justice: ‘Traditional’ law and state judiciary in East Timor (Washington DC: United States Institute of Peace, 2003), 26–7. See Constitution of the Democratic Republic of East Timor 2002 (‘Timor-Leste Constitution’), ss. 1, 6.

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in state law, because of problems of legitimacy,12 enforcement13 and scrutiny.14 The foundation for many of these problems can be traced to the model of governance employed by the United Nations Transitional Administration for East Timor (UNTAET).15 Indeed, in 2006 the UN noted a ‘serious lack of conﬁdence in the justice system’16 and conceded that the justice system is ‘one of the most critical areas in need of continuing assistance’.17 The following section addresses one key problem faced by state law: its unstable identity.

B. The applicable law From the beginning of its mission to administer Timor-Leste in October 1999, UNTAET was intent on quickly identifying a clear body of applicable state law because of the difﬁculties presented by the vacuum of state law after the ballot, particularly in regard to the arrest and detention of perpetrators of violence. Thus, UNTAET’s ﬁrst regulation set out the applicable law as Indonesian law, subject to UNTAET’s own regulations 12

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17

The legitimacy of state law was affected by the Fretelin government’s tendency to pass decree laws rather than Parliamentary laws, which enabled it to bypass parliamentary debate as well as community consultation. Linguistic policy, maintaining the use of Portugese, also affects the legitimacy of state law. Selective enforcement and impunity remain strong local concerns. Delay has crippled judicial enforcement as only the Dili District Court has functioned continuously since establishment in May 2000. While the reasons for these disruptions are numerous, one major problem has been the lack of Lusophone legal professionals with experience in civil law. The Court of Appeal heard the ﬁrst case of constitutional review in 2003 when the president referred the Draft Immigration and Asylum Law. The court ruled that the Draft Law’s limitations on the activities of non-citizens were unconstitutional in light of the constitution’s rights guarantees. Parliament however proceeded to pass the law without any substantial revisions. At the end of UNTAET’s mandate, one NGO, La’o Hamutuk, commented on UNTAET’s legacy in relation to its governance model which fused the exercise of legislative, executive and judicial power into one person, the transitional administrator, and initially did not require consultation with local leaders. It stated: ‘Although UNTAET preached good governance, transparency, accountability, democracy and the rule of law to the East Timorese, it showed little of these in itself.’ ‘East Timor faces post-UNTAET challenges: What is to be done?’ (2002) 3(4) La’o Hamutuk Bulletin, 8–11, 9. UN Doc. S/2006/628 (8 August 2006) Report of the secretary-general on Timor-Leste pursuant to Security Council Resolution 1690 (2006), para. 85. UN Doc. S/2006/251 (20 April 2006) End of mandate report of the secretary-general on the United Nations ofﬁce in Timor-Leste, para. 14.

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and international human-rights law.18 There were two main practical problems with this choice of applicable law. First, although most of the newly appointed judges held degrees in Indonesian law, when the courts began operating in mid 2000 there were no experienced practitioners of Indonesian law remaining in Timor-Leste.19 Second, UNTAET did not possess a full copy of Indonesian law until ten months into its mission.20 This meant that the nascent judicial sector ﬂoundered in its ﬁrst year. The crime rate rose in 2000,21 creating a large backlog of cases that has continued to burden the courts to the present day.22 Identifying the applicable law with clarity is one of the basic roles of a constitution and a supreme court. The constitution of Timor-Leste is however vague on the applicable law. Section 165 simply states: ‘Laws and regulations in force in East Timor shall continue to be applicable to all matters except to the extent that they are inconsistent with the Constitution or the principles contained therein.’ This section was considered by the Court of Appeal in the dos Santos Case in mid 2003.23 The appeal concerned the conviction of Armando dos Santos by the UN-established Special Panels for Serious Crimes (SPSC) for three counts of murder under the Indonesian Penal Code. The prosecution argued that dos Santos should have been convicted of murder as a crime against humanity under UNTAET Regulation 2000/15, rather than murder under Indonesian law. The majority, comprising two judges from Portugal, decided that Indonesian law did not apply because it was never validly in force in East Timor, as the Indonesian occupation had been illegal under international law. The majority then decided that 18

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UNTAET Regulation 1999/1 (27 November 1999) On the Authority of the Transitional Administration in East Timor. Hansjörg Strohmeyer, ‘Collapse and reconstruction of a judicial system: The United Nations in Kosovo and East Timor’ (2001) 95 American Journal of International Law, 46–63, 53–4. Annemarie Devereux, ‘Searching for clarity: A case study of UNTAET’s application of international human rights norms’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 293–321, 302. UN Doc. S/2000/738 (26 July 2000) Report of the secretary-general on the United Nations transitional administration in East Timor, para. 41. Before the 2006 crisis began, the UN reported in April 2006 that ‘approximately 2,500 cases are still pending’ in the courts, roughly a full year’s caseload: UN Doc. S/2006/251 (20 April 2006) End of mandate report of the secretary-general on the United Nations ofﬁce in Timor-Leste, para. 15. Court of Appeal Decision, Prosecutor v. Armando dos Santos (Unreported, Timor-Leste Court of Appeal, Case No. 16/2001, 15 July 2003) (‘dos Santos Case’).

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dos Santos was guilty of ‘genocide’ under the Portuguese Criminal Code, drawing strenuous dissent from the sitting Timorese judge. The practical implications of the majority judgment were far-reaching, as all legal transactions conducted from 1976 to 2003 were potentially invalid and all people convicted by the SPSC under Indonesian Law and UNTAET Regulation 2000/15 in the previous three years might need to be released. Moreover, the decision of the Court of Appeal undermined public conﬁdence in state law, rupturing any sense of legal predictability. Uncertainty on the applicable state law reigned for two and a half months, until the Parliament enacted legislation countering the majority judgment in the dos Santos Case.24 The constitution is also vague on other sources of state law. For example, s. 9(1) provides: ‘The legal system of East Timor shall adopt the general or customary principles of international law.’ This section makes international law a source of state law but the content of these ‘principles of international law’ is not clariﬁed. While s. 9(3) states that the rules of international treaties approved by the state are empowered to trump internal state laws, the relationship between customary international law and state law is not spelt out. More concerning is that the constitution, which enshrines the principle of separation of powers,25 appears to allow the executive government to bypass Parliament in approving these international laws that will sit above state law.26 This mechanism effectively undermines the stature and legitimacy of state law as well as international law as a source of state law. Uncertainty also surrounds the applicability of customary law. Section 2(4) states: ‘The State shall recognise and value the norms and customs of East Timor that are not contrary to the Constitution and to any legislation dealing speciﬁcally with customary law.’ The section gives recognition to ‘norms and customs’, rather than customary law, leading to confusion in the courts as to whether customary law is applicable to sentencing or defences in criminal law.27 24

25 27

Judicial System Monitoring Programme, ‘East Timorese Parliament passes new legislation on the applicable subsidiary law’ (Press Release, 1 October 2003). Timor-Leste Constitution, s. 69. 26 Ibid., s. 9(2). These cases have been the subject of Judicial System Monitoring Programme reports: Judicial System Monitoring Programme, The Role, Practice and Procedure of the Court of Appeal (Dili: Judicial System Monitoring Programme, 2005), 15; Judicial System Monitoring Programme, ‘Judge applies customary law in a criminal case’ (Press Release, 19 May 2005); Judicial System Monitoring Programme, Overview of the Justice Sector: March 2005 (Dili: Judicial System Monitoring Programme, 2005), 14–15.

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In summary, state law in Timor-Leste is neither stable nor reliable. In a constitutional state, the constitution and state institutions promote the use of state law to resolve disputes. In Timor-Leste the path of state law has been clouded by confusion, leading many people to choose alternative legal paths to resolve disputes. The result is one of deep legal pluralism, where the population is using systems of non-state law that do not necessarily show respect for due process and are not monitored or supervised by the state.

II. International law In the 2004 report entitled The Rule of Law and Transitional Justice in Conﬂict and Post Conﬂict States, the UN secretary-general advises that, in order to strengthen a justice system and hence build the rule of law in a post-conﬂict state, ‘Legislation that is in conformity with international human rights law and that responds to the country’s current needs and realities is fundamental.’28 Indeed, s. 3 of UNTAET’s ﬁrst regulation made the applicable law subject to international human-rights law as found in the Universal Declaration of Human Rights (UDHR) and the six core human-rights treaties.29 Here UNTAET took the step of identifying three Indonesian laws whose application was inconsistent with international human-rights law. In addition, s. 2 provided: ‘Everybody undertaking public duties or holding public ofﬁce in East Timor shall recognise international human rights standards.’ The assumption is that these international legal standards are an important aspect of building the rule of law. This is also articulated in reports by a leading legal non-government organisation (NGO) in Timor-Leste, the Judicial System 28

29

UN Doc. S/2004/616 (23 August 2004) The rule of law and transitional justice in conﬂict and post-conﬂict societies: Report of the secretary-general, para. 35 (emphasis added). International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981); Convention against Torture and Other Cruel, Inhuman and Degrading Treatment and Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987); Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

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Monitoring Programme (JSMP), which expressed concern that serious deﬁciencies observed in the nascent legal system ‘threaten[ed] the enjoyment of international human rights standards that are fundamental to a society based on the rule of law’.30 The call by the UN and NGOs for international standards to be introduced in Timor-Leste did not recognise that some of these international standards are very complex and difﬁcult to implement in a context where there is only a basic legal system and international standards may invoke values that are considered alien by many people. As a local lawyer observed: The UN have a mandate to provide stability, but they should not just impose these human-rights laws from New York and Geneva. People felt strange having these laws imposed. The UN should have consulted with the communities to ask the leaders what ideas they had about implementing UN laws.31

On the ground UNTAET may have had little opportunity to consult with communities before issuing Regulation 1999/1, but the UN simply assumed that these international legal norms would contribute to the building of the rule of law in Timor-Leste, and hence be acceptable to the population. Greater attention and sensitivity to the impact of the introduction of these international legal norms was warranted: in the early stages of the administration the assistance of legal anthropologists with skills to identify local norms and translate international norms would have been invaluable. The UN secretary-general stated that international human-rights law and international criminal law form two of the four pillars that serve as the normative basis of the UN’s rule-of-law activities. During the UNTAET period, both of these pillars had important roles to play.

i. Pillar 1: International human-rights law The aim of the introduction of international legal standards was to wash away the discriminatory and substandard aspects of Indonesian law and to herald a new era. The UN wanted the people of Timor-Leste to

30

31

Judicial System Monitoring Programme, Justice in Practice: Human rights in court administration (Dili: Judicial System Monitoring Programme, 2001), 5 (emphasis added). Quoted in Hohe and Nixon, Reconciling Justice, 57.

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‘embrace a national political culture based on respect for human rights and accountability’.32 In regard to the legal system, UNTAET aimed ‘to establish a credible system of justice in which fundamental human rights are respected’.33 International human-rights standards were thus seen as central to the project of building the rule of law. The introduction of international human-rights law through the ﬁrst UNTAET Regulation caused some confusion. First, the UDHR and the six core human-rights treaties were not annexed to the Regulation. Moreover, UNTAET’s legal team did not have sufﬁcient time or resources to determine which Indonesian laws should be eliminated. This meant that the process of elimination had to take place ‘on the run’. An example is the case of Takeshi Kashiwagi, a Japanese activist who was detained and charged with criminal defamation under the Indonesian Penal Code.34 Only after Kashiwagi had spent eighteen days in detention and issued proceedings against a bevy of high-ranking legal ofﬁcials, including the investigating judge, the head prosecutor of the Dili District Court, the minister for justice and the transitional administrator, was action taken to clarify the applicable law. The transitional administrator issued an executive order that criminal defamation was inconsistent with international human-rights law and hence inapplicable. This case shows the strong level of confusion present even in the ofﬁces of the prosecutor and the investigating judge as to the applicable law in light of international human-rights law. Second, the breadth of the provisions in these treaties made it difﬁcult even for legally trained practitioners to discern minimum international standards with sufﬁcient predictability. One example was the detention standards applicable under the International Covenant on Civil and Political Rights (ICCPR). In May 2000 UNTAET issued Regulation 2000/14, which sought to clarify the minimum standards of detention applicable under UNTAET. The Regulation was partly a response to the case of Victor Alves, who had been held in detention beyond the legal limit of 110 days imposed by the Indonesian Code of Criminal

32

33

34

UN Doc. S/2000/1105 (21 November 2000) Report of the Security Council mission to East Timor and Indonesia, para. 29. UN Doc. S/2000/738 (26 July 2000) Report of the secretary-general on the United Nations transitional administration in East Timor, para. 68. See Amnesty International, East Timor, para. 5.3; Carla Bongiorno, ‘A culture of impunity: Applying international human rights law to the United Nations in East Timor’ (2002) 33 Columbia Human Rights Law Review, 623–92, 666.

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Procedure.35 Twelve days after Alves’ lawyers ﬁled an application challenging his prolonged detention and a day before his hearing, UNTAET enacted the Regulation, which was to come into immediate effect. The Regulation replaced the time limits imposed by Indonesian law with provisions allowing a panel of judges to extend detention periods beyond six months in particular circumstances.36 Here Judge Rui Perreira dos Santos ruled that Regulation 2000/14 was invalid on the basis that it was inconsistent with s. 3 of UNTAET Regulation 1999/1, which provided that the applicable law was subject to international human-rights law. While the court may have been correct in this particular respect, it failed to understand that s. 3 was intended to act as a ﬁlter for past legislation and was not intended to constrain the enactment of all future law. This meant that, strictly speaking, law enacted by UNTAET did not need to comply with international human-rights law. This anomaly highlights the credibility gap in UNTAET’s mission: while UNTAET was keen to be seen as heralding in a transformation of the legal system via international standards, there was no mechanism to scrutinise its exercise of power in relation to international human-rights standards and to enforce its compliance.37 Despite its rhetoric, the UN showed ambivalence as to whether international norms are instrumental to the building and fostering of the rule of law in a post-conﬂict state.38 This same ambivalence is visible in the actions of the post-independence government: on the one hand the Fretelin government moved quickly to accede to the core human-rights treaties, while on the other hand the government failed to amend the Law on Asylum, parts of which were held by the Court of Appeal to be inconsistent with the constitution’s bill of rights.

ii. Pillar 2: International criminal law The introduction of international criminal law into Timor-Leste took place via the serious-crimes process, which UNTAET set up in mid 2000 35

36 37

38

In the Matter of Victor Alves (Unreported, District Court of Dili, Judge Perreira dos Santos, Case No. 01/Pen.Pra/2000/PD.DIL, 17 May 2000). See Suzannah Linton, ‘Rising from the ashes: The creation of a viable criminal justice system in East Timor’ (2001) 25 Melbourne University Law Review, 122–80, 140ff. See Linton, ‘Rising from the ashes’, 141. Indeed, UNTAET’s mandate did not include the promotion and protection of human rights: Devereux, ‘Searching for clarity’, 298. According to Devereux’s analysis, there is no ﬁrm legal basis upon which to argue that the UN is bound to act in accordance with international human-rights law: 298–9. See Devereux’s chapter in this volume.

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after minimal community consultation.39 UNTAET Regulation 2000/15 instituted two bodies: the SPSC, an arm of the Dili District Court created to hear serious crimes, and the Serious Crimes Unit, a body set up to prosecute and investigate the serious crimes that were perpetrated during the violence that took place before UNTAET’s arrival.40 Under the Regulation, the offences liable for prosecution were those set out in the Statute of the International Criminal Court, such as crimes against humanity. According to Linton, this was ‘a state of the art regime’:41 it would be the ﬁrst time in the world that this sophisticated regime of offences would be implemented. While the promise of a process implementing international law responded to local expectations, it also heightened them.42 There was a common belief that this process would counter a culture of impunity and assist in building the rule of law. The serious-crimes process began in early 2001 but it experienced an inauspicious start with no defence witnesses being called in any of the ﬁrst fourteen trials that led to convictions.43 Defence counsels were the weakest aspect of the process as UNTAET’s attention was directed at the judiciary and the prosecution. Arguably, this jeopardised the right to fair trial set out in the ICCPR.44 The legal complexity of offences, such as crimes against humanity, severely tested the competence and training of the inexperienced local legal ofﬁcers.45 To address this problem, foreign judges were recruited to sit on the SPSC, but none had any speciﬁc prior 39

40

41

42

43

44 45

Suzannah Linton, ‘Cambodia, East Timor and Sierra Leone: Experiments in international justice’ (2001) 12 Criminal Law Forum, 185–246, 214. UNTAET Regulation 2000/15 (6 June 2000) On the Establishment of Special Panels with Exclusive Jurisdiction Over Serious Criminal Offences. This Regulation creates jurisdiction over the ‘serious crimes’ of murder and sexual offences committed between 1 January 1999 and 25 October 1999. This limit on temporal jurisdiction does not apply to genocide, war crimes, crimes against humanity and torture. This minimal consultation initially affected the law’s legitimacy: Linton, ‘Cambodia, East Timor and Sierra Leone’, 212. See Piers Pigou, Crying Without Tears: In pursuit of justice and reconciliation in TimorLeste: Community perspectives and expectations (New York: International Center for Transitional Justice, 2000), 29–30. Megan Hirst and Howard Varney, Justice Abandoned? An assessment of the serious crimes process in East Timor (New York: International Center for Transitional Justice, 2005), 20. See also Judicial System Monitoring Programme, Digest of the Jurisprudence of the Special Panels for Serious Crimes (Dili: Judicial System Monitoring Programme, 2007), 15. ICCPR, Art. 14. See Strohmeyer, ‘Collapse and reconstruction of a judicial system’, 50.

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experience in the application of international criminal law or humanitarian law.46 In its ﬁrst few months the serious-crimes process did little to instil public conﬁdence in the state legal system. In October 2001 a group of NGOs reported to the UN Security Council that: The East Timorese people’s patience and expectation with this avenue of justice is understandably wearing thin. Meanwhile, the rule of law seems as hard to ﬁnd at this stage of the process as it was under colonial rule.47

The problem was that the state legal system was attempting to operate a complex regime of international criminal law while at the same time propping up courts struggling to carry out ordinary state justice. Given the scarcity of resources and capacity, the attempt to run these two programmes simultaneously was overly ambitious. The dos Santos Case, referred to above, illuminated this.48 Besides causing confusion as to the applicable state law, the majority of the Court of Appeal decided that dos Santos could not be convicted for a crime against humanity under UNTAET Regulation 2000/15 on the ground that the law violated the prohibition of retroactive application of criminal laws in s. 31(5) of the constitution. The majority failed to acknowledge that offences such as crimes against humanity exist under customary international law and hence they do not violate the principle of nullem crimen sine lege. Section 9(1) of the constitution explicitly recognises customary international law as a source of state law.49 The dos Santos Case is one of a number of cases in which the Court of Appeal drew criticism for its misapplication of international law as a source of state law.50 The decision highlights the danger of asking a nascent judicial system to deal with a complicated regime of international law with which judges 46

47

48

49

50

Caitlin Reiger and Marieke Wierda, The Serious Crimes Process in Timor-Leste: In retrospect (New York: International Center for Transitional Justice, 2006), 14. Yayasan Hak et al., letter from NGOs to Members of the Security Council of the United Nations, ‘Urgent steps to establish justice for crimes against humanity in East Timor’, 24 October 2001, in Justice and Accountability in East Timor: International tribunals and other options: Report of a one-day seminar in Dili, East Timor (Dili: Judicial System Monitoring Programme, 2001), 20. Prosecutor v. Armando dos Santos (Unreported, Timor-Leste Court of Appeal, Case No. 16/2001, 15 July 2003). Section 9(1) states: ‘The legal system of East Timor shall adopt the general or customary principles of international law.’ According to the JSMP, the Court of Appeals’ application of international law was incorrect in other cases: Judicial System Monitoring Programme, The Paulino De Jesus Decisions (Dili: Judicial System Monitoring Programme, 2005).

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and other legal actors are unfamiliar. Where legal experts are unable to understand and apply sources of state law, it is unsurprising that locals might look to other paths besides state law to resolve disputes. In this respect, the introduction and implementation of international law in a post-conﬂict state might not always serve the rule of law. Since the abrupt completion of the serious-crimes process in early 2005, commentators have debated its contribution to building the rule of law. The 2005 report of the UN’s Committee of Experts concluded that the process had signiﬁcantly contributed to strengthening respect for the rule of law in Timor-Leste and … encouraged the community to participate in the process of reconciliation and justice. The existence of an effective and credible judicial process such as the Special Panels has also discouraged private retributive and vengeful attacks.51

In strong contrast the International Center for Transitional Justice (ICTJ) asserted that ‘The serious crime regime, in the ﬁnal analysis, will not have contributed to a real sense of justice or in building the conﬁdence of the people of Timor-Leste in the institutions of justice’.52 In the ICTJ’s view, the process wasted an important opportunity to transform Timor-Leste into a society with conﬁdence in the rule of law. A key problem was the inability to prosecute the main perpetrators, leading to a perception of ‘arbitrary’ and ‘selective’ justice and a culture of impunity.53 The indictment issued against the former Indonesian minister of defence and commander of the armed forces, General Wiranto, is a striking example of this problem. While the indictment itself lifted the community’s expectations,54 hopes of justice were crushed by the general prosecutor’s bewildering attempt to withdraw the indictment, and the absence of political will which led to the failure to obtain custody of Wiranto. The ICTJ report adds that it is unclear whether the seriouscrimes process was able to contribute to the development of state law because there was little interaction between judges responsible for administering ordinary laws and those responsible for serious crimes, and no proper handover between foreign and local actors.55 51

52 53

UN Doc. S/2005/458 (15 July 2005) Letter dated 24 June 2005 from the secretary-general addressed to the president of the Security Council, Annex II, para. 126 (Report to the secretary-general of the Commission of Experts to review the prosecution of serious violations of human rights in Timor-Leste (then East Timor) in 1999) (emphasis added). Reiger and Wierda, The Serious Crimes Process in Timor-Leste, 41. Ibid., 33, 36. 54 Ibid., 31–2. 55 Ibid., 25.

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On the ground the practice of international law is not immune to the sort of problems that plague state law such as selective and arbitrary implementation. The overall weak efﬁcacy of the SPSC and the state court system generally has affected the perceived legitimacy of both international and state law. Given the temporary nature of the SPSC, it is difﬁcult to evaluate the long-term contribution of international law to the transformation of legal norms in Timor-Leste. International law has a role to play in assisting the regeneration of state law in postconﬂict countries, but this role should not be overstated. Legal romanticism should not lead to the unquestioned assumption that international law is ‘fundamental’ to the process of building the rule of law in all postconﬂict states. The pillars of international law should be introduced and implemented more carefully and strategically given the local realities. International interventions need to take greater account of legal pluralism. In other words, they should consider the existing law, such as customary law, which may sit in tension with international law.

III. Customary law If people are to own the law, even in a transitional context, then they must feel that it recognizes their own customs. It makes sense to put customary law together with state law. East Timorese lawyer.56

A 2006 study reveals that almost half the population in Timor-Leste prefer to use informal modes of justice.57 Since independence, there has actually been an increasing reliance on customary law due to the problems discussed in the previous two sections. Even prior to independence there were calls for the integration of customary law into the state legal system.58 For example, the 1999 agreement between the UN, Portugal and Indonesia in relation to the holding of the poll mentions the use of 56 57

58

Quoted in Hohe and Nixon, Reconciling Justice, 57. A report of Avocats Sans Frontières states, ‘the community generally seeks the assistance of the local authorities to resolve their disputes’: Avocats Sans Frontières, Access to Legal Aid in Timor-Leste: Survey Report (Dili: Avocats Sans Frontières, 2006), 5. Of the 163 respondents interviewed, one-third had been involved in a dispute resolution process at the local authority level in contrast to one-tenth who had had contact with the courts: 8–11. Dionísio da C. Babo Soares, ‘A brief overview of the role of customary law in East Timor’ (Paper presented at the Symposium on East Timor, Indonesia and the Region, Portugal, 1999), 13 (copy on ﬁle with author).

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customary law in regard to civil-law cases in state courts.59 As yet, the Timor-Leste government has not formulated a policy in this regard. For its part, UNTAET argued that it was important to leave this matter to an elected government, in part because of the sensitivities and complexities relating to the property-law aspects of customary law.60 Thus, UNTAET cast aside the option of harnessing customary law for the process of building the rule of law as inappropriate and too difﬁcult. However, two years after the conclusion of UNTAET, the UN secretarygeneral recognised the role of customary law in post-conﬂict societies in his 2004 report on the rule of law. He stated: due regard must be given to indigenous and informal traditions for administering justice or settling disputes, to help them to continue their often vital role and to do so in conformity with both international standards and local tradition. Where these are ignored or overridden, the result can be the exclusion of large sectors of society from accessible justice.61

This recognition of customary law and its role in providing accessible justice is heavily qualiﬁed by the requirement of conformity with international standards, which is also apparent in the 2007 UN Declaration on the Rights of Indigenous Peoples.62 Prior to the 2004 report, the UN had given scant attention to the role of customary law in building the rule of law, largely due to concerns regarding customary law’s lack of conformity with international norms. Unlike international law, customary law is rarely linked to the rule of law. There appears to be an unspoken assumption that customary law is inimical to the rule of law. A number of factors feed into this assumption. One is that customary law does not emanate from the state and hence its control does not lie within the state domain. At the international level this is a problem because the international system is based exclusively on state membership. A second related factor is that customary law competes with state law. A third factor is that customary law appears unpredictable to outsiders because it is often not written. A fourth factor 59

60 61

62

UN Doc. S/1999/513 (5 May 1999) Question of East Timor: Report of the secretarygeneral, Annex I, Art. 38 (Agreement between the Republic of Indonesia and the Portuguese Republic on the question of East Timor). Property laws have been drafted but not passed. UN Doc. S/2004/616 (23 August 2004) The rule of law and transitional justice in conﬂict and post-conﬂict societies: Report of the secretary-general, para. 36 (emphasis added). See GA Res. 61/295 (2 October 2007) United Nations Declaration on the Rights of Indigenous Peoples, Art. 34.

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is that customary law is generally not uniform across the state: for example, in Timor-Leste, legal anthropologists have not been able to discern many commonalities across the array of local legal systems. A ﬁfth factor is that customary law generally has few mechanisms of scrutiny because it is designed to guide small and largely insular communities. A ﬁnal factor is that customary legal norms are at times inconsistent with international human-rights norms, and this can impact most on the vulnerable.63 One exception to this trend in thinking about customary law is found in the writings of Mark Plunkett who argues that customary law systems can form ‘micro ROL [rule of law] systems’.64 He reasons that people living according to customary law ‘follow a sophisticated ROL system derived from ancient legal systems … that regulate the distribution of all resources – material, human and spiritual’.65 To make this argument, Plunkett uses a very broad deﬁnition of the rule of law: ‘where both the ruler and the ruled respect the legal rules that govern the relationships’.66 This deﬁnition appears to stretch even to ‘ROL systems offered by warlords’.67 Plunkett’s work is valuable because it posits that, in the process of building the rule of law, these ‘micro ROL systems’ are as important as the institutional model for the rule of law and thus they need to be harmonised in the post-conﬂict context.68 Plunkett argues that for the state to be re-established and strengthened it must involve the participation of all parties, regardless of whether they observe the rule of customary law or the rule of state law. Effectively he asserts the need for the integration of these micro legal systems with the state legal system. However, Plunkett’s deﬁnition of the rule of law critically fails to include mechanisms to ensure that the ruler respects the same legal rules as the ruled. The lack of mechanisms for regular scrutiny of the ruler’s actions in systems of customary law disqualiﬁes these systems from being considered rule-of-law systems. Nevertheless, even if customary-law systems might not fully satisfy the requirements to be characterised as rule-of-law systems, they can still contribute to building the rule of law in post-conﬂict states. Their most immediate contribution is their ability to maintain law and order in areas where 63 64

65 68

For example, see Amnesty International, East Timor, 40ff. Mark Plunkett, ‘Reestablishing the rule of law’ in Gerd Junne and Willemijn Verkoren (eds.), Postconﬂict Development: Meeting new challenges (Boulder: Lynne Rienner, 2005), 73–98, 78. Ibid., 79. 66 Ibid., 76. 67 Ibid., 80. Ibid., 78–9. Cf. Farrall’s chapter in this volume.

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state inﬂuence does not reach. Customary law is successful in this regard because generally it is physically and emotionally connected to the people and their values. The maintenance of law and order is a preliminary but essential step towards the rule of law. In Timor-Leste, customary law was also harnessed, albeit temporarily, to assist in addressing the problem of impunity for minor crimes committed from 1974 to the Indonesian withdrawal. The temporary mechanism established for this purpose was the Commission for Reception, Truth and Reconciliation (CAVR). Originally an initiative of local leaders, CAVR took form through community consultation in the districts and UNTAET assistance, and it was set up in early 2002.69 Its establishment shows an understanding at many levels that the state legal system would not have the capacity to deal with all the offences that were perpetrated. Thus, CAVR was set up to complement the state legal system, which, drawing upon international law, was dealing with the more serious crimes. One central aspect of CAVR was its Community Reconciliation Process (CRP), a hybrid mechanism of local justice, mediation, arbitration and aspects of civil and criminal law.70 The ﬂexibility of this mechanism allowed for the inclusion of different elements of local traditional practice (lisan) from community to community,71 which in turn encouraged local ownership over the process. In each village, perpetrators of politically related minor offences, such as arson, theft or minor assault, were invited to make a full and voluntary confession of their crime.72 An oral confession took place in the community’s local language in front of the victims and community, as well as a panel comprised of a regional commissioner, community and lisan leaders (the lia nain) and one or two women. In each case the panel brokered an agreement with the perpetrator on an act of reconciliation they were to carry out. In line with local customary practices, this could involve payment of reparations to the victim or community service. 69

70

71

72

See UNTAET Regulation 2001/10 (13 July 2001) On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor. The above Regulation did not prescribe the procedure for CRPs but left it to the CAVR’s discretion. See Commission for Reception, Truth and Reconciliation Timor-Leste, Chega!, Part 9, para. 23. Note that perpetrators could not be compelled to participate in the process. This confession was initially set out in writing and referred to the Ofﬁce of the General Prosecutor (OGP) to check that it dealt only with minor offences. Where there was evidence of a serious crime, the matter had to be adjourned and referred to the OGP.

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The agreement was then registered at the district court. This was designed to guarantee that the reconciliation would be carried out, that the form of reconciliation was proportionate to the crime and that human rights were not violated. The perpetrator could then become immune to prosecution in the state legal system.73 An important aspect of the CRP was its incorporation of lisan procedures. Where perpetrators and victims were from the same lisan groups, the process began with the performance of lisan rituals and a speech by the village chief. Lisan leaders were then seated in the middle of the ceremony between the deponents and victims where they performed roles as both facilitators and mediators.74 Unlike the seriouscrimes process, CRPs were carried out mainly by Timorese nationals, and the overall process required the assistance of only a few international advisors.75 Out of a population of 1 million, an estimated 40,000 people (almost 5 per cent of the population) attended and participated in a CRP.76 Burgess speculates that this may be ‘the only face of justice’ that many East Timorese have seen since independence.77 Most participants and monitoring organisations have hailed the process of grass-roots justice conducted by CAVR as a success.78 In its self-assessment, the CAVR has asserted that the CRP process ‘reinforced the value of the rule of law, and contributed to the ﬁght against 73

74

75

76

77

78

UNTAET Regulation 2001/10 (13 July 2001) On the Establishment of a Commission for Reception, Truth and Reconciliation in East Timor, s. 28 stipulated judicial consideration of agreements. See also ss. 30–32. Commission for Reception, Truth and Reconciliation Timor-Leste, Chega!, Part 9, paras. 52, 67. According to the NGO La’o Hamutuk, 90 per cent of the CAVR’s staff were East Timorese: ‘Reviewing the East Timor Commission for Reception, Truth and Reconciliation (CAVR)’ (2003) 4(5) La’o Hamutuk Bulletin, 1–8. Commission for Reception, Truth and Reconciliation Timor-Leste, Chega!, Part 9, para. 153. Patrick Burgess, ‘Justice and reconciliation in East Timor: The relationship between the Commission for Reception, Truth and Reconciliation and the courts’ (2004) 15 Criminal Law Forum, 135–58, 157. See also Commission for Reception, Truth and Reconciliation Timor-Leste, Chega!, Part 9, para. 143. According to Burgess, a mid-programme survey of CRP participants was conducted in 2003, with 90 per cent of interviewees saying they were satisﬁed with the results of the CRP: see Burgess, ‘Justice and reconciliation in East Timor’, 151–2. See also Judicial System Monitoring Programme, Unfulﬁlled Expectations: Community views on the CAVR’s community reconciliation process (Dili: Judicial System Monitoring Programme, 2004); Piers Pigou, The Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation (Dili: United Nations Development Programme Timor-Leste, 2004).

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impunity’.79 It also stated that, in light of the low public conﬁdence of most East Timorese in state law, ‘the success of the CRP was an example for the new nation of the value of the rule of law’.80 Commentators have been reluctant to trumpet the CAVR as a ruleof-law mechanism. This is despite the fact that the CRP responded to ﬁve of the six factors of concern regarding customary law listed above: (1) it was a process that emanated from both the state and the people; (2) it complemented state law rather than competed with it; (3) the basic procedures were written, providing a level of legal certainty; (4) it aimed to be uniform in its application across the state; and (5) there were some mechanisms of state scrutiny. With respect to the sixth factor, Burgess expresses concern regarding the lack of full protection for due process in the CRP, speciﬁcally the fact that participants were not given legal advice before making voluntary confessions despite the possibility that these confessions could have been used in later prosecutions.81 Overall, however, Burgess acknowledges there has been a low incidence of violence being meted out to former perpetrators.82 If the criteria of the UN’s Committee of Experts reporting on the serious crimes process can be applied here, the CAVR process is likely to have made a signiﬁcant contribution to the rule of law because it has encouraged community participation in justice and reconciliation, and it appears to have ‘discouraged private retributive and vengeful attacks’. The CAVR experience indicates that customary law can play a signiﬁcant role in strengthening the rule of law in the post-conﬂict state. This role need not be limited to a temporary transitional-justice mechanism such as the CAVR: customary law has the potential to assist in the long-term project of boosting applicable state law and building the rule of law. Multi-layered justice mechanisms, such as a trial process paired 79

80 81

82

Commission for Reception, Truth and Reconciliation Timor-Leste, Chega!, Part 9, para. 164. Ibid., Part 9, para. 143. Furthermore, non-compliance with an agreement could result in a year of imprisonment. See Patrick Burgess, ‘A new approach to restorative justice: East Timor’s community reconciliation processes’ in Naomi Roht-Arriaza and Javier Mariezcurrena (eds.), Transitional Justice in the Twenty-First Century: Beyond truth versus justice (Cambridge: Cambridge University Press, 2006), 176–205, 195; Burgess, ‘Justice and reconciliation in East Timor’, 155. But note that Commission for Reception, Truth and Reconciliation Timor-Leste, Chega! acknowledges this: ‘the CRP was not able to offer the same depth of investigation, legal certainty, uniformity of application and guarantees of due process and fairness that the courts can provide’: Part 9, para. 157. Burgess, ‘Justice and reconciliation in East Timor’, 157.

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with a truth commission, are a current trend in the practice and literature of transitional justice.83 Analysing the contribution of these intense and complex temporary mechanisms can be useful in illuminating some of the long-term implications of ‘state law pluralism’ for post-conﬂict states attempting to build the rule of law.

Conclusion Both the international community and governments of states such as Timor-Leste need to recognise there is no single set formula of law, such as a pairing of state law with international law, that provides the key to the rule-of-law enterprise in a post-conﬂict state. Much attention is given to the role of international law in the rule-of-law framework but there is no guarantee that international law will contribute to the rule of law. This is partly because the complexity of international law requires a high level of competence that is often lacking in the post-conﬂict context. Furthermore, the main player in the international system, the UN, shows institutional ambivalence to the rule-of-law enterprise. It is time for those actors involved in the rule-of-law enterprise to pay greater attention to the dynamic of legal pluralism. The case study of Timor-Leste illustrates that the state cannot afford to ignore the fact of legal pluralism, in the form of local customary law, and its implications. Post-conﬂict states need to consider harnessing local customary law. Where this is done in a strategic and long-term fashion, such law can assist in building a culture of the rule of law where public respect for, and reliance on, the state legal system is strong. Without this, the rule-of-law enterprise is likely to falter. 83

See, e.g., Barbara Oomen, ‘Justice mechanisms and the question of legitimacy: The example of Rwanda’s multi-layered justice mechanisms’ (Paper presented at the International Conference: Building a Future on Peace and Justice, Nuremberg, 25–7 June 2007).

8 From paper to practice: The role of treaty ratiﬁcation post-conﬂict helen durham 1

Introduction States ratify treaties for many reasons, ranging from a genuine commitment to the principles found within the treaty to making a purely symbolic gesture. In the complex situation where a society is recovering from the turbulence of violence and instability, decisions are often made with long- and short-term goals in mind. ‘Fragile’ or ‘post-conﬂict’ states must balance priorities, such as security and survival, with the broader aims of positioning the nation within the international community. In this chapter, the terms ‘fragile’ or ‘post-conﬂict’ state refer to those states struggling with internal tensions and disruption to important infrastructure, which causes signiﬁcant instability but which does not reach the threshold of an armed conﬂict.2 In this context, treaty ratiﬁcation has signiﬁcant potential to assist a state practically in reassembling domestic legal infrastructure, as well as demonstrating public support for important international principles. However, treaty ratiﬁcation is a resourceintensive process, not a one-off event. To move a treaty beyond a paper commitment into the sphere of implementation, the ratifying state must both understand its treaty obligations and foster community ownership of them. These processes are seldom well executed, especially in the postconﬂict context. Limited time frames and funding, the need for quick results, and the donor community’s desire to ﬁnd events to celebrate 1

2

I gratefully acknowledge the assistance provided by Stephanie Chu in the writing of this chapter. See Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conﬂicts, opened for signature 8 June 1977, 1125 UNTS 609, Art. 1(2) (entered into force 7 December 1978) (‘Additional Protocol II’), which deals with the distinction between ‘internal disturbances and tensions’ and ‘armed conﬂict’.

