Promoting the Rule of Law in Post-Conflict States

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Articles

  1. Past Training: Conflict, Rule of Law and Local Security
  2. Rule of Law after War and Crisis
  3. We provide analysis, education, and resources to those working for peace around the world.
  4. The Rule of Law: What It Is and Why It Matters for Postconflict States
  5. Promoting the Rule of Law in Timor-Leste by Laura Grenfell :: SSRN

These can only be realised through a multi-sectoral approach. Interventions to address the rule of law must be reinforced by parallel efforts to demobilise armed actors in line with the CPA, combat corruption and ensure accountability and transparency in all of the structures of governance.


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A comprehensive and integrated approach to rule of law will require a broader framework that addresses:. The need for institutional capacity building in all these sectors is enormous. While in the North, existing structures will need rehabilitation and reform, the South will need massive support to establish institutions from scratch. Professionals in the North will be in need of upgraded training and refresher courses while the South must acquire a whole new workforce of professionals. Adopting an incremental approach, the JAM has identified the following immediate and medium-term objectives:.

In the final analysis, peace can only be built and sustained where capacity building addresses both institutional and attitudinal reform. As in any other post-conflict situation where societies are shattered and deeply affected by a protracted civil war, confidence building must be a cross-cutting priority that underpins humanitarian, developmental and political action. Without an attitudinal change towards justice and equality all other efforts will be undermined; ultimately, the social contract between the state and its citizens is restored and sustained by the human component of that society.

While a formal peace agreement can kick-start the process of peace building, the effects of armed conflict often require a long process of behavioural adjustment. New and progressive ways of advocacy and training will be required. Field-based experiences prove that legal and structural reform alone is not sufficient in promoting respect for human rights in post-conflict situations. Rather, efforts must also be made to assist national stakeholders to acquire a deeper comprehension of universal human rights and the ethical standards inherent in Sudanese culture.

Programmes must be aimed at cultivating positive attitudes and healthy belief systems, which can replace negative attitudes that reinforce a violent culture. National stakeholders must be supported and given the tools to unearth their own powers to have a positive impact on their environment. Only then can we truly build the capacity of national stakeholders to integrate human rights and core values of justice in their own sphere of power, day-to-day life and responsibilities.

Finally, progress indicators must be redefined. The overriding objective of the rule of law is to restore a viable social contract between the citizens and the state — a contract that protects the full spectrum of human rights, be they civil and political, or economic, social and cultural. Against this objective, the impact of an effective rule of law programme must, ultimately, be measured not by the number of policemen or lawyers trained but rather by the degree of safety, justice and empowerment experienced by the citizens of Sudan.

She is the author of Freedom from fear: promoting human security for the return and reintegration of displaced persons in Sudan — A protection assessment by the IRC, May [1]. Email: yasmine. This article is written in a personal capacity and does not necessarily represent the views of the UN. Users are free to read, download, copy, distribute, print or link to the full texts of articles published in FMR and on the FMR website, as long as the use is for non-commercial purposes and the author and FMR are attributed.

Details at www. Skip to main navigation. One of the major challenges affecting post-conflict societies and emerging democracies is the establishment of a strong system of constitutionality, rule of law, and an independent, impartial judiciary. Failure to establish democratic rule of law and governance is often one of the contributing factors to renewal of conflict, and lack of economic growth and development.

Past Training: Conflict, Rule of Law and Local Security

Thousands of lawyers are therefore working every day, around the world for organizations such as the United Nations Development Program, United Nations Peacekeeping, the World Bank, the U. Finally, economic power sharing seeks to distribute wealth and income among groups in such a way as to prevent any one group from dominating state-controlled economic resources. Means of achieving this include designing preferential policies or rules that call for the distribution of economic resources among rival groups Weiner , assigning ownership of a natural resource to a region within the postwar state, and giving responsibility for state-controlled resources to a group representative by appointing her to a commensurate position in the government Hartzell Are particular dimensions of power sharing likely to play a more significant role than others in the development of the rule of law?

While we test for this possibility, our view is that the different dimensions of power sharing are mutually reinforcing and that post—civil war countries are most likely to promote the rule of law when war-ending settlements include multiple forms of power sharing.

Rule of Law after War and Crisis

The logic behind this claim is twofold. First, because insecurity can be experienced along multiple dimensions in postconflict societies, designing various means of addressing these forms of insecurity can help to make actors feel more secure. Not all forms of power sharing will be appropriate in every postconflict context. However, by agreeing to multiple types of power sharing, groups know that, should one type of power sharing fail, other measures can help check the power of their rivals Hartzell and Hoddie , These might take forms such as empowering groups to govern their homeland or ensuring they exercise greater control over the exploitation of natural resources.

In this sense, all aspects of power sharing have the potential to provide assurances to groups that will enhance their security. How do power-sharing structures help to advance the rule of law? More specifically, how does power sharing promote judicial independence, the concept we identify as central to our understanding of the rule of law? First, power-sharing measures can help to enhance the security of actors who constitute part of the apparatus of the state. Arrangements that call for sharing or dividing the political, military, territorial, and economic powers of the state among civil war rivals ensure that no single group representative will be in a position to control the reins of state power.

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Such arrangements also reassure political actors that those levers of authority cannot be used to threaten their very existence or to impose some other unacceptable cost Hartzell and Hoddie By providing a measure of security, power-sharing measures create an environment in which rivals have less need to worry that the power of the state may be used by others to exploit their safety or other vital interests. We expect the security-enhancing effects of power sharing to have a positive effect on judicial autonomy. This follows even if a judge herself is not a member of a minority group that has gained greater protections by being included in the apparatus of the state.