177

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within situations that are often clouded in gloom can result in symbolic ratiﬁcations that have little impact at the grass-roots level. In posing the question of whether and how treaty ratiﬁcation can assist in the rebuilding of a society, this chapter examines two elements of the process that are essential if genuine change is to occur on the ground. The ﬁrst is the technical incorporation of international legal principles into national practice and policy. The second consists of locating those principles within the hearts and minds of the local population, and, if possible, connecting the broad philosophy of the legal norm with local understandings. It is noted that the process of locating the ‘global’ within the ‘local’ is fraught and may not be appropriate in all situations. Providing a degree of ownership and acceptance of certain international legal principles within the domestic communities, especially those recovering from conﬂict or instability, requires extensive time and space to allow for public discussions, education and reﬂection. I will examine these two elements through a case study of international humanitarian law (IHL) treaties. IHL is a part of international law (often called the ‘law of war’ or the ‘law of armed conﬂict’) dealing with the conduct of armed conﬂict and military occupations, including the protection of civilians, the wounded and prisoners of war. It also regulates the use of speciﬁc weapons.3 While there are numerous treaties within this legal regime – including the Hague Conventions of 1899 and 1907, the four Geneva Conventions of 19494 and their three Additional Protocols,5 as 3

4

5

See Frits Kalshoven, Reﬂections on the Law of War: Collected essays (Leiden: Martinus Nijhoff Publishers, 2007); Christopher Greenwood, ‘The law of war (international humanitarian law)’ in Malcolm D. Evans (ed.), International Law, 2nd edn (Oxford: Oxford University Press, 2006), 783–815. Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘Geneva Convention I’); Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (‘Geneva Convention II’); Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (‘Geneva Convention III’); Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (‘Geneva Convention IV’). Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conﬂicts, opened for signature 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978) (‘Additional Protocol I’); Additional Protocol II; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, opened for signature 8 December 2005 (entered into force 14 January 2007) (‘Additional Protocol III’).

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well as a raft of conventions relating to speciﬁc weapons – this chapter will focus on the Geneva Conventions of 1949 and the two Additional Protocols of 1977. I argue that treaty ratiﬁcation is no panacea for a state that is struggling to ﬁnd stability and to re-establish itself on the world stage. Indeed, if undertaken for purely symbolic purposes, the process can reduce the legitimacy of not only the ratifying state, but of the international legal system as a whole. Nevertheless this chapter advances the view that treaty ratiﬁcation has the potential to allow a state emerging from conﬂict to review its policies and domestic regulation, to educate its public, to connect the local and the global and to make a statement to the international community of its future intentions.

I. Treaties Treaties are a common method used by states to regulate their relations with each other and to articulate their intentions under international law.6 While states have some opportunities to tailor a treaty to their particular situation through processes such as declarations and reservations,7 within the international legal framework treaties are closest to a ‘one size ﬁts all’ notion of regulation. While international law provides states with a number of ways to express consent to be bound by a treaty, for the purpose of this paper I will use the term ‘ratiﬁcation’.8 In ratifying a treaty and agreeing to be bound by the document’s obligations and responsibilities, states demonstrate the power of their sovereignty while simultaneously, in some circumstances (particularly in relation to a number of human rights and international humanitarian instruments), surrendering aspects of their sovereignty to global institutions such as the International Criminal Court9 and the International Court of 6

7

8

9

For a detailed examination of treaty law, see Malgosia Fitzmaurice, ‘The practical working of the law of treaties’ in Malcolm D. Evans (ed.), International Law, 2nd edn (Oxford: Oxford University Press, 2006), 187–216. Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980). Art. 19 allows states to formulate reservations (which can exclude or modify the legal effect of certain provisions as applicable to that state) in limited circumstances. Ibid., Art. 11 states: ‘The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments constituting a treaty, ratiﬁcation, acceptance, approval or accession, or by any other means if so agreed.’ See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002).

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Justice.10 Treaty ratiﬁcation thus both demonstrates and limits a state’s power. Oona Hathaway has further argued that treaties have both ‘instrumental’ and ‘expressive’ roles. The instrumental role involves the creation of law that binds the ratifying party and aims to modify or constrain acts of the state. The expressive role declares to the international community the intention and position of the ratifying state.11 These two distinct roles affect the impact that the process of ratiﬁcation can have upon a struggling state, and both are important elements of the process. It is appropriate that international law encourages a state to adopt laws implementing agreed-upon principles, as well as providing an opportunity for a state to demonstrate its intentions as part of the global community. However, if a state ratiﬁes a treaty with the aim of only fulﬁlling an expressive role (in other words for purely symbolic purposes) then it is highly likely that the process will not advance the development of the society at a grass-roots level. It is in the instrumental role of a treaty, with the creation of domestic laws and policies to fetter a state’s behaviour and develop further understandings of its obligations, that there is the greatest potential for international law to assist in stabilising and restructuring damaged societies.

II. Practical implementation As noted previously, the ﬁrst element in the treaty-ratiﬁcation process that can assist in a post-conﬂict or fragile state is the technical incorporation of international legal principles into national practice and policy. Incorporating the obligations found in a treaty into the domestic legal, political and social spheres can provide an opportunity for re-evaluation of certain parts of the existing legal infrastructure and the potential to draft new and updated legal codes. Yet this can be an extensive and resource-intensive process and, if it is to be done well, requires signiﬁcant expertise and commitment by the state as well as assistance from the international community. The case study below aims to illustrate the breadth of actions a state is required to undertake in order to ratify fully the basic treaties of IHL, namely the 1949 Geneva Conventions and their 1977 Additional Protocols. In agreeing to be bound by these treaties a state is required to do the following: 10

11

See Charter of the United Nations, opened for signature 26 June 1945, Annex (Statute of the International Court of Justice) (entered into force 24 October 1945). Oona A. Hathaway, ‘Do human rights treaties make a difference?’ (2002) 111 Yale Law Journal, 1935–2042, 1940–1.

the role of treaty ratification post-conflict *

*

* *

* *

*

*

*

*

*

*

12 14 16 18

19 20 22 23

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create implementing legislation or undertake the relevant process to ensure that international legal norms are reﬂected in municipal law (This involves ensuring there is the capacity to prosecute criminally those accused of grave breaches and serious violations of these treaties, as well as providing for the legal protection of the Red Cross/Crescent emblem within the state.)12 ensure that medical and religious personnel have adequate identiﬁcation (such as a distinctive emblem and identity card)13 ensure that journalists have speciﬁc identity cards14 ensure that civilian hospitals are able to be marked by means of the emblem and situated away from military sites15 identify potential hospital and safety zones16 identify aircraft that would potentially function as medical transportation17 ensure that military sites and targets are not located near civilian populations or civilian infrastructure18 ensure that there is the capacity and process to create a national information bureau for prisoners of war and civilians detained19 establish a procedure to ensure that any new weapons to be used comply with IHL20 identify works and installations containing dangerous forces (such as dykes and nuclear installations) and, when possible, ensure that they are not placed near military objectives21 ensure that military codes and doctrines are in conformity with obligations under IHL and that there are trained legal ofﬁcers to provide advice on IHL-related matters22 ensure that IHL is disseminated widely, not only to the military, but also to the entire population.23 See, e.g., Geneva Convention I, Art. 49. 13 See Additional Protocol I, Art. 18. See ibid., Art. 79. 15 See Geneva Convention IV, Art. 18. See ibid., Art. 14. 17 See Geneva Convention I, Art. 36. Art. 48 of Additional Protocol I requires parties to a conﬂict to distinguish between the civilian population and combatants and civilian objects and military objectives. To ensure this distinction can be made it is obviously essential not to locate military objectives within the civilian population or their objects. See Geneva Convention III, Art. 122; Geneva Convention IV, Art. 137. See Additional Protocol I, Art. 36. 21 See ibid., Art. 56. See Additional Protocol I, Art. 82. See Geneva Convention I, Art. 47. For further information relating to IHL treaty obligations, see International Committee of the Red Cross and Inter-Parliamentary Union, Handbook for Parliamentarians: Respect of international humanitarian law (Geneva: International Committee of the Red Cross and Inter-Parliamentary Union, 1999).

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This list is not comprehensive, but it identiﬁes the major actions a state party is committed to under the Geneva Conventions and their Additional Protocols. If assessments are to be made on the potential impact of IHL within the society, then there should be a clear comprehension of the connection between the practical domestic actions required to ensure the realisation of the international legal principles. For example, in relation to the obligation to disseminate IHL, Art. 47 of Geneva Convention I provides: The High Contracting Parties undertake, in times of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries and, in particular, to include the study thereof in their programs of military and, if possible, civil instruction, so that the principles thereof become known to the entire population, in particular to the armed ﬁghting forces, the medical personnel and the chaplains.

Setting up such a dissemination campaign requires resources and a knowledge of and commitment to the principles found in IHL treaties not only within the military, but the whole education system, including primary and secondary schools, and tertiary institutions. The term ‘civil instruction’ and the words ‘entire population’ indicate that the obligation to educate the community on the basic principles found in IHL is very broad. Furthermore, while the ofﬁcial languages of these IHL treaties are English and French, translation of the documents into the local language is required in order to fulﬁl the obligation to disseminate in a practical manner. The ratiﬁcation of IHL treaties involves a ‘whole of government’ approach, rather than a process that is limited to speciﬁc sections of government, such as those involving defence or foreign affairs. To ensure a state has correctly implemented its obligations, a full range of departments and professionals needs to be involved, including town planners, education institutions, hospital administrators, the press/media, ports, shipping and aircraft authorities, civil society and the humanitarian sector, weapons manufacturers, civil defence authorities and environmental advisers. Moreover the ratiﬁcation of speciﬁc IHL treaties (such as the Convention on the Protection of Cultural Property in the Event of Armed Conﬂict)24 or weapons treaties (such as the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of 24

Opened for signature 14 May 1954, 249 UNTS 215 (entered into force 7 August 1956).

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Anti-personnel Mines and on their Destruction)25 requires many other actions. Not all states have all the requisite measures in place; indeed it is a difﬁcult task to muster the necessary human and ﬁnancial resources to implement an international treaty fully. In many instances, there is also a lack of knowledge or political will to ensure that the various departments within a government talk to each other on these topics. Adopting a whole-of-government approach to treaty ratiﬁcation can, at least partly, resolve these problems. Take, for example, Art. 82 of Additional Protocol II, which provides that a state party: shall ensure that legal advisers are available, when necessary, to advise military commanders at the appropriate level on the application of the Conventions and this Protocol and on the appropriate instruction to be given to the armed forces on this subject.

A well-trained military force will not necessarily prevent the commission of atrocities during times of war, or even in times of peace. History indicates that a range of factors affect the way those with weapons, and those with the authority over them, wield power. Nevertheless, the obligation to provide legal advisers to the military under Art. 82 can have a range of beneﬁts. Providing a legal adviser trained in IHL is the ﬁrst step in the attempt to ensure that armed forces are aware of the legal limitations on warfare during times of armed conﬂict and that they are trained accordingly. The process of training also allows a deeper connection between military legal advisers and academics, humanitarian organisations and other governmental departments with international legal expertise. In many states, particularly those in post-conﬂict or fragile situations, the military can become insular. With the treaty obligation requiring education of military legal advisers comes a broader beneﬁt of creating a dialogue between government departments and civilian institutions on matters that are important to the rebuilding of society. Other obligations involved in implementing IHL require a range of actors to consider matters that may fall outside their traditional area of expertise. For example, a department of town planning may be called on to ensure that military installations are not located near civilians and their infrastructure. This cross-fertilisation of areas of knowledge and expertise within a state is useful in creating a more robust and united state infrastructure. When relevant departments and professionals are informed of the impact that IHL can have on their speciﬁc area 25

Opened for signature 18 September 1997, 36 ILM 1507 (1997) (entered into force 1 March 1999).

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of expertise, the likelihood of genuine ownership of international legal norms is greatly enhanced. The practical process of treaty ratiﬁcation can be as detailed or as limited as a state decides. In post-conﬂict and fragile states, there may be a temptation, due to resource constraints, to limit the number of measures put in place to incorporate international law fully into the domestic sphere. Such decisions are understandable due to the competing priorities involved in rebuilding a society. Yet the treaty-ratiﬁcation process has potential from a technical standpoint to support struggling states and build internal capacities, and therefore deserves international support. Undertaking the domestic technical implementation of the treaty obligations in a comprehensive manner can provide broader beneﬁts than is often assumed. In the case of the Geneva Conventions and the 1977 Additional Protocols, beyond the requirement of the creation of legislation to prosecute those accused of war crimes and protection of the relevant emblems, obligations in areas such as the location of military installations, the training of the military and the broad community dissemination of IHL are important elements in the rebuilding of societies.

III. Finding the ‘local’ within the ‘global’ The second element that enables treaty ratiﬁcation to have a genuine impact upon a fragile state is the complex issue of ﬁnding connections between international laws and local understandings of rules and regulations respected within the society. IHL, like all international law, is crafted for universal acceptance amongst a diversity of peoples with widely varying backgrounds. However, there is a tension in the notion that an area of law can be both universal – in that it has inﬂuence across the globe – and local – in that it has relevance and impact within speciﬁc communities. Many international legal standards set out to encourage change if local customs and traditional practices are inconsistent with the fundamental principles of the universal norm. Yet, international law must also aim to be part of the local narrative to ensure acceptance and the widest and most effective application possible. As Sally Engle Merry observes: Rights need to be presented in local cultural terms in order to be persuasive, but they must challenge existing relations of power in order to be effective.26 26

Sally Engle Merry, Human Rights and Gender Violence: Translating international law into local justice (Chicago: University of Chicago Press, 2006), 5.

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It is also important to note that many states emerging from armed conﬂict or experiencing political instability will be concerned about the excessive intervention of speciﬁc states or international institutions in domestic affairs. It is dangerous if international law is perceived to be an extension of external power rather than as a mechanism through which a state can communicate an internal desire to express agreement with universal norms. These tensions were explored by the New Zealand Law Commission in its 2006 report on the use of law, in particular human-rights law, to strengthen fragile states in the Paciﬁc. The report noted that: The rule of law can only be effective in each country to the extent that the law is owned by the people. Ownership is difﬁcult to achieve if the legacy of colonial legal systems, whether British, American, French or international legal norms, are seen as alien to custom and customary sources of law … Our thesis is that custom and human rights can be harmonised by looking to the shared, underlying values of both. Harmonisation will enhance custom by bringing it more into line with changing social conditions and ensuring that it continues to reﬂect the underlying values of Paciﬁc communities.27

Attempts to harmonise the legal norms found in the Geneva Conventions and their Additional Protocols with traditional practices have included translating IHL obligations into the fabric of everyday life by making linkages between fundamental legal norms found in the treaties and religious teachings.28 However, studies on the parallels between the modern codiﬁcation of IHL and codes in ancient texts or religious doctrine have identiﬁed both beneﬁts and potential dangers in attempting to locate the universal within the particular through this approach. For example, Hans Küng, theological counsellor during the Second Vatican Council, has argued that a nuanced reinterpretation should be undertaken by leaders in each religion to encourage unity and peace: First, the militant saying and events in each individual tradition should be interpreted in their own historical context of that time, but without any glossing over … Secondly, the peace-promoting words and deeds in one’s

27

28

New Zealand Law Commission, Converging Currents: Custom and human rights in the Paciﬁc (Wellington: New Zealand Law Commission, Study Paper No. 17, 2006), 11–12. A volume of the International Review of the Red Cross has been dedicated to the issue of IHL and religion: see (2005) 87 International Review of the Red Cross, 413–571.

186 role of international law in rebuilding societies own tradition should, however, be taken seriously as the inspiration for the present era.29

This is a difﬁcult aim which involves carefully balancing instances when tradition disagrees with international law (such as ‘militant sayings’) with the promotion of areas where principles converge. Notwithstanding the challenges and potential problems of linking fundamental IHL norms to religious texts, ﬁnding instances of compatibility between the Geneva Conventions and Islamic Sharia law can be useful in discussions about international law.30 For example, in the area of the treatment of prisoners of war, there are many parallels between the Geneva Convention III and the teaching of Islam. Indeed, it has been argued that Islamic law is more advanced, detailed and accurate in the regulation of non-international armed conﬂict than the modern codiﬁcation of IHL. Zidane Meriboute, for example, claims: ‘Islamic law forms by its spirit, the common heritage of humanity. It does not contradict the standards of IHL or the main human principles of the great civilizations.’31 However, in focusing too heavily on religious or cultural elements within IHL, there is a danger that the secular and universal nature of IHL will be dissipated. For example, the clear separation between the laws governing the legality of war and the laws governing conduct during hostilities (the distinction between jus ad bellum and jus in bello) does not appear to exist in religiously inspired law. Notions of ‘just’ versus ‘unjust’ conﬂicts are not compatible with the modern codiﬁcation of IHL. Nuanced reinterpretations are necessary to inspire and connect humanity in the current era, but it is not useful to rely completely upon a theological framework to legitimise IHL. An alternative route to encourage compliance with IHL is the ‘harmonisation’ approach. This emphasises connections between IHL and traditions at the broad philosophical level. Allowing states that are considering ratifying IHL treaties the time to consider where similar principles are located within their own history and culture can only strengthen the capacity for these treaties to affect local behaviour. This 29

30

31

Hans Küng, ‘Religion, violence and “holy wars”’ (2005) 87 International Review of the Red Cross, 253–68, 264–5. See, e.g., Yadh Ben Ashoor, ‘Islam and international humanitarian law’ (1980) 20 International Review of the Red Cross, 59–69. Zidane Meriboute, ‘The conception of humanitarian law and the Islamic legal system’ (1998) 1 Africa Legal Aid: Islam and Human Rights, 34–8.

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is a process that must be undertaken carefully as there will be instances where the proposed legal norms and the local practices are at odds. The ideological nature of warfare leaves little room for the sort of limitations proposed by IHL treaties today.32 For example, if a society has not traditionally viewed the humane treatment of captured enemies as important, the obligations found in the Geneva Convention III may initially appear onerous. In such instances, there is a danger that the proposed treaty will lose credibility and be damaged by attempts to develop local comparisons without broad education and reﬂection on the need for change within social understandings. In some circumstances, decisions have to be made on whether it is still appropriate to push for ratiﬁcation and aim for acceptance to develop after the fact. In others, it may not be appropriate for the state to engage in the ratiﬁcation process until further discussions and debates have been advanced within the society. As Koskenniemi states, ‘In a ﬂuid, fragmented world, everything hinges on the sensitivity of the practising lawyer to the pull of contextually relevant considerations.’33

IV. Location of power A practical factor that needs consideration in the treaty-ratiﬁcation process involves the location of power within post-conﬂict countries or those that are vulnerable to turbulence. When a society has been subject to armed conﬂict, often the traditional infrastructure of the state and the location of inﬂuence and authority within the legal and political system have been disrupted. In a number of countries the capacity to make changes, to challenge the existing way of doing things and, for example, to get the military to take its training obligations seriously, rests not only inside, but also outside, the formal power structure. An example is the current situation in Afghanistan, as discussed in Maley’s chapter in this volume, where post-conﬂict instability is exacerbated due to the disenfranchisement of traditional tribal leaders and deep divisions within the political elite. Fiji is also an example of the interplay between traditional and non-traditional locations of power and inﬂuence in a state. Like a number of Paciﬁc countries, Fiji has a Westminster system of 32

33

Azar Gat, ‘The pattern of ﬁghting in simple, small-scale, prestate societies’ (1999) 55 Journal of Anthropological Research, 563–83. Martti Koskenniemi, ‘What is international law for?’ in Malcolm D. Evans (ed.), International Law, 2nd edn (Oxford: Oxford University Press, 2006), 57–82, 67.

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government as well as authority contained within ‘traditional’ power structures of local custom.34 For example, the Great Council of Chiefs in Fiji holds signiﬁcant sway over a range of state institutions and structures, and the potential local impact of an international treaty is likely to be of interest to it. Understanding the nuances of power relations, particularly in societies that have experienced conﬂict or turbulence, is essential to identifying the relevant individuals and structures with which to engage when discussing treaty ratiﬁcation. If the international legal norms contained in a treaty are to have relevance to, and to achieve a degree of acceptance by, those who inﬂuence the broader community, then one objective should be to ensure that these groups are part of the dialogue.

V. Why states ratify As noted previously, there are a range of reasons why states ratify treaties. Oona Hathaway observes: When a country ratiﬁes a treaty, it may do so for purely disingenuous reasons (simply to gain the expressive beneﬁt), for aspirational reasons (because the government or a part thereof is truly committed to the norms embodied in the treaty and wishes to commit the country thereto), or for self-interested reasons (perhaps because political or economic beneﬁts are tied to ratiﬁcation).35

States are sometimes extremely keen to ratify treaties in the post-conﬂict or fragile context. For states that have fought long and bitter battles for sovereign independence, the symbolic value of being able to sign their name to a document that welcomes them as a ‘state party’ can be liberating. Major international legal structures ranging from the United Nations to the International Court of Justice require statehood as a prerequisite of membership.36 Despite a range of urgent matters that authorities need to consider in the post-conﬂict environment, countries 34

35 36

See Donald Brenneis and Sally Engle Merry (eds.), Law and Empire in the Paciﬁc: Hawaii and Fiji (Santa Fe: School of American Research Press, 2004). Hathaway, ‘Do human rights treaties make a difference?’, 2022. For an analysis of the challenges to the traditional doctrine that views states as the exclusive subjects of international law, see Robert McCorquodale, ‘International community and state sovereignty: An uneasy symbiotic relationship’ in Colin Warbrick and Stephen Tierney (eds.), Towards an ‘International Legal Community’? The sovereignty of states and the sovereignty of international law (London: British Institute of International and Comparative Law, 2006), 241–65.

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often quickly bind themselves to international legal norms, signing treaties with shiny new pens, thereby gaining the international recognition for which they have fought so hard. For example, in the ﬁrst three months of Timor-Leste’s independence, the newly formed country ratiﬁed a raft of human rights and IHL treaties. Although some progress was made in drafting implementing legislation, groups such as Amnesty International have expressed concern that some of the new laws made in this area are not fully consistent with the state’s constitution and that there are problems in ensuring the relevant legal framework exists.37 Liberia provides a case study of quantity over quality in treaty ratiﬁcation. It signed, ratiﬁed or acceded to 103 treaties on a single day in 2005.38 These actions were welcomed by the UN secretary-general as ‘a landmark in Liberia’s journey away from a difﬁcult past and towards a more tenable future grounded in the rule of law, respect for human rights, and good democratic governance’.39 The Liberian move was a strong statement of a proposed change in a government’s attitude towards international legal principles. However, the technical resources needed for genuine incorporation of the principles found in the 103 treaties into Liberia’s domestic law would be considerable. Furthermore, in such a short time frame, it is unlikely that there could have been genuine attempts to foster debate in the broader community about the new obligations and responsibilities to be assumed by the country. Whilst symbolic messages are important in the international arena, substantive obligations and actions that have the capacity to ﬁlter down into the community at large are also essential. There are a number of other explanations for the rush to ratify besides the symbolic admission of many post-conﬂict states to the international community. The ratiﬁcation process is also a means of allowing vulnerable states to continue engagement with the international community, and in particular with powerful institutions such as the World Bank or International Monetary Fund. Discussing the ratiﬁcation of treaties with government departments, and providing technical assistance when required, allows international institutions to create and consolidate relationships that can serve other purposes in the long term. 37

38

39

See Amnesty International, ‘Timor-Leste’, Report 2004 (London: Amnesty International, 2004). UN Doc. SG/SM/10101 (16 September 2005) Secretary-general welcomes Liberia’s 103 treaty actions at UN event. Ibid.

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Furthermore, some symbolic treaty accessions can add legitimacy to international legal norms. For example, the small Paciﬁc island of Nauru was one of the last countries to ratify the Geneva Conventions. Despite having no national military, it was deemed by authorities within the country important for Nauru to become a party to the Geneva Conventions, as universal ratiﬁcation of these IHL treaties could then be claimed. The subject matter of a treaty resonates with the interests and experiences of communities in a post-conﬂict environment. This is particularly so in the case of IHL. For countries that have been through the ravages of armed conﬂict, the slaughter of civilians, the mistreatment of prisoners, and the destruction of cultural property and state infrastructure, the concept of a legal framework that regulates war can have emancipatory potential and provide hope for a better future. As Martii Koskenniemi states in reﬂecting on the question, ‘what is international law for?’: ‘Whatever its shortcomings, international law also exists as a promise of justice, and thus as encouragement for political transformation.’40 In 1999 the International Committee of the Red Cross (ICRC) undertook a survey to gather the views of ordinary people from over twenty countries on the usefulness and impact of IHL.41 The survey revealed that the more experience of conﬂict a society has, the more appreciation the general public expresses for the importance of IHL. A sharp distinction was found between those who were from war-torn settings and those from countries with limited experience of war. For example, 43 per cent of those surveyed from countries that were members of the UN Security Council thought that the Geneva Conventions prevented wars from getting worse, while 47 per cent thought it made no difference.42 On the other hand, on average, 56 per cent of people from countries that had experienced armed conﬂict thought that these treaties assisted, and only 28 per cent claimed that the Geneva Conventions made no difference.43 It is interesting to compare the responses from two speciﬁc countries. In the United States, 38 per cent of those surveyed said the Geneva Conventions would assist in preventing atrocities, while in Cambodia 86 per cent claimed that IHL assisted in maintaining humanity during armed conﬂict.44 40 41

42

Koskenniemi, ‘What is international law for?’, 57. International Committee of the Red Cross, The People on War Report: ICRC worldwide consultation on the rules of war (Geneva: International Committee of the Red Cross, 2000). Ibid., xviii. 43 Ibid., 20. 44 Ibid., 71.

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These results are counterintuitive at ﬁrst sight. It could be expected that populations which have directly suffered the consequences of breaches of international law would be the most sceptical of the effectiveness of such legal regimes. However, the ICRC study indicates the signiﬁcance attributed by members of the general public to the role of international law, which they see as representing the promise of justice and a future that may avoid some of the horrors of the past. This ﬁnding highlights the role that treaties can play in a post-conﬂict or fragile state within the hearts and minds of the community. If 86 per cent of the community in a country such as Cambodia hold a belief that IHL assists in limiting the horrors of armed conﬂict, the announcement of a decision to become a state party to an IHL-related treaty is likely to be well received domestically. The acceptance of an international legal regime by society is a necessary part of the process of locating the global within the local. Much international legal analysis focuses upon the codiﬁcation and development of legal norms, yet if treaties are to affect the grass-roots level, there is a need to develop connections at all levels of society. As Harold Koh notes, in encouraging countries to abide by international law all tools should be used, ‘not simply external power and coercion, not simply promotion of shared values, and not simply facilitations of legal process, but all of these at once’.45

VI. States that do not ratify Why do some states in post-conﬂict or fragile situations experience difﬁculties with ratiﬁcation, or fail to prioritise the treaty ratiﬁcation process? In the aftermath of a conﬂict, the need to reconstruct houses, hospitals, schools and roads, as well as deal with other matters of survival, requires immediate attention. Often the actual infrastructure needed to complete the process of ratiﬁcation, including review by government lawyers, meetings of the executive and the drafting of implementing legislation, has been stripped of its capacity. The ﬁrst questions asked by states – in particular, by those that are fragile or vulnerable to tensions and conﬂict – often relate to the monetary cost of ratiﬁcation and the reporting obligations involved once they become a party to the treaty. The limited number of legal practitioners within relevant departments (such as the foreign affairs and attorney-general’s departments) and the myriad demands placed on these lawyers’ resources can militate against the adoption of new treaties by a state in a post-conﬂict environment. This 45

Cited in Hathaway, ‘Do human rights treaties make a difference?’, 1961.

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is especially so if the process itself will continue to generate work for the government’s legal departments through requirements of periodic reporting. In examining the experience of Timor-Leste in this area, Annemarie Devereux and Catherine Anderson ask: is reporting under the human rights treaties a useful process for States in an immediate post-conﬂict period? Recalling that states receiving international assistance are subject to multiple reporting obligations as part of their funding arrangements, is an additional human rights treaty reporting obligation too onerous? Should it be a priority in a context in which security, rule of law and stability are tenuous?46

In my experience, the facts that there are no reporting mechanisms and that limited ﬁnancial contributions are required within the IHL treaty regime are of signiﬁcant assistance in the initial engagement of state interest in ratiﬁcation. Devereux and Anderson conclude that the treaty reporting process ‘add[s] value’ to the process of creating domestic legal infrastructure, but they argue that more assistance is required from the international community in this respect.47

VII. International community response International organisations are keen to assist states that do not have the capacity to ratify and implement treaties. Precedent-implementing legislation, model ratiﬁcation papers and documents detailing the elements and obligations of speciﬁc treaties are part of the tool kit of international lawyers, whether they work for the UN, an international organisation, a non-governmental organisation or a donor government. The provision of such documents to facilitate state ratiﬁcation is an important and practical step in bringing international rights and obligations into the domestic sphere. Yet there must also be an element of caution in the provision of outside expertise and technical assistance. If the process occurs swiftly, devoid of local input, discussions and understanding, questions need to be asked about the degree of domestic understanding, let alone ownership, of fundamental international legal norms. Adopting a standard format for ratiﬁcation and completing instructions from an international institution on the technical/mechanical process of treaty 46

47

Annemarie Devereux and Catherine Anderson, ‘Reporting under international human rights treaties: Perspectives from Timor Leste’s experience of the reform process’ (2008) 8 Human Rights Law Review 69–104. Ibid.

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ratiﬁcation may ensure that the treaty is speedily agreed to by the state in a formal sense, but it may overlook an opportunity for the broader community to become engaged in the subject matter. For a genuine discussion to occur within civil society – be this local NGOs, church groups, trade unions, academics or lawyers – signiﬁcant time must be allocated for reﬂection and broad community debate, particularly amid the stresses of a post-conﬂict environment. In many instances, international institutions, such as the UN, do not have the capacity for longterm engagement and often donor government expectations are focused upon ‘getting the job done’ rather than upon the more nebulous aims of empowering and informing the public. However, as René Provost writes: Norms attract compliance if they take root in the hearts and minds of those called to apply them. Without cultural legitimacy, there is a danger that humanitarian law aspires to a self-defeating universalism.48

There is no doubt that getting a signature on a piece of paper can be an important element in expanding the reach of major international treaties. The more states that are party to major treaties, the more legitimacy is granted to the norms contained in the document. However, balanced against this beneﬁt is the issue of local legitimacy and the capacity for a process to engage with the consciousness of ordinary people. There is a ﬁne line between a state’s desire to commit to the requirements found in an international treaty and its capacity to fully implement the required obligations. Perhaps one or two well-implemented and broadly discussed international treaties might be of more value to a state that is rebuilding after conﬂict than numerous, and mostly symbolic, ratiﬁcations. If one aim of the treaty ratiﬁcation process is to affect action and to create legitimacy at the local level by assisting in the restructuring and strengthening of the fractured community, then international law should involve more than symbolic and expressive actions. In my experience, the general public is often genuinely interested in, indeed at times curious about, international treaties. If given the opportunity, for example, through accessible explanations of the obligations and responsibilities found in speciﬁc legal norms, local radio stations and members of civil society, such as women’s groups and academics, want to understand the decisions being made by the government about treaty ratiﬁcation. Often the hardest and, indeed, most intrinsically technical questions 48

René Provost, ‘The international committee of the red widget? The diversity debate and international humanitarian law’ (2007) 40 Israel Law Review, 614–47.

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raised are from those who do not traditionally spend their time engaged in international legal debate but who want to know ‘what does this mean for us?’ The concept that international law exclusively regulates behaviours between states has long been challenged. International law now has signiﬁcant capacity to affect rights domestically, in both practical and symbolic ways.49 For example, Balakrishnan Rajagopal notes: International law is no longer a marginal discipline that ﬁgures occasionally in diplomatic disagreements about war and peace. Rather, it is now an ensemble of rules, policies, institutions, and practices that directly and indirectly affects the daily lives of millions of people all over the world, in areas of economy, environment, family relationships, and governmental performance.50

Sally Engle Merry has also proposed that international human-rights norms can play a valuable role in the local sphere by becoming a resource for domestic social movements. In looking at the issue of human rights and gender violence, Merry examines how some women’s groups across the world created a space for discussion and reform using texts and wording that have been granted legitimacy through global consensus on standards. An example of globally agreed standards includes international treaties, such as the Convention on the Elimination of All Forms of Discrimination against Women.51 Merry acknowledges there is a range of unanswered questions relating to how the interface between global and local occurs and notes that there are inherent tensions between ‘the known’ and ‘the new’ which often play out in debates about culture and speciﬁc historical traditions. However, she emphasises the broader and informal role international law can play in society: If human-rights ideas are to have an impact, they need to become part of the consciousness of ordinary people around the world. Considerable research on law and everyday social life shows that law’s power to shape 49

50

51

See, e.g., Christian Tomuschat, ‘International law: Ensuring the survival of mankind on the eve of a new century: General course on public international law’ (1999) 281 Recueil des Cours de l’Académie de Droit International, 9–438. Balakrishnan Rajagopal, International Law from Below: Development, social movements, and Third World resistance (Cambridge: Cambridge University Press, 2003), 4. For a critique on the dangers of assuming ‘universalism’ in a ‘pluralistic’ international community, see Makau Mutua, ‘Savages, victims, and saviors: The metaphor of human rights’ (2001) 42 Harvard International Law Journal, 201–46, 243. Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).

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society depends not on punishment alone but on becoming embedded in everyday social practices, shaping the rules people carry in their heads.52

The international community, from civil society to international organisations and donor countries, has a valuable role to play in the process of treaty ratiﬁcation through providing the technical assistance to ensure state practice, legal frameworks and policies are placed in line with the treaty provisions. Balancing the input of expertise with the development of local understandings is a difﬁcult task, and at times pragmatic decisions will need to be made on the beneﬁts of a speedy ratiﬁcation versus a longer process. As Ryan Goodman and Derek Jinks have noted, ‘ratiﬁcation might represent the initiation, culmination or reconﬁguration of a domestic political struggle’.53 There may be instances in a post-conﬂict or fragile state where a window of opportunity exists for outside expertise to make the most of the willingness of authorities to ratify a treaty quickly in order to consolidate a certain political position. Once the treaty has been ratiﬁed, work can then take place, over a period of time, to incorporate an understanding and acceptance of the principles within the community at large. Such moments must be seized, but must also be accompanied by an acknowledgement of the potential long-term disadvantages of limiting the ratiﬁcation process to the upper echelons of political authorities. In other situations, there may be beneﬁt in deferring treaty ratiﬁcation and instead working with the state to develop a more genuine understanding at the political, traditional and social level of what the ratiﬁcation process actually entails.

Conclusion In this chapter I have argued that, for a nation struggling to rebuild, the beneﬁts of treaty ratiﬁcation lie in seizing the process and the broad range of actions required, rather than in viewing ratiﬁcation as a one-off and symbolic event. I have highlighted the need to understand the legal, social and political responses that can be triggered within a state when the process is undertaken carefully, with a genuine desire to incorporate the global responsibilities locally. To ensure that treaty ratiﬁcation has a positive impact upon a state, it has been argued that it is necessary for 52 53

Merry, Human Rights and Gender Violence, 3. Ryan Goodman and Derek Jinks, ‘Measuring the effects of human rights treaties’ (2003) 14 European Journal of International Law 171–83, 174.

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domestic implementation to be rigorous and, when appropriate, for attempts to be made to foster domestic ownership. The area of IHL treaties illustrates these factors, providing details of the broad requirements and beneﬁts of full technical implementation, and the advantages and dangers in ﬁnding connections between IHL principles and local understandings. The preconditions for these two elements will not always be present, however, especially in resource-strapped and complex post-conﬂict environments. Thus, decisions with respect to the areas on which the ratiﬁcation process should focus will need to be made on a cost–beneﬁt analysis. In this sense cost-beneﬁt analysis goes beyond mere economic ramiﬁcations (although these will always be part of any state’s considerations) to include weighing up the broad range of beneﬁts versus disadvantages that can be obtained in pursuing a ratiﬁcation at certain points in time. There are instances when the symbolic or expressive reasons for ratiﬁcation may be signiﬁcant, providing a framework for the commencement of an internal or international social discourse. It may be that treaty ratiﬁcation can not only assist in providing legitimacy to groups advocating the incorporation of international norms into domestic practices (for example, once a state has ratiﬁed a treaty the internal dialogue can move from discussions about ‘harms’ to claims about ‘breaches of obligations’), but can also shape global expectations about state behaviour. Conversely, when a state ratiﬁes a treaty without any intention of fulﬁlling its responsibilities or without any capacity to implement the principles contained within the treaty, such symbolism does little to advance the international or domestic legal framework. A careful understanding of the local context must be developed before embarking on embedding or harmonising international legal principles within a speciﬁc environment. It is a path that can contain dangers because there are not always connections to be found between the local and the international. Wide consultation, broad education, linkages with local/traditional customs and the identiﬁcation of informal power structures have potential to result in the rejection of important international treaties. At times it may be that a state may not be in the position to engage in social discourse and such attempts should be deferred until stability or political issues are resolved. Yet if attempts to engage in such a social dialogue are successful, the opportunities for the treaty ratiﬁcation process to harness the commitment and enthusiasm of the broader community are signiﬁcant. Once again a careful assessment of the

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environment and the possibilities to advocate for change within the postconﬂict or fragile state is necessary. I have argued that there may be situations when deferring ratiﬁcation could be beneﬁcial in a similar way to Maley’s argument in this volume that the deferral of elections may be appropriate in particular contexts. In a post-conﬂict context, either a lack of capacity/resources or a lack of understanding of the principles inherent in the treaty could be overcome through work over a period of time rather than through a rushed and symbolic event. Deferral may also provide space for the principles contained in the treaty to be exposed to the broader community, thus encouraging a wider debate. The idea of deferred ratiﬁcation could be deemed controversial, and robust debate has occurred between scholars on whether the treaty ratiﬁcation process should be made more difﬁcult – with the aim of eradicating symbolic ratiﬁcation for real action54 – or whether doing so would undermine the aim of universal ratiﬁcation, which provides salience and legitimacy to international norms.55 Deferring the ratiﬁcation process, while working towards creating an environment able to incorporate and maximise the range of beneﬁts that treaties provide a state, may be a positive method to strengthen the relationship between legitimacy and symbolism. The context in which a treaty is ratiﬁed is all-important, as is recognition of the beneﬁts, dangers, costs and resources required to assist a state to develop internal stability and international legitimacy. The process of treaty ratiﬁcation is simply one of the tasks a state in a post-conﬂict or fragile environment must address. I have argued for greater reﬂection, especially by those in the international community directly involved in the process, on the range of opportunities that arise from treaty ratiﬁcation. If international law aims to support justice and political transformation, it must examine ways to engage creatively with the communities it claims to protect. 54 55

Hathaway, ‘Do human rights treaties make a difference?’, 2024–5. Goodman and Jinks, ‘Measuring the effects of human rights treaties’, 182.

9 Selective universality? Human-rights accountability of the UN in post-conﬂict operations annemarie devereux

Introduction The protection and promotion of human rights is one of the primary objectives of the United Nations.1 Within the ﬁeld of peacekeeping, the importance of states respecting human rights is emphasised, not only in terms of abiding by international law, but also as a means of building sustainable peace.2 Mandates of UN peacekeeping missions increasingly include speciﬁc human-rights functions.3 A 2005 report of the UN secretary-general stated with certainty that: The mandates of United Nations peacekeeping operations now leave no ambiguity about the duties of peacekeepers, within their means, to protect civilians under imminent threat, promote human rights and target essential elements for immediate post-conﬂict stabilization.4

The promotion of human rights is thus a favoured tool in UN interventions in post-conﬂict states. Yet are human rights universal standards in this context? States are not the only authorities exercising governmental 1

2

3

4

Charter of the United Nations, opened for signature 26 June 1945, Preamble; Arts. 1, 55 (entered into force 24 October 1945) (‘UN Charter’). UN Doc. S/2004/616 (23 August 2004) The rule of law and transitional justice in conﬂict and post-conﬂict societies: Report of the secretary-general, para. 2. Boris Kondoch, ‘Human rights law and UN peace operations in post-conﬂict situations’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 19–41, 28–29; Michael O’Flaherty (ed.), The Human Rights Field Operation: Law, theory and practice (Aldershot: Ashgate, 2007). UN Doc. A/60/640 (29 December 2005) Implementation of the recommendations of the Special Committee on Peacekeeping Operations: Report of the secretary-general, para. 7 (emphasis added).

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powers in the post-conﬂict environment. The UN often comes to play a ‘quasi-state’ role: whether in the extreme form of a transitional administration or in assuming responsibility for activities ordinarily conducted by the state, such as policing or military support. If UN personnel do not abide by human-rights standards, their actions can inﬂict great harm upon individuals within the host community, undermine the development of post-conﬂict states and damage the credibility of the UN. A key question is to what extent international law requires the UN to be accountable for acts by the organisation and its staff (and related personnel) that impair human rights? If international law does not adequately address these issues, does international practice ﬁll in the gaps? Part I begins by identifying the problem more closely, recalling the types of allegations made against the UN, its staff and personnel. Part II turns to the legal complexities surrounding UN accountability, examining the source of obligations and means of enforcement. Part III then considers two areas where some movement of international practice is apparent: (a) in responding to allegations of sexual exploitation and abuse; and (b) in increasing oversight of the United Nations Mission in Kosovo (UNMIK). The chapter concludes that, despite a strong commitment to the protection of human rights and an evident concern to eliminate or respond to potential abuses, the UN remains reluctant to embrace the concept of institutional legal responsibility.

I. Identifying the problem For there to be any pressure to address the issue of UN accountability, it must be seen as a real issue, not simply a theoretical one. Let us begin by stating the obvious: the UN is a vast organisation. As at the end of 2006, the UN was involved in eighteen peace operations. This involved some 82,000 uniformed personnel and 17,500 civilian personnel.5 In such missions, the UN is intervening in situations of great political and institutional insecurity. The practical enjoyment of rights is already likely to be compromised by factors such as displacement, the fracturing of family units, the intensiﬁcation of pre-existing inequities (including those based on gender) and the destruction of livelihoods, personal

5

2006 ﬁgures quoted in UN Doc. A/61/668 (13 February 2007) Implementation of the recommendations of the Special Committee on Peacekeeping Operations: Report of the secretary-general, para. 6.

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resources and infrastructure. There may also be a high level of trauma related to the conﬂict. With UN intervention often linked to practical issues, such as maintaining security or accessing humanitarian aid, there is a clear powerdifferential between UN personnel and the host state population. The ability of individuals to challenge UN action may be further hindered by economic factors, language differences and cultural barriers. Avenues used in other contexts to question the validity of ofﬁcial actions, such as the courts or independent bodies, are typically weak in post-conﬂict states. The operation (or perceived operation) of rules of international law in granting immunities to UN workers may also inhibit host state authorities from taking action against UN personnel. In these situations, UN personnel can, and do, exercise powers of a state-like nature. In Kosovo (from 1999) and East Timor (1999–2002), the UN has assumed formal control of the territory as the administering authority. In other peacekeeping situations, the UN exercises signiﬁcant public power through Security-Council-mandated military and police activities. Yet, as with all exercise of powers, it may not always be carried out in a human-rights-friendly manner, whether as a result of deliberate abuse by individuals or ill-informed practices. The most prominent cases discussed in the literature in recent years relate to the issue of sexual exploitation and abuse, primarily of women and girl-children, and trafﬁcking of individuals – again primarily for reasons of sexual exploitation and abuse.6 Whilst ﬁgures of the extent of incidents are not available, a 2006 UN document acknowledged the likelihood of occurrence of sexual exploitation ‘in almost all countries where the United Nations has a presence’.7 While sexual exploitation may be the subject of the most publicised abuse, it is not the only area of documented concern. 6

7

It is acknowledged that the scope of acts covered by sexual exploitation and abuse is not identical to that of, for example, gender-based human-rights violations. However, there is sufﬁcient overlap to justify studying responses to this subject as an example of responses to human-rights violations. UN Doc. A/60/877 (5 June 2006) Letter dated 25 May 2006 from the secretary-general to the president of the General Assembly, Annex A, para. 4 (Draft United Nations policy statement on assistance and support to victims of sexual exploitation and abuse by United Nations staff or related personnel) (‘Draft Comprehensive Strategy’). See, for instance, allegations of UN involvement in trafﬁcking in Bosnia: Jennifer Murray, ‘Who will police the peace-builders? The failure to establish accountability for the participation of United Nations civilian police in the trafﬁcking of women in post-conﬂict Bosnia and Herzegovina’ (2003) 34 Columbia Human Rights Law Review, 475–527.

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Complaints have also arisen concerning the UN’s performance of lawenforcement functions. Different stages of a peacekeeping operation involve varying security levels. When there is the equivalent of a ‘state of emergency’, a range of derogations from particular human rights is justiﬁable.8 However, many concerns raised cannot be justiﬁed in these terms. Allegations of torture and execution, for instance, were levelled against Belgian, Italian and Canadian UN troops during Operation Restore Hope in Somalia (1992–5). Domestic proceedings have conﬁrmed the substance of some of these allegations.9 An NGO, African Rights, similarly detailed complaints that UN forces had shot individuals participating in demonstrations, attacked a hospital, and been involved in illegal detentions and forcible relocations.10 In Kosovo, criticism focused on the early practice of the special representative of the secretary-general (SRSG) to authorise executive detentions which had the effect of overriding judicial decisions.11 Outside the speciﬁc context of peacekeeping missions, other potential violations have been noted. Ralph Wilde, in the context of his study of the United Nations High Commissioner for Refugees’ operations, raised the imposition of curfews in refugee camps where not strictly required for security or public order.12 The extent to which the UN has accepted or challenged existing gender differentials in its programmes has also been challenged.13 One suspects that if UN actions were subject to systematic scrutiny, further shortcomings would be evident, particularly related to historically marginalised economic, social and cultural rights.14 8

9

10

11 12

13 14

See Michael Kelly, ‘The UN, security and human rights: Achieving a winning balance’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 118–48, 145. See Karen Kenny, ‘UN accountability for its human rights impact: Implementation through participation’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 438–62, 447–8, fn 34. Quoted in Marten Zwanenburg, Accountability of Peace Support Operations (Leiden: Martinus Nijhoff Publishers, 2005), 6. See below Part III. Ralph Wilde, ‘Quis custodiet ipsos custodes?: Why and how UNHCR governance of “development” refugee camps should be subject to international human rights law’ (1998) 1 Yale Human Rights and Development Law Journal, 107–28, 123. In relation to the impact on the UNHCR, see ibid., 122–7. Annemarie Devereux, ‘Searching for clarity: A case study of UNTAET’s application of international human rights norms’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 293–321, 319–20.

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In this sense, the full scope of the problem faced may only be fully appreciated once the veil of immunity covering UN operations is lifted. Some acts detailed above raise obvious issues of UN institutional responsibility – for example, a transitional administration’s promulgation of legislation. For other acts, there can be legitimate discussion of the appropriate demarcation of responsibility. In relation to an allegation of torture, for instance, there is the responsibility borne by the individual perpetrator (for example, in a criminal-law or civil-action sense). One might also consider what responsibilities are engaged by the state of origin of peacekeeping troops or formed police units involved in such acts. There is also the responsibility of the UN as the institution that authorises, deploys and controls such personnel. Recognising the possibility of ‘shared responsibility’ does not of itself eradicate the existence of potential UN responsibility. Given that the UN as an organisation is known for its strong commitment to human rights, Diego Garcia Sayan is correct in stating: Nothing would be more contradictory than a peace-enforcement unit of the United Nations transgressing international human-rights standards which have been gradually and painstakingly created during the last almost ﬁfty years.15

The question is not so much the nature of the UN commitment, but whether there are appropriate mechanisms in place to deal with cases in which the practice does not match the commitment. In venturing into this topic, a range of policy considerations can be raised as militating against increasing the accountability of the UN. Fears might be held that admitting any responsibility would taint the UN or its personnel. Potential legal action might be viewed as having a chilling effect on operations in general,16 whilst politically motivated complaints might be seen as potentially disabling operations. Building institutions to deal with the problem might be regarded as disproportionate to the beneﬁt, given the short- to medium-term nature of many post-conﬂict interventions. More prosaically, there might be a fear that greater accountability would lead to a shortage of necessary resources: in particular, that countries would be unwilling to provide personnel and to approve a budget to sustain necessary systems, including remedies for those affected. 15

16

Diego Garcia-Sayan, ‘Human rights and peacekeeping operations’ (1994) 29 University of Richmond Law Review, 41–66, 45. Kenny, ‘UN accountability for its human rights impact’, 439.

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There is a greater risk of discredit to the organisation, however, should it be seen as somehow complicit in abuses and/or failing to uphold the equal application of human-rights norms to its own actions. As with any process, there is a danger of abuse; however procedures can be put in place to minimise this risk. If the challenge is conceptualised in terms of devising systems that can be used across the system, rather than limited to a particular mission, greater perspective can be gained on the manageability of instituting systems. Given the difﬁcult funding discussions that occur within the UN, ensuring adequate resources is likely to remain a particularly vexed issue. Yet these discussions need to take into account the ﬁnancial impact of a failure to act: particularly in relation to the interrelationship of human-rights violations and security.

II. Gaps in the existing legal framework International law remains underdeveloped regarding the extent to which international human-rights law binds the UN. Whilst there is settled jurisprudence that the UN has international legal personality (from the Reparations Case),17 and is thus capable of bearing rights and duties under international law, it remains necessary to establish the source of such rights and duties. International human-rights treaties are open for signature by states only. There is little clarity on the extent to which international human-rights norms govern the UN by virtue of customary international law. Arguments in favour of the UN being subject to human-rights obligations can be grouped into ﬁve main categories. First, there is an ‘inherent obligation’ view that regards human rights as forming an integral part of the legal framework applicable to those with power to affect the enjoyment of an individual’s rights.18 Whilst appealing from a universalist perspective, it would apply equally to nonstate exercises of power (such as transnational corporations). Despite some parallel movements in this ﬁeld,19 international law has not to date embraced such a completely universalist perspective.

17

18 19

Reparations for Injuries Suffered in the Service of the United Nations (Advisory Opinion) [1949] ICJ Rep 174 (‘Reparations Case’). Kenny, ‘UN accountability for its human rights impact’, 440. See, for instance, the work around UN Doc. E/CN.4/Sub.2/2003/12/Rev.2 (26 August 2003) Norms on the responsibilities of transnational corporations and other business enterprises with regard to human rights, adopted in 2003 by the UN Sub-Commission on the Promotion and Protection of Human Rights.

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Second, is a ‘delegated responsibility’ view which suggests that the UN bears those responsibilities that its member states bear. Put another way, this perspective suggests that states cannot escape their human-rights responsibilities by acting in concert through the UN.20 The difﬁculty with this argument is that the UN is regarded as a separate entity from its component members, whose rights and duties are to be ascertained by reference to its constituent documents and functions. Third, a ‘constitutional obligation’ view suggests that the UN, as an organisation for whom the promotion and protection of human rights is a founding objective,21 is constitutionally bound to act in accordance with human-rights norms.22 In addition to the difﬁculties associated with the International Court of Justice’s historical reluctance to adjudicate upon the constitutional limits of the Security Council,23 there are textual challenges encountered. The UN Charter presents the promotion of human rights as one of its primary purposes, rather than specifying it as an obligation.24 Marten Zwanenburg notes that Uruguay proposed a clause explicitly recognising an obligation, and interprets the rejection of this proposal as evidence that the UN is bound in any case. However, the travaux appear more ambiguous, with states concerned with the interpretation of member states obligations. In addition to this textual challenge, the Security Council’s Chapter VII powers are said to be untrammelled by international legal limitations.25 A lower-level constitutional argument used for speciﬁc peacekeeping operations looks to the wording of the mission’s mandate. Yet references in empowering Security Council resolutions more commonly detail human-rights functions than explicit limitations. In the case of the transitional administrations of Kosovo and East Timor, regulations promulgated by the SRSG recognised the obligation of ofﬁcials to abide by human-rights principles. These did not, however, preclude debate as to the legal effect of the provisions (particularly in relation to the power 20 21 22

23

24 25

Kenny, ‘UN accountability for its human rights impact’, 441. UN Charter, Arts. 1, 55. Kenny, ‘UN accountability for its human rights impact’, 442. For debate on the constitutional argument, see Nigel D. White, The United Nations System: Toward international justice (Boulder: Lynne Reiner, 2002), 14–17. See, e.g., David Schweigman, The Authority of the Security Council under Chapter VII of the UN Charter: Legal limits and the role of the International Court of Justice (The Hague: Kluwer Law International, 2001). See Zwanenburg, Accountability of Peace Support Operations, 149. See Bruno Simma (ed.), The Charter of the United Nations: A commentary (Oxford: Oxford University Press, 1994), 49.

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of the SRSG). In neither case was any speciﬁc means of enforcement included as a corollary of the obligation.26 Fourth, the ‘functionality view’ builds upon international law’s recognition of the capacity of the UN to have rights and responsibilities as functionally required, suggesting that in so far as the UN is undertaking governmental functions, human-rights obligations attach.27 Similarly, to the extent that human-rights requirements are jus cogens obligations, the UN as an international actor is bound to apply such norms.28 The argument has clear logical appeal, though remains to be tested. A slight variant on the ‘functionality view’ is to regard the UN as having dual functionality. For UN territorial administrations, for instance, it is possible to view the UN ﬁrst as an international organisation and, second, as acting as a state authority. When the UN is acting as a state authority, it is arguably bound by those norms which bind states under customary international law. In practice there have been examples of courts and ofﬁcials adopting this dual functionality (for example, distinctions between an SRSG acting as the SRSG and as a transitional administrator).29 Each version of the functionality test is, however, subject to a lack of clarity concerning which human-rights norms are binding as a matter of customary international law. Fifth, there is the ‘derivative view’, which argues that the UN is the successor or agent of the state.30 In the case of Kosovo, the UN might be seen as inheriting the obligations owed by the former state towards the population or those owed by the authorities of Serbia. This raises highly complex and political questions of succession. In situations where the 26

27 28

29

30

See John Cerone, ‘Reasonable measures in unreasonable circumstances: A legal responsibility framework for human rights violations in post-conﬂict territories under UN administration’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 42–80, 64; Marcus Brand, ‘Effective human rights protection where the UN “becomes the state”: Lessons from UNMIK’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 347–76, 362. Cerone, ‘Reasonable measures in unreasonable circumstances’, 45. See, e.g., T. D. Gill, ‘Legal and some political limitations on the power of the UN Security Council to exercise its enforcement powers under Chapter VII of the Charter’ (1995) 26 Netherlands Yearbook of International Law, 33–138, 79. See, e.g., the practice of the Constitutional Court of Bosnia and Herzegovina referred to in Ralph Wilde, ‘International territorial administration and human rights’ in Nigel D. White and Dirk Klaasen (eds.), The UN, Human Rights and Post-conﬂict Situations (Manchester: Manchester University Press, 2005), 149–73, 167–70. See ibid., 169–71.

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UN is assisting a state (under a consensual Chapter VI agreement), it could be seen as the agent of that state and thus bound by the former state’s obligations. An obvious difﬁculty with this argument is that the liability for the actions of the agent usually resides with the principal (that is, the state). Neither of these potential bases provides for a consistent level of obligations since they will depend in part upon an individual state’s formal actions in ratifying human-rights instruments. Given the uncertainties in the ﬁeld, there is an obvious need for clariﬁcation or development of international law. Equally, there is a need for further development of the law with respect to the attribution of acts: that is, in deﬁning which acts of UN staff and personnel will be regarded as acts of the UN. There are no settled principles regarding the responsibility of international organisations. In 2002, the International Law Commission included this topic in its programme of work, and in 2003 prepared draft Articles based generally on the outline of the Draft Principles on State Responsibility.31 In those draft Articles, acts of the agents of international organisations were to be attributable to the organisation where they were ‘in the performance of functions’ (Art. 4). Such conduct was attributable even if contrary to instructions or exceeding the authority of the agent (Art. 6). In this scheme, private acts would not be covered. This accords with current UN practice. In 1986, for instance, the United Nations Ofﬁce of Legal Affairs explained that the UN did not consider itself responsible for the ‘off-duty’ acts of members of peacekeeping forces.32 While many acts, such as the detention of persons or the imposition of curfews, would clearly be covered by an ‘ofﬁcial functions’ test, some difﬁculties might arise in attributing responsibility for acts such as torture, if such acts were classed as ‘not ofﬁcial / in the performance of functions’ by virtue of being unauthorised misconduct using reasoning similar to that employed in the Pinochet Case.33 The adjudication and enforcement of any obligations against the UN raise a host of other legal issues. Privileges and immunities attach to individual personnel, though in distinct ways depending on their status. 31

32 33

See UN Doc. A/CN.4/532 (26 March 2003) First report on responsibility of international organizations: by Mr Giorgio Gaja, Special Rapporteur; UN Doc. A/CN.4/L632 (4 June 2003) Responsibility of international organizations: Titles and texts of the Draft Articles 1, 2 and 3 adopted by the Drafting Committee. Note, too, the work of the International Law Association Committee on Accountability of International Organisations. Quoted in Zwanenburg, Accountability of Peace Support Operations, 106. R v. Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No. 3) [1999] 2 All ER 97.

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The Convention on the Privileges and Immunities of the United Nations grants ofﬁcials of the UN immunity from legal process in respect of all acts performed by them ‘in their ofﬁcial capacity’.34 Experts on mission (a category that includes civilian police and military observers35) are accorded ‘such privileges and immunities as are necessary for the independent exercise of their functions during the period of their missions’.36 These privileges and immunities adhere for the beneﬁt of the UN and not any personal beneﬁt. The secretary-general has the right and duty to waive the immunity where ‘in his opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the UN’.37 Although immunities for UN personnel technically apply only to ofﬁcial duties, the practice of the UN has been to take an expansive reading of ofﬁcial duties, purportedly out of concern for safeguarding the accused’s right to a fair trial and concerns over the adequacy of local courts to provide proper safeguards.38 Courts have similarly tended to seek formal waivers of immunities whenever an ofﬁcial or an expert on mission is charged with a criminal offence.39 As a result of agreements between the UN and troop-contributing countries, and UN agreements with host states, troop-contributing countries retain exclusive jurisdiction over their troops, not only excluding ‘host state’ action but also UN disciplinary functions over such personnel.40 In relation to the UN as an organisation, its property and assets enjoy complete immunity from every form of legal process under the UN Immunities Convention. While the UN may waive such immunity, no waiver can extend to a measure of execution.41 At the same time, the UN is obliged to ‘make provisions for appropriate modes of settlement’ in 34

35

36 37 38

39 40

41

Convention on the Privileges and Immunities of the United Nations, open for signature 13 February 1946, 1 UNTS 15, Art. 18 (entered into force 17 September 1946) (‘UN Immunities Convention’). GA Res. 1/76 (7 December 1946) Privileges and Immunities of the Staff of the Secretariat of the United Nations. UN Immunities Convention, Art. 22. Ibid., Arts. 20 (regarding ofﬁcials), 23 (regarding experts on mission). Anthony J. Miller, ‘Legal aspects of stopping sexual exploitation and abuse in UN peacekeeping operations’ (2006) 39 Cornell International Law Journal, 71–96, 90. Ibid., 92. Note the Zeid Report recommended that Status-Of-Forces Agreements (SOFAs) expressly include an assurance that a troop-contributing country will exercise jurisdiction with respect to crimes or offences committed in the mission area: UN Doc. A/59/710 (24 March 2005) Letter dated 24 March 2005 from the secretary-general to the president of the General Assembly. UN Immunities Convention, Art. 2.

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relation to disputes of a private-law nature (torts etc.), as well as disputes involving an ofﬁcial of the UN where immunity has not been waived.42 Although the usage of the term ‘ofﬁcial’ may be restrictive, by obliging the UN to provide for a settlement procedure in relation to disputes involving ofﬁcials as well as private-law disputes,43 it opens the way for some form of enforcement mechanism.

III. Recent developments: What do they indicate? A. Handling of sexual exploitation and abuse The UN has taken very public steps to acknowledge and address the issue of sexual exploitation and abuse by its staff and related personnel. When commissioning the Zeid Report, the secretary-general declared such acts to be ‘a violation of the fundamental duty of care that all United Nations peacekeeping personnel owe to the local population that they are sent to serve’.44 The Zeid Report itself identiﬁed four main areas of concern: (i) the existing rules on standards of conduct; (ii) the investigative process; (iii) organisational, managerial and command responsibility; and (iv) individual disciplinary, ﬁnancial and criminal accountability.45 Reform in the area is ongoing. Putting aside criticisms of the ambit of the deﬁnition of ‘sexual exploitation and abuse’,46 the topic has generated a signiﬁcant rethinking of oversight and accountability. Consideration has been given to how the prohibition on sexual exploitation and abuse, encapsulated in the secretary-general’s bulletin on the topic,47 can be binding on all UN personnel – whether military or civilian – through measures such as the inclusion of obligations in Memorandums of Understanding with troop-contributing countries. Widespread training 42 43

44

45 46

47

Ibid., Art. 29. As to the limitations of treating human-rights violations as torts, see Chanaka Wickremsinghe and Guglielmo Verdirame, ‘Responsibility and liability for violations of human rights in the course of UN ﬁeld operations’ in Craig Scott (ed.), Torture as Tort: Comparative perspectives on the development of transnational human rights litigation (Oxford: Hart Publishing, 2001), 465–89. UN Doc. A/59/710 (24 March 2005) Letter dated 24 March 2005 from the secretarygeneral to the president of the General Assembly (‘Zeid Report’). Ibid., 4–6. See, for instance, Dianne Otto, ‘Making sense of zero tolerance policies in peacekeeping sexual economies’ in Vanessa Munro and Carl Stychin (eds.), Sexuality and the Law: Feminist engagements (London: Routledge-Cavendish, 2007), 259–82. UN Doc. ST/SGB/2003/13 (9 October 2003) Secretary-general’s bulletin: Special measures for protection from sexual exploitation and sexual abuse.

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programmes have been introduced on combating sexual exploitation, and those in managerial positions are charged with speciﬁc duties to eliminate it. Signiﬁcant reform is also taking place in streamlining the handling of complaints through the Ofﬁce of Internal Oversight.48 Conduct and discipline teams have been appointed to missions. Barriers to the criminal prosecution of personnel for criminal forms of sexual abuse are also being examined. A group of legal experts formulated a draft treaty on the topic of ensuring accountability of UN staff and experts on mission, expressing a preference in their cover report for prosecutions within the host state.49 However, there remains hesitancy with respect to UN institutional responsibility, both in terms of assistance to victims of the exploitation and attribution of legal liability. Overall, the issue of assistance to victims is regarded as raising the UN’s moral responsibility rather than legal responsibility.50 The Zeid Report stated it was ‘morally incumbent on the Organization to provide some emergency and practical assistance to victims who make allegations against United Nations peacekeeping personnel’.51 The Zeid Report accepted that a ‘peacekeeping operation usually has neither the resources nor the mandate to provide comprehensive assistance to victims of sexual exploitation and abuse’, before proceeding to outline what steps could be taken with a ‘minimum of expenditure’.52 The Draft Comprehensive Strategy submitted to the General Assembly in 2006 foresaw more expansive UN assistance to victims,53 while remaining within the framework of ‘moral responsibility’. The Draft Comprehensive Strategy proposed that the UN would facilitate access to support services, 48

49

50

51 53

Some questions might be raised as to the efﬁcacy of such investigations: see the conclusions of the Ofﬁce of Internal Oversight Services in relation to its Bunia investigation: UN Doc. A/61/886 (7 May 2007) Special measures for protection from sexual exploitation and sexual abuse and comprehensive report prepared pursuant to General Assembly Resolution 59/296 on sexual exploitation and sexual abuse, including policy development, implementation and full justiﬁcation of proposed capacity on personnel conduct issues, para. 7. UN Doc. A/60/980 (16 August 2006) Ensuring the accountability of United Nations staff and experts on mission with respect to criminal acts committed in peacekeeping operations. Lisa Jones, ‘Sexual exploitation and abuse by UN personnel: What can be done to stop it and where do you draw the line?’, RegNet Seminar, Australian National University, Canberra, Australia (15 May 2007). Zeid Report, para. 52. 52 Ibid. The Draft Comprehensive Strategy speaks in terms of assistance to three categories of persons: complainants (all those making a complaint), victims (those whose complaints have been substantiated in a UN process or member state process), and the children born as a result of sexual exploitation and abuse by UN staff or related personnel.

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prioritise the use of community-based culturally appropriate services (and resource such services where necessary), and might provide legal counsel (at the UN’s discretion) to assist the victim pursuing cases in national courts or bodies. Provision was also made for the appointment of a victims’ advocate. Some of the language appeared in a non-binding form: for example, ‘The United Nations will consider appropriate measures for their safety, physical and psychological well-being and privacy’.54 Language on victims’ entitlements was also vague with respect to which party would be responsible for providing entitlements: ‘Victims should receive additional assistance and support, depending on their individual needs and the particular circumstances of the case.’55 Resources were also a key concern, with the comprehensive strategy stating that ﬁnancial support would only be granted in exceptional circumstances.56 While the Zeid Report referred to the UN being ‘accountable for its peacekeeping operations’,57 later documents eschew any legal liability on the part on the UN. The Draft Comprehensive Strategy states boldly that ‘The United Nations bears no legal liability for acts of sexual exploitation and abuse committed by United Nations staff or related personnel’.58 Primary responsibility is seen to reside with the individual perpetrator, permitting the UN to focus on assisting victims to take action against the perpetrator.59 There is no consideration of whether the UN has itself taken sufﬁcient steps to counter sexual exploitation and abuse, or is in any way complicit or responsible for the problem. Nor has there been consideration of the extent of the UN’s vicarious liability, akin to that of a state, for (unauthorised) human-rights violations.

B. Kosovo Similar themes of ‘limited responsibility’ arise with respect to the UN in Kosovo, where the UN has been the transitional administration since 1999. In its efforts to resolve the status of Kosovo, the UN has had to grapple with maintaining its own credibility, including its commitment to human-rights principles. In its approach to international and national oversight, one sees the competing objectives of pushing for greater transparency and accountability and seeking to maintain the UN’s privileged status. 54 57 59

Draft Comprehensive Strategy, para. 17. 55 Ibid., para. 20. 56 Ibid., para. 22. Zeid Report, para. 38. 58 Draft Comprehensive Strategy, para. 6. Ibid., para. 21.

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i. International oversight An interesting development was UNMIK’s agreement to submit a report to the UN Human Rights Committee in early 2006. The report details the human-rights situation in Kosovo since 1999.60 As the Kosovo Ombudsperson was to state, this action was signiﬁcant since, ‘for the ﬁrst time, UNMIK was obliged to account for its actions to independent international human rights monitoring bodies’.61 The report acknowledges ongoing deﬁciencies in the human rights enjoyed by the people of Kosovo, particularly in the area of discrimination. At the same time, it maintains a hard line concerning the UN’s obligations in the area. In a stark comment, the report states that human-rights guarantees form part of the applicable law in Kosovo by virtue of the legislative act of UNMIK and that this ‘does not imply that these [human rights] treaties and conventions are in any way binding on UNMIK’.62 Throughout the report, there is a clear emphasis on maintaining the full plenary discretionary power of the SRSG granted through Security Council Resolution 1244 (1999). Nevertheless, in submitting the report, UNMIK opened itself to international oversight and the HRC referred directly to areas where UNMIK could improve its practice, including in some of the national oversight areas discussed below.63 ii. National oversight bodies In 2000, UNMIK established an Ombudsperson Institution to investigate human-rights abuses by all public institutions in Kosovo, including UNMIK.64 Although appointed by the SRSG, the Ombudsperson was mandated to operate independently. Indeed, the Ombudsperson’s reports reveal an attempt to highlight systemic as well as individual human-rights 60

61

62

63

64

UN Doc. CCPR/C/UNK/1 (13 March 2006) Report submitted by the United Nations interim administration mission in Kosovo to the Human Rights Committee on the human rights situation in Kosovo since June 1999. Ombudsperson Institution in Kosovo, Sixth Annual Report: 2005–6 (Priština: Ombudsperson Institution in Kosovo, 2006), 24. UN Doc. CCPR/C/UNK/1 (13 March 2006) Report submitted by the United Nations interim administration mission in Kosovo to the Human Rights Committee on the human rights situation in Kosovo since June 1999, para. 123. For the HRC’s concluding observation, see UN Doc. CCPR/C/UNK/CO/1 (14 August 2006) Consideration of reports submitted by states parties under Article 40 of the Covenant. UNMIK Regulation 2000/38 (30 June 2000) On the Establishment of the Ombudsperson Institution in Kosovo.

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violations. In Special Report No. 1, for instance, the Ombudsperson concluded that the regime of privileges and immunities operating in Kosovo under Regulation 2000/47 (full immunity for UNMIK and Kosovo Force (KFOR)) were inconsistent with human-rights standards.65 Special Report No. 3 concluded that the ‘executive detentions’ ordered by the SRSG were contrary to the right to liberty, and Special Report No. 4 critiqued the subsequent establishment of a non-judicial review commission for the executive detentions.66 The Ombudsperson recommended ceasing the practice of executive detentions, and instituting judicial review of existing detentions and a mechanism for compensation claims.67 Such analyses were not welcomed by the UNMIK administration. Marshall and Inglis describe the ‘acrid and defensive’ response of the principal deputy SRSG ‘denying that UNMIK has responsibilities as a surrogate state and providing rosy responses to questions concerning the reality of human rights protections in Kosovo’.68 The 2005 report of the Ombudsperson referred to the continuing ‘partial lack of co-operation of UNMIK’, whilst noting improvements in co-operation from UNMIK police.69 With the nationalisation of the Ombudsperson Institution in 2006 (becoming a Kosovo-led institution), the new Regulation abolishes automatic jurisdiction over UNMIK and KFOR, focusing instead on Kosovo institutions, whilst foreshadowing a ‘bilateral agreement with the [SRSG] on procedures for dealing with cases involving UNMIK’.70 Given that by late 2007 Parliament had yet to appoint the national Ombudsperson, there was some confusion as 65

66

67

68

69

70

Ombudsperson Institution in Kosovo, Special Report No. 1 on the Compatibility with Recognised International Standards of UNMIK Regulation No. 2000/47 on the Status, Privileges and Immunities of KFOR and UNMIK and Their Personnel in Kosovo (Priština: Ombudsperson Institution in Kosovo, 2001). Ombudsperson Institution in Kosovo, Special Report No. 3 on the Conformity of Deprivations of Liberty under ‘Executive Orders’ with Recognised International Standards (Priština: Ombudsperson Institution in Kosovo, 2001); Ombudsperson Institution in Kosovo, Special Report No. 4 on Certain Aspects of UNMIK Regulation No. 2001/18 on the Establishment of a Detention Review Commission for Extra-judicial Detentions Based on Executive Orders (Priština: Ombudsperson Institution in Kosovo, 2001). See Special Report No. 3 on the Conformity of Deprivations of Liberty under ‘Executive Orders’ with Recognised International Standards. See David Marshall and Shelley Inglis, ‘The disempowerment of human rights-based justice in the United Nations mission in Kosovo’ (2003) 16 Harvard Human Rights Journal, 95–146, 142. Ombudsperson Institution in Kosovo, Fifth Annual Report: 2004–5 (Priština: Ombudsperson Institution in Kosovo, 2005), 26. UNMIK Regulation 2006/6 (16 February 2006) On the Ombudsperson Institution in Kosovo, s. 3.4.

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to whether the acting Ombudsperson was to implement the amended scheme or the original scheme.71 The removal of this jurisdiction was vigorously protested by NGOs. The retention of the ‘international Ombudsperson’ model was also supported by the retiring international Ombudsperson, the Parliamentary Assembly of the Council of Europe (PACE) and Kai Eide, the special envoy of the secretary-general for the Comprehensive Review of Kosovo.72 The HRC also raised this issue as part of its call for a reconsideration of arrangements for the authoritative human-rights review of acts and omissions by UNMIK.73 The acting Ombudsperson has commented on the lack of accountability for areas in which UNMIK remains the de facto authority (the northern municipalities).74 Parallel to these developments, however, in March 2006 UNMIK created a new body to examine alleged human-rights violations by UNMIK. The Human Rights Advisory Panel (HRAP) has jurisdiction to examine complaints from any person or group of persons claiming to be the victim of a human-rights violation by UNMIK.75 However, it is a limited body. Panel members are appointed by the SRSG and the HRAP must determine that all other available avenues for review of the alleged violation have been pursued. The complaint must also be lodged within six months of the original decision. The HRAP has no powers to compel persons to appear before it, only being able to ‘request the appearance 71

72

73

74

75

Cf. Ombudsperson Institution in Kosovo, Seventh Annual Report 2006–7 (Priština: Ombudsperson Institution in Kosovo, 2007), 6, with the view expressed in UNMIK Regulation 2007/15 (19 March 2007) Amending UNMIK Regulation No. 2006/6 on the Ombudsperson Institution in Kosovo. See also Human Rights Watch, Better Late than Never: Enhancing the accountability of international institutions in Kosovo, Backgrounder Paper No. 2 (June 2007), 15. Reported in Amnesty International, Kosovo (Serbia and Montenegro) United Nations Mission Interim Administration Mission in Kosovo (UNMIK): Brieﬁng to the Human Rights Committee 87th session, July 2006 (Amnesty International Index: EUR 70/007/ 2006), 7. See also PACE Resolution 1533 (24 January 2007) Current Situation in Kosovo, para. 13. UN Doc. CCPR/C/UNK/CO/1 (14 August 2006) Consideration of reports submitted by states parties under Article 40 of the Covenant, para. 10. The Committee also noted with concern that UNMIK and the Provisional Institutions of Self-Government had not always extended due co-operation to the Ombudsperson Institution. Ombudsperson Institution in Kosovo, Sixth Annual Report: 2005–6 (Priština: Ombudsperson Institution in Kosovo, 2006), 26–7. UNMIK Regulation 2006/12 (23 March 2006) On the Establishment of a Human Rights Advisory Panel, s. 1.2. The scope of human rights is broad: essentially the six core human-rights instruments, plus the Universal Declaration of Human Rights and the European Convention on Human Rights.