As long as judges believe that power-sharing measures make it more difficult for institutional actors to use the power of the state to target others, they should have more freedom to issue rulings without having to consider how others might perceive those rulings and what that might imply for their well-being. This should have the effect of persuading judges to decide cases on the basis of the law, as they have increased confidence that their rulings are unlikely to be overturned or challenged.

A second means by which power-sharing measures help build the rule of law in postwar societies is by providing a means of checking and balancing government power, a factor that is central in establishing the rule of law Helmke and Rosenbluth ; Melton and Ginsburg Although the types of checks and balances inherent in power sharing may appear rudimentary, especially when compared to those that exist in mature democracies, power-sharing institutions help restrain politically dominant actors by dividing state power among different groups.

This is particularly likely to be true of the executive, the actor that typically exercises the most influence over the judicial branch in states emerging from civil war. As a result, judges, aware of the institutional constraints that power sharing imposes on other government actors, will have more autonomy to decide cases in light of the law. Power sharing and the rule of law operationalized in terms of de facto judicial independence are distinctive concepts. The types of power-sharing measures the representatives of warring parties agree to should not be conflated with the kinds of formal rules and practices that typically allow judges to exercise judicial independence.

Civil war rivals do not agree to adopt power-sharing measures for the purpose of establishing the rule of law. Nevertheless, some level of judicial autonomy is likely to arise as an unintended effect of such agreements.

Judges who know that a framework of rules exists that places limits on the use of state power and who benefit from the sense of security that those rules provide should be more willing and able to assert some degree of judicial independence. We now turn to our tests of the relationship we posit between power sharing and de facto judicial independence. We employ a time-series-cross-section data set. The data set covers the time period — Our analysis includes only those years in which a country remains at peace following the end of a civil war.

If a country returns to violence, we do not include the years of conflict. We analyze civil wars that end via military victory, negotiated settlement, and negotiated truce, since settlements associated with all three forms of war termination can potentially call for the creation of power-sharing measures.

We employ Linzer and Staton's measure of de facto judicial independence as our dependent variable. Linzer and Staton develop the measure by extracting common information from eight extant indicators that measure judicial independence either directly or indirectly for different groups of countries and time periods. Values closer to 1 reflect higher rates of de facto judicial independence while a value of 0 indicates a complete lack of independence.

In order to illustrate how this measure performs in practice, we provide figures reflecting the levels of de facto judicial independence in two countries that experienced civil war. Cuba serves as our example of a country in which civil war ended with a military victory for one side, and provisions for power sharing among rivals are absent. Linzer and Staton suggest that the modest improvement in scores apparent after the turn of the century reflects the change of leadership from Fidel Castro to his less-controlling brother, Raul Linzer and Staton , Yet, even with these improvements, Cuba's scores in terms of judicial independence remain comparable to other poorly performing countries such as Iran and Myanmar Linzer and Staton , — Nicaragua lies at the other extreme.

We provide analysis, education, and resources to those working for peace around the world.

That country's civil war concluded on the basis of a series of negotiated accords signed in and , some of which provided for various forms of power sharing. Power sharing, our central explanatory variable, has four distinct dimensions: political, military, territorial, and economic. We operationalize power sharing using different approaches.

In initial analyses, we employ an aggregate measure of power sharing with values ranging from 0 to 4. A value of 0 reflects the absence of any power-sharing dimensions adopted following civil war; a score of 4 indicates a case of war termination in which all four of the potential dimensions of power sharing are included as part of the settlement. In other tests we disaggregate the power-sharing measure into its individual dimensions political, military, territorial, and economic in order to assess the extent to which any particular form of power sharing affects judicial independence.

While we are most interested in the effect power sharing has on judicial independence in the aftermath of civil war, we recognize that it is not the only factor that shapes judicial autonomy.

The Rule of Law: What It Is and Why It Matters for Postconflict States

In order to account for these other factors, we include control variables that we classify into three categories. The first group of indicators includes conditions, beyond power sharing itself, that are associated with the recently concluded civil war. Measures within this category are conflict duration and time since last settlement. We anticipate that wars of extended duration will encourage war-weary actors to support enduring solutions to conflicts that have proven challenging to resolve.

The effect of this should be to provide judges with more latitude to exercise their own judgment as the executive and other actors hesitate to act in a manner that could lead to the collapse of the settlement. We include a measure of time since last settlement to account for the likelihood that, with the passage of time, judges gain confidence in their ability to issue rulings without incurring a negative reaction by other political actors, thus resulting in increasingly higher levels of judicial independence.

Our second category of indicators consists of conditions associated with the economic and political contexts in which the postwar state finds itself.

Promoting the Rule of Law in Timor-Leste by Laura Grenfell :: SSRN

The variables that we include here are democracy, GDP per capita , whether or not a state has had earlier experience with British colonialism , and the size of the country's population. We anticipate that democracies will have a positive effect on judicial independence as such systems call for constitutional limits on the scope and use of governmental powers. Wealthier countries, as reflected in higher rates of gross domestic product GDP per capita , typically have less intense political competition Lijphart and should have sufficient resources to fund and protect an independent court system.

The final variable we include indicates whether or not a state has experience with British colonialism. We anticipate that exposure to the British common law system, with its tradition of respect for judicial independence, will produce postwar states that are better positioned to build the rule of law Mitchell, Ring, and Spellman While each of the variables described within this category thus far is hypothesized to enhance a country's respect for rule of law, we anticipate that population size will have a negative influence on our outcome of interest.