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of any person, including UNMIK personnel, or the submission of any documents, including ﬁles and documents in the possession of UNMIK, which may be relevant to the complaint’.76 Requests to UNMIK must be made through the SRSG, who ‘shall take into account the interests of justice, the promotion of human rights and the interests of UNMIK and the United Nations as a whole’.77 The SRSG is directed to co-operate with the Panel and provide it with the necessary assistance.78 However, this is subsidiary to the SRSG’s retention of a more general discretion to decide whether or not to permit the appearance of UNMIK personnel or submit UN documents.79 After examining a complaint, the HRAP issues ﬁndings and recommendations to the SRSG, who has ‘exclusive authority and discretion’ to decide whether to act on the ﬁndings.80 Fortunately, the ﬁndings and recommendations are to be made public. The HRC has expressed concern that the HRAP ‘lacks the necessary independence and authority’ and has called upon UNMIK to ‘reconsider arrangements for the authoritative human rights review of acts and omissions by UNMIK’.81 In opting for the HRAP, UNMIK rejected a PACE recommendation that a Human Rights Court be established in Kosovo.82 According to the PACE model, a hybrid court involving international and national judges83 might be established and empowered to annul decisions and acts of UNMIK, and award appropriate redress or compensation. In the PACE scheme, individual claims would proceed to the court, leaving the HRAP to scrutinise draft Regulations and hear appeals from the UNMIK Claims Ofﬁce. Some clues as to the reasons for UNMIK’s rejection of the court proposal appear in UNMIK’s report to the HRC: The creation of a judicial body that would issue binding decisions on UNMIK would be problematic from the perspective of the privileges and immunities of UNMIK and its personnel, their possible exposure to liability and the importance of not compromising the discretion of the institutions of the United Nations to interpret the mandate of UNMIK under [United Nations Security Council Resolution 1244 (1999)].84 76 81

82

83 84

Ibid., s. 15.1. 77 Ibid., s. 15.3. 78 Ibid., s. 15.2. 79 Ibid., s. 15.3. 80 Ibid., s. 17.3. UN Doc. CCPR/C/UNK/CO/1 (14 August 2006) Consideration of reports submitted by states parties under Article 40 of the Covenant, para. 10. See PACE Resolution 1417 (25 January 2005) Protection of Human Rights in Kosovo, para. 4. Only international judges were to be able to hear matters involving UNMIK. UN Doc. CCPR/C/UNK/1 (13 March 2006) Report submitted by the United Nations interim administration mission in Kosovo to the Human Rights Committee on the human rights situation in Kosovo since June 1999, para. 132.

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So, once again, we return to a fundamental philosophical disagreement concerning the desirable level of accountability that should attach to the UN in its performance of governance functions and the role of international law in limiting such accountability.

IV. Moving towards greater accountability? There is a clear need to develop both the institutions and the legal norms necessary to hold the UN accountable for its acts which impair human rights. Within the literature, there have already been powerful calls for a Peacekeeping Bill of Rights, a UN Ombudsperson with general powers of investigation and a UN Human Rights Claims Commission.85 The energy invested in combating sexual abuse and exploitation has illustrated the readiness to reform at least some rules, procedures and institutional safeguards. For the purposes of this chapter, a few reﬂections are offered on steps that might be taken to increase the human-rights accountability of the UN. First, there is a necessity for clariﬁcation of standards. As an interim measure, a secretary-general’s bulletin on the application of human rights norms could be issued, in a manner similar to the secretarygeneral’s bulletins on the observance by United Nations forces of international humanitarian law.86 Efforts would need to be taken to make the bulletin applicable to all categories of personnel, and speciﬁc training initiatives undertaken in order to socialise the contents and provide better understanding of the application of international human-rights norms. Pending the further clariﬁcation and development of international law on the topic, such a bulletin could play an important role in emphasising the UN’s commitments. It could be incorporated in the training and orientation materials provided to all UN staff and personnel, with an emphasis on providing concrete examples of positive practices adopted by staff and personnel to achieve consistency with human rights. Such a bulletin might also help to catalyse discussion of enforcement mechanisms to address violations and establish a process for determining appropriate remedies. 85

86

See, for instance, Carla Bongiorno, ‘A culture of impunity: Applying international human rights law to the United Nations in East Timor’ (2002) 33 Columbia Human Rights Law Review, 623–92, 677–88. In the context of international humanitarian law, see Zwanenburg, Accountability of Peace Support Operations, ch. 6. UN Doc. ST/SGB/1999/13 (6 August 1999) Secretary-general’s bulletin: Observance by United Nations forces of international humanitarian law.

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Second, continuing attention needs to be paid to the development of international law in the areas noted in this chapter – in particular the application of international human-rights law to UN operations, the attribution of conduct to the UN and the development of appropriate mechanisms for complainants to raise concerns about the impact of UN operations on human rights. Another useful step would be to include explicitly the obligation to respect human rights in the mandates of UN operations.87 This would clarify the issue in operational terms and strengthen the hand of those charged with administering and monitoring UN operations.88 Third, and most importantly for those whose human rights are affected by UN action, a permanent, accessible mechanism for the investigation of human-rights violations committed by UN actors and institutions should be established. Such a body should be victim-oriented (rather than discipline-oriented) and give particular attention to the appropriate outreach to, protection of and remedies for victims. Where appropriate, it should make recommendations for institutional reform. Ensuring the investigation and prosecution of personnel who commit human-rights violations that amount to criminal acts is an important part of providing accountability. As the work being carried out in the ﬁeld of sexual exploitation demonstrates, there can be many challenges in the pursuit of accountability. Difﬁculties surround the collection of evidence in post-conﬂict environments (with UN actors on short-term deployments), obtaining jurisdiction over the perpetrator, privileges and immunities, as well as establishing a judicial system with subject matter jurisdiction and appropriate capacity. At the same time, pursuing criminal investigations, prosecutions and convictions does not necessarily guarantee appropriate remedies or reparations for victims. Furthermore, many human-rights violations do not constitute criminal acts and require other responses. It is thus important for reforms to include mechanisms that are speciﬁcally designed to respond to human-rights violations. Learning from models employed within domestic systems, one could envisage some form of standing UN Human Rights Complaints Body. This could be through an extension of the powers of the UN Ombudsperson (a body that currently deals with employment disputes within the UN), or the creation of a new body with a mandate to consider questions of institutional accountability. Whatever form the body takes, 87

Devereux, ‘Searching for clarity’, 320.

88

Ibid.

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it must be accessible to persons in peacekeeping environments. This would entail, for instance, having local ofﬁces, sufﬁcient outreach programmes, being language, culture and gender sensitive and being sufﬁciently resourced, both ﬁnancially and in terms of expertise. It would need to be able to initiate investigations of its own accord and have powers to investigate matters fully and recommend remedies for victims. Careful attention should also be paid to the composition and processes of the body so as to reinforce its credibility and impartiality. Transparency of process and outcome is vital. There would also need to be sufﬁcient resources for recommendations of the body to be implemented. Consideration should also be given to permitting the actions of the UN and UN actors to be evaluated by domestic human-rights oversight bodies, as in the case of Kosovo. Fourth, further work needs to be undertaken to integrate the international human-rights monitoring regime and UN operations. The UNMIK report to the HRC provides a good precedent for how to use existing international mechanisms. In addition to looking at the ways in which treaty bodies and Charter-based mechanisms might review UN activities, a thematic Special Rapporteur could also be appointed by the UN Human Rights Council to investigate UN peace operations.

Conclusion The UN is most commonly associated with the promotion and protection of human rights globally. The UN emphasises the need for robust accountability mechanisms and individual access to remedies for human-rights violations vis-à-vis the state. Yet, counterintuitively, international law currently limits the UN’s accountability for human-rights violations committed by its staff and related personnel in performing governance functions. While the need to address public concerns about sexual exploitation and the ongoing administration of power in Kosovo have prompted some steps in the direction of greater accountability, there remains a hesitancy to embrace all the ramiﬁcations of institutional accountability. For the protection of host-state communities and the credibility of the UN, it is vital that further work be undertaken to develop international law and supporting mechanisms to make human rights a universal standard in peacekeeping.

10 ‘Security starts with the law’: The role of international law in the protection of women’s security post-conﬂict amy maguire

Introduction The concept of security is often simpliﬁed and misunderstood in postconﬂict societies – those in which ‘predominately male combatants have ceased to engage in “ofﬁcial” war’.1 During post-war transition, women’s victimhood has been emphasised at the expense of careful inquiry into women’s unique experiences of conﬂict or their security needs during the peace-building process.2 Women’s interactions with the notion of security are varied and complex, and extend far beyond a desire for an end to the ‘ofﬁcial’ war.3 This chapter explores two questions: what are the views of women regarding the role of law in protecting their security, and to what extent is law – both international and domestic – capable of transforming approaches to women’s security? These questions respond to the demand, commonly expressed by women living through post-conﬂict transition, for a transformation rather than a mere reinterpretation of existing socio-political structures.4 Meintjes, Pillay and Turshen describe transformation as distinct from reconstruction of the past. They interpret women’s demands for 1

2

3

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Lori Handrahan, ‘Conﬂict, gender, ethnicity and post-conﬂict reconstruction’ (2004) 35 Security Dialogue, 429–45, 429. Codou Bop, ‘Women in conﬂicts, their gains and their losses’ in Sheila Meintjes, Anu Pillay and Meredeth Turshen (eds.), The Aftermath: Women in post-conﬂict transformation (London: Zed Books, 2001), 19–34, 19. Brandon Hamber, Paddy Hillyard, Amy Maguire, Monica McWilliams, Gillian Robinson, David Russell and Margaret Ward, ‘Discourses in transition: Re-imagining women’s security’ (2006) 20 International Relations, 487–502, 491–4. Sheila Meintjes, Anu Pillay and Meredeth Turshen, ‘Introduction’ in Sheila Meintjes, Anu Pillay and Meredeth Turshen (eds.), The Aftermath: Women in post-conﬂict transformation (London: Zed Books, 2001), 3–18, 4.

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transformation to mean the ‘substantive advancement’ of women, the permanent removal of ‘traditional gender restrictions’ and a recasting of social and political structures to enable gender equality in post-conﬂict societies.5 In the context of security, such a transformation requires the increased representation of women in peace-building roles. However, transformation also demands a new framework for security dialogue – the ongoing conversation between international, state and non-state actors engaged in the policy and practice of security in post-conﬂict societies. This new framework ought to ensure that women’s voices are not marginalised in security dialogue,6 explore how gender inﬂuences peoples’ capacity ‘to both articulate their security needs and mobilize resources to meet those security needs’,7 and compel states and other powerful actors to take seriously the positions and security needs of women in post-conﬂict societies.8 This chapter is a step in an ongoing inquiry into the role of international law in the protection of women’s security post-conﬂict.9 Part I explores the direct testimony of women respondents in post-conﬂict societies about their hopes for law and its capacity to protect women’s security during transition from conﬂict. In Part II, I discuss two competing theoretical perspectives that may shed some light on law’s capacity to protect women’s security, namely the discourses of ‘transitional justice’ and ‘law’s violence’. Part III describes women-speciﬁc international laws relating to security, before considering the degree to which international 5 6

7

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Ibid., 4–5. Gunhild Hoogensen and Svein Vigeland Rottem, ‘Gender identity and the subject of security’ (2004) 35 Security Dialogue, 155–71, 166. Beth Woroniuk, Women’s Empowerment in the Context of Human Security: A discussion paper (Bangkok: United Nations Economic and Social Commission for Asia and the Paciﬁc (ESCAP), 1999), 5. Anu Pillay, ‘Violence against women in the aftermath’ in Sheila Meintjes, Anu Pillay and Meredeth Turshen (eds.), The Aftermath: Women in post-conﬂict transformation (London: Zed Books, 2001), 35–45, 36. For contributions to this ﬁeld of commentary, see Mary-Jane Fox, ‘Girl soldiers: Human security and gendered insecurity’ (2004) 35 Security Dialogue, 465–79; Heidi Hudson, ‘“Doing” security as though humans matter: A feminist perspective on gender and the politics of human security’ (2005) 36 Security Dialogue, 155–74; Paul Higate and Marsha Henry, ‘Engendering (in)security in peace support operations’ (2004) 35 Security Dialogue, 481–98; and Meenakshi Gopinath and Sumona DasGupta, ‘Structural challenges, enabling spaces: Gender and non-traditional formulations of security in South Asia’ in Ralf Emmers, Mely Caballero-Anthony and Amitav Acharya (eds.), Studying NonTraditional Security in Asia: Trends and issues (Singapore: Marshall Cavendish Academy, 2006), 192–209.

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standards are reﬂected in the peace agreements and/or constitutions of post-conﬂict societies. I argue that legal efforts achieve the best outcomes for women when they are driven by women’s direct participation in peace-building and their demands for social transformation. The data used in this chapter was gathered between 2004 and 2006 through a study on ‘Re-imagining women’s security and participation in post-conﬂict societies’.10 Research was conducted in three societies at various stages of post-conﬂict transition: Lebanon (before the 2006 conﬂict with Israel), Northern Ireland and South Africa. A concern of the study was to give women and men experiencing transition an opportunity to describe the meaning of security with reference to their own experiences. The major data-collection strategy was to convene thirty focus groups, each of which brought together women or men from a particular interest group from a wide range of social spheres.11 In addition to the focus groups, twenty interviews were conducted with a range of prominent persons in each research site. A ‘gender audit’12 was also conducted in each site, which brought together a range of quantitative data regarding the security and participation of women. The data considered in this chapter is drawn from focus groups conducted with women in each of the research sites. It was selected by searching across each of the focus groups for transcripts that discuss in detail law’s role in the promotion of women’s security. The data represents a cross-section of perspectives on the role of law in protecting security. The wide range of the women’s responses indicates both the breadth of women’s security concerns and the challenge of deﬁning law’s role in addressing them. Two frameworks dominate the global discussion of security: ‘state security’ discourse and ‘human security’ discourse.13 The former is an institutionalised approach that focuses on the protection of state borders14

10 11

12

13 14

Funded by UK Economic and Social Research Council Award RES 223-25-0066. These groups included people in economic reconstruction, NGOs, political parties, excombatants, victims and campaigners. Audits are methods of quantitative data analysis in which statistics are compiled to support the qualitative and quantitative data gathered through empirical research. This method was used in this research and termed a ‘gender audit’ as it canvassed the representation and roles of women and men in a range of areas relevant to security, including governance, cultural, political, economic and constitutional issues. For further discussion, see Hamber et al., ‘Discourses in transition’, 489–91. Sverre Lodgaard, Human Security: Concept and operationalization (Oslo: Norwegian Institute of International Affairs, 2000), 2.

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and deﬁnes security as the absence of violent conﬂict.15 State-security discourse tends to be hierarchical and patriarchal, and particularly illsuited to addressing the security needs of women in post-conﬂict environments.16 As Eric Blanchard notes: Statesmen, diplomats, and the military conduct the business of states, and too often war, imbuing the relations and processes of the society of nation-states with an atmosphere seemingly devoid of women and an interest in issues of concern to women.17

In contrast, the idea of human security identiﬁes the person, rather than the state, as the primary referent of security policy.18 This approach recognises that security is a holistic concept encompassing seven interrelated areas – economic, food, health, environmental, personal, community and political – and aims to ensure both ‘freedom from want’ and ‘freedom from fear’.19 Human security has become a powerful notion within the peace-building work of the United Nations, and the United Nations Development Programme has published annual Human Development Reports since 1990, each of which reﬂects on the notion of human security. Alongside the freedoms from fear and want, more recent human-security discourse also emphasises the importance of giving people the ‘freedom to live in dignity’.20 As promoted in the international arena by the UN,

15

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According to Hans Morgenthau, the state’s role in protecting its security is to struggle for power: ‘The statesman must think in terms of the national interest, conceived as power among other powers’: Hans Morgenthau and Kenneth W. Thompson, Politics Among Nations: The struggle for power and peace, 6th edn (New York: McGraw Hill, 1985), 165. Hoogensen and Rottem, ‘Gender identity and the subject of security’, 158; Edward Newman, ‘Human security and constructivism’ (2001) 2 International Studies Perspectives, 239–51, 240. Eric M. Blanchard, ‘Gender, international relations, and the development of feminist security theory’ (2003) 28 Signs: Journal of Women in Culture and Society, 1289– 312, 1289. Newman, ‘Human security and constructivism’, 239. For other commentary on human security discourse, see, e.g., Sabina Alkire, A Conceptual Framework for Human Security (Oxford: Centre for Research on Inequality, Human Security and Ethnicity, Working Paper 2, 2003); Rob McRae and Don Hubert (eds.), Human Security and the New Diplomacy: Protecting people, promoting peace (Montreal: McGill-Queen’s University Press, 2001); Ramesh Thakur, ‘The UN and human security’ (1999) 7 Canadian Foreign Policy, 51–9. United Nations Development Programme, Human Development Report 1994 (New York: United Nations, 1994), 24. UN Doc. A/59/2005 (21 March 2005) In larger freedom: Towards development, security and human rights for all: Report of the secretary-general, 34.

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human-security discourse aims to empower people through security policies to which they freely contribute.21 Women respondents to the study described security in a way that is consistent with the human-security literature. They did not project a utopian image of what security could be in the post-conﬂict environment, but rather recognised a wide range of practical measures that could be taken to reinforce women’s security at all levels of social life.22 The following exchange between three South African women illustrates this understanding of security as a holistic concept: R1:

R2:

R3:

… when I think of security the ﬁrst thing that comes to mind is safety. I think of safety and especially as far as women are concerned … you look at the ﬁgures in our country of the high rate of rape … … in addition I think it’s the issue of education and jobs. That women need to have skills, need to be educated in order to secure jobs, in order to have safe living areas and all those types of things … I think as well, I suppose in a South African context especially, when you refer to economic security it is commonly referred to as independence, especially in relation to women. Being ﬁnancially independent, that comes with a lot of security, and just the freedom and will to do as you wish and when you want to, because you have that economic security. (South Africa, women in economic reconstruction)

Since the 1990s, the human-security approach has gained prominence in security dialogue and is increasingly informing international legal approaches to problems of security policy.23 This is a positive development as women’s layered and complex conceptions of security are better incorporated by the human-security approach than by the traditional state-security discourse. The strong support for the growth of humansecurity discourse internationally, especially within the UN and civil society, encourages states to acknowledge those who have been made insecure by statist notions of security and move to address these human insecurities.24 21

22

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Commission on Human Security, Human Security Now (New York: Commission on Human Security, 2003), 6. For further discussion of this process of reimagining, see Hamber et al., ‘Discourses in transition’, 487–502. See for example SC Res. 1325 (31 October 2000); UN Doc. S/2002/1154 (16 October 2002) Report of the secretary-general on women, peace and security. Katrina Lee Koo, ‘Confronting a disciplinary blindness: Women, war and rape in the international politics of security’ (2002) 37 Australian Journal of Political Science, 525–36, 535.

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A particularly important contemporary development is the ‘gendered’ security approach to human-security discourse. This approach recognises that human security carries signiﬁcant potential as a counter-balance to the dominance of state concerns in security dialogue, but argues that the notion of human security is insufﬁciently conscious of the gendered aspects of security policy and provision. Indeed, human-security discourse has marginalised both women’s inequalities as subjects of security25 and women’s capacities to make distinctive contributions to peace-building.26 Gopinath and DasGupta describe the ‘engenderment’ of security thus: ‘Engendering’ security goes signiﬁcantly beyond mainstreaming. It attempts to construct an alternative discourse, resocializing men and women into a qualitatively nuanced understanding of security … shifting priorities from threat perceptions and deterrence vocabularies to a language that cognizes ‘structural challenges’ and ‘enabling spaces’.27

A gendered security approach argues that women’s security must be made a central concern of contemporary security discourse. Gopinath and DasGupta point out, however, that this does not mean the ‘mainstreaming’ of gender into an existing and male-dominated security dialogue. Nor can it be achieved simply through increasing the representation of women in a patriarchal arena. Instead, the gendered security approach aims to empower women to participate in, and indeed drive, a process of transforming their post-conﬂict societies. For this to occur, structural challenges – inbuilt societal inequalities between men and women – must be recognised and addressed. One means by which this may be achieved is through opening ‘enabling spaces’ and empowering women in post-conﬂict societies to express both their unique experiences of conﬂict and their particular security needs during transition and beyond. This chapter is one small ‘enabling space’ in which women’s views of security during transition are explored.

I. Women’s voices in post-conﬂict societies In this part, I consider a range of women’s perspectives on law’s role in promoting their security during post-conﬂict transition. The testimonies are a selection from the focus groups conducted with women in Lebanon, 25 26

27

Woroniuk, Women’s Empowerment in the Context of Human Security, 4. Betty A. Reardon, Women and Peace: Feminist visions of global security (Albany: State University of New York Press, 1993), 141. Gopinath and DasGupta, ‘Structural challenges, enabling spaces’, 206.

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Northern Ireland and South Africa. Five themes emerged through the analysis of women’s responses in relation to law’s role in protecting women’s security, and each of these themes is sketched here.

A. The role of law in the protection of security Several respondents, particularly in Lebanon, attributed a powerful role to law in the post-conﬂict period: Speciﬁcally, the primary role of laws is to ensure security for human beings. (Lebanon, women in NGOs). For me [security] would be that a woman lives in a society that assumes she should be protected in some way. (Northern Ireland, women in NGOs). Security starts with the law … I think that when there is a law that protects me … when you know there is a law that punishes the offender, violence stops in the home … So, in my opinion, the law is a necessary condition for one to feel secure. (Lebanon, women ex-combatants (emphasis added)).

Through such comments, women respondents identiﬁed law as a powerful, possibly the most powerful, force in transitional societies. In such a conception, law sets the example for society and reﬂects the values which that society seeks to entrench in all ﬁelds of life. As discussed below in Part III, the wide range of women-speciﬁc rights-protections in international law support the demands of some women that law take on a transformative role in promoting their security during post-conﬂict transition. It is also interesting that women in Lebanon – which, of the three research sites, provides the least legal protection for women’s rights and security – were most likely to attribute to law a capacity to bring about radical change in security policy and practice.

B. The constitutive force of law in post-conﬂict society For some women respondents, again particularly in Lebanon, the logical consequence of the positive roles they ascribed to law in the context of security was their recognition of law’s constitutive potential. Comments in this context asserted that law has the power to establish new frameworks to replace established orders, thus providing powerful advocacy tools and helping to promote social transformation:

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As an activist, as a lawyer, I cannot change anything unless I have the law on my side. In order to be able to change the mentality, I have to change the law in order to have a framework to guide this change. (Lebanon, women in NGOs) Unless the laws are amended to protect women, how do you expect the women to start claiming their rights? On what basis do you expect them to take action unless they have the means to protect themselves? The laws are the tools which women need to start the change and put an end to abuse. (Lebanon, women in political parties)

It appears that the heightened degree of state-sanctioned sex discrimination and ongoing social conﬂict experienced by Lebanese women made them more likely than other participants in this research to attribute constitutive potential to law. For women with direct experience of discriminatory laws, the contrasts between those laws and laws that aim to protect women’s security are compelling.

C. Failures of implementation and the limits of law’s power One area in which there was signiﬁcant commonality across the research sites was in relation to the gap between legal measures and their implementation. Women in each of the three research sites reﬂected upon the prevailing patriarchy and discriminatory attitudes as key limitations on law’s power to protect their security. In this context, however, women tended to advocate for law reform accompanied by attitudinal change, rather than an abandonment of legal advocacy: We have to … change the whole of our society and actually organise it so that it suits us just as well as men … Having legislation, rules and laws, they do help … but if it is begrudgingly and there is a … resentment that you should be protected by law, it’s going to be given as a shake of the hand you know, and women know that very quickly. (Northern Ireland, pilot group) … I think no matter how much laws change, unless the outlook changes, there will always be shrewd lawyers who would manipulate the laws and the woman will keep losing. I say this because we have seen several instances where the law has been amended, however the implementation of these laws … let us take for example the testimony of women in real estates, [by law women’s testimony in real estate is valid] yet you still ﬁnd many people who insist to fetch two men instead of one woman to testify. (Lebanon, women in NGOs)

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Women respondents commented upon the failure of law to make a real difference to their security during transition if there is an absence of political will: I think it’s a lack of implementation, because if the laws are there, I mean what else is left except to put them into practice. It’s good and ﬁne to have all these laws. I mean you can take them to Lebanon and say ‘here, we have our nice laws’, but in actual fact what is happening back there? (South Africa, women in economic reconstruction)

The recurrence in this research of the three themes identiﬁed above reﬂects the strong sense among women that law can be used to achieve dramatic change in their security situations if it is well intentioned, well designed and thoroughly implemented. However, the remaining two themes to emerge from women’s views on the role of law in protecting security demonstrate respondents’ awareness of the negative potential of law.

D. Legal silences Beyond the limitations of law imposed by failings of implementation lie actual legal silences or spaces in which many women respondents argued law ought to intervene to protect their security. For example: At work, young women feel insecure, especially those who are not highly qualiﬁed … They are the ones who are the most subjected to sexual harassment and there are no laws to protect them. Whenever we, the League of Working Women, approach ofﬁcials regarding passing a law to protect women against sexual harassment we are laughed at and all we get are sarcastic answers. (Lebanon, women in NGOs)

Such legal silences occur not only in areas where the law has failed to intervene, but also through laws which fail to properly consider the impact of law on social relations: I think, in as much as the law of the country allows women to be empowered, that is going to have a spin-off effect on men’s behaviour and men’s attitudes towards women. In particular, those so-called empowered women. They’ll always be subject of abuse … everywhere you go … I am not only referring to perhaps males who they have relationships with, their husbands and partners; even complete strangers … if you are perceived to be an empowered woman you are subject to a lot of abuse from society in general. (South Africa, women in economic reconstruction)

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Some women respondents asserted that legal silences are created or entrenched by the marginalisation of women from lawmaking and security policy development: Most of the … laws, which were put in place – women were not involved in those laws. We were not there; we were forgotten altogether. (South Africa, women victims)

Legal silences can actually increase the degree of fear faced by women in post-conﬂict societies, as is revealed by the following comment: During the war, there was shelling and bombs were falling on our heads. We did not think about the rule of law and things like this. When Ta’if came, it failed to bring about the rule of law, so now I feel more afraid than before. (Lebanon, women victims)

This reﬂection on the relationship between law and security highlights the conﬂict between law’s potential to promote justice and security during transition, and the potential violence of law, to be discussed in Part II. It is clear that women identify a parallel between their own absence from security policymaking and practice, and the legal silences that inhibit their security. However it is not only women themselves who are marginalised from security dialogue – legal silences are also created when women’s contextualised conceptions of their security needs are not given space to inform policy or practice.

E. Violent laws A ﬁnal theme to emerge across all the research sites was the inhibiting effect that overtly violent laws have on women’s security. These laws, as described by women respondents, do violence in a range of ways, for example by entrenching harsh discriminatory practices against women, by failing to protect women from physical violence or by making women subject to structural inequalities. Women shared a concern that laws that discriminate against women mirror the broader patriarchy against which women battle for equality: In my opinion the patriarchal system prevails in all aspects of life. It regulates the lives of all social classes and religious groups. This reality is revealed and reinforced in the laws. All laws clearly instruct women to be submissive and passive. (Lebanon, women in NGOs)

228 role of international law i n rebu ilding societi es I still think [violence against women] is not addressed and you still hear of people charged with rape getting six months’ suspended sentences … We get messages all the time that crimes against the female body aren’t really that important. (Northern Ireland, pilot group)

Even where positive laws are developed to enhance women’s security, the problem of patriarchy can limit their potential, as one woman made clear: But there are still men … [inaudible] … they don’t fear the law. (South Africa, women political campaigners)

Lebanese respondents repeatedly referred to law’s violence with regard to ‘personal status’ laws. Although the 1989 Ta’if amendments to the constitution refer to the eventual aim of abolishing political confessionalism, all Lebanese remain subject to personal-status laws that regulate their personal lives differently according to their religious denomination/ ethnicity.28 For example, separate codes and court systems regulate the age of consent, marriage, custody and citizenship disputes according to a Lebanese person’s ethnic or religious identity.29 Lebanese women’s testimonies in relation to these laws identify the need not only to develop positive law but to do away with violent law: You cannot imagine the extent of violence imposed on women as a result of implementing these laws which discriminate against them to a great extent. I am currently working on improving the laws that regulate the issue of custody. I keep meeting women, receiving complaints from women; you cannot imagine the extent of violence they are being subject to. Can you imagine the suffering of a woman when they take away her son who is barely one year and a half old? Another woman – the father who does not know his son, he had not seen him for six years, and yet he comes forward insisting to take him from her. (Lebanon, women in NGOs) … our laws are still far from establishing equality between men and women when it comes to nationality, crime, punishment. (Lebanon, women in public life) 28

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Constitution of the Republic of Lebanon 1926, preamble (h); ‘Ta’if Accord’ (22 October 1989) (also known as the ‘National Reconciliation Accord’ or ‘Document of National Accord’); Mona Chemali Khalaf, ‘Re-imagining women’s security: A comparative study of Lebanon, Northern Ireland and South Africa – Draft Lebanon Gender Audit’, 2005. See the following Lebanese legislation: Ottoman Law of Family Rights 1917; Codiﬁed (Druze) Personal Status Law 1948; Law on the Rights of the Family 1962; Law on Organisation of the Sharia Courts 1962.

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One Lebanese woman argued that law’s capacity to achieve social transformation was fundamentally weakened by government acceptance of religious laws that regulate women’s lives and status. Nevertheless, for this woman, despite the violence done by personal status codes, law is not stripped of its constitutive potential: It is the duty of the government to pass these laws. Christianity or Islam should not be blamed. We should blame the government in the case of gender-based violence. There is no solution but to resort to the power of the law. (Lebanon, women in political parties)

One unifying thread across the ﬁve themes discussed above is that women in general regarded law as having a signiﬁcant potential role in the protection of their security. Respondents demanded that law do more to protect women’s security and the security of their families, communities and societies as a whole. By revealing their negative experiences of law’s power, however, women also demonstrated their awareness and concern that laws that do not centralise women’s security concerns are capable of doing women further violence beyond the conﬂict experience. In the following section I discuss two perspectives that theorise law’s capacity to bring about social change in very different ways. Elements of each theory could assist in developing legal approaches to security that are better adapted to meeting women’s security needs.

II. Theoretical perspectives A. The role of law in transitional-justice theory ‘Transitions’, Teitel states, ‘imply paradigm shifts in the conception of justice.’30 The study of ‘transitional justice’, then, constitutes a useful means of understanding how societies emerge from violent conﬂict towards long-term peace. Theories of transitional justice recognise that the legitimacy of law is generally weakened during conﬂict, suggesting that in the transitional period law must become both the subject and object of change,31 renewing itself and playing a role in societal renewal.32 Such 30 31

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Ruti G. Teitel, Transitional Justice (Oxford: Oxford University Press, 2000), 6. Christine Bell, Colm Campbell and Fionnuala Ní Aoláin, ‘Justice discourses in transition’ (2004) 13 Social and Legal Studies, 305–28, 309. Colm Campbell, Fionnuala Ní Aoláin and Colin Harvey, ‘The frontiers of legal analysis: Reframing the transition in Northern Ireland’ (2003) 66 Modern Law Review, 317–45, 334.

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theories favour a strong focus on the capacity of law to contribute to societal transformations. It is argued: law in transitional societies has to engage with the imperatives of moving between radically different political contexts. The need to compensate for domestic rule of law ‘gaps’, coupled with internationally imposed imperatives, means that international law typically forms a heightened and important legal reference point during transition by virtue of its externality to the parties to the conﬂict.33

By focusing on the role of law, transitional-justice theories offer a means of analysing the efﬁcacy of peace agreements, constitutions and other transitional legal mechanisms. Such analyses recognise that these legal mechanisms are structured by the paradoxical role law plays during transition, simultaneously guiding processes of legitimation of state institutions and of gradual change across the transitional society.34 An example of such a legal intervention is the 1998 Good Friday Agreement which is constitutive of the ongoing peace process in Northern Ireland.35 Transitional-justice theories identify law’s transitional role as one of transformation rather than reformation.36 This requires that legal and political institutions in transitional societies be evaluated to account for their role in creating the justice gaps that led to or perpetuated conﬂict. For justice to develop, social institutions must be transformed in awareness of the expressed needs of all people, rather than reformed to reﬂect old patterns and structural inequalities. This claim parallels women’s demands for social transformation in the post-conﬂict environment. Transitional-justice theories, however, contain some gaps of their own. First, these theories have not yet paid sufﬁcient attention to women’s experiences of conﬂict and transition. For example, it is clear that processes of negotiation and decision-making during transition remain dominated by men, marginalising women’s experiences of the ‘continuum’ of violence.37 A lack of direct engagement with the gendered aspects of transition weakens the transformative potential of legal analyses driven by transitional-justice theory. Second, the theories also face the challenge 33 34 35 36 37

Bell, Campbell and Ní Aoláin, ‘Justice discourses in transition’, 308. Teitel, Transitional Justice, 223. ‘Good Friday Agreement’ (10 April 1998) (also known as the ‘Belfast Agreement’). Campbell, Ní Aoláin, and Harvey, ‘The frontiers of legal analysis’, 336. Bell, Campbell and Ní Aoláin, ‘Justice discourses in transition’, 321. See also Christine Bell, ‘Women address the problems of peace agreements’ in Radhika Coomaraswamy and Dilrukshi Fonseka (eds.), Peace Work: Women, armed conﬂict and negotiation (New Delhi: Women Unlimited, 2004), 96–126.

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of maintaining analytical and problem-solving roles in the altered global political context post-September 11, 2001. Current United States unilateralism in security policy, as typiﬁed by the ‘war on terror’, threatens the capacity of international law to bind states. In turn, changes in global political attitudes to security policy threaten the human-rights body of law within the international law framework, weakening the inﬂuence of transitional justice arguments.38 Teitel notes that, in the contemporary global political climate, transitional justice has come to focus more heavily on peace and stability than on the larger goals of democracy and the rule of law.39 This is a troubling development in the context of women’s security, considering that women’s demands for transformation during transition require an approach that recognises that security operates on several levels, not simply the cessation of conﬂict. If transitional-justice approaches are to properly address women’s unique security needs, they must address not only formal peace-building processes, but also incorporate the holistic and multi-layered conceptions of security that women express during transition.

B. Theory of ‘law’s violence’ One means by which transitional justice theories may better address women’s security needs is through acknowledging the capacity of law to do violence as well as justice. Since Robert Cover’s work in the 1980s,40 a critique of law has developed that asserts that law functions in relationship to violence. Austin Sarat describes a ‘violence of law’ perspective in the following terms: Law depends on violence and uses it as a counterpunch to the allegedly more lethal and destructive violence situated just beyond law’s boundaries. 38

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Several prominent theorists of transitional justice have noted the potential stiﬂing impact of US ‘exceptionalism’ on transitional justice approaches: Martti Koskenniemi, ‘Between impunity and show trials’ (2002) 6 Max Planck Yearbook of United Nations Law, 1–32; Ruti G. Teitel, ‘Transitional justice genealogy’ (2003) 16 Harvard Human Rights Journal, 69–94; Christine Bell and Catherine O’Rourke, ‘Does feminism need a theory of transitional justice? An introductory essay’ (2007) 1 International Journal of Transitional Justice, 23–44, 24. Ruti G. Teitel, ‘Transitional justice in a new era’ (2003) 26 Fordham International Law Journal, 893–906, 898. Robert M. Cover, ‘The Supreme Court 1982 Term – Foreword: NOMOS and narrative’ (1983) 97 Harvard Law Review, 4–68; Robert M. Cover, ‘Violence and the word’ (1986) 95 Yale Law Journal, 1601–29.

232 role of international law i n rebu ilding societi es But the violence on which law depends always threatens the values for which law stands … Moreover the pain that these acts produce is everywhere, in the drama of law’s sporadic vengeance as well as in the ordinary lives of those subject to legal regulation.41

As women made clear in response to the study on which this chapter is based, a wide range of forms of violence threaten their security in the post-conﬂict period.42 There was agreement across each of the research sites, and particularly among Lebanese women respondents, that laws continue to inﬂict violence upon women. The relationship between law and violence raises an important question: if there is a link between law and justice (this being a fundamental proposition of transitional-justice theory), must there also be a link between law’s violence and its capacity to attain justice?43 The women’s responses set out above indicate a complex interrelationship between law, justice and violence in the post-conﬂict period. For example, many of the Lebanese respondents who condemned laws that do violence through discrimination or social repression also demanded that the state employ law to achieve justice and security during transition. This relationship between law, justice and violence is a signiﬁcant one in the context of legal efforts to protect women’s security during transition, although it has not yet been investigated. The complexity of the relationship may be one reason why most approaches to the provision of security during transition have failed to interrogate law’s dual power to bring about justice and to inﬂict violence. I argue, however, that legal approaches to the protection of women’s security would be enhanced by a consideration of the theories of transitional justice and law’s violence in a complementary fashion. In practice, this requires security approaches that conﬁrm law’s transformative potential, whilst tempering the ambition of transitional-justice theory with the recognition that laws can inﬂict violence upon women. A crucial step towards developing this approach is to listen to women’s views on how to reform laws in order to protect security. Also important is the recognition that no one theory – whether transitional justice, human security or otherwise – ought to

41

42 43

Austin Sarat, ‘Situating law between the realities of violence and the claims of justice: An introduction’ in Austin Sarat (ed.), Law, Violence, and the Possibility of Justice (Princeton: Princeton University Press, 2001), 3–16, 3. See Hamber et al., ‘Discourses in transition’, 487–502. Sarat, ‘Situating law’, 3; Alisa Rosenthal, ‘Law, violence, and the possibility of justice – Book review’ (2002) 12 Law and Politics Book Review, 339–42, 339.

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usurp what Bell and O’Rourke describe as the ‘larger political project of securing substantial material gains for women in transition’.44

III. Women-speciﬁc laws In this part, I introduce women-speciﬁc laws that relate to security at both the international and domestic levels. Some of these legal measures, particularly at the international level, reﬂect transitional-justice approaches and emphasise the transformative power of law. However, other international and domestic legal instruments reﬂect the complexity of the relationship between law, justice and violence.

A. International law, women’s rights, and women’s security The early period of international lawmaking in the human-rights ﬁeld was characterised by a strong focus on what are frequently termed ‘ﬁrst generation’ rights: civil and political rights. Measures in this area are important in the establishment of a baseline of political participation. In 1952 the UN General Assembly adopted the ﬁrst international-law mechanism directed speciﬁcally towards protecting the rights of women, the Convention on the Political Rights of Women.45 Through this Convention, women’s equal rights to vote, stand for election, and hold public ofﬁce are conﬁrmed. The preamble to the UN General Assembly Resolution adopting the Convention expresses a transitional-justicestyle faith in the transformative potential of law: Believing that an international convention on the political rights of women will constitute an important step towards the universal attainment of equal rights of men and women.46

By 1974, when the Declaration on the Protection of Women and Children in Emergency and Armed Conﬂict was adopted,47 the international law of human rights had developed to emphasise economic, social, cultural and collective rights.48 This was a major development in relation to women’s security, as it broadened the focus of rights discourse 44 45 46 47 48

Bell and O’Rourke, ‘Does feminism need a theory of transitional justice?’, 44. Opened for signature 20 December 1952, 193 UNTS 135 (entered into force 7 July 1954). GA Res. 7/640 (20 December 1952), preamble (emphasis added). GA Res. 29/3318 (14 December 1974). See, e.g., International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1967).

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to include the wide range of areas which women identify as essential to security.49 The 1974 Declaration reveals an important shift in focus towards the range of insecurities faced by women, and the myriad forms of intervention open to international law in relation to women’s security. It reﬂects the concerns of international humanitarian law, with speciﬁc focus on women and children, for example by emphasising the prohibition on attacking civilian targets, employing chemical warfare and denying aid and shelter to non-combatants. The Declaration is more closely aligned with the human-security approach than earlier legal interventions, in the sense that it recognises that security is a layered concept which does not involve simply freedom from conﬂict. Some aspects of the Declaration, however, indicate that international law-making of the time was still not adequately informed by women’s advocacy and experiences. First, the language contains patronising elements, particularly its references to ‘defenceless women and children’.50 In this sense, not only are women denied a degree of agency, but they are categorised alongside children, which arguably further emphasises their disempowerment. Second, there are no explicit references to sexual violence against women during conﬂict, despite the overwhelming weight of evidence pointing to sexual violence being one of the most confronting, common and damaging conﬂict experiences for women.51 The Declaration reﬂects the complex interaction between law, justice and violence which was highlighted by the women’s voices recorded earlier in this chapter. In contrast, by the time the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) was adopted in 1979,52 women’s advocacy and voices had become more powerful within international lawmaking processes.53 CEDAW was developed in response to the recognition that, despite the existence and broad acceptance of international human-rights mechanisms promoting the equality of men and women, extensive discrimination against women continued to exist.54 A Bill of Rights for Women was required to stand alongside the 49 50

51 52

53

54

Hamber et al., ‘Discourses in transition’, 491–4. GA Res. 29/3318 (14 December 1974) Declaration on the Protection of Women and Children in Emergency and Armed Conﬂict, Art. 2 (emphasis added). Lee Koo, ‘Confronting a disciplinary blindness’, 528, 531. Opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981). Elizabeth Evatt, ‘Finding a voice for women’s rights: The early days of CEDAW’ (2002) 34 George Washington International Law Review, 515–53, 515–17. Arvonne S. Fraser, ‘Becoming human: The origins and development of women’s human rights’ (1999) 21 Human Rights Quarterly, 853–906, 890.

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International Bill of Rights, to deﬁne and develop the notions of equality and non-discrimination. Signiﬁcantly in the context of this study of women’s security and participation in post-conﬂict societies, Art. 2 of the Convention enshrines the agreement of state parties to embody gender equality in their constitutions or other legislation, to use law to prohibit discrimination against women, to take all steps to eliminate discrimination against women, and to reform domestic law to ensure that no provisions discriminate against women. Through Art. 2 of the Convention, the international community endorsed the idea that law can bring about signiﬁcant change in relation to women’s rights and security, so long as legal standards are effectively implemented at the domestic level. Many women, particularly those familiar with the experience of conﬂict and its accompanying insecurities, have used this provision as a benchmark to measure against domestic laws and institutions. Legal silences that fail to protect women’s security are revealed by the examples of national constitutions that do not measure up to international standards, some of which will be considered below. One area particularly relevant to security with which international law has engaged is the elimination of violence against women. In December 1993, the General Assembly adopted the Declaration on the Elimination of Violence against Women, which recognises violence as one of the central obstacles in the path of ensuring women’s equality, security and participation.55 This instrument condemns all forms of gender-based violence, and requires states to protect women from such violence, no matter the motivation or perpetrator (Art. 4). This is an important adoption of the human-security approach, in that it recognises that women’s experiences of violence are not conﬁned to conﬂict experiences, and that women’s intimate partners are often responsible for inﬂicting violence upon them. The Declaration is also signiﬁcant in terms of the role it envisages for international agencies in the elimination of violence and discrimination against women. However, the Declaration is a document of ‘soft’ law and it has been criticised for being too modest in its language and goals, for example by failing to acknowledge violence against women as a human-rights violation, thus situating this harm on a lesser plane than other rights violations.56 55 56

GA Res. 48/104 (20 December 1993). Hilary Charlesworth, ‘Human rights as men’s rights’ in Julie Peters and Andrea Wolper (eds.), Women’s Rights, Human Rights: International feminist perspectives (New York: Routledge, 1995), 103–13, 108.

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The 1993 Declaration was a precursor to what is now frequently described as one of the central legal mechanisms in the promotion of women’s rights and security,57 UN Security Council Resolution 1325 (2000) on women and peace-building.58 Resolution 1325 reﬂects the persuasive power of women’s advocacy in the international arena. Indeed, it was largely through the efforts of women in the international forum, notably through the Women’s International League for Peace and Freedom and International Alert, that this resolution was passed.59 Through its emphasis on the need for women to be equally involved in peacemaking and peace-building, the resolution recognises that womenfocused mechanisms are made meaningful and useful only through women’s involvement and engagement at all levels of policymaking and lawmaking. In his ﬁrst report on progress following Resolution 1325, then UN Secretary-General Koﬁ Annan asserted that women’s full engagement in peace processes was essential to ‘build the foundations for enduring peace – development, good governance, human rights and justice’.60 Resolution 1325 has been welcomed due to the importance it places on the participation of women in security dialogue, yet it paints an inadequate picture of women’s security needs. The language of the resolution implies that women’s participation in security policymaking and lawmaking will result in vastly improved outcomes, without acknowledging that increasing women’s representation is only part of the problem. As is clear from the women’s voices explored earlier in this chapter, security dialogue must also consider how to acknowledge and address women’s particularised security needs. Charlesworth argues that Resolution 1325 would have achieved greater clarity on the signiﬁcance of ‘gender’ during post-conﬂict transition if it had considered

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Carol Cohn, Helen Kinsella and Sheri Gibbings, ‘Women, peace and security: Resolution 1325’ (2004) 6 International Feminist Journal of Politics, 130–40, 130; Victoria Brittain, ‘The impact of war on women’ (2003) 44(4) Race and Class, 41–51, 41–2. SC Res. 1325 (31 October 2000). Felicity Hill, Mikele Aboitiz and Sara Poehlman-Doumbouya, ‘Nongovernmental organizations’ role in the buildup and implementation of security council resolution 1325’ (2003) 28 Signs: Journal of Women in Culture and Society, 1255–69. Koﬁ Annan, Women, Peace and Security: Study submitted by the secretary-general pursuant to Security Council Resolution 1325 (2000) (New York: United Nations, 2002), ix. See also UN Doc. S/2002/1154 (16 October 2002) Report of the secretary-general on women, peace and security; UN Doc. S/2004/814 (13 October 2004) Women and peace and security: Report of the secretary-general.

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the relationship between women’s security needs and men’s identities during and after conﬂict.61 Instead, the resolution reﬂects the notion of ‘mainstreaming’ rather than the notion of ‘engenderment’. Whereas mainstreaming advocates the consideration of ‘women’s issues’ in the mainstream security discourse, the engenderment of that discourse goes beyond this to construct spaces in which women’s and men’s unique experiences and perspectives are explored and allowed to generate ‘bottom-up’ solutions to security problems. To return to Gopinath and DasGupta’s argument, this process requires participants in security dialogue to confront structural challenges and open up enabling spaces.62 This survey of the women-speciﬁc international laws that relate to security demonstrates the complexity of the relationship between law, justice and violence, in the sense that even the more progressive legal instruments suffer from legal silences that prevent them from adequately addressing women’s experiences of conﬂict and transition. It is clear from the responses to this study that women demand equal participation in lawmaking and security policy. International law is increasingly responding to that demand, by seeking to encourage women’s participation and by exploring a wider range of women’s insecurities. However, women’s calls for social transformation in the post-conﬂict period warrant a more integrated approach to women’s security than has been evident to date in international law. Such an approach would require recognition that women’s and men’s roles and experiences during conﬂict have signiﬁcance for their experience during transition.63 It also demands legal instruments that address women’s security as a concept comprising more than the absence of violent conﬂict, and including, for example, the signiﬁcance of ﬁnancial security, women’s experiences of violence during transition and the need to empower women’s participation in the institutions of transition.64 An integrated approach might also explore ways of encouraging transitional states to include international law and other standards in domestic peace agreements and constitutions.

61

62 63

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Hilary Charlesworth, ‘Not waving but drowning: Gender mainstreaming and human rights in the United Nations’ (2005) 18 Harvard Human Rights Journal, 1–18, 15. Gopinath and DasGupta, ‘Structural challenges, enabling spaces’, 207. Brandon Hamber, ‘Masculinity and transitional justice: An exploratory essay’ (2007) 1 International Journal of Transitional Justice, 375–90, 384. Hamber et al., ‘Discourses in transition’, 498–500.

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B. Domestic peace agreements/constitutions and the protection of women’s security The peace agreements and/or constitutions of Lebanon, Northern Ireland and South Africa indicate that the implementation of international standards remains inadequate and haphazard in the domestic laws of post-conﬂict societies. The peace agreements/constitutions of these three transitional societies display varying degrees of commitment to the standards of equality, participation and security for women that are set out in international law, and reﬂect an ambivalence towards international law.65

i. Lebanon The Lebanese constitution, as amended by the 1989 Ta’if Accord,66 contains two brief equality provisions: Preamble c. Lebanon is a parliamentary democratic republic based on respect for public liberties, especially the freedom of opinion and belief, and respect for social justice and equality of rights and duties among all citizens without discrimination. Article 7 (Equality) All Lebanese are equal before the law. They equally enjoy civil and political rights and equally are bound by public obligations and duties without any distinction.

The constitution does not make any mention of gender equality or discrimination against women. Focus groups conducted with women in Lebanon revealed a low degree of faith in the capacity of the Ta’if Peace Agreement to promote women’s equality, security and participation. Many Lebanese women argued that gains made by women in the post-conﬂict period were due to women’s direct advocacy, and that the absence of women in the text of the Peace Agreement reﬂected their lack of status more broadly: Now it is mere coincidence that women’s achievements, as far as their status and rights are concerned, happened following Ta’if, but they are not in any way an outcome of the Accord. (Lebanon, women ex-combatants)

65 66

Bell, Campbell and Ní Aoláin, ‘Justice discourses in transition’, 308. Constitution of the Republic of Lebanon 1926; ‘Ta’if Accord’ (22 October 1989).

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Lebanon’s constitution does not implement the range of international standards that would provide women with a broad complement of advocacy tools at the domestic level. Indeed, Lebanon’s initial and second reports to the Committee on the Elimination of Discrimination against Women, presented in 2004–5, note the reservations Lebanon placed on its ratiﬁcation of CEDAW,67 and recognise that women are actively discriminated against through Lebanese law in terms of honour crimes, adultery, abortion, assault on honour and prostitution.68 In other words, the Lebanese state admits its failure to abolish discriminatory laws, and implicitly recognises that its own laws do violence to women.

ii. Northern Ireland The 1998 Good Friday Agreement, a hybrid peace agreement and constitution, is more explicit in terms of women’s equality than parallel Lebanese measures, an outcome that is largely attributable to the interventions of the Northern Ireland Women’s Coalition in pre-agreement negotiations. The Agreement conﬁrms ‘the right of women to full and equal political participation’.69 The Agreement also afﬁrms equal opportunity of men and women in relation to all social and economic activity, and establishes a foundation for legislation requiring all public bodies to ensure equal opportunity on gender terms. The Agreement was the ﬁrst step in the creation of the Equality Commission, an equal opportunity monitoring body. Nevertheless, the Agreement does not directly address women’s security needs. For example, the provisions relating to ‘victims’ do not consider women’s unique experiences of the conﬂict, but rather focus on the experiences of the ethno-religious communities involved.70 Furthermore, the provisions that reconﬁgure the police service set a quota for Catholic membership, but do not propose equivalent measures to address the under-representation of women.71 Women’s responses to the Agreement and its capacity to advance their situations are mixed: 67

68

69 70 71

The Lebanese Government has entered reservations regarding Arts. 9(2), 16(1)(c), (d), (f), (g), 29(1). UN Doc. CEDAW/C/LBN/1 (2 September 2004) Consideration of reports submitted by states parties under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women: Initial report of states parties: Lebanon. ‘Good Friday Agreement’ (10 April 1998), Part 6, Art. 1. Ibid., Part 6, Arts. 11–13. Independent Commission on Policing for Northern Ireland, A New Beginning: Policing in Northern Ireland (Belfast: Independent Commission on Policing for Northern Ireland, 1999), para. 15.11.

240 role of international law i n rebu ilding societi es When I think back to before the Agreement, there wouldn’t have been an Equality Commission, there wouldn’t have been section 75 [the provision of the Northern Ireland Act which imposes equal opportunity requirements on all public bodies]. (Northern Ireland, women in public life) … the engagement of the Women’s Coalition meant that you didn’t feel [during] the last period of the Agreement that you were passed over because they were engaging in issues of a solid contribution that women could make, and that was very much what gave more commitment to it and seeing it as something active rather than … all this goes on outside of you or round you or over your head. … in that sense I suppose I feel a lot of the [subsequent activity] at the Assembly has been very demotivating. (Northern Ireland, women in economic reconstruction)

This latter response reﬂects the gap in representation that many women in Northern Ireland identify now that the Women’s Coalition no longer holds seats in the Northern Ireland Assembly, and the majority of sitting political parties remain heavily dominated by men.72 The domestic law in Northern Ireland has failed to implement fully international legal demands for women’s equal participation in public life and an end to all forms of discrimination against women. Although the law in Northern Ireland does not do active violence to women in the same sense as the law in Lebanon, the gaps in the legal protection afforded to women’s security by the Good Friday Agreement and parallel measures demonstrate that the same body of law can simultaneously promote justice in some senses while doing violence in others.

iii. South Africa The National Peace Accord of South Africa of 1991 contained few references to women, but does indirectly reﬂect on the relationship between women and the security forces. The South African constitution of 1996, however, is progressive in containing a comparable number of women-directed rights protections to the Northern Ireland Good Friday Agreement. Article 1 states that the Republic is founded on the values of achieving equality and fundamental human rights. The constitution

72

Margaret Ward, The Northern Ireland Assembly and Women: Assessing the gender deﬁcit (Belfast: Democratic Dialogue, 2000), 1–30. Current data on the representation of men and women in the Northern Ireland Assembly is available at www.niassembly.gov.uk/ mem.htm.

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is distinctive in its attention to women’s representation, for example Art. 46’s reference to women and men as members of the National Assembly. As part of its broader statement of the rights of all people to equality, Art. 9 of the constitution prohibits the state from discriminating, directly or indirectly, against any citizen on the basis of gender. Article 174 seeks to promote the development of a judiciary ‘broadly representative’ of the gender balance in South African society. A Commission for Gender Equality is established by Arts. 181(1)(d) and 187. One woman respondent to this study regarded the constitution as the key legal framework for women’s advancement in South Africa: I think that the constitution we have is one of the most democratic constitutions in the world. And if you look at the constitution of our country it gives everybody, whether male or female, the same rights. So I don’t think that we could have legislated something better. I think … it’s just the implementation. It’s the implementation and, you know it’s easy to say the law, but you need to change attitudes. (South Africa, women in economic reconstruction)

Indeed, many South African women responding to this study reported positive views on the capacity of constitutional and legislative reform to improve the position of women in South African society.73 However, legal measures directed primarily towards increasing the representation of women in ﬁelds of public life do not, on their own, adequately address the myriad forms of insecurity faced by women in post-conﬂict societies. This is apparent from the very high rates of sexual violence and violence in the home experienced by women in South Africa, and by statistics which suggest that such violence has increased in the post-conﬂict period.74 Each of the three domestic legal mechanisms described here contains some degree of protection for women’s right to equality, but even the most progressive does not directly address the role that law ought to play in protecting the security of women in the post-conﬂict environment. In each society the domestic law, either through legal silences or through 73 74

See Hamber et al., ‘Discourses in transition’, 495. For example, in 2004–5, 55,114 rapes were reported to the South African police, which represents 118.3 rapes per 100,000 persons, and a 1.5 per cent increase on the previous year: Crime Information Analysis Centre, Rape in the RSA for the Period of April to March 2001/2002 to 2004/2005 (Pretoria: South African Police Service, 2005). See also Hamber et al., ‘Discourses in transition’, 497.

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overt discrimination, inﬂicts violence upon women in some sense. The transitional-justice discourse might regard some gaps in the transitional legal framework as unfortunate but unavoidable,75 arguing that, during transition, law must simultaneously legitimate existing social structures and bring about change.76 However, the problem for women who are experiencing post-conﬂict transition is that international legal standards would be more inﬂuential in women’s lives if they were fully incorporated in domestic constitutions and laws.

Conclusion An analysis of women’s perspectives, theories of law’s capacity to bring about positive social change, and international and domestic laws that regulate security, suggests a paradox: law, especially during post-conﬂict transition, is bound up with the competing forces of justice and violence because the process of transition both brings into question the role of law in prior conﬂict and the capacity of law to reform social institutions. Despite being aware of this complex relationship, women continue to demand that law take on a constitutive role in the protection of their security. This is striking considering that the women respondents to this study who most strongly advocated for law’s role in the protection of their security also spoke of traumatic encounters with law. This conﬁrms that the conﬁdence of transitional-justice theories in law’s capacity to bring about positive social transformation does have a place in contemporary security dialogue. Although there are inconsistencies in the international legal standards, the growing concern for women’s rights, equality and security evident in international law further conﬁrms the signiﬁcance of transitional-justice theories in security discourse. Women’s testimonies regarding legal silences and the violence inﬂicted upon them by law, and the gaps in international and domestic legal protections for women’s security, also suggest that transitionaljustice approaches should be tempered by an awareness of law’s capacity to do violence as well as justice. The full and equal participation of women at all levels of lawmaking in relation to security is crucial to the achievement of women’s security in post-conﬂict societies. Women’s security will however only be adequately protected when the laws 75

76

Christine Bell, ‘Dealing with the past in Northern Ireland’ (2003) 26 Fordham International Law Journal, 1095–147, 1099, 1128. Teitel, Transitional Justice, 223.

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regulating security are engendered; that is, security dialogue must provide enabling spaces within which women may express their security needs and contribute to the development of laws aimed at protecting their security. Women require legal intervention that is explicitly concerned with the capacity of law to deliver justice, rather than laws that are silent about women’s experiences of violence or insecurity, or laws that can actually do violence to women. If security is to start with the law, then the law must start by listening to the voices of those seeking the full protection of their security, in the broadest sense, during post-conﬂict transition.

11 Grappling in the Great Lakes: The challenges of international justice in Rwanda, the Democratic Republic of Congo and Uganda phil clark

Introduction For the last twenty years, the Great Lakes region of Africa has experienced some of the most violent and destructive conﬂict in the world. Consequently, the region has become a focus for international justice institutions mandated to investigate and prosecute cases of mass crimes. Since 1986, the civil war in northern Uganda between the Ugandan government and the Lord’s Resistance Army (LRA), a rebel force infamous for its abduction and enlistment of children, has killed tens of thousands of civilians. Meanwhile, a government policy of forced displacement has driven an estimated 1.7 million people, nearly 90 per cent of the total northern Ugandan population, into 200 squalid camps for internally displaced persons (IDPs).1 In 1994 in Rwanda, between 500,000 and 1 million Tutsi and their Hutu and Twa sympathisers were systematically murdered in a genocide that lasted a little over three months.2 The génocidaires, many of whom knew their victims personally, often killed intimately, with basic weapons such as machetes, hoes and spiked clubs, known as panga, and usually near victims’ homes.3 The conﬂict in eastern Democratic Republic of Congo (DRC), which was in 1

2

3

United Nations, Uganda 2006: Consolidated Appeals Process (New York: United Nations, 2005). In her comprehensive analysis of the Rwandan genocide, Alison Des Forges estimates that 500,000 Tutsi were murdered: Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda (New York: Human Rights Watch, 1999), 15–16. Historian Gérard Prunier, however, calculates ‘the least bad possible’ number of deaths to be 850,000: Gérard Prunier, The Rwanda Crisis: History of a genocide (London: Hurst & Co., 1997), 265. See Des Forges, Leave None to Tell the Story, 209–12; African Rights, Rwanda: Death, despair and deﬁance (London: African Rights, revised edn, 1995), ch. 9; Roméo Dallaire,

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part incited by the overﬂow of genocidal ideology from Rwanda and has involved up to seven African nations (including Rwanda and Uganda), has since 1998 claimed nearly 4 million lives and displaced around the same number. On average 38,000 people per month continue to die from violence and conﬂict-related disease and deprivation.4 This chapter explores the role of, and the challenges confronting, two international justice institutions addressing atrocities in the Great Lakes: the International Criminal Tribunal for Rwanda (ICTR) in the Rwandan case, and the International Criminal Court (ICC) in the DRC and Uganda. Many ICC ofﬁcials and advocates of international justice have characterised the ICC as the product of the evolution of international criminal law since Nuremberg, drawing upon the lessons of previous international legal institutions to create a robust court with global reach. At his swearing-in as chief prosecutor of the ICC in 2003, Luis Moreno Ocampo argued that the Rome Statute of the International Criminal Court (‘Rome Statute’), the governing document of the Court, provided an international template for the deﬁnition of serious crimes, reﬂecting ‘a common heritage of law’5 founded on the work of earlier international justice institutions, such as the ICTR, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the Special Court for Sierra Leone (SCSL). This chapter argues that the ICTR and the ICC have faced similar problems in the Great Lakes. In particular, these institutions have experienced immense difﬁculties in navigating complex relations with domestic governments, judicial institutions and populations. While in part reﬂecting the inevitable challenges of trying to deliver international justice in the region – which often entails investigating and prosecuting cases of serious crimes while violent conﬂict and major human-rights violations are continuing – this shows that the ICC has generally failed to learn crucial lessons from the ICTR. The chapter begins by providing historical background to the conﬂicts and international judicial responses in

4

5

Shake Hands with the Devil: The failure of humanity in Rwanda (Toronto: Random House Canada, 2003), ch. 11. International Rescue Committee, Mortality in the Democratic Republic of the Congo (New York: International Rescue Committee, 2004); Benjamin Coghlan, Richard J. Brennan, Pascal Ngoy, David Dofara, Brad Otto, Mark Clements and Tony Stewart, ‘Mortality in the Democratic Republic of Congo: A nationwide survey’ (2006) 367 The Lancet, 44–51. Luis Moreno-Ocampo, Solemn Undertaking of the Deputy Prosecutor of the International Criminal Court: Address by Luis Moreno-Ocampo, prosecutor of the International Criminal Court (The Hague: International Criminal Court, 1 November 2004), 3.

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Rwanda, the DRC and Uganda. It then explores how the key principle of complementarity in the Rome Statute is in part an attempt to insulate the ICC from problems experienced by previous institutions, including the ICTR. Finally, the chapter examines four main challenges that international justice institutions have faced in Rwanda, the DRC and Uganda, and concludes with some remarks on the relevance of these challenges for the future of international justice in the Great Lakes and beyond.

I. Background to Great Lakes conﬂict and international judicial responses This section provides some background to the conﬂicts in Rwanda, the DRC and Uganda, and introduces the international judicial institution operating in each country, focusing on its jurisdiction relative to other institutions and some of its major developments.

A. Rwanda Between April and July 1994, Rwanda experienced one of the most devastating waves of mass killing in modern history. In one hundred days, nearly three-quarters of the total Tutsi population (which constituted around 11 per cent of the overall population of Rwanda in 1994, while Hutu comprised nearly 84 per cent) were murdered and hundreds of thousands more exiled to neighbouring countries.6 What distinguishes the Rwandan genocide from other cases of mass murder in the twentieth century, and in particular from the genocide of Jews during the Second World War, is the use of low-technology weaponry, the mass involvement of the Hutu population in the killings, the social and cultural similarities of the perpetrators and victims and the astonishing speed of the genocide. After defeating the genocidal government and assuming control over the country in July 1994, the Rwandan Patriotic Front (RPF) faced immense challenges in dealing with genocide suspects. The national judiciary had been almost entirely destroyed: most of Rwanda’s judges and lawyers had been killed or had ﬂed the country, and the judicial infrastructure had been decimated. In the aftermath of the genocide, the RPF rounded up approximately 120,000 genocide suspects and

6

Prunier, The Rwanda Crisis, 264–8.

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transported them to prisons across Rwanda built to hold only 45,000 detainees.7 On 8 November 1994, the United Nations Security Council authorised the establishment of the ICTR to prosecute the orchestrators and most serious perpetrators of the genocide.8 Modelled partly on the ICTY, the ICTR was intended to help end impunity in Rwanda by prosecuting the leaders of the genocide, while leaving lower-level perpetrators to the Rwandan national courts. The Security Council Resolution authorising the establishment of the ICTR holds that the prosecution of those most responsible for the genocide will ‘contribute to the process of national reconciliation and to the restoration and maintenance of peace’9 in Rwanda. Three institutions are mandated to prosecute different types of Rwandan genocide crimes: the ICTR, the Rwandan national courts, and a system of 9,000 community-based courts known as gacaca.10 The Gacaca Law of 2004,11 building on the 1996 Organic Law12 and 2001 Gacaca Law,13 distinguishes three categories of genocide and other crimes committed between 1 October 1990 and 31 December 1994 (encompassing the civil war that preceded the genocide and the direct aftermath of the genocide): category 1 includes individuals who planned the genocide, were considered particularly zealous killers or committed acts of torture or sexual violence; category 2 comprises those who committed 7

8 10

11

12

13

International Centre for Prison Studies, Prison Brief for Rwanda (London: International Centre for Prison Studies, 2002). 9 SC Res. 955 (8 November 1994), para. 1. Ibid., preambular para. 7. Pronounced ‘ga-CHA-cha’ and deriving from the Kinyarwanda word meaning ‘grass’, signifying the outdoor setting of most hearings. Republic of Rwanda, ‘Organic Law No. 16/2004 of 19/6/2004 Establishing the Organisation, Competence and Functioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of Genocide and other Crimes against Humanity, Committed between October 1, 1990 and December 31, 1994’, Ofﬁcial Gazette of the Republic of Rwanda (19 June 2004), Art. 51 (‘Gacaca Law [Modiﬁed 2004]’). Republic of Rwanda, ‘Loi Organique No. 8196 du 30/8/96 sur l’Organisation des Poursuites des Infractions Constitutives du Crime de Genocide ou de Crimes contre l’Humanité, Commises à Partir de 1er Octobre 1990’, Ofﬁcial Gazette of the Republic of Rwanda (1 September 1996), Arts. 2–9 (‘Organic Law’). Republic of Rwanda, ‘Loi Organique No. 33/2001 du 22/6/2001 Modiﬁant et Completant Loi Organique No. 40/2000 du 26 Janvier 2001 Portant Creation des “Juridictions Gacaca” et Organisation des Poursuite des Infractions Constitutives du Crime de Genocide ou de Crimes contre l’Humanité, Commises entre le 1 Octobre 1990 et 31 Decembre 1994’, Ofﬁcial Gazette of the Republic of Rwanda (22 June 2001) (‘Gacaca Law [Modiﬁed 2001]’).

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murder or caused injury; category 3 refers to those responsible for property crimes. Gacaca has jurisdiction over suspects in categories 2 and 3, while category 1 cases are referred to the national court system. The ICTR also deals exclusively with category 1 cases – of which it has completed thirty-three in thirteen years14 – and has priority jurisdiction which trumps that of the national courts. Morris calls this structure one of ‘stratiﬁed-concurrent jurisdiction’, in which different judicial bodies are charged with the prosecution of the same pool of suspects but where a legal hierarchy dictates which of these bodies has priority jurisdiction over these cases.15 As Morris explains, ‘This means that, where the ICTR and a national body each have a legal basis for jurisdiction over a given case, the ICTR is entitled – but not obliged – to exercise jurisdiction to the exclusion of the national body.’16 No explicit principles exist for the distribution of suspects between the ICTR and the national courts. An unofﬁcial division between the jurisdictions assumes that the ICTR will hear the cases of suspects considered to be among the most important planners and perpetrators of the genocide, while leaving the remaining, lower-level category 1 cases to the national system. The ICTR has issued several landmark decisions and contributed substantially to the development of international criminal law. On 2 September 1998, in the Akayesu Case, the ICTR delivered the world’s ﬁrst ever judgment against an individual accused of genocide. The Akayesu Case also marked the ﬁrst conviction of an individual for rape, deﬁned as a crime against humanity and as genocide. On 4 September 1998, the ICTR became the ﬁrst international treaty organisation to convict a head of government, when it found Rwandan Prime Minister Jean Kambanda guilty of six counts of genocide and crimes against humanity. The ICTR thus found that individuals could no longer enjoy sovereign immunity, a principle that proved inﬂuential in the United Kingdom House of Lords’ ruling that General Augusto Pinochet, former president of Chile, was not immune from prosecution for serious crimes.17 Finally, in the Media Case of 3 December 2003, the ICTR provided the 14

15

16 17

International Criminal Tribunal for Rwanda, Status of Cases (2007) available at www.69.94.11.53/ENGLISH/cases/status.htm. Madeline H. Morris, ‘The trials of concurrent jurisdiction: The case of Rwanda’ (1997) 7 Duke Journal of Comparative and International Law, 349–74, 367. Ibid., 365. R v. Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte (No. 1) [2000] 1 AC 61.

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ﬁrst thorough analysis of ‘direct and public incitement to genocide’ as proscribed in the Convention on the Prevention and Punishment of the Crime of Genocide,18 convicting three journalists, Ferdinand Nahimana, Jean Bosco Barayagwiza and Hassan Ngeze, for their use of hate media to incite the mass murder of Tutsi.

B. The DRC Since the early 1990s, armed conﬂict has engulfed the DRC (or ‘Zaire’ as it was called during the reign of dictator Mobutu Sese Seko), particularly its eastern provinces. The conﬂict has involved the deliberate targeting of the civilian population, which has suffered mass murder, rape, torture and mutilation at the hands of an array of government and rebel forces. In August and September 1996, an uprising of Tutsi from the province of South Kivu known as Banyamulenge, backed primarily by Rwanda and supported by Burundi and Uganda – who all had grievances against Mobutu and were deeply concerned by growing insecurity in eastern Zaire – led to the formation of the Alliance des Forces Démocratiques pour la Libération du Congo/Zaire (AFDL). The AFDL, whose spokesman was Laurent-Désiré Kabila, portrayed itself as the liberator of the Zairean people. It soon overran Mobutu’s forces, scattering them and their interahamwe allies throughout eastern Zaire. The AFDL marched across the country, capturing Kinshasa in May 1997. Kabila installed himself as president, renamed the country ‘the Democratic Republic of Congo’ and set about establishing a new political regime. The DRC was soon plunged into a second continental war, from 1998 to 1999. Kabila’s rebel alliance quickly disintegrated, as his association with Rwanda began to hurt him politically. Rwanda, Burundi and Uganda, having failed to receive the remuneration they expected for helping topple Mobutu, battled Kabila’s forces until the signing of a ceaseﬁre in Lusaka in July 1999.19 The ceaseﬁre had little long-term effect, as conﬂict has since continued throughout much of eastern DRC. Some of the most extreme violence has occurred in Ituri province, where in 2003 Hema and Lendu militias and their respective rebel and 18

19

Opened for signature 9 December 1948, 78 UNTS 277, Art. 3(c) (entered into force 12 January 1951). For the text of the ceaseﬁre, see UN Doc. S/1999/790 (15 July 1999) Report of the secretary-general on the United Nations preliminary deployment in the Democratic Republic of the Congo.

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government backers attacked each other’s communities, killing thousands of civilians over several months and displacing more than 500,000 people into Uganda and across eastern DRC. Combatants committed rape, mutilation and cannibalism, instilling fear throughout the civilian population.20 The Congolese situation is of major historical signiﬁcance to the ICC, providing it with its ﬁrst ever suspects in custody, Thomas Lubanga, the political and military leader of the rebel Union des Patriotes Congolais (UPC), Germain Katanga, commander of the Force de Résistance Patriotique en Ituri (FRPI) and Mathieu Ngudjolo, former leader of the Front des Nationalistes et des Intégrationnistes (FNI). Congolese President Joseph Kabila referred the situation in the DRC to the ICC prosecutor in March 2004.21 Kabila’s referral came in response to an invitation from Prosecutor Ocampo in a speech to the Assembly of States Parties to the Rome Statute in September 2003, which increased international pressure on the DRC to refer cases of mass crimes to the ICC. The ICC focused its attention on atrocities committed in Ituri province, as they were deemed to be the gravest in the Congolese conﬂict. The ICC’s investigations were greatly boosted by the government’s arrest, with the assistance of the United Nations Mission in the Democratic Republic of the Congo (known by its French acronym MONUC), between February and April 2005 of three Ituri militia leaders, including Lubanga and Katanga. They were charged with crimes against humanity and war crimes, including involvement in the murder in February 2005 of nine Bangladeshi peacekeepers, ambushed during a MONUC patrol near Lake Albert. In early March 2006, after negotiations with Congolese political and judicial ofﬁcials, the ICC secured the arrest of Lubanga, who was transferred to The Hague on 17 March 2006, followed by Katanga on 17 October 2007. Ngudjolo, who had been appointed a colonel in the Congolese national army in October 2006, was arrested by Congolese authorities during military training in Kinshasa and transported to The Hague on 7 February 2008.

20

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International Crisis Group, Congo Crisis: Military intervention in Ituri (Brussels: International Crisis Group, 2003), 6. International Criminal Court, ‘Prosecutor receives referral of the situation in the Democratic Republic of the Congo’ (Press Release, 19 April 2004); Pascal Kambale and Anna Rotman, The International Criminal Court and Congo: Examining the possibilities (2004) Global Policy Forum, available at www.globalpolicy.org/intljustice/icc/ 2004/1004examine.htm.

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The ICC has charged Lubanga with three counts of war crimes: enlisting children under the age of ﬁfteen years, conscripting them to the armed forces of the UPC and using them to participate actively in hostilities. Katanga and Ngudjolo have both been charged with six counts of war crimes and three of crimes against humanity, including murder, sexual slavery and conscription of children, all stemming from an alleged joint FRPI-FNI attack on the village of Bogoro in Ituri on 24 February 2003.22

C. Uganda Since 1986, northern Uganda has experienced one of Africa’s longest and most destructive civil wars. The civilian population has suffered widespread murder, rape, torture, abduction, looting and mass displacement into IDP camps, resulting in immense social and cultural fragmentation among northern communities, especially in the Acholiland region. A 2007 UN study of perceptions among northern Ugandans shows that the majority of the affected population considers both the government and the LRA responsible for the harm it has suffered.23 Current peace talks between the government and rebels in Juba, southern Sudan, which led to the signing of a cessation of hostilities agreement in August 2006, represent the best-ever opportunity of securing lasting peace in northern Uganda. Crucial to the motivations and tactics of the LRA has been the personality of its leader, Joseph Kony, whom Douglas Johnson and David Anderson describe as ‘mantic’,24 associated with manti, diviners or healers who often openly oppose mainstream social and political structures. Kony, proclaiming himself both a messenger from God and a mediator between the population and the spirit world, has continually claimed that the Acholi require puriﬁcation because of their failure to directly counter President Yoweri Museveni’s forces in northern 22

23

24

Human Rights Watch, ‘ICC/DRC: New war crimes suspects arrested’ (Press Release, 7 February 2008). United Nations Ofﬁce of the High Commissioner for Human Rights, Making Peace Our Own: Victims’ perceptions of accountability, reconciliation and transitional justice in Northern Uganda (Geneva: United Nations Ofﬁce of the High Commissioner for Human Rights, 2007), 3. Douglas Johnson and David Anderson, ‘Revealing prophets’ in Douglas Johnson and David Anderson (eds.), Revealing Prophets: Prophecy and history in Eastern African Studies (London: James Currey, 1995), 1–27, 14.

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Uganda. There is much debate over Kony’s and the LRA’s precise political and military objectives.25 Some authors dismiss the LRA as a collection of spiritual cranks with no coherent political agenda.26 However, at the heart of Kony’s and other LRA leaders’ public pronouncements is a consistent political message regarding the need to recognise long-standing Acholi grievances, greater integration of Acholi into Ugandan national life, the dismantling of the IDP camps, as well as more spiritual claims concerning the need for cleansing and puriﬁcation of the Acholi.27 Complicating interpretations of the LRA’s objectives is that, in seeking the greater integration of Acholi into national life, the LRA has used violence against the Acholi population as a military tactic and abducted thousands of children from Acholi and other northern communities, thus weakening its ability to win popular support. The ICC received its ﬁrst ever state referral when President Museveni referred the situation in Uganda to the ICC prosecutor in December 2003.28 In its communication, the Ugandan government underscored crimes committed by the LRA, but Prosecutor Ocampo notiﬁed President Museveni that the ICC would interpret the referral as concerning all crimes under the Rome Statute committed in northern Uganda, leaving open the possibility of investigating atrocities by government forces. The ICC’s decision to open investigations in the Uganda situation was based on the gravity of the crimes reported and the inability of Ugandan authorities to capture and arrest LRA commanders considered responsible for mass atrocities in northern Uganda and who at that stage were located in southern Sudan. This differs from the DRC situation, where referral to the ICC was based on the inability of the Congolese judiciary to address mass crimes. Highlighting the volatile environment in which the ICC would operate in Uganda, one week after the ICC announced its opening of investigations, the LRA attacked an IDP camp at Abia in Lira district, killing ﬁfty civilians. In August 2004, the prosecutor stated that he expected to commence the trial of LRA

25

26 27

28

For a thorough overview of various commentators’ interpretations of the LRA’s political agenda, see Adam Branch, ‘Neither peace nor justice: Political violence and the peasantry in Northern Uganda, 1986–1998’ (2005) 8(2) African Studies Quarterly, 1–31, 4–9. See, e.g., ‘Girls escape Ugandan rebels’, British Broadcasting Corporation (25 June 2003). Sverker Finnström, ‘In and out of culture: Fieldwork in war-torn Uganda’ (2001) 21 Critique of Anthropology, 247–58, 247–8. International Criminal Court, ‘President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC’ (Press Release, 29 January 2004).

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suspects within six months and that this would help bring about a swift end to the conﬂict in northern Uganda.29 In October 2005, the ICC issued arrest warrants for ﬁve LRA commanders: Joseph Kony, Vincent Otti, Raska Lukwiya, Okot Odhiambo and Dominic Ongwen. The indictments against the ﬁve commanders comprised a range of alleged war crimes and crimes against humanity during LRA attacks between July 2002 and July 2004.30 The warrant for Kony’s arrest accused him of thirty-three separate counts (twelve for crimes against humanity and twenty-one for war crimes) deriving from six separate attacks, during which he is alleged to have been responsible for murder, rape, enslavement, sexual enslavement and the forced enlistment of children. Announcing the issuance of the arrest warrants, Prosecutor Ocampo justiﬁed the selection of LRA rather than Ugandan government cases on the basis of their relative gravity, though he did not rule out the possibility of investigating government crimes in the future. At a workshop in London in March 2007, Prosecutor Ocampo said ‘LRA killings were 100 times worse than those by the UPDF [Ugandan People’s Defence Force]. There’s no question we had to start by investigating LRA crimes.’31 Since the issuance of the arrest warrants, however, some indicted LRA commanders have died, while the others remain at large.32 Throughout the Juba negotiations the LRA has stated that it would not sign the remaining sections of the peace agreement, nor countenance the laying down of its arms and return of its combatants to northern Uganda, until the ICC indictments were withdrawn.33 Reﬂecting these concerns, the 29

30

31

32

33

Peter Apps, ‘ICC hopes for Uganda trial in 6 months, then Congo’, Reuters (26 January 2005). Warrant of arrest for Joseph Kony issued on 8 July 2005 as amended on 27 September 2005 ICC-02/04–01/05–53 (27 September 2005); Warrant of arrest for Vincent Otti ICC-02/04/05–54 (8 July 2005); Warrant of arrest for Raska Lukwiya ICC-02/04/05–55 (8 July 2005); Warrant of arrest for Okot Odhiambo ICC-02/04/05–56 (8 July 2005); Warrant of arrest for Dominic Ongwen ICC-02/04/05–57 (8 July 2005). Luis Moreno-Ocampo, ‘The International Criminal Court and prospects for peace in Africa’ (Paper presented at the The Lord’s Resistance Army: War, Peace and Reconciliation workshop, London School of Economics, 2–3 March 2007) (notes on ﬁle with author). Lukwyia was shot dead near Kitgum in August 2006 during ﬁghting between the LRA and Ugandan government forces. In October 2007 Otti was killed by LRA elements close to Kony after major arguments between the two leaders, principally over LRA strategy at the Juba peace talks. ‘LRA leader Kony reportedly willing to face trial in Uganda, not The Hague’, The Daily Monitor (20 December 2006).

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implementation protocols on accountability and reconciliation, agreed by the Ugandan government and the LRA on 19 February 2008, reject the ICC as a mechanism for responding to crimes in northern Uganda and prescribe instead that major suspects be prosecuted through a special division of the Ugandan High Court, with lower-level suspects passing through local reintegration and reconciliation ceremonies in northern communities.34 Nonetheless, the ICC’s arrest warrants will remain in place, unless: the prosecutor petitions the Pre-Trial Chamber of the Court to remove them on grounds of the ‘interests of justice’;35 Ugandan domestic actors challenge the warrants because a viable local accountability mechanism is fully operational;36 or the UN Security Council requests a twelve-month pause (renewable) to ICC investigations and prosecutions, for example, to facilitate a domestic peace process without the threat of ICC involvement looming over any of the negotiating parties.37

II. From concurrence to complementarity: Shifting relations between international courts and states The Rome Statute establishes the central principle of the ‘complementarity’ of the ICC and the national jurisdictions of states parties.38 In the Statute, complementarity governs the ICC’s decisions about which criminal situations to investigate and which cases to prosecute. The Ofﬁce of the Prosecutor (OTP) has stated that complementarity should be viewed in a strict legal sense as a set of judicial procedures for determining the admissibility of cases and also as a broad policy, guiding the ICC’s relations with states and domestic institutions and reinforcing respect for national sovereignty.39 In broad policy terms, complementarity holds that states have the primary responsibility to prosecute serious crimes – genocide, war crimes and crimes against humanity40 – but where they fail 34

35

36 39

40

Government of Uganda and the Lord’s Resistance Army, Annexure on Mechanisms for Accountability and Reconciliation (Juba, Southern Sudan, 19 February 2008) (copy on ﬁle with author). Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90, Art. 53 (entered into force 1 July 2002) (‘Rome Statute’). Ibid., Art. 17. 37 Ibid., Art. 16. 38 Ibid., Art. 17. Matthew Brubacher, ‘The ICC, national governments and judiciaries’ in Nicholas Waddell and Phil Clark (eds.), Peace, Justice and the ICC in Africa: Meeting series report (London: Royal African Society, 2007), 22–3. The ICC is also tasked with prosecuting ‘crimes of aggression’, an as-yet-undeﬁned term. The ICC cannot exercise jurisdiction over crimes of aggression until the crime, and jurisdiction over it, are clearly deﬁned at a review conference of the Assembly of States Parties, planned for 2009: Rome Statute, Art. 5.

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to adequately address these, the ICC will intervene to hold perpetrators accountable. Situations can be referred to the ICC in one of three ways: ﬁrst, when a state party to the Rome Statute refers a situation directly to the prosecutor; second, when the UN Security Council, acting under Chapter VII of the UN Charter, refers a situation; third, when the prosecutor initiates investigations into crimes within the ICC’s jurisdiction without prior referral from a state party or the Security Council.41 The Rome Statute also prescribes which speciﬁc cases the ICC should not investigate or prosecute. These comprise cases where states with jurisdiction are already investigating or prosecuting, while displaying a genuine willingness and ability to do so; where the crimes in question are considered of insufﬁcient gravity to concern the ICC; or where an investigation would not serve ‘the interests of justice’.42 The Rome Statute emphasises which cases the ICC should not pursue because the drafters of the Statute in 1998 wanted to prevent a cavalier prosecutor from riding roughshod over national sovereignty and thereby undermining domestic stability and ultimately the integrity of the Court. The drafters assumed that governments would be reluctant to surrender domestic jurisdiction to the ICC, preferring to show their constituents that the state could investigate and prosecute serious cases.43 Consequently, the Rome Statute provides little guidance for handling instances when states voluntarily refer situations to the Court, as the DRC and Uganda have done. The negotiators also insisted that the ICC be embedded in a complementarity regime to avoid the recurrence of problems encountered in the concurrent justice system of the ICTY and the ICTR. In the Rwandan case, the concurrent operation of the ICTR, the Rwandan national courts and gacaca has on several occasions led to clashes over whether international or domestic bodies have jurisdiction over particular cases.44 Concurrent structures emphasise a vertical relationship among different institutions. In the Rwandan case, the ICTR claims primacy over the national courts and gacaca, although there are no strict principles 41 43

44

Rome Statute, Art. 13. 42 Ibid., Arts. 17, 53. Mahnoush H. Arsanjani and W. Michael Reisman, ‘The law-in-action of the International Criminal Court’ (2005) 99 American Journal of International Law, 382– 402, 387–8. See Philip Gourevitch, ‘Justice in exile’, New York Times (24 June 1996), A15; Frédéric Mutagwera, ‘Détentions et poursuites judiciaires au Rwanda’ in Jean-François Dupaquier (ed.), La justice internationale face au drame rwandais (Paris: Karthala, 1996), 17–36.

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to mediate situations where, for example, both the ICTR and national courts claim jurisdiction over the most serious category 1 genocide cases. A complementarity regime, on the other hand, in principle implies a more horizontal relationship that favours the state. In a complementarity regime, the state has the ﬁrst call on prosecuting cases of alleged crimes committed by its nationals or within its borders. However, states do not have free rein in this regard and the ICC retains the right to intervene judicially if domestic institutions fail to show they are genuinely willing and able to investigate and prosecute crimes.45 At the Rome conference, some states and NGOs argued that complementarity would cripple the ICC, in the face of overwhelming state power. However, the ICC – and particularly the OTP – has maintained that complementarity not only upholds the sovereignty of states but also beneﬁts the Court. Because the ICC has limited resources and staff to cover a global jurisdiction, it relies on dividing the labour of prosecuting major crimes with domestic bodies. For this reason, Ocampo said at his swearingin as chief prosecutor, ‘As a consequence of complementarity, the number of cases that reach the Court should not be a measure of its efﬁciency. On the contrary, the absence of trials before this Court, as a consequence of the regular functioning of national institutions, would be a major success.’46 In other words, in an ideal world the ICC would render itself irrelevant.

III. Challenges of international justice in the Great Lakes This section explores four primary challenges that the ICTR and ICC have faced in their delivery of international justice in the Great Lakes: difﬁculties in deﬁning their ultimate role and objectives; problematic relations with domestic governments; co-operation and co-ordination with domestic transitional-justice institutions; and difﬁculties in fostering fruitful relations with populations affected by violence.

A. Deﬁning institutional role Both the ICTR and the ICC have struggled to articulate a consistent vision of their ultimate purpose and objectives. In particular, the ICTR and ICC have displayed a confusion evident in many international 45 46

Rome Statute, Art. 17. Luis Moreno-Ocampo, Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court: Statement made by Luis Moreno-Ocampo (The Hague: International Criminal Court, 16 June 2003), 2.

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justice institutions, namely the extent to which they should simply punish perpetrators because of a moral responsibility to do so – that is, that justice is a good in and of itself – or in pursuit of some broader social goal, such as peace or reconciliation. As mentioned earlier, the ICTR Statute states that prosecuting Rwandan genocide suspects is intended to ‘contribute to the process of national reconciliation and to the restoration and maintenance of peace’. However, it is highly questionable whether the ICTR genuinely views reconciliation as a key objective and whether, and how, it actively pursues it. The term ‘national reconciliation’ occurs just once in the ICTR Statute, with no attempt to deﬁne it or describe how punishing high-ranking génocidaires might contribute to it.47 It is likely that the ICTR considers that punishing perpetrators contributes broadly to peace and stability in Rwanda by combating impunity. However, peace and stability – ensuring non-violence – are very different from reconciliation, which involves actively rebuilding relationships between previous antagonists. This requires delivering justice that has a direct, tangible impact on the parties involved. The ICTR has been heavily criticised for appearing detached from day-to-day realities in Rwanda, as it is based in Arusha, Tanzania, and for failing to provide an adequate outreach and information programme for the population it purports to serve.48 These problems have undermined its legitimacy among many Rwandans. Indeed, many ICTR personnel view such detachment from domestic concerns as a virtue for an international institution trying to provide ‘impartial’ justice. Disengagement from local affairs is thus not merely a symptom of an international approach to justice but a deliberate policy. When asked whether he had travelled from Arusha to Rwanda to gauge the impact the ICTR was having on the Rwandan population, one Tribunal judge replied, I have never been to Rwanda and I have no desire to visit. Going there and seeing the effect we are having would only make my work more difﬁcult. How can I do my job – judging these cases fairly – with pictures in my mind of what is happening over there? This task is already complicated enough.49 47

48

49

For a detailed exploration of the ICTR’s difﬁculty in justifying its stated objective of facilitating post-genocide reconciliation in Rwanda, see Jean Marie Kamatali, ‘The challenge of linking international criminal justice and national reconciliation: The case of the ICTR’ (2003) 16 Leiden Journal of International Law, 115–33. See, e.g., Victoria Brittain, ‘The Arusha Tribunal costs too much for very few results’ (2003) African Geopolitics, available at www.african-geopolitics.org/show.aspx?ArticleId=3537. Interview with ICTR Judge (Arusha, 7 February 2003).

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Such a view separates the act of punishing perpetrators from its likely political, legal, social and cultural consequences. It regards either retributive justice (giving perpetrators what they deserve) or deterrent justice (eradicating a culture of impunity by dissuading future criminals from offending) as the ICTR’s ultimate objective. This perspective holds not only that considering the impact of justice is beyond the ICTR’s remit but that substantive consideration of this may hamper the Tribunal’s work, by jeopardising its perceived impartiality. Such views serve to further distance the ICTR from, and undermine its legitimacy in the eyes of, the Rwandan population. Consequently, the ICTR displays little inclination to affect the day-to-day relationships of previous antagonists in Rwanda and thus contributes little to the cause of national reconciliation, which, according to its Statute, it is designed to promote. The ICC has shown a similar confusion of role. According to the preamble of the Rome Statute, the primary aim of the ICC is to deter ‘the most serious crimes of concern to the international community’ by putting ‘an end to impunity for the perpetrators of these crimes and thus [contributing] to the prevention of such crimes’, while also guaranteeing ‘lasting respect for and the enforcement of international justice’. The Rome Statute therefore suggests that justice in the form of punishment should not be pursued for justice’s sake only, but also because it will dissuade potential perpetrators from committing similar crimes. During an interview with the author, Prosecutor Ocampo said: You can’t measure [the ICC’s] success only by trials. We must be judged by our impact on conﬂict. The key question for us is: what effect do our investigations and prosecutions have on conﬂict? … We are about stopping crimes – that is our aim. Look at the case of Colombia: the ICC isn’t operating there yet and already criminals are thinking before they act, because they know about the ICC. Even without trials we are changing the paradigm of conﬂict.50

More recently, however, it appears that the ICC – and particularly the OTP – has adopted a narrower interpretation of its role. At an expert roundtable in London in March 2007, Prosecutor Ocampo said: International justice can’t bring change in a country. In a country like Uganda, there’s a problem of leadership – that’s the main issue. The ICC has to be modest and recognise that it can’t deal with all crimes. It also

50

Interview with Luis Moreno-Ocampo, Chief Prosecutor, International Criminal Court (The Hague, 22 March 2006).

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can’t train lawyers and prosecutors – that’s not my work. We have to fulﬁl our judicial mandate only.51

The biggest motivator of this shift in the ICC’s interpretation of its role – from ‘stopping crimes’ to ‘fulﬁl[ling] our legal mandate only’ – has been the Court’s fraught investigations in northern Uganda. As quoted earlier, upon commencing investigations into LRA crimes, Prosecutor Ocampo stated that he expected trials to start within six months and the ICC to help bring about a rapid end to the Ugandan civil war. The ICC has so far failed to encourage other actors in the Great Lakes to capture and arrest the indicted LRA leaders, thus stymieing its operations. The ICC has adopted a much more cautious approach in the DRC, focusing on less senior militia leaders in Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, and emphasising that the Court’s primary role is to fulﬁl its legal mandate rather than selecting cases that it believes may have a tangible impact on the conﬂict situation in the DRC. The issue of the ICTR’s and ICC’s confused role highlights central tensions for all justice institutions, but they are heightened in the case of international justice because the actors involved usually come from, and continue to be based, outside the conﬂict zones they address. Questions of political impact take on greater signiﬁcance for international institutions because of their openness to the criticism that they unjustly impose international norms on, and violate the sovereignty of, the states and citizens engulfed by conﬂict. At the same time, the ICTR and ICC have often expressed an expansive view of their role – particularly in terms of facilitating broad social goals such as peace and reconciliation – in order to promote a sense of legitimacy among their backers and affected populations. As discussed below, the fact that these institutions have then publicly altered these interpretations and tried to dampen expectations of what they could achieve in response to mass atrocity has often disillusioned many domestic actors, particularly victims of violence.

B. Relations with domestic governments A fundamental concern for international justice institutions is how to balance respect for the sovereignty of the states in which they investigate 51

Luis Moreno-Ocampo, ‘The International Criminal Court and prospects for peace in Africa’ (Paper presented at the The Lord’s Resistance Army: War, peace and reconciliation workshop, London School of Economics, 2–3 March 2007) (notes on ﬁle with author).

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atrocities with the need to address crimes committed by national governments. Issues of sovereignty and self-determination are paramount in Africa, given the continent’s colonial past. Consequently, both the ICTR and ICC have had to contend with the criticism that they represent a form of neo-colonial imposition in the domestic affairs of African states. Part of these institutions’ response to that claim has involved managing often complex relations with domestic governments. The ICTR has faced immense difﬁculties in its relations with the Rwandan government, which, from the outset, was opposed to the establishment of the Tribunal on the grounds that it was based outside Rwanda, limited its temporal jurisdiction to the period 1 January to 31 December 1994 and therefore ignored previous crimes committed by the Hutu regime, while eschewing the death penalty for convicted génocidaires. Relations between the ICTR and Kigali soured further in 2000 when then-ICTR Chief Prosecutor Carla Del Ponte announced that she intended to commence investigations into alleged atrocities committed by the RPF, the ruling party in Rwanda. The government responded by blocking the travel of ICTR personnel and witnesses between Rwanda and Arusha, effectively stalling all Tribunal operations. Many international donors criticised Del Ponte for her inability to foster meaningful relations with Rwandan ofﬁcials and for her cavalier approach to addressing RPF as well as genocide crimes. Some commentators have argued that Del Ponte’s political shortcomings were the primary reason she was sacked as chief prosecutor in 2003.52 The ICC, by contrast, has displayed signiﬁcant awareness of the need to contend with local political issues and to build positive relations with domestic governments. This task is arguably even more pressing for the ICC than for the ICTR. The principle of complementarity forces the ICC to consider whether states are already willing and able to prosecute crimes. The analysis required to make such determinations requires closer working relations between ICC and domestic political and judicial ofﬁcials. Furthermore, as the ICC’s temporal jurisdiction began in 2002, it will often have to investigate crimes during ongoing conﬂict, as in the DRC and Uganda situations. This requires the ICC to co-operate with domestic ofﬁcials to ensure the security of Court investigators and other personnel. Beyond these inevitable challenges, however, several of the ICC’s key policy decisions so far suggest that the Court may have responded to 52

See, e.g., Ann McFerran, ‘Violated and isolated’, The Sunday Times (4 April 2004).

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the problems faced by the ICTR by becoming overly politicised in its dealings with domestic governments. In particular, the ICC has so far avoided prosecuting members of the Congolese and Ugandan governments in order to ensure the security of its personnel on the ground and facilitate more efﬁcient investigations. In both the DRC and Uganda, the ICC actively sought state referrals of the respective criminal situations. An invitation from Prosecutor Ocampo in a speech to the Assembly of States Parties to the Rome Statute in September 2003 increased international pressure on the DRC to refer cases of mass crimes to the ICC.53 In response, Congolese President Joseph Kabila referred the situation in the DRC to the prosecutor in March 2004. The author’s interviews with Ugandan government ofﬁcials indicate that Prosecutor Ocampo approached President Museveni in 2003 and persuaded him to refer the Uganda case to the ICC. The referral suited both parties, providing the ICC with its ﬁrst state referral of a case and the Ugandan government with another political weapon to wield against the LRA.54 Prosecutor Ocampo was heavily criticised for appearing with Museveni at the London press conference announcing the opening of Ugandan investigations. One UN ofﬁcial in Kampala said, ‘It was a categorical mistake by Prosecutor Ocampo to appear with Museveni like that. What message does it send to the world – is the ICC serious about investigating Museveni’s role in the conﬂict? Of course, it also reinforces the view that the ICC is aligned with the [political elite in southern Uganda].’55 The ICC’s case selection in the DRC and Uganda has led to a perception among many affected communities that the Court is too closely linked to the governments in question. In the DRC, the choice of the Ituri warlords, Thomas Lubanga, Germain Katanga and Mathieu Ngudjolo, as the ICC’s ﬁrst prosecuted suspects is particularly problematic. While there is little doubt that atrocities committed in Ituri have been among the gravest in the DRC, immense political caution characterised the ICC’s strategy. Of the various conﬂicts in the DRC, that in Ituri is the most isolated from the political arena in Kinshasa. There is little evidence to connect President Kabila to atrocities committed in Ituri, although it is suspected that he has previously supported various rebel groups in the 53

54 55

Luis Moreno-Ocampo, Second Assembly of State Parties to the Rome Statute of the International Criminal Court: Report of the prosecutor of the ICC, Mr Luis MorenoOcampo (The Hague: International Criminal Court, 8 September 2003). Interview with Ugandan government ofﬁcials (Kampala, 2–4 March 2006). Interview with United Nations ofﬁcial (Kampala, 3 March 2006).

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province, including Germain Katanga’s FRPI. This differs from violence in other provinces, particularly North and South Kivu and Katanga, where government forces and Mai Mai militias backed by Kabila are directly implicated in serious crimes. Therefore, investigations and prosecutions in Ituri display the least capacity to destabilise the current government. This was a crucial consideration for the ICC, as it needed to maintain good relations with Kinshasa to ensure the security of ICC investigators and other personnel working in the volatile eastern provinces. MONUC’s major peacekeeping presence in Ituri – the largest in the country – was vital in these ICC security calculations. The ICC also wanted to avoid implicating government ofﬁcials in the lead-up to the DRC’s ﬁrst postindependence elections, held in July 2006. Foreign donor pressure on the ICC to avoid causing political instability was immense, as the international community (principally the UN and the European Union (EU)) poured US$500 million towards the elections, the most expensive UNsupported poll in history.56 While it is important for the ICC to avoid, wherever possible, destabilising fragile political situations, it faces a serious dilemma when many of the leaders capable of creating instability are also responsible for grave crimes. This sends a message to major perpetrators that their senior political or military status will insulate them from prosecution. In Uganda, the ICC’s investigation into LRA, and not UPDF, crimes also creates a perception of the ICC as heavily politicised. A common view among community leaders and members of the political opposition in Kampala and northern Uganda is that, as one politician argued, ‘the ICC has become Museveni’s political tool’.57 Local and international human-rights groups have reported regular and grave atrocities committed by the UPDF in northern Uganda, particularly the forced displacement of around 1.5 million civilians into IDP camps. As in Ituri, the ICC argues that the current focus on LRA crimes is justiﬁed because these constitute the gravest atrocities perpetrated in northern Uganda. Prosecutor Ocampo has also emphasised that the ICC may yet investigate UPDF crimes. However, it appears highly unlikely that the ICC will prosecute UPDF suspects, given its reliance on the government for its 56

57

United Nations News Centre, ‘Security Council urges DR of Congo to meet next June’s election deadline’ (7 November 2005), available at www.un.org/apps/news/story.asp? NewsID=16471&Cr=democratic& Cr1=congo. Interview with Ugandan Member of Parliament (Kampala, 2 March 2006).

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continued presence in Uganda and its generally good relationship with key Ugandan ofﬁcials.58 In both the DRC and Uganda situations, the ICC has been fundamentally motivated by self-interested pragmatic concerns, avoiding the fraught task of investigating and prosecuting sitting members of government who are responsible for grave crimes. This approach reﬂects a new global institution that needs to get judicial ‘results’ in order to build support among its states parties and to be perceived as an established global actor in the ﬁght against impunity. The ICC’s attempts to build close working relations with domestic governments highlight the unavoidable challenges of delivering international justice in the midst of ongoing conﬂict. However, there is a danger that the ICC’s approach to case selection will convey the message that the Court is unwilling to prosecute difﬁcult cases related to crimes committed by senior government and military ofﬁcials, thus jeopardising the Court’s long-term legitimacy among populations affected by conﬂict.

C. Co-ordination with domestic transitional-justice institutions As discussed earlier, the concurrent jurisdiction of the ICTR, the Rwandan national courts and gacaca has rarely led to a clear division of labour for the prosecution of genocide suspects, with the ICTR and Rwandan judiciary sometimes squabbling for jurisdiction over the same suspects. Such difﬁculties of co-ordination have been exacerbated by the often bad blood between the ICTR and the Rwandan government, which has complicated relations between the Tribunal and domestic transitionaljustice institutions. Recently, there appears to have been some improvement in relations between the ICTR and Kigali, particularly since the election of Hassan Bubacar Jallow, a Gambian, as chief prosecutor of the Tribunal. As a sign of improved relations, the ICTR has agreed, from 2008, to begin transferring select suspects in its custody to the Rwandan

58

Sandrine Perrot, a research fellow at the University of Montreal, claims that in December 2005 US government ofﬁcials visited The Hague to try and persuade the prosecutor not to investigate and prosecute UPDF crimes, presumably as part of the US government’s growing political and military support for Museveni’s government, which it considers crucial strategically in the region: Sandrine Perrot, ‘The role of external actors in resolving the Northern Ugandan conﬂict’ (Paper presented at the The Lord’s Resistance Army: War, peace and reconciliation workshop, London School of Economics, 2–3 March 2007).

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national judiciary. In 2007, the Rwandan government fulﬁlled the ICTR’s prerequisite for the transfer of detainees by abolishing the domestic death penalty. The complementarity regime of the ICC is designed primarily to overcome problems with the concurrent system of the ad hoc tribunals and to establish a more equal relationship that slightly favours domestic transitional-justice institutions. The DRC and Uganda situations, however, indicate that so far the ICC’s relations with domestic institutions are closer to the concurrent system than to one of complementarity, with the ICC playing the dominant role. In the DRC, the ICC has focused on Ituri, which has provided a simpler judicial task than other provinces. Of the conﬂict-affected provinces of the DRC, Ituri has the best functioning local judiciary, which has already shown adeptness at investigating serious crimes, including those committed by the militia leaders currently in the ICC’s custody: Lubanga, Katanga and Ngudjolo. Since July 2003, the EU has provided more than US$40 million to reform the Congolese judiciary, focusing on Ituri. This programme has resulted in a considerable increase in local judicial capacity.59 It is therefore unclear whether, on the basis of complementarity, the ICC can adequately justify its involvement in Ituri, given the capacity of domestic institutions to investigate and prosecute major crimes. The ICC was also given a head start by the fact that, when it opened its investigations into the Lubanga and Katanga cases, the major militia leaders were already in custody and signiﬁcant evidence of crimes had already been gathered by the local civilian and military courts, working closely with MONUC. This has led observers to question the validity of the ICC’s strategy in Ituri, asking why a global court has focused its energies where the judicial task is more straightforward due to substantial local capacity, while mass atrocities continue in provinces where judicial resources are severely lacking.60 The ICC has faced similar criticism in Uganda. The grounds on which the ICC has opened investigations in northern Uganda appear to contradict key aspects of the principle of complementarity. These grounds centre not on the basis of the unwillingness or inability of the Ugandan judiciary to prosecute serious cases but rather on the inability of government forces to capture and arrest the LRA leadership. While the Rome Statute permits ICC investigations and prosecutions wherever domestic 59 60

Interview with Chris Aberi, state prosecutor (Bunia, 4 February 2006). Interview with foreign diplomat (Kinshasa, 25 January 2006).

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jurisdictions are not seeking to prosecute the same cases, the Uganda situation nonetheless poses problems in terms of the ICC’s broader policy of complementarity. The Ugandan judiciary – one of the most proﬁcient and robust in Africa – is unquestionably able and willing to prosecute serious cases such as those involving the LRA. More importantly, even if it is considered justiﬁable for the ICC to open investigations on the basis that Uganda’s military and police (rather than judicial) capacity is insufﬁcient to address serious crimes, the fact remains that the ICC itself has neither military nor police capacity. In short, the ICC has opened the case in northern Uganda on grounds for which it is not adequately equipped to respond. In both the DRC and Uganda, it appears that the ICC has insufﬁciently recognised the capacity of domestic transitional-justice institutions to investigate and prosecute serious crimes. The ICC, as a new global institution, appears more concerned with achieving legal ‘successes’ than with co-ordinating with local institutions to ensure that the Court assumes responsibility only for cases that cannot be prosecuted domestically, for example those concerning sitting members of government, which in the DRC and Uganda the ICC has so far refused to prosecute.

D. Relations with affected populations The problem discussed earlier of deﬁning the role of international justice institutions revolves around the issue of for whom justice is delivered: for the sake of justice, the international community, victims of conﬂict or some other party? The ICTR and ICC have struggled to build meaningful relations with communities affected by violence, particularly in terms of convincing local populations of the tangible worth of holding perpetrators accountable. As previously explored, the ICTR has been criticised for its physical and operational detachment from Rwanda and consequently its lack of impact on the daily lives of the population it purports to serve. Exacerbating this view, the ICTR has run a highly ineffective outreach programme, which centres on an information centre in Kigali that is physically inaccessible to the bulk of the Rwandan population and inappropriate in a country with high rates of illiteracy. The ICTR has failed to use most Rwandans’ preferred media tool – the radio – to effectively explain its objectives and methods to a population already sceptical of most international interventions carried out in its name after the failure of the UN and other international actors to intervene to stop the genocide in 1994.

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With such sentiments in mind, the ICC has attempted to portray itself as a victim-centred court. The ICC encourages victims to participate in all stages of its operations, including by helping instigate cases through ﬁling submissions with the Pre-Trial Chamber after the prosecutor has petitioned the Chamber to open an investigation.61 Victims may also make submissions to Chambers during trials or appeals. The Rome Statute allows judges to include reparations to victims in sentences handed down to convicted perpetrators.62 This is the ﬁrst time that an international court has had the power to require an individual to compensate another for harms caused. The ICC may require convicted perpetrators to provide reparations directly to their victims or through the ICC’s Trust Fund for Victims, which was established in 2002 and is overseen by a board of directors that currently includes Archbishop Desmond Tutu.63 However, the ICC has generally mirrored the ICTR in its failure to gain widespread legitimacy among affected populations. The ICC lacks visibility among everyday Congolese and Ugandans, which greatly hampers its own operations. At the outset in the DRC, the mainly urban population that had heard of the ICC and its decision to launch investigations expressed great hopes that an international judicial body could help bring justice for serious crimes where Congolese institutions, riddled by corruption and lacking resources, had failed.64 A survey in July 2006 of around 2600 people in ﬁfteen cities across the DRC, conducted by the Kinshasa-based National Coalition for the International Criminal Court, found that many Congolese responded favourably to Lubanga’s arrest and transfer to The Hague.65 There are signs, though, that this initial optimism is waning, particularly outside Kinshasa or Ituri where the ICC has almost no presence. Lack of information of, and confusion regarding, the ICC are rife. Many inhabitants of Ituri and the Kivus, especially in rural areas, claim not to have heard of the ICC, or conﬂate it with the International Court of Justice (ICJ), about which there is much discussion in these provinces because of recent, high-proﬁle cases at the ICJ, the ﬁrst of which saw Uganda found guilty of crimes of aggression on Congolese soil and 61 64

65

Rome Statute, Art. 68. 62 Ibid., Art. 75. 63 Ibid., Art. 79. Interview with general population (Kinshasa, Goma, Bunia, Bukavu, 19 January–21 February 2006). Christian Hemedi, ‘Thomas Lubanga Dyilo’s arrest: Survey on the ground indicates an overall positive reaction’ (July 2006) 8 Insight on the International Criminal Court: Newsletter of the NGO Coalition for the ICC, 3.

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ordered to pay damages to the DRC government; the second resulting in Rwanda being found not guilty of similar crimes in the DRC.66 When asked what he knew of the ICC’s work in the DRC, a teacher in Rutshuru, who was well respected in the community, said, ‘I’ve never heard of the International Criminal Court. Do you mean the court for Rwanda?’67 That a well-educated man in a town in North Kivu was better informed of the work of the ICTR in Tanzania than of the ICC’s work in the DRC says much about the ICC’s lack of outreach among the Congolese population, especially in the eastern provinces. The ICC has recently attempted to increase its visibility in the DRC, holding information sessions for civil society groups in the east and a press conference by the prosecutor and deputy prosecutor in Kinshasa.68 However, a much wider outreach programme and greater engagement with local NGOs and other opinion leaders is needed if the ICC is to explain its aims and methods to the population. The ICC has faced a similar lack of popular legitimacy in northern Uganda. ‘We have heard of the ICC but only that they want to catch Kony and put him on trial’, said a thirty-eight-year-old man in Lira. ‘We haven’t heard anything else.’69 Tim Allen argues that apparent widespread support among northern Ugandans for the punishment of atrocity perpetrators suggests there is signiﬁcant support for the ICC. ‘[T]he idea that some kind of external agency might intervene to allocate accountability and punish those found guilty seemed more appealing [among the general population] than activists in Gulu suggested’, Allen claims.70 He quotes favourably the ﬁnding of an International Center for Transitional Justice/University of California Berkeley survey that, of the respondents who had heard of the ICC, 91 per cent believed it could contribute to peace and 89 per cent believed it could contribute to justice.71 Crucially, however, the survey found that only 27 per cent of respondents had heard of the ICC, which casts serious doubt on claims

66

67 68 69 70

71

Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), International Court of Justice (19 December 2005); International Court of Justice, ‘Armed activities on the territory of the Congo (Democratic Republic of the Congo v. Rwanda)’ (Press Release, 11 February 2001). Interview with general population (Rutshuru, 8 February 2006). Interview with local human-rights workers (Kinshasa, Goma, 2–3 May 2006). Interview with general population (Lira, 11 November 2006). Tim Allen, Trial Justice: The International Criminal Court and the Lord’s Resistance Army (London: Zed Books, 2006), 147. Ibid., 147–8.

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that support for the ICC is widespread.72 Father Carlos Rodriguez, who conducted qualitative research on accountability mechanisms on behalf of the Acholi Religious Leaders’ Peace Initiative in 2005, found that a surprising percentage of respondents supported the ICC’s operations in northern Uganda. However, he discovered that this perception stemmed principally from the common view that the ICC possessed a military and police force capable of arresting the LRA commanders. When respondents were informed that this was not the case, the vast majority questioned the virtues of the ICC’s operations.73 The ICTJ/ Berkeley survey and Rodriguez’s qualitative research therefore indicate that the overriding popular sentiment towards the ICC is neither support nor antipathy but lack of information. A much more extensive outreach programme and closer engagement with the local population is needed for the ICC to convince northern Ugandans of the validity of its work. Without the population’s knowledge and trust, the ICC will struggle to operate in the region, as it relies heavily on public acceptance and eyewitness testimony in gathering evidence. Outreach therefore not only fulﬁls a moral obligation to the Ugandan population, but is also vital to the ICC’s success.

Conclusion This chapter has explored four major challenges that the ICTR and ICC have faced so far in attempting to deliver international justice in the Great Lakes. Some of these challenges are inevitable, given the complexity of investigating and prosecuting serious crimes in the context of ongoing conﬂict and political upheaval. Other challenges stem from ﬂawed policy by these international institutions, particularly internal confusion regarding their role in addressing atrocities and fraught external relations with national governments, domestic transitional-justice institutions and local populations. These issues underscore that ideas matter. Vague or inconsistent interpretations of the ICTR’s and ICC’s ultimate purpose – the guiding concepts and philosophy – have often exacerbated their already difﬁcult relations with domestic actors. Different 72

73

International Center for Transitional Justice and Human Rights Centre, University of California, Berkeley, Forgotten Voices: A population-based survey on attitudes about peace and justice in Northern Uganda (New York: International Center for Transitional Justice, 2005), 32. Interview with Fr. Carlos Rodriguez (Gulu, 10 March 2006).

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conceptions of justice can produce vastly different practical approaches to addressing mass atrocity, with highly variable and often problematic results. The proclivity of the ICC to repeat many of the mistakes of the ICTR underscores fundamental tensions at the heart of the international justice enterprise. In particular, it highlights key questions about the ultimate objective of holding perpetrators accountable for their crimes: is it simply to fulﬁl a legal obligation to respond to gross criminality or a broader vision of the potential for international justice to help facilitate peace, reconciliation or some other wider social goal? The ICC’s revisiting of many of the ICTR’s challenges, however, also underlines the ICC’s failure to sufﬁciently learn lessons from previous international justice institutions. The ICTR has struggled to establish its legitimacy among the domestic actors in whose name it ostensibly operates. Given the ICTR’s reliance on such actors for much of its functioning, this deﬁcit of legitimacy has greatly undermined its work. Similarly, many domestic actors in the DRC and Uganda – especially within local transitionaljustice institutions and the broader population – currently question who the ICC ultimately serves and what tangible beneﬁt it provides for victims of mass violence. Too often the ICTR and ICC have operated as inward- rather than outward-looking institutions, more concerned with getting legal results than responding to the needs of victims of violence. The overarching challenge for international justice institutions in the Great Lakes is not only legal – conducting fair and effective investigations and prosecutions – but also political: convincing local populations that international justice is in their interest. Overcoming this political challenge is paramount for the sustainable operation of international justice institutions in the Great Lakes and for delivering genuine hope to those most affected by mass atrocity.

Conclusion: Hope and humility for weavers with international law john braithwaite

I. Imperial international law Much of the scholarship in this book implies that international law can be read as an imperialist institution with a history of dutiful service to the most powerful invading militaries. Note, however, that this charge is more about acquiescing in domination than in doing it. International law takes the form of Western law because almost all state law does. Only a tiny fraction of the world’s Muslims are governed by Sharia law. Transplanted European legal systems govern in all of the largest Muslim societies.1 There is no society in the Americas ruled by the legal systems of the pre-European nations of those societies. Nor is there in Africa or Asia or even more traditional societies in Oceania a nation that has not modelled most of its laws and the structure of its laws (the idea of having criminal law as distinct from other wrongs, for example) on those of one of the colonial powers, even if it did not experience direct colonial occupation – no Hindu-law state, nor Buddhist, nor Confucian, nor animist. All these regulatory traditions persist in sub-national normative orders. Wood was able to map 99 per cent of the world’s population as governed by one or another Western European legal tradition in respect of its ﬁnancial laws (broadly conceived), the largest being 33 per cent of the world governed by the common law.2 Only seven Middle-Eastern Islamic law states accounted for the exceptions. Whatever the vices and virtues of international law are, it seems reasonable to submit that they are not primarily its own, but reﬂect the fact that it is a superstructure built on national legal foundations

1

2

Classifying whole societies is crude of course. The province of Aceh in the largest Muslim society, Indonesia, has a provincial Sharia law, though national Indonesian law modelled on Dutch law remains the dominant inﬂuence in Aceh. In the North-West Frontier Province of Pakistan, however, Sharia law is arguably a considerably more dominant governing force than the British common law system of the Pakistan state. Philip R. Wood, Maps of World Financial Law (London: Allen & Overy, 1997).

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that almost entirely emerged from Western Christendom. Post-conﬂict societies always confront an enforcement-swamping problem. So much murder, rape, arson and looting has occurred, so many judges and prosecutors have ﬂed to safer havens of legal practice, that the state legal system has no hope of dealing with even a tiny fraction of the serious crime. As Laura Grenfell’s chapter shows in relation to Timor-Leste and Phil Clark’s in relation to Rwanda, majoritarian resort to processing of war crimes through traditional non-Western justice becomes the most common middle path between formal law and impunity.3 So we have the paradox that while armed conﬂict quintessentially mobilises international law, after a great many conﬂicts it has also led to a revitalisation of non-cosmopolitan legal orders. The latter are often like Sharia law in providing for more draconian forms of physical punishment than allowed in international law. Yet like Sharia law in practice, most customary law is much less punitive and degrading most of the time than Westernised state law with its embrace of the latemodern Western institution of the prison.4 Polynesians, among others, often mention the way Western law stigmatises defendants by wrenching them from the embrace of their loved ones to stand alone in a dock while they are attacked by a professional character assassin. The rituals associated with the black gown or white wig are barbaric and degrading by the lights of many customary legal orders that persist in developing countries. So they were to Dickens. The criminal-court architecture that elevates judges and isolates and degrades defendants is only replicated by the International Criminal Court because it is utterly globalised in state courts. The idea that it is good in itself that serious criminals are brought to justice and punished, rather than contingently good for certain consequentialist reasons, is a perverse philosophy according to much of the world’s customary law. And so it is for many contemporary Westerners like myself who subscribe to a jurisprudence of restorative justice. Like the Rwandans in Phil Clark’s chapter, restorativists blanch at the professional myopia of the International Criminal Tribunal for Rwanda judge who said: ‘I have 3

4

See also Luc Huyse and Mark Salter (eds.), Traditional Justice and Reconciliation after Violent Conﬂict: Learning from African experiences (Stockholm: International Institute for Democracy and Electoral Assistance, 2008). Nehal Bhuta alludes to this point in his chapter when he cites Dirks’ work on British colonial justice in India turning out to be more draconian than Islamic justice had been: Nicholas B. Dirks, The Scandal of Empire: India and the creation of Imperial Britain (Cambridge: Harvard University Press, 2006), 209.

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never been to Rwanda and have no desire to visit. Going over there and seeing the effect we are having would only make my task more difﬁcult.’5 Judicial engagement with vindicating and healing victims is hard to accomplish while staying clear of their homes and camps for internally displaced persons. Phil Clark’s chapter is a nice contextual examination of choices between peace-oriented reconciliatory consequentialism and punitive justice as good in itself in international criminal law. The consequentialist rationale that Clark most ﬁnds in this embryonic jurisprudence is deterrence. This is already an odd choice in normal contexts for evidencebased criminologists who ponder the dismal evidence on the effects of calibrating for deterrence. It becomes odder in battleﬁeld contexts where fear of bullets may do most of the shaping of choices via deterrence, washing over slim and remote prospects of custody for trial in The Hague. Perhaps this is another part of the explanation of the retreat of the ICC from consequentialism that Clark describes, as in the retreat to ‘fulﬁl[ing] our legal mandate only’ in Uganda. The great expectations of peace and reconciliation that advocates for the ICC sold to the world may be in tatters. Clark’s account of motivations of international criminal-law ofﬁcials to give priority to the reputations of their courts over substantive peace and justice aspirations, their willingness to be utterly consequentialist in dropping cases to secure co-operation and safety for their own staff (but not for the safety of others), are what Charles Dickens might have expected of law’s integrity. Nevertheless, restorative-justice advocates believe that international, like national, criminal law can be reinspired with the vision that because crime hurts justice should heal. Properly articulated to a locally responsive restorative-justice transformation of criminal law, the ICC can fulﬁl good expectations for justice that is effective rather than self-serving for lawyers. Jeremy Farrall’s chapter opens up the paradox that international law is increasingly an institution that valorises rights to indigenous pluralism and creates spaces for the practice of customary law. Farrall argues that it is and should be less a one-size-ﬁts-all institution than it once was. It may be that the great expectation that the ICC might consistently apply the rule of Western punitive criminal law to the world’s most evil war criminals has itself been an evil project of trans-legality led by a global profession intent on foisting its tunnel vision on those who grapple with the complexities of peace-building. Yet the struggle that we see in this 5

Clark’s chapter in this volume.

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book of international law with local demands to practice reconciliation and reconstruction on the ground has meant that international law has prospects of being the more open-textured force for good implied by Farrall. Like Dickens, customary law often places its greatest expectations in the redemptive power that comes from a society’s outcasts. Great Expectations’ Magwitch, who is transported to Australia whence he supports Pip, is an example. Particularly in the Hindu and Buddhist philosophies of the likes of Gandhi and the Dalai Lama, we ﬁnd the idea that the more evil the crime, the greater the opportunity for grace to inspire compassion that transforms tyranny.6 No branch of legal theory and practice has been more skilled at believing its own ﬁctions than criminal law. For this reason perhaps none of the enlightenment institutions of reformed government has been less effective in achieving its purposes than Western criminal courts and prison systems. Criminal law in all societies (and in international law) is like a sprinkler system that switches off when the ﬁre gets hottest. Dickens realised this in the mid-nineteenth century; it is a theme that recurs in much of his work, including Great Expectations. Phil Clark rediscovers it in his exposé of how the ICC shies away from the politically hard cases, preferring politically soft and technically/logistically easy prosecutions in the Democratic Republic of the Congo and Uganda. The biggest ﬁction of criminal jurisprudence is that formal law can punish the crimes of the ruling classes equally with those of the poor. This is not the place to recount the reasons why it is a structural universal of every state’s law that this is a ﬁction. I simply wish to draw attention to the resilience of the ﬁction, to the belief that with more lawyers prosecuting more powerful criminals our great expectations for equality before the law can be realised. Over the past decade, however, practitioners of international law have begun to confront this ﬁction in a more honest way than domestic criminal lawyers. They have been willing to concede the necessity for amnesties for the most sadistic and serious of criminals in circumstances, for example, where they will not surrender to a peace process or dismantle apartheid without such a guarantee. This can be, and in some post-conﬂict contexts is being, done in an increasingly principled way. 6

Malcolm David Eckel, ‘A Buddhist approach to repentance’ in Amitai Etzioni and David Carney (eds.), Repentance: A comparative perspective (New York: Rowman & Littleﬁeld, 1997), 122–42, 135. Or as Saint Paul put it: ‘Where sin abounded, grace did much more abound.’

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The emerging principle seems to be that while amnesty from formal criminal prosecution and imprisonment can be justiﬁed, impunity cannot. Truth and reconciliation, where willingness to speak truth to victims and listen to victims’ truth and needs, has emerged as one path from impunity. Traditional justice has emerged as the other, as in the gacaca in Rwanda (see Phil Clark’s chapter) and the Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation in Timor-Leste (see Laura Grenfell’s chapter) which attracted the attendance and participation of 40,000 people out of a population of 1 million (90 per cent of whom reported satisfaction with the justice they experienced). All of a sudden, international law has opened up a new front in the battle to transform failed Western legal systems to leave more space for customary normative regulation. And it seems we can have greater expectations for an international law that does not seek to solve the planet’s problems itself, but that is an enabler, that constitutionalises, checks and balances justice, and that occurs in many rooms.7

II. Humble international law This way of seeing international law as a humble institution that seeks to renounce its imperialism can also leave us more relaxed about the depth of its incoherences. Brett Bowden, Hilary Charlesworth and Jeremy Farrall’s introduction for this reason takes the path of conceding Nehal Bhuta’s observation that apparently universal notions like democracy are in fact ‘highly particularised’ historical products, and so contemporary ‘Princes’ of international law must attend to the interaction between fortuna and virtu rather than lock into static ideals that stand above the messy business of war and peace. Likewise the editors embrace Outi Korhonen’s thinking about the rigidity of elevating form over substance (that the superﬁcial realisation of formal sovereignty and other thinly and formally understood ideals is not useful). Korhonen suggests that we unravel state sovereignty so that we might be more open to partnering, to co-development support and to negotiating culturally speciﬁc conditions of the rule of law. Bowden and Charlesworth in their own chapter problematise democracy as something beyond elections, as does William Maley in his. Jeremy Farrall’s chapter contends that the rule of international law is most powerful when it can mean different things to 7

Marc Galanter, ‘Justice in many rooms’ in Mauro Cappelletti (ed.), Access to Justice and the Welfare State (Alphen aan den Rijn: Sijthoff, 1981), 147–81.

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different people, becoming an abstract political ideal with a ‘constructive ambiguity’ that allows people to commit to projects that are widely and reasonably believed to be concretely good, but for philosophically different and incompatible reasons. Perhaps that has indeed been the accomplishment of the norm entrepreneurs behind the ‘responsibility to protect’ as Outi Korhonen points out in her chapter, quoting José Alvarez on how the responsibility to protect can satisfy so many cross-purposes.8 Peter Danchin’s chapter in turn sees international law as both constructing and mediating between certain ‘internal’ and ‘external’ forms of rationality. Security Council resolutions are shown to be deeply philosophically contradictory, and like Western imperialism, persistently illiberal in how they seek to force peoples to be liberal. Ultimately, when the deals are done for a ‘republican, federal, democratic and pluralist’ Iraqi constitution that ‘equalises’ the principles of Islam and democracy, Art. 2 can read, as Danchin points out: (a) No law that contradicts the established provisions of Islam may be enacted. (b) No law that contradicts the established principles of democracy may be enacted. (c) No law that contradicts the rights and basic freedoms stipulated in this constitution may be established. Depending on one’s philosophical position, this opens huge potential for contradiction and incoherence. Yet Art. 2 is still a rule of law that can rule out many things (like most of the crimes deﬁned by all of the world’s criminal codes). And perhaps Art. 2 highlights the very contradictions among Islam, democracy and basic freedoms that can only be resolved by Iraqis through practical reason. Perhaps it is therefore good that Art. 2 is incoherent in such a blunt way, signalling the hard contradictions where the Iraqi people must sit down together to make the deliberative side of their republic work, yield the rule of law to the rule of (wo)men. Of all the problems Iraq faces, this kind of incoherence between internal Iraqi rationalities and external legal ideals of pluralist republican democracy does not seem one of its deepest in practical terms. Peter Danchin’s twin blades of shears that cut the future of the Iraqi constitutional order are certainly evocative: one abstract but reaching for the particular; the other concrete but reaching for the universal. 8

José E. Alvarez, ‘The schizophrenias of R2P: Notes from the president’ (2007) 23(3) ASIL Newsletter, 1.

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III. What to expect of international law It is easy to pile on illustrations of international law acquiescing in imperialism, looking the other way when an illegal invasion of Iraq occurs, and worse. It is even easier to pile on examples of its impotence and irrelevance in cases where efforts are made in good faith to mobilise it. Yet there is nothing in the peace-building repertoire – not disarmament, not ceaseﬁres, nothing – about which this is not true. The empirical literature on peacekeeping suggests that it is most effective when it is multidimensional, indeed that it is not effective at all when it is unidimensional.9 In regulatory theory we talk about this as the problem of one thin reed that is bound to snap if we lean too heavily on it, but a reed that can be strong when woven together with a web of controls.10 According to this theoretical tradition, it is better not to evaluate international law as a framework that sits alone above the fray, but as a strand in a web or fabric of controls. Sometimes international law must face allegations, as in Phil Clark’s chapter for the case of northern Uganda, that it is a strand which if pulled in the wrong way might unravel the whole fabric of peacebuilding.11 Sometimes it can be a strand which, when disparate members of the international community tug at it, tightens an entire web of controls to secure peace. Perhaps Security Council resolutions calling on states to pull back on weapons-of-mass-destruction programmes do not have such a bad record of this kind. The mobilisation of international law as it applies to weapons of mass destruction on its own could not be effective without weapons inspectors on the ground, preventive diplomacy in many relevant capitals, proffering of carrots and implying that there are sticks, and other strands.12 The right way to 9

10

11

12

Michael W. Doyle and Nicholas Sambanis, ‘International peacebuilding: A theoretical and quantitative analysis’ (2000) 94 American Political Science Review, 779–801; Michael W. Doyle and Nicholas Sambanis, Making War and Building Peace: United Nations peace operations (Princeton: Princeton University Press, 2006). John Braithwaite, Toni Makkai and Valerie Braithwaite, Regulating Aged Care: Ritualism and the new pyramid (Cheltenham: Edward Elgar, 2007), ch. 10. This is the allegation that a clumsy ICC prosecution of Lord’s Resistance Army commanders might have led to the LRA walking away from the peace process in Juba, Sudan: see Clark’s chapter in this volume. For a good discussion of nuclear non-proliferation, see Elisa Kaczynska-Nay, ‘Compliance and community at the international level: A case study of the Treaty on the NonProliferation of Nuclear Weapons’ (Unpublished PhD dissertation, Australian National University, Canberra, 2000).

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think about the dismantling of Iraq’s weapons-of-mass-destruction programme could be that international law worked, diplomacy worked, weapons inspections worked, not separately, but as a fabric of international regulation. In this, the most important case in recent history, the expectations that Mr Blair, Mr Bush and most commentators had of inspections backed by international law were not too great, but too gloomy. In this vein, I was struck by the comparative social-survey datum in Helen Durham’s chapter that while only 38 per cent of US citizens believed the Geneva Conventions assist in preventing atrocities, 86 per cent of Cambodians believe so, and that in general populations that have directly suffered the consequences of breaches of international law are less sceptical about the institution. This is not the only sense in which we might do better to listen less to the worldly-wise of the North and more to the world-weary voices of the South. Amy Maguire’s chapter’s focus groups found post-conﬂict women to believe law could help achieve dramatic change in their security situation but only if it was ‘wellintentioned, well-designed and thoroughly implemented’. Maguire reads her focus groups as suggesting that law will not have a signiﬁcant transitional role after armed conﬂict if its niche is reformation as opposed to transformation. Transformative justice means critical evaluation to identify justice gaps (for example legal silences and violent laws that oppress women) and to seize the opportunity for post-conﬂict preventive transformation of injustice. The dilemma is that law’s silences for women and children as victims are sometimes closed by law’s violence – Amy Maguire’s concern about the pain of what Austin Sarat calls ‘the drama of law’s sporadic vengeance as well as in the ordinary lives of those subject to legal regulation’.13 Postconﬂict prosecution for rape is historically sporadic and systematically directed against junior soldiers (sometimes even child soldiers) rather than commanders who promote rape as a reward and a policy of domination. In Europe during the Second World War, for example, all the United States GIs who were executed for rape were black.14 While there were many prosecutions of GIs for the rape of French, English and other women 13

14

Austin Sarat, ‘Situating law between the realities of violence and the claims of justice: An introduction’ in Austin Sarat (ed.), Law, Violence, and the Possibility of Justice (Princeton: Princeton University Press, 2001), 3–16, 3. J. Robert Lilly, Taken by Force: Rape and American GIs in Europe during World War II (Basingstoke: Palgrave Macmillan, 2007).

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during the Second World War, where the rapes were most sadistic, deadly and common – Germany – no invading soldiers were prosecuted.15 There is a wider dilemma here that even the most non-coercive, nonviolent forms of justice ultimately lean on a capacity for violence. Criminals would not turn up to restorative justice conferences where they can be confronted by their victims if the alternative were impunity; they turn up because the alternative could be rather nasty. Similarly, even the most collaborative and deliberative kinds of peacekeeping can be underwritten by peacekeepers with guns. This does not mean Amy Maguire’s ambitions for law without violence are wrong. Responsive regulatory theory shows how it is possible and desirable to craft justice systems where coercion can protect against domination by being threatening in the background while rarely threatened (and rarely used) in the foreground.16 Maguire’s chapter also shows that women’s NGOs, such as the Women’s International League for Peace and Freedom (WILPF) and the Northern Ireland Women’s Coalition, are important threads in a fabric that secures peace with justice and without violence. Like Maguire’s, Helen Durham’s chapter also shows that another strand in a web of controls – treaties – can be useful, but not if ratiﬁcation is merely symbolic or expressive. Liberia signing 103 treaties on one day in 2005 means little unless compliance and training systems are put in place. Here international law can learn a great deal from what works in the design of organisational compliance systems for environmental, occupational health and safety, competition and tax laws.17 So two general lessons suggested by these chapters are that for strands of international legal controls to shape a peace, they need to be more than just expressive strands, and they must be tied into a web of controls on violence and webs of supports for peace. Annemarie Devereux’s chapter suggests a third requirement may be that the controls themselves have integrity in terms of their compliance with international law. Jeremy Farrall’s chapter evokes something similar in his discussion of ‘principled governance’ as essential to rule of law, as does Laura Grenfell’s in her explication of UNTAET’s absence of accountability to a rule of law it was seeking to impose in Timor-Leste. 15 16

17

Ibid. See John Braithwaite, Restorative Justice and Responsive Regulation (New York: Oxford University Press, 2000), ch. 2. See the publications contained on the Regulatory Institutions Network’s website www. regnet.anu.edu.au.

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Again, this conclusion mirrors what is empirically known in socio-legal research on the legitimacy law enforcers need to secure compliance with domestic law.18 It is meaningless for the UN to call a peace operation in Somalia ‘Operation Restore Hope’ when what peacekeepers restore is terror, torture and summary execution. Just as regulatees of international law need effective organisational compliance systems to make law more than symbolic, so international law enforcers such as peacekeeping forces need effective internal systems to ensure they comply with international law in the process of persuading others to do so. Compliance systems are needed that are apt for those who seek to get others to put compliance systems in place. That is the nub of what integrity means in the organisational management of the rule of law. Annemarie Devereux’s chapter has a helpful list of practical suggestions for delivering this. One that charmed me involved ‘speciﬁc training initiatives undertaken in order to socialise the contents and provide better understanding of the application of international human-rights norms’. The charm was Devereux’s use of ‘socialise’ in a manner different from the way it is used either in conversational English or in sociological theory. She uses ‘socialise’ the way Indonesians and Timorese use ‘sosialisasi’ in Bahasa and ‘socializasaun’ in Tetum – meaning to consult in advance and then convince citizens why a policy or law is desirable and what they need to do to comply. Devereux has extensive post-conﬂict ﬁeld experience in Timor-Leste and this is reﬂected in her use of language. Some aspects of the integrity and accountability Devereux craves are rather susceptible to continuous-improvement philosophies. For example, militaries and police who serve in UN peace operations could be expected to improve each year in the average scores obtained on tests to measure knowledge of international humanitarian law.

IV. Strands of legitimacy, strands of democracy William Maley’s chapter, and Brett Bowden and Hilary Charlesworth’s, suggest that one thing effective democracy-building may have in common with effective peace-building is that it must be multidimensional. Maley’s chapter begins by describing some of the strengths in this regard of what increasingly looks like the failed democracy-building of the 18

See, e.g., the work of the Russell Sage Project on the legitimacy of legal institutions: Tom R. Tyler (ed.), Legitimacy and Criminal Justice: International perspectives (New York: Russell Sage Foundation, 2007).

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present decade in Afghanistan. Those of us who thought that Afghanistan never should have been invaded in the way it was might nevertheless agree that once the illusory military defeat was inﬂicted in 2001 with the capture of Kabul, some very astute things were done to attempt to build a stable democracy in Afghanistan. These were led by an experienced and wise diplomat who was ‘exceptionally attuned to the complexities of Afghan politics’ in Ambassador Brahimi. And this resulted in the democratic election of an able, honest and popular president (by any international standard) in Hamed Karzai. Maley’s chapter forces us to ask how could so much go wrong in Afghanistan when so much went right? I am inclined to go further than William Maley down this line because I think that one of the things that went right about Afghanistan was that the international community was willing to spend a very great deal of money on the case. Maley on the other hand points out that while greater resources might have gone on Afghanistan than on Timor-Leste or Kosovo, these cases attracted much more per capita. Yet until Iraq and Afghanistan became the two most expensive nation-building ventures we have seen, the former Yugoslavia and Timor-Leste were the previous holders of that record (with the Kosovo part of the former Yugoslavia at least matching spending on East Timor).19 The gap between spending on these four cases and on peacekeeping and peace-building in Latin America and Africa, where most people have died since the end of the cold war, has been a wide one. If the world cannot afford to do democracy-building around the world at the current Afghanistan price-tag, perhaps it should not attempt it. By this I mean that it might be better simply to concentrate security and development transfers on health and education instead, an option I return to later. Of course democracy for Afghanistan was not as important to Messrs Bush and Blair as capturing the Al Qaeda leadership and stemming opium exports to Europe.20 The question is whether negotiation with the Taliban in the shadow of a threatened invasion might have done better by these objectives. Another question, little asked at the time or since, was whether international law required this, 19

20

Some of the data that leads to this view can be found in Center on International Cooperation, Annual Review of Global Peace Operations 2006 (Boulder: Lynne Rienner Publishers, 2006). It is worth noting that neither of these objectives have been achieved. In 2006 Afghan opium production rose 50 per cent, bringing global heroin production to a record 606 tonnes per annum; 92 per cent of world’s heroin is from poppies grown in Afghanistan: United Nations Ofﬁce on Drugs and Crime, 2007 World Drug Report (New York: United Nations, 2007).

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especially when the Taliban foreign minister warned the US of an impending attack on the US in July 2001 and offered to negotiate a handover of the Al Qaeda leadership to prevent bringing the Taliban government down.21 William Maley’s analysis of both what went right and what went wrong are theoretically incisive. He highlights the insight of Brahimi as a nuanced understanding that ‘no single strategy of legitimation … would be effective with all the different micro-societal segments of Afghanistan’s population’. Maley shows that Afghanistan’s transitional governance design appealed to all three of Max Weber’s bases of legitimacy – traditional, charismatic and rational. Features like mobilising the widespread legitimacy of village jirgas by crafting Loya Jirgas and bringing back the king mobilised traditional legitimacy; the promotion of the popular Karzai mobilised charismatic legitimacy; the drafting of a new comparatively secular constitution and the holding of elections endowed the transition with rational legitimacy. Maley also uses the 21

Kate Clark, ‘Revealed: The Taliban Minister, the US Envoy and the Warning of September 11 that was Ignored’, The Independent, 7 September 2002. The Taliban Foreign Minister Wakil Ahmed Muttawaki sent an aide to tell the US Consul-General and another US ofﬁcial who was possibly an intelligence ofﬁcer that bin Laden was planning a ‘huge attack’ inside the US. The leader in whose safe house the meeting occurred has conﬁrmed the aide’s account that the meeting did occur. When the aide reported back that the US had no interest in striking bin Laden or taking the warning seriously in any way, the Foreign Minister instructed him to take the same message to the UN leadership in Afghanistan, which he did. The Taliban Foreign Minister feared bin Laden would provoke a US attack that would bring them all down. ‘The guests are going to destroy the guesthouse’, he is reported to have told his aide. The Independent story also reveals that after September 11 an Afghan religious council had recommended that bin Laden be forced to leave Afghanistan. As early as 1998 Wakil Ahmed Muttawaki was in regular communication with US ofﬁcials about handing over bin Laden. A US State Department report of 28 November 1998 reports that according to Muttawaki, ‘Taliban leaders are caught between “a rock and a hard place” since, if they expel bin Laden without cause they will have internal problems and, if they do not, they will have external ones due to the US. Ahmed suggests that the Saudis have a key to the solution. Afghan and Saudi religious scholars could convene a joint meeting and issue a ruling that bin Laden had acted illegally … He could then be expelled without this causing internal unrest in Afghanistan’ (Cooperative Research History Commons: Proﬁle: Mullah Wakil Ahmed Muttawakil, 28 November 1998). White House terrorism adviser under Bill Clinton and George W. Bush, Richard Clarke, has revealed that the view of the Clinton State Department had been that Al Qaeda and the Taliban could be separated: Richard A. Clarke, Against All Enemies: Inside America’s war on terror (New York: Free Press, 2004), 274. William Maley does not think this could have been accomplished and it may indeed have been a naïve view. My own thought is that, even if there would have been a 90 per cent probability of failure, these negotiations should have been attempted.

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metaphor of ‘weaving’ a fabric of legitimacy from these multiple threads. Yet one thing we have noted about fabric is if we tug at some threads it tightens, but with others it unravels. Part of Maley’s multidimensional analysis is that the electoral strand put the democracy under great strain by being too presidential. The danger of a strongly presidential system in a fractionated society is that it creates one winner and many losers. Unfortunately, Maley ﬁnds most respected traditional tribal leaders have counted among the losers. Perhaps the greatest source of unravelling is the simple fact that there is a safe haven on the north-west frontier of Pakistan from which forces hostile to Karzai and the foreign forces that back him can pull at any number of strands of the fragile fabric of Afghan democracy to destabilise it. The Taliban and Al Qaeda had adequate contingency plans to retreat there when NATO attacked. Commanders of the time tell me if the 2001 campaign had been better resourced they would have killed and captured many more than they did, but that no amount of military resources was going to prevent a large number of ﬁghters from escaping through the mountains. We might therefore think of Afghanistan as a likely failure of peace- and democracy-building because there was never a peace agreement to keep. Weaving a fabric of democracy for the ﬁrst time in the midst of a militarily contested foreign invasion is something for which there are not encouraging precedents in human history. Yet it is an interesting way to read Afghanistan in the current decade as at least in certain ways a sophisticated attempt to think multidimensionally about legitimacy and democracy. Democracy-building is, as both William Maley’s and Brett Bowden and Hilary Charlesworth’s chapters argue, more than about having an elected legislature. It is also about an independent judiciary and a variegated and robust executive government that has within it also many separations of powers from the head of state – an ombudsman, an electoral commission, a civil-service selection and training system, a central bank and an auditor-general. Indeed further separations of power beyond the state are also needed – universities, autonomous legal and accounting professions, business and NGO critics who are protected by the courts from persecution by the state. Maley is surely right that robust democracy usually only comes when electoral democracy is built on the foundations of at least a good number of the other separations of powers just mentioned. He is also undoubtedly right that it follows that in future the UN might rush at election-followedby-exit rather less than it has in the past. This is particularly so when the point is yet to be reached where the potential of elections to divide

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can be contained. In their chapter Bowden and Charlesworth discuss the risks of elections in Iraq widening the cracks of division that are engendering violence there.

V. The problematic Western historical model of state-building and democracy What I am less certain about is the mainstream view among peacebuilding scholars and in the UN that history teaches us that Western democratisation is preceded in the words of William Maley by ‘establishment and consolidation of the modern state ﬁrst’ and therefore this is what is needed in the South today. Stock exchanges and other institutions of the market, like the institutions of law and the institutions of political democracy in the West, mostly developed in ‘cities’ that were really small towns by contemporary standards. These were scattered across the nonnation-states thought of by contemporaries as Christendom.22 Guilds struggling to assert countervailing power against the nobility and the church provided much of the regulatory and resource infrastructure to grow these institutions. Acemoglu, Johnson and Robinson23 argue that England and the Netherlands surged ahead of France, Spain and Portugal both economically and in the development of republican, liberal democratic institutions precisely because the central state was stronger in the latter three cases. Bourgeois power-bases in the towns were more formidable countervailing powers to weaker central courts in the Netherlands and England, enabling republican victories and parliamentary limitations on the Hapsburgs and the Stuarts. Most critically, this led to a different mode of exploitation of the lucrative Atlantic trade – in France, Spain and Portugal under the control of crown monopolies, in England and the Netherlands more under the control of entrepreneurial individuals and partnerships. While this made the French, Spanish and Portuguese nation states comparatively stronger still, it left them with weaker democracies and weaker economies. Trading companies were also important beyond Europe, especially in what eventually became the large democratic states of India, Pakistan, 22

23

Michael Mann, The Sources of Social Power, Volume 1: A history of power from the beginning to AD 1760 (Cambridge: Cambridge University Press, 1986). Daron Acemoglu, Simon Johnson and James Robinson, Institutions as the Fundamental Cause of Long-Run Growth (Cambridge: National Bureau of Economic Research, Working Paper No. 10481, 2004), 66–70.

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Bangladesh and Indonesia.24 The Virginia Company was quite insigniﬁcant and short-lived commercially, but it did settle the ﬁrst English colony in America, and wrote a constitution for Virginia that provided for the ﬁrst representative legislature in America.25 It was private corporate governance that ﬁrst tilled the soil of democracy in Virginia which later grew a Jefferson and a Madison. Similarly the Massachusetts Bay Company developed a democratic constitution of Massachusetts with checks and balances and a separation of legislative and judicial powers which, along with that of Virginia, became a model for other colonies aspiring to governance by elected representatives constrained by a rule of law. ‘The constitution of the colonial trading company was therefore perpetuated to a large extent in the State and Federal constitutions of the United States.’26 In America, governmental institutions originating from corporations had a democratic vitality that was lacking elsewhere because they took root in American soil clear of feudal institutions.27 So it seems that a strong nation state as a prerequisite of democracy is too simple a reading of the complexity of Western history. Perhaps we should use it less as a template for a hoped-for Southern democratic future. In developing countries a strengths-based approach to governance might ﬂourish less in the capital than in the villages and small towns (as in the time of the Hanseatic League in medieval Europe).28 The micro-ﬁnance revolution is after all recognising that this is where there may be many of the best opportunities for business development in the South. In the context of Afghanistan, Wardak argues that village jirga rather than city courts, just as with Germanic moots and Scottish assythment and lettre of slanis in recent centuries,29 are the promising seedbeds for a legal system that actually protects people from violence and pillage.30 24

25

26 28 29 30

Though as Acemoglu, Johnson and Robinson show, trading corporation private governance of these the very wealthy, densely populated parts of the world favoured extractive, exploitative political and economic institutions. Conversely, the poor, thinly populated continent of North (as opposed to South) America (like Australia and New Zealand) made democratic capitalist development most lucrative: ibid. John P. Davis, Corporations: A study of the origin and development of great business combinations and their relation to the authority of the state (New York: Capricorn Books, 1961), 168. Ibid., 201. 27 Ibid., 205. See Bowden and Charlesworth’s chapter in this volume. Braithwaite, Restorative Justice and Responsive Regulation, 5–7. Ali Wardak, ‘Building a post-war justice system in Afghanistan’ (2004) 31 Crime Law and Social Change, 319–41.

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In her chapter on Timor-Leste, Laura Grenfell reports, citing research by Hohe and Nixon and Advocats Sans Frontières, that Timorese overwhelmingly preferred customary law because they wanted to avoid contact with the state. Grenfell identiﬁes the challenge as one of institutionalising checks and balances against abuse of rights within such nonstate law. It may even be that in some Muslim societies multinational corporations providing jobs to women under their equal employment opportunity polices might accomplish things for women that the state does not (as with the Virginia and Massachusetts Bay Companies and democracy), and that NGOs (like the suffragettes’ organisations once were in the West) could be more important than the state in that regard. This is just to say that the stew of democracy in the South may sometimes have to simmer for decades rather than years, centuries rather than decades, and on many different hot plates, not just on the heat the nation state can generate. And of course quite often, as in the history of the West, the heat generated by the state is anti-democratic and anti-growth. The hope for Burma lies with the merchants, the students, the NGOs and the monks in a way not so different from the way it lay with those forces in the Dutch Revolt of 1568–1648 (protestant clerics instead of monks though!).

VI. Reconstruction, transformation and evidence I have concluded that peace-building and democracy-building might have in common requirements for multi-centric, multi-strand approaches, where strands are not just symbolic but reﬂexively self-strengthening through devices like internal compliance systems in organisations, where thought is given to how to tie strands together, where spoilers who purposely set out to unravel are regulated or brought in from the cold in the mountains, where states are important but not everything and where rule of law is reinvented locally and as something with rather more integrity (less entranced by its own ﬁctions) than law within hegemonic Western frames. Universities have a niche in contributing evidence-based perspectives on all these things. Is this Nehal Bhuta’s ‘techno-politics’ (see Chapter 2)? ‘Yesterday’s modernisation theories and today’s “transitology” are both premised on a simplifying homogenisation of political and social space that renders the politics of other societies seemingly more tractable to a “policy science” of governance.’31 Perhaps I am advocating 31

Nehal Bhuta’s chapter in this volume.

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‘techno-politics’ if ‘policy science’ means systematically collecting data that compares histories of conﬂicts in terms of which institutions that are built are more predictive of peace or prosperity. While I am sure this is not Bhuta’s intent, critics must be careful not to imply a ‘simplifying homogenisation’ of policy science and where it ﬁts in global deliberation. The IMF/World Bank doing quantitative research and then imposing conditionalities to roll-out templates of ‘good governance’ implications of the research is one thing. Researchers, including quantitative ones, contributing to a local conversation about how to weave together a fabric of governance in a local way (including how to interpret, use and discard international law within it) is another thing. It seems a noble vocation to be involved in a conversation as a participant who attempts to summarise and abstract what have been the different outcomes in other societies when those societies sought to weave their governance fabric in this way versus that. And it can be a humble one. The key to humility is not the eschewing of systematic data collection, nor of global visions for a world that respects human rights for example. The key to humility could be to see reconstruction as a weaving activity of networks of actors. For males, humility might mean seeing collaborative weaving as something we can learn to do better from women. While peace-building and democracy-building might have the above things in common, Bowden and Charlesworth point out that empirically the process of building democracy can be bad for peace. Michael Mann implicates the quest of nations for democratic self-determination in the sharp increase in ethic cleansing during the past century.32 Mann concludes that both stable authoritarian regimes and stable democracies have less armed violence than regimes embarked upon democratisation.33 The latter is also the argument of Amy Chua as discussed in Bowden and Charlesworth in Chapter 3. More historical sociology within the Mann tradition is needed to identify what are more and less violent pathways from authoritarianism to democracy. There is also a strong correlation between economic stagnation and lives lost in armed conﬂict.34 The nature of that evidence suggests that poverty is both a cause and an effect of war and that democratic 32

33 34

Michael Mann, The Dark Side of Democracy: Explaining ethnic cleansing (Cambridge: Cambridge University Press, 2005). Ibid., 4. See, e.g., Doyle and Sambanis, ‘International peacebuilding’. Paul Collier, The Bottom Billion: Why the poorest countries are failing and what can be done about it (Oxford: Oxford University Press, 2007).

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institutions do not grow under the joint effects of internal warfare and rising poverty. The economic literature shows that particularly strong predictors of levels of economic development are education levels and how widespread are health problems such as malaria and HIV-AIDS.35 Investments in solving these problems are therefore long-term keys to democracy and peace-building. Equally clearly, these problems are at their worst in most of the most war-ravaged parts of the planet. The aid to ameliorate them cannot be delivered while someone is burning down the schools, hospitals and clinics and causing the doctors and educators to ﬂee to the West. Worse, sometimes the that aid is captured and channelled by warlords in ways that strengthen them and perpetuate suffering. So the world cannot begin to conquer poverty, disease and tyranny without grappling with the complexities of peace-building. Making a contribution to that understanding is an obligation the universities of the world must not shirk. This book has made a contribution to understanding the limits and possibilities for a role of international law in that journey. Literature was a source of hope for Matilda as she studied Dickens at university in Lloyd Jones’s novel Mister Pip.36 It helped her imagine a different future for herself than the one she was dealt by war-torn Bougainville. University study of international law inspires hope in other students that they might make a contribution to combating global impunity for rape in war, preventing future genocides or promoting human rights for refugees. That hope is an uplifting thing when tempered with the kind of humility Matilda learned from Dickens and from the man who taught her Dickens in an open Bougainville schoolhouse. Too many of those idealistic students, however, graduate to become more like Dickens’ constables in Great Expectations, who, coming down from London to arrest obviously wrong people, ‘ran their heads

35

36

William Easterly, The Elusive Quest for Growth: Economists’ adventures and misadventures in the Tropics (Cambridge: MIT Press, 2001). Sambit Bhattacharyya, ‘Root causes of African underdevelopment’ (Bandung: Padjadjaran University, Working Paper in Economics and Development Studies No 200704, 2007); Francesco Caselli, ‘Accounting for Cross-Country Income Differences’ in Philippe Aghion and Steven N. Durhayf (eds.), Handbook of Economic Growth: Volume 1A (Amsterdam: Elsevier, 2005), 679–716; Abhijit V. Banerjee and Esther Duﬂo, ‘Growth theory through the lens of development economics’ in Philippe Aghion and Steven N. Durhayf (eds.), Handbook of Economic Growth: Volume 1A (Amsterdam: Elsevier, 2005), 474–545. Lloyd Jones, Mister Pip (Melbourne: Text Publishing Company, 2006).

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against very wrong ideas, and persisted in trying to ﬁt the circumstances to the ideas, instead of trying to extract ideas from the circumstances’.37 Extracting ideas from circumstances and stakeholders, in preference to engineering and extirpating ideas from above, is the path of the humble weaver of peace taken by all the authors of this book. 37

Charles Dickens, Great Expectations (London: Collins, 1953), 113.

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INDEX

Abdullah, Dr Abdullah 131 accountability see under United Nations personnel Acemoglu, Daron 283 Acholiland region (Uganda) 251–2 Additional Protocols to the Geneva Conventions (1977) 177, 178–9, 180–2, 183, 184, 185 see also international humanitarian law Afghanistan 2, 8, 107, 145 Communist coup (1978) 118 Constitution 111, 130–1 corruption of elites 129–30 drug production 280 elections 111–12, 122–3, 127 Great Assemblies (Loya Jirgas) 111, 126, 281 international spending on 129, 280–1 lack of democratic tradition 115 lessons for global community 132–3, 279–83 local concerns, lack of consideration for 127–8 parliament 130–1 Presidency 114, 130, 282 problems of transition 112, 127–31 process of political transition 111–12, 125–31 Pushtun (ethnic) domination 131 rural legal system 284 security forces 128 tribal leaders, disenfranchisement 131, 187, 282 US-led invasion (2001) 61 see also Bonn Conference; London Conference

315

Africa ‘governance crisis’ 50, 145 legacy of colonialism 259–60 pursuit of criminal justice in 9 scale of armed conﬂict 244–6 see also names of individual countries African Rights (NGO) 201 African Union (AU), Constitutive Act (2000) 98–9 see also Organization of African Unity ‘agonistic pluralism’ 105 Akayesu Case (Rwanda 1998) 248 Al-Istrabadi, Feisal Amin 83 Allen, Tim 267 Althusser, Louis 39 Álvarez, Alejandro 82, 88 Alvarez, José 275 Alves, Victor 165–6 Amnesty International 189 Anderson, Catherine 192 Anderson, David 251 Angola 144, 145 Annan, Koﬁ 6, 17, 125, 141, 147, 151–2, 171, 189, 198, 236 anti-formalism see instrumental antipluralism Anwar, Ibrahim 95 Archimedes 38 Aristide, Jean-Bertrand 148 Asia-Paciﬁc region 158 Athens see Greece, Ancient atrocities, (difﬁculty of) prevention 183 see also crimes against humanity; war crimes

316

i ndex

Austin, Reginald 123 autonomy, deﬁnition/application 69–70 Avocats Sans Frontières 170 Bain, William 41 Balkan nations EU stabilisation policies 30–1 UN peacekeeping mission 142, 145 see also Bosnia-Herzegovina; Kosovo Barayagwiza, Jean Bosco 249 Bell, Christine 232–3 belligerent occupation, (traditional) law of 66, 73–4, 75–7 anomaly in modern era 74 (in)applicability to Iraq invasion 75, 77–8, 88 limitation to ‘civilised’ states 76 Bentham, Jeremy 41 Biketawa Declaration (2000) 99 biopolitics 28 Blair, Tony 277, 280 Blanchard, Eric 221 Bonn Conference (2001) 111, 127–8 Bosnia Genocide Case (ICJ 2007) 24 Bosnia-Herzegovina 2, 30–1 Boutros-Ghali, Boutros 48–9, 95, 122 Brahimi, Lakhdar 17, 123, 126, 142–3, 280, 281 British Empire 42–3 see also India Brown, Gordon 105 Bulgaria, Russian occupation 76 Burgess, Patrick 174–5 Burke, Edmund 119 Burma see Myanmar Burundi 145–6, 249 Bush, George H. W. 140 Bush, George W. 4, 91, 101, 128, 277, 280 Cambodia 2, 74 elections 121, 124–5 popular view of IHL 190–1, 277 Canada 96 capital punishment, in colonial societies 43 Carothers, Thomas 45, 109, 140

Carroll, Lewis 132 Central African Republic 144 China 96, 109 Chinkin, Christine 18 Christianity, imperialism and 68 Chua, Amy 29, 94, 286 ‘civil society’ 52–3 and treaty ratiﬁcation 193 civil war see conﬂicts, internal civilians, military targeting 249–50, 251, 252–3 Clark, Richard 281 coercion, exercised by states 118 cold war 1–2, 139–40 end/aftermath 44–6, 58, 139 Colombia 258 colonialism 41–3 links with state-building 7 see also British Empire; imperialism; India; Spain community, deﬁnition/application 69–70 Community of Democracies 99–100 comparative politics 57 conﬂicts, internal as product of lack of democracy 49 resolution, through international law 145 Confucius/Confucian ethics 95 Congo, Democratic Republic of 2, 9, 140, 144–5, 244–5, 249–51 ICC activities in 250–1, 259, 260–2, 263, 264 public awareness/expectations of ICC 266–7 consent, role in international law 66–7 constitutional obligations see human rights constitutionalism 114 Côte d’Ivoire 144–5 Council of Europe, Statute of 97 Cover, Robert M. 231 crimes against humanity, prosecutions for 161, 248, 250–1, 253–4 criminal law, ineffectiveness 273 Cuba 96 customary law assistance in rule of law 172–3, 175–6 increasing international role 272–3

index as inimical to rule of law 171–2 international neglect 158 intra-state variations 171–2 popular preference for 170–6, 284–5 punishments, theory vs. practice 271 (qualiﬁed) recognition 171 redemptive philosophy 273 and Timor-Leste justice process 173–6 uncertainty over applicability 162 Dahl, Robert A. 11, 63, 104, 113–14 Darfur 145 DasGupta, Sumona 223, 237 Del Ponte, Carla 260 democracy absence from international instruments 98–9 abstract essence 107–8 as bad for peace 286 as checklist 101 critics (throughout history) 90 deﬁnition(s) 91, 93–4, 96–7, 100, 113–14; debate on 101–2; rethinking 105–7; ‘two-track’ 109; vagueness 100–1, 107; value 107–10 deliberative 104–5, 114–15 development of ideal 91 direct vs. indirect 102 through discussion 92, 108 as exit strategy 48 generally accepted characteristics (‘pillars’) 101 historical rarity 115–16 inconsistency of Western approaches 107 within international institutions 92 international legal status 46–7 limitations 112 national variations 101–2 as palliative 47–8 as peace engineering technology 48–9 (perceived) violations by intervening organisations 13 presuppositions regarding 47–9 promotion (post-conﬂict) 7–8, 44–9, 91–2

317

regional institutions’ commitment to 97–8, 99–100 requirements for 285–6 as self-rule on basis of equality 108–9 social requisites 116–17 theory/ies of 113–17 ‘transition to’, scholarship of 57–9 (see also transitology) as universal value 90–1 ‘unreadiness’ of societies for 94–5 unrelated to existing political systems 49, 104–5 as Western concept/tool 94–5 see also United Nations Democratic Republic of the Congo see Congo, Democratic Republic of detention, practices/standards 165–6, 201 see also UNMIK deterrence, as judicial focus 272 Dicey, A. V. 137 Dickens, Charles 271, 272 Great Expectations 3, 14, 273, 287 Dobbins, James 103 Doornbos, Martin 53 dos Santos, Armando/dos Santos Case (Timor-Leste 2003) 161–2, 168–9 dos Santos, Rui Perreira, Judge 166 DRC see Congo, Democratic Republic of Drumbl, Mark 17 East Timor see Timor-Leste Egypt, British occupation 43, 76 Eide, Kai 213 Eisenhower, Dwight D. 56 elections 102–4 as alien concept 102–3 divisiveness 124–5 international preoccupation with 102–3, 108, 112, 122–4 limitations 104, 114–15, 124–5 periods between 114–15 as single component of political process 125, 132 ‘equality before the law’, absence in practice 273

318

i ndex

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 97 European Union commitment to democracy 97–8 Common Area of Freedom, Security and Justice 21 Stabilisation and Association Agreements (SAAs) 30–1 Union Treaty (1992) 97–8 exceptionalism 231 experts on mission 207 Fahim, Mohammed 131 Feldman, Noah 106 Fiji, power structures 187–8 Finland 5, 25, 29, 31–5, 36 politics 20–1, 31–5 Finnis, John 137 force, legitimation of 72, 78–9 formalism, legal 64, 70–1 application to US invasion of Iraq 78, 79, 81 morality of 70 problems of 71–2 Foucault, Michel 27, 28, 35–6, 44 Fox, Gregory H. 46, 47–8 fragile/post-conﬂict states action priorities 191–2 incapacity to ratify/implement treaties 192 limited ﬁnancial/legal resources 191–2, 196–7 location of power 187–8 treaty ratiﬁcation 177–8, 184 see also post-conﬂict situations Fredrikshamn, Treaty of (1809) 31–2 Freedom House 90 French Revolution, impact on law of belligerent occupation 76 Fretelin (Revolutionary Front for an Independent East Timor) 160, 166 Fukuyama, Francis 45, 94 Fuller, Lon 137 functionalism 58 Gacaca see Rwanda: courts gender

differentials, in UN programmes 201 equality, as constitutional obligation 235; non-compliance with 238–9 mainstreaming 223, 237 see also security; women Geneva Conventions (1949) 178–9, 180–2, 184, 185–6, 187 local populations’ views of 190–1, 277 ratiﬁcation 190 genocide see under Rwanda Germany, Nazi regime 120 Gilman, Nils 56 globalisation enterprise, state-building as facet of 35–6 Good Friday Agreement (1998) 230, 239–40 failure to address women’s issues 239–40 women’s responses to 239–40 ‘good governance’ 49–55, 60, 286 absence of universal model 27 as prescription for (all) desirable outcomes 51–2 prescriptions for 50–2, 59 state-building as project of 54 Goodman, Ryan 195 Gopinath, Meenakshi 223, 237 governance 25, 27–9 agenda 52–3 democratic, as norm 123–4 indigenous structures 105–7; repressive/discriminatory 106–7 right to 112 and rule of law 145–6 see also good governance governmentalism 27–9 objectives 27–8 shortfalls 29 governments, crimes committed by 259–63 Greece, Ancient 136 democratic traditions/institutions 102, 115–16 Guilhot, Nicolas 58 Guinea-Bissau 145 Gusmão, Xanana 1

index Hague Conventions (1899/1907) 178 Haiti 2, 46, 142, 144–5, 148–50 see also MINUSTAH; UNMIH Harare Declaration (1991) 99 Hastings, Warren 42, 43 Hathaway, Oona 180, 188 Hayek, F. A. 137 hegemony 36 Heller, Agnes 120 Hitler, Adolf 90, 120 Hohe, Tanja 103 human rights challenges to universality 79–81, 88–9 cited by occupying powers 79 ‘constitutional obligation’ view 204–5 ‘delegated responsibility’ view 204 ‘derivative’ view 205–6 domestic jurisdictions 217 economic/social/collective 233–4 ‘ﬁrst generation’ (civil/political) 233 ‘functionality’ view 205 global spread/limitations 28–9 ‘inherent obligation’ view 203 need to integrate international mechanisms 217 and rule of law 145 scope 213 UN commitment to 198–9, 202, 204, 217 violations 150, 153; as torts 208 see also international human-rights law; Kosovo; United Nations personnel Human Rights Advisory Panel see under Kosovo ‘human security’ discourse 220–2 increasing prominence 222 UN prioritisation 221–2 Hume, David 115 Huntington, Samuel 102 Hussein, Saddam 17, 84 immunity applicability to UN personnel 206–8 sovereign, inapplicability to individuals 248

319

imperialism nineteenth-century liberal view 41–3, 54–5, 60–1 non-recognition of non-European states 68 impunity, inadmissibility of 274 India 22 British colonial rule 42–3, 54, 271 Indonesia, occupation of Timor-Leste 159 illegality 161–2 Indonesian law, in Timor-Leste applicability 160–2 implications of invalidity 162 inconsistency with international law 163–4 Inglis, Shelley 212 inherent obligations see human rights Institute for Democracy and Electoral Assistance (IDEA) 104 institutionalism, new 58 institutions international, failure to implement liberal theory 46–7 as key to democratisation 113–14 regional variations in development 284 shift in perceptions of 55 as solutions to political problems 52 instrumental anti-pluralism 64–5, 72 application to US invasion of Iraq 77, 78 pitfalls 72–3 universal rights and 72, 81 Inter-American Democratic Charter 98 International Center for Transitional Justice (ICTJ) 169 joint survey with UCB 267–8 International Committee of the Red Cross (ICRC) 190–1 international community, shaping of post-conﬂict projects 12 International Court of Justice (ICJ) 179, 188, 204, 266–7 International Criminal Court (ICC) 179, 245–6, 271–2 challenges faced by 256–69 ‘complementarity,’ principle of 254–6, 264 criticisms of 260, 269

320

index

International Criminal Court (cont.) failure to learn from ICTR’s mistakes 269 institutional role (confusion over) 256–7, 258–9 jurisdiction (limits of) 254, 255 lack of public awareness 267–8 over-politicisation (alleged) 260–3, 273 problems of legitimacy/proﬁle 266–8 prosecutions in DRC/Uganda 250–1, 252–4 referrals to 255 relations with national governments/judiciaries 260–3, 264–5, 268–9 Trust Fund for Victims 266 as victim-centred 266 see also Rome Statute International Criminal Tribunal for Rwanda (ICTR) 245–6, 255–6 case law 248–9 challenges faced by 256–69 criticisms 257, 260, 265 detachment from domestic concerns 257–8, 265, 271–2 establishment 247 institutional role (confusion over) 256–8, 259 jurisdiction 248 problems of legitimacy 269 relations with Rwandan government 260, 263–4, 268–9 International Criminal Tribunal for the former Yugoslavia (ICTY) 245, 255 International Crisis Group (ICG) 150 international human-rights law 164–6, 194–5 applicability to UN 203–8, 216 need for clariﬁcation 206–8, 215 international humanitarian law 178–9 dissemination, obligation/processes 182 impact within societies 182 implementation: obligations 181, 183–4; procedures 182–4 incorporation into national systems 184–7; harmonisation approach 186–7 jus ad bellum/in bello distinction 186

language of treaties 182 in post-conﬂict societies 190 treaties/provisions 180–2, 196 see also Additional Protocols to the Geneva Conventions international law criminal, application in Timor-Leste 166–70 enforcers, need for regulatory procedures 279 equality under 70–1 expectations of 4, 167, 191 formal vs. instrumental views 64, 65, 66, 76, 81–3, 88; confusion/switch between 65–6 foundation in Western traditions 270–1 incorporation into national systems 178, 180–4 inherent contradictions 66–7, 69–70, 72–3, 89, 274–5 intersubjectivity 71 local problems of implementation 164 (see also customary law; local populations; Timor Leste) mid-century misconceptions 40 modern structure/aims 66 new developments 216 reconciliation of state interests, as aim 70 and right to democratic governance 45 role in state-(re)building 2–3, 6–7, 158; limitations 6, 133 and rule of law 176 selective/arbitrary implementation 170 shaping of domestic developments 10, 194–5 as source of state law 162 of statehood 26 as strand in international fabric 276–7 women-speciﬁc 219–20, 233–7 see also formalism; instrumental anti-pluralism; international human-rights law; international humanitarian law; state-building International Law Commission (ILC) 206 International Monetary Fund (IMF) 189

index intervention(s) limits to transformative power 63 as moral imperative 4 need for caution 62 Iran, role in Afghan process 127 Iraq 2, 11, 22, 145–6, 276–7 collapse of state 119 draft constitution 84–7, 88, 275; ambiguity of wording 85–6 elections 103 as ‘rogue state’ 64–5 system of government, imposed 83–4 Transitional Administrative Law (2004) 83–4, 85 Transitional National Assembly 84–5 Iraq, US-led invasion (2003) 61, 64, 74–5 human rights critique, applied to 80–1 Iraqi objections 66 obstacles in international law 75 US justiﬁcations 66, 77–8, 84 US status as occupying power 77–8 Iraqi Governing Council (IGC) 83–4 Iraqi National Congress 83 Islam importance in Iraqi life 80 justice, importance within 95 as ofﬁcial state religion 83–4, 85 relationship with Iraqi state 83–8 ‘respect’ vs. ‘guarantee’, in Iraqi constitution 86–7, 88 as source of law 85–6, 87–8 values, Iraqi claims to 66 see also Sharia law; Shia; Sunni Ituri province (DRC), bloodshed/legal proceedings in 249–50, 261–2 Jallow, Hassan Bubacar 263 Japan 22 Jefferson, Thomas 284 Jenkins, Rob 52 Jinks, Derek 195 Johnson, Douglas 251 Johnson, Simon 283 Jones, Lloyd, Mister Pip 3, 287 Judicial System Monitoring Programme (JSMP) 163–4

321

judiciaries, local, good governance and 51–2 juries, citizens’ 105 justice intended beneﬁciaries 265 international, challenges to 268–9 international, internal tensions 269 relationship with law/violence 232–3, 237 role in international law 66–7 traditional 274 (see also customary law) see also transitional justice theory Kabila, Laurent-Désiré 249–50, 261–2 Kambanda, Jean 248 Kant, Immanuel 21 Karzai, Hamed 111–12, 126, 129–30, 131, 280, 281 Kashiwagi, Takeshi 165 Katanga, Germain 250–1, 259, 261–2, 264 Keane, John 104 Keene, Edward 44 Kekkonen, Urho 33–4 Kennedy, David 79–81 Khrushchev, Nikita 55–6 Koh, Harold 191 Kony, Joseph 251–2, 253, 267 Koskenniemi, Martti 18–19, 187, 190 Kosovo declaration of independence 1 human rights (abuses) in 204–5, 211–15, 217 Human Rights Advisory Panel 213–15 international recognition 1 international spending on 280 non-recognition 1 problems of state-building 19 (proposed) Human Rights Court 214 UN transitional administration 1–2, 74, 142, 158, 200 see also UNMIK Krygier, Martin 155 Küng, Hans 185–6 Kurds, role in Iraqi constitution 84, 85, 86, 87

322

index

La’o Hamutuk (Timorese NGO) 160, 174 Latin America international law in 82–3 Lavrov, Sergei 1 law(s) calls for reform 224–5, 226–7, 229, 242 capacity to transform society 229–30 constitutive potential 224–5 gap between theory and implementation 225–6 silences 226–7, 237 violent 227–9, 231–3, 242, 277–8 see also international law; justice; law and order; legal pluralism; rule of law; security; Sharia law; women law and order, as UN objective 144 League of Nations 121–2 Lebanon Constitution 238–9, 241–2 ‘personal status’ laws 228–9 Ta’if Peace Agreement (1989) 227, 228, 238 women’s voices 220, 223–9, 232, 238–9 Lee Kuan Yew 94 legal pluralism as aid to rule of law 158–9, 176 in Asia-Paciﬁc region 158 confusion generated by 157, 165–6 legislatures, local, good governance and 51–2 legitimacy 118–21 in Afghanistan 125–7 bases, deﬁned 119–20, 281–2 electoral component 121–4 external vs. internal 121 relationship with democracy 132–3 state vs. government 119 liberalism distinguished from democracy 115 internationalist 45–6 modern, deﬁning characteristics 40–1 nineteenth-century 52 (see also imperialism) liberation, occupation as 66 right of occupier 78–81 Liberia 2, 145, 148, 150–3 treaty ratiﬁcations 189 see also UNMIL

Linton, Suzannah 167 lisan process (Timor-Leste) 174 local populations/cultures acceptance of principles of international law 178, 184–7, 191 difﬁcult relations with international justice organisations 265–8 Imperialist view of 42–3 (neglect of) views/rights 133, 164 understanding/acceptance of treaty terms 192–4, 196–7 views on value of IHL 190–1 see also Afghanistan; post-conﬂict situations; Timor-Leste; UNTAET; women London Conference (2006) 129 Lord’s Resistance Army (LRA) 244, 276 aims/tactics 251–3 arrest warrants against leaders 253–4, 259 Lorimer, James 68 Loya Jirgas 111, 126, 281 Lubanga, Thomas 250–1, 259, 261, 264, 266 Lugard, Lord 42–3 Lukwiya, Raska 253 Macaulay, Thomas Babington 41, 60–1 Machiavelli, Niccolò 39 MacIntyre, Alasdair 60–1 Madison, James 284 Mann, Michael 286 Marcos, Ferdinand 119 market(s), (lack of) relationship with states/borders 21, 22 Marks, Susan 35, 108, 109 Marshall, David 212 Massachusetts Bay Company 284 McGurk, Brett H. 75 Media Case (Rwanda 2003) 248–9 Mehta, Uday Singh 54 Meintjes, Sheila 218–19 Meriboute, Zidane 186 Merry, Sally Engle 184, 194–5 Metcalf, Thomas R. 54 Migdal, Joel S. 117 Miliband, David 4 Mill, John Stuart 41, 103

index minorities, mistreatment/ discrimination against 24–5 democratic legitimation 103–4 fears of, in Iraqi constitution 86–7 MINUSTAH (United Nations Stabilization Mission in Haiti) 148 Mitchell, Timothy 43 Mobutu Sese Seko, President 249 modernisation theory 55–7, 59 impact on later theories 57 Montevideo Convention on the Rights and Duties of States (1933) 117 Moreno Ocampo, Luis 245, 250, 252–3, 256, 258–9, 261, 262–3 Morgenthau, Hans J. 40–1, 221 Morris, Madeline H. 248 Mozambique 48, 142 Museveni, Yoweri, President 251–2, 261 Musharraf, Pervez, President 127 Myanmar 46, 285 Nahimana, Ferdinand 249 Najibullah, Mohammed, Dr 118 Namibia, UN peacekeeping mission 48 Napoleonic Wars see French Revolution nation (state(s)) dangers of 23–4 as drivers of conﬂict 23–5 as imagined construct 23 rivalries 24 see also nationalism nationalism, manipulation of ideals of 24–5 Nauru 190 neoliberalism see new public management new public management 29–30 limitations 30 New Zealand Law Commission 185 Ngeze, Hassan 249 NGOs (non-governmental organisations) 213, 285 see also names of speciﬁc organisations Ngudjolo, Mathieu 250–1, 259, 261, 264 Northern Ireland constitutional provisions on women 239–40, 241–2

323

women’s voices 220, 223–9, 238 see also Good Friday Agreement Northern Ireland Women’s Coalition 239, 240, 278 Noyes, John E. 68 Ocampo, Luis Moreno see Moreno Ocampo, Luis occupation see belligerent occupation; liberation; transformative occupation Odhiambo, Okot 253 O’Donnell, Guillermo 60, 109 Ombudsperson see under UNMIK Ongwen, Dominic 253 Organization of African Unity (OAU) 98 see also African Union Organization of American States (OAS) 98 O’Rourke, Catherine 232–3 Otti, Vincent 253 Ottoman Empire 76 Paciﬁc Islands Forum 99 Pagden, Anthony 54 Paine, Thomas 72 Pakistan 22, 109 as haven for Taliban 127, 282 Palestine 22 Paris, Charter of (EU 1990) 97 participation, importance to democracy 114 see also local cultures patriarchy 227–9 peace-building, requirements for 285–6 see also post-conﬂict situations; state-building; United Nations peacekeeping operations Pérez de Cuéllar, Javier 122 Perrot, Sandrine 263 ‘Peshawar politics’ 129–30 Philippines 119 Phillimore, Robert 68 Pillay, Anu 218–19 Pinochet, Augusto/Pinochet Case (UK 1999) 206, 248 Plato 116 Plunkett, Mark 172–3

324

index

pluralism see agonistic pluralism; instrumental anti-pluralism; legal pluralism Poggi, Gianfranco 61 polyarchy 113–14 Polynesia 271 Popper, Sir Karl 113 positivism 68–9 post-colonial states, policies towards 55–6 ‘post-conﬂict’ situations actors’ expectations 13 criminal evidence, problems of collection 216 exit strategy 12 legal vacuums 10–11 local vs. international expectations 30–1 (need for) local input 109–10 problematical usage of term 4–5 rebuilding of societies 2–3, 138–9 security, concept of 218 see also fragile/post-conﬂict states poverty, causes/effects 286 powerful states, (risk of) dominance 72 Prince, ﬁgure of (in political theory) 39 prisoners of war, treatment of 187 privileges see immunities protection, responsibility of 25–6 Provost, René 193 prudential exchange, exercised by states 118 Przeworski, Adam 55 Pye, Lucien 57 Qanuni, Younus 131 Radin, Margaret Jane 137 Rajagopal, Balakrishnan 194 Ramos-Horta, José 1 rape 228, 241, 277–8 see also sexual violence rationalism 44 Raz, Joseph 137 realism, and Machiavellian theory 39–40 reciprocity, as key concept for democracy 107–8

reconciliation, (notional) role in Rwandan process 257 see also Timor-Leste redemption 273 refugee camps 201 regional identity, in international law 82–3 regulatory theory 276, 278 religion freedom of 80, 86–7 and gender discrimination 229 monolithic view of 106 parallels with IHL 185–6 relationship with state 66, 83–8 Reparations Case (ICJ 1949) 203 Rittich, Kerry 35 Robinson, James 283 Rodriguez, Carlos, Father 268 Rome Statute (Statute of the International Criminal Court (1998)) 167, 245–6, 254–5, 258, 266 Rose, Richard 116–17 Rousseau, Jean-Jacques, The Social Contract 38–9, 43, 119 Rubin, Barnett R. 133 rule of law 8, 134–5 absence of blueprint for 134–5, 155, 156, 176 central proposition 137–8 deﬁnitions 172 elusiveness of concept 136, 138, 154 failure (inevitability of ) 154 importance of concept 135–6, 157 need for focus on general goals 155 ‘pillars’ 149 in post-conﬂict situations: desirability 139; implementation process 163–4 practical implementation (problems of) 138, 153–5 secular project 87 social/political context, importance of 137, 157 stress laid on by UN 141–3 (unreasonable) expectations of 154, 155–6 see also United Nations Security Council

index Russia rule over Finland 31–3 weakening of central power 32–3 see also Soviet Union Rwanda 9, 145, 158, 246–9 courts 247–8, 255–6, 263–4, 274 genocide: events of 244, 246; prosecution of suspects 246–9, 257 involvement in DRC conﬂict 249, 267 Rwandan Patriotic Front (RPF) 246–7, 260 Saarland 121–2 Sarat, Austin 231–2, 277 Saudi Arabia 96 Sayan, Diego Garcia 202 Scandinavian states, development policies 51 Scheffer, David J. 75 Schmitt, Carl 81 Schumpeter, Joseph 60, 102, 113 security gendered approach 7, 9, 223, 242–3 as holistic concept 221–2 role of law in protection of 224 see also ‘human security’; post-conﬂict situations; ‘state security’; women self-determination, right to 18–19, 70 Sen, Amartya 104 Seoul Plan of Action (2005) 100 September 11 attacks 91, 230–1 sexual exploitation/abuse, by UN personnel 199, 200, 208–10, 216 assistance to victims 209–10 UN condemnation of 208–10, 215 see also rape sexual violence, (lack of) reference in international instruments 234 see also rape; women, violence against Sharia law compatibility with Geneva Conventions 186 global extent 270 punishments, theory/practice 271 Shia Muslims, role in Iraqi constitution 85–7 Sierra Leone 2, 144 Special Court for (SCSL) 245

325

Sistani, Ali al-, Grand Ayatollah 84 social contract theory, relationship with state-building 17 Solomon Islands 2 Regional Assistance Mission 99 Somalia, allegations against UN troops in 201, 279 South Africa 108 Constitution 240–1 violence against women 241 women-related legislation 240–2 women’s voices 220, 222, 223–9, 238 sovereign equality, principle of 71, 73 sovereignty balanced against international justice requirements 259–63 limitations of doctrine 19, 20 Soviet Union Afghan invasion 118 foreign policy 55–6 personality cult 120 Spain, New World conquests 67–8 Stalin, Joseph 120 Starr, S. Frederick 126 state-building beneﬁts/costs 16 contemporary usage 38, 44–5 difﬁculties with 4–5 external vs. internal interests 121 Finnish experience 33–4 and governance agenda 53, 59 hegemonic aspects 36 ‘impossibility’ 39 inﬂuence of liberal ideals 16 inherent contradictions 12–13, 62–3 international law and 7, 9 legitimacy and 120–1 limited success 2 long-term effects 34–5 manuals 5–6 and nations/nationalism 25 as preliminary to democratisation 132 as right/duty 15–16, 36–7 theories (history of) 7, 38–43, 59–60 universal principles/methods: absence of 36; calls for 17–18; search for 6, 60 unsustainable methods 16–18

326

index

‘state security’ discourse 220–1 state(s) administrative structures 117 artiﬁciality 23 assertions of (sources of) sovereignty 71 bases for exercise of powers 118 as bound only by rules to which they consent 68 centrality to global (legal) system 15, 18–20, 188 civilised vs. non-civilised 68–9, 76–7 conﬂicting interests, project/ impossibility of resolution 70 deﬁned by population 22 elements of statehood 26 establishment 26 (exaggerated) role in Western history 283 failed 4, 26 failure to live up to constitutional commitments 20–1, 36 as holders of rights/obligations 19–20 international standing, determined by internal characteristics 64–5, 73, 77 invulnerability to legal process 20, 24 territorial deﬁnition 21–2 as ‘warm monsters’ 27–9, 34 see also fragile/post-conﬂict states; nation states; sovereign equality; sovereignty; state-building status of forces agreements 207 Strand, Arne 126 Sudan 22 Suhrke, Astri 126 Sunni Muslims, role in Iraqi constitution 84, 86 Supreme Council for the Islamic Revolution in Iraq (SCIRI) 84, 85 Sweden, rule over Finland 31–2 Syria 96 Ta’if Peace Agreement see under Lebanon Taraki, Nur Muhammad 118 Taylor, Charles 151

technology, politics as 38–9, 40–1, 43, 44, 285 democratisation and 48–9 state-building and 62–3 Teitel, Ruti G. 229, 231 Thucydides, History of the Peloponnesian War 115–16 Timor-Leste 1, 8, 22, 144–6, 176, 279 Commission for Reception, Truth and Reconciliation (CAVR) 173, 174–6; as rule-of-law mechanism 175 Community Reconciliation Process 173–5, 274; (low) levels of violence 175 Constitution 159, 161–3, 168 Draft Immigration and Asylum Law (2003) 160 elections 102–3, 125 human rights in 204–5 international spending on 280 lack of conﬁdence in state/legal system 159–60, 162, 168–9, 175 legal system, choice of 160–3 local authorities 170 popular preference for customary law 170–1, 284–5 serious crimes process 166–9, 175; contribution to rule of law 169; weaknesses 161, 167–9, 170 treaty ratiﬁcation 189, 192 UN peacekeeping mission 1–2, 74, 142, 158–9, 200 (see also UNTAET) transformation (of society) distinguished from reconstruction 218–19 requirements 219 role of law 230 women’s demands for 218 transformative occupation 65 occupied population, rights/views 81 prohibition/permissibility 75–8 subordination (need for) 79 transitional justice theory 229–31, 242 focus on stability 231 gaps in 230–1 transitology 58–9

index treaty ratiﬁcation 8–9, 278 beneﬁts of deferral 195, 197 as conﬁrmation of statehood 188–9 cost–beneﬁt analysis 196 failure to prioritise 191–2 implementation 195–6; problems 177–8 importance of context 197 ‘instrumental’ vs. ‘expressive’ role 180, 196 international community response 192–5 latitude granted to state 184 and (post-conﬂict) power structures 187–8 process 180–4 purpose 179–80 reporting obligations 192 state-limited 203 states’ reasons for 177–8, 188–91, 195 technical assistance 195 value, from state perspective 177, 179 ‘whole of government’ approach 182–3 see also fragile/post-conﬂict states; international humanitarian law trusteeship see tutelage Turkey, Kemalist regime 84 see also Ottoman Empire Turshen, Meredith 218–19 tutelage, as function of colonial system 41–2, 54–5 Tutu, Desmond, Archbishop 266 Uganda 9, 244, 251–4, 276 ICC activities in 252–4, 258–9, 260–1, 262–3, 264–5 involvement in DRC conﬂict 249, 266–7 public awareness/expectations of ICC 267–8 US involvement in 263 United Kingdom 22 market links 22 support for global democracy 96 see also British Empire; Northern Ireland

327

United Nations accountability see United Nations: institutional responsibility; United Nations personnel Commission on Human Rights 47, 96–7, 123, 150 conditions for membership 92–3, 188 democracy: deﬁnition 95–7; recognition/commitment to 46–9, 92–5 Democracy Fund 96 Department of Field Support (DFS) 143 Department of Peacekeeping Operations (DPKO) 143, 147 Development Programme (UNDP) 51, 221 dual functionality 205 (focus on) electoral assistance 122–3 General Assembly 46–7 High Commissioner for Refugees 201 Human Rights Committee 93–4, 211 Human Rights Complaints Body (proposed) 216–17 institutional responsibility 199, 202–3; denial of 9, 199, 210; moral vs. legal 209–10 law enforcement operations 201 legal personality 203 objectives 198–9 Ofﬁce of Internal Oversight 209 Peacebuilding Commission 17 property/assets 207–8 quasi-state role 199, 200, 205; as successor/agent 205–6 Secretariat 146–7 secretary-general, ofﬁce/responsibilities 146–7, 207, 215 (see also names of individual incumbents) state-building methods 112 subjection to international law 203–8 World Summit Outcome Document (2005) 96–7, 141 see also human rights; United Nations Conventions; United Nations peacekeeping operations; United Nations personnel; United Nations Security Council

328

index

United Nations Conventions/ Declarations/publications Charter of the UN (1945) 46, 64–7, 73, 74, 92–3, 139, 204, 255 Convention on the Elimination of All Forms of Discrimination Against Women (1979) 194, 234–5, 239 Convention on the Political Rights of Women (1952) 233 Convention on the Prevention and Punishment of the Crime of Genocide (1948) 249 Convention on the Privileges and Immunities of the United Nations (1946) 206–7 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (1997) 182–3 Convention on the Protection of Cultural Property in the Event of Armed Conﬂict (1954) 182 Declaration on the Elimination of Violence Against Women (1993) 235 Declaration on the Protection of Women and Children in Emergency and Armed Conﬂict (1974) 233–4 Declaration on the Rights of Indigenous Peoples (2007) 171 Draft Comprehensive Strategy 209–10 International Covenant on Civil and Political Rights (1966) 93–4, 165–6 Millennium Declaration (2000) 141 The Rule of Law and Transitional Justice in Conﬂict and Post-Conﬂict States (report, 2004) 163–4 Universal Declaration of Human Rights (1948) 93–4, 163 Vienna Convention on the Law of Treaties (1969) 179 United Nations peacekeeping operations 1–2, 47–8, 134–5, 142–3, 199–201

as central to UN aims 4 instigation procedure 143–4 and international law 158 mandates 143–4, 216 power differential 200 scale 199–200 see also MINUSTAH; UNMIH; UNMIK; UNMIL; UNTAET United Nations personnel, (alleged) human-rights abuses 200–3, 211–12 accountability 9, 199, 208–10, 215, 217; arguments against 202; arguments for 203; moves towards 215–17 inapplicability of treaty provisions 211 investigation mechanism, need for 216 ‘off-duty,’ UN not responsible for 206 privileges/immunities 206–8 prosecution, importance of 216 see also sexual exploitation/abuse; UNMIK United Nations Security Council 8 bypassing by US 77–8 constitutional limits 204 creation of peacekeeping missions 143–4, 247 meeting of January 1992 140 permanent membership, objections to 92 Resolutions: on Afghanistan 111, 128; on democracy 46–8; on Iraq 74–5, 77; on Kosovo 211; on rule of law 141; on Rwanda 247; on women and peace-building 236–7 ‘rule of law’ mandates 134–5, 139–43, 155–6; alternative strategies 154–5, 156; (lack of) deﬁnition of concept 144–6; (problems of) abandonment 154 state-building and 1–2 United States as archetype of modern state 57 foreign policy 56 global hegemony 44 interventions 4, 45, 58–9, 61 (see also Iraq) National Security Strategy (2002) 75

index political science 38, 55–9 popular view of IHL 190, 277 presidential elections 136 relations with Uganda/ICC 263 security policy 230–1 sponsorship of international forums 99–100 support for global democracy 96 universalism 67–8, 69, 194 humanistic 69–70 UNMIH (United Nations Mission in Haiti) 148 UNMIK (United Nations Mission in Kosovo) 199, 210–15 assumption of state obligations 205 denial of human-rights responsibilities 212–13 executive detentions 201, 212 international oversight 211 Ombudsperson Institution 211–13 rejection of Human Rights Court 214 see also Kosovo UNMIL (United Nations Mission in Liberia) establishment 150–1 lessons 154 mandate 151, 153–4 shortcomings 152–3, 154 successes 152 see also Liberia UNTAET (UN Transitional Administration for East Timor) 160 disregard of local culture/customary law 103, 171 failure to abide by international standards 160 handling of legal system 160–9 inapplicability of human-rights law to 166, 278–9 see also Timor-Leste Uruguay 204 Vianna, Manoel Álvaro de Souza Sá 82, 87 Vietnam 63, 109 violence see atrocities; justice; law; rape; sexual violence; women

329

Virginia Company 284 Vitoria, Francisco de 67–8 war(s), as national uniﬁers 33 see also belligerent occupation; conﬂicts, internal; war crimes war crimes accountability for 144–5 prosecutions for 250–1, 253–4 Wardak, Ali 284 Warsaw Declaration (2002) 99–100 Weber, Max 118–19, 281 Western states/societies ideological conﬂicts with rest of world 28–9 legal systems: barbaric aspects 271–2; global domination 270 Westphalia, Peace of (1648) 117 Wilde, Ralph 201 Wiranto, General 169 women activist groups 194 attitudes to, calls for change in 225–6 Bill of Rights for, proposed 234–5 (call for) involvement in peacebuilding 236–7 constitutional protection of rights 240–1 discrimination against 20–1, 106–7, 225, 227–9, 239 fear (of lawlessness/insecurity) 227 grant of representational rights (in Finland) 32 increasing voice/inﬂuence 234 marginalisation 221, 227, 230 non-state actors, role in improving position 285 patronising attitudes to (in international instruments) 234 security 9; descriptions of 222, 223–9; integrated approach, need for 237; interactions with notion of 218–20; needs 236–7; theoretical perspectives on 219 sexual harassment 226 as victims 218 views/expectations of law 218, 219, 223–9, 232, 242, 277

330 women (cont.) violence against 228–9, 235, 241 see also gender; international law; Northern Ireland Women’s International League for Peace and Freedom (WILPF) 278 Wood, Philip R. 270 World Bank 189 lending criteria 50–1

index Yugoslavia (former) see Balkans; Bosnia-Herzegovina; Kosovo Zahir Shah of Afghanistan 126 Zaire see Congo, Democratic Republic of Zeid Report 207, 208, 209, 210 Zimbabwe 99 Zwanenburg, Marten 